In Australia, both parties do not have to agree to a divorce to be granted.
Australian law operates on a no-fault divorce system, meaning the only requirement for divorce is proving that the marriage has broken down irretrievably.
This is usually demonstrated by living separately and apart for at least 12 months with no likelihood of reconciliation.
Even if one party does not consent to the divorce, the other party can still file a sole application for divorce.
However, in the case of a sole application, the applicant must serve the divorce papers to the other party.
If this is done correctly and the 12-month separation period is proven, the divorce can proceed regardless of the other party’s agreement.
How to File a Sole Application for Divorce?
Do both parties have to agree to a divorce in Australia, and how to file a sole application for divorce?
Our family lawyers can assist with the filing of a sole divorce application.
Filing a sole application for divorce in Australia involves the following steps:
Obtain the Application: The divorce application form is available online from the Federal Circuit Court website. Choose the option for a sole application.
Complete the Application: Fill out the application with information about your marriage, separation, children (if any), and other relevant details. Ensure all sections are completed accurately.
Prepare Affidavits for Children: If there are children under 18, prepare an affidavit detailing the care arrangements for the children, including who they live with, go to school with, and spend time with.
Sign and Witness the Application: Once you’ve filled out all parts of the application, sign it in the presence of a qualified witness, such as a lawyer or Justice of the Peace.
Make Copies: Make at least two copies of all your documents—one for yourself, one for your spouse, and the original for the court.
File the Application: Apply online through the Commonwealth Courts Portal. You’ll need to pay a filing fee, though you might be eligible for a reduced fee in certain circumstances.
Serve the Application: As a sole applicant, you are responsible for serving a copy of the application to your spouse. This must be done by a third party over 18, not by you. After serving, the server must fill out an Affidavit of Service by Hand.
Attend Court: If you have kids below 18 years old, you must be present during the court hearing. However, if you don’t have any minors under your custody, you can opt not to attend unless you prefer to do so.
Need a Lawyer?
Can The Other Party Contest the Sole Application for Divorce?
Yes, the other party can contest a sole application for divorce in Australia. However, they can only dispute the facts on which the claim is based, such as the date of separation, whether you’ve been separated for at least 12 months, and whether adequate arrangements have been made to care for those under 18.
To contest a divorce, the respondent (the person who didn’t apply) must fill out a Response to Divorce and file it with the court before the hearing date. They will also need to attend the court hearing.
Australia’s no-fault divorce system means the court doesn’t consider why the marriage ended. Suppose the court is satisfied that the marriage has broken down irretrievably, and there’s no reasonable likelihood of reconciliation. In that case, it will grant the divorce, even if it’s against the wishes of one party.
Also read: Can You Marry More Than One Person In Australia?
Joint vs Sole Divorce Application: Similarities and Differences
Do both parties have to agree to a divorce in Australia? What are the similarities and differences between joint and sole divorce applications?
In Australia, you can file two types of divorce applications: a joint application or a sole application. Here are some similarities and differences between the two:
Similarities
Grounds for Divorce
Do both parties have to agree to a divorce in Australia? What are the grounds to file for it? Both types of applications require that you and your spouse have been separated for at least 12 months with no likelihood of getting back together.
Form and Information
The divorce application form is the same for both, requiring similar information such as details about your marriage, separation, and children (if any).
Filing Fee
Both joint and sole applications require the payment of a filing fee, though you might be eligible for a fee reduction under certain circumstances.
Differences:
Agreement
Do both parties have to agree to a divorce in Australia? A joint application means that both spouses agree to the divorce, while a sole application is filed by one spouse, irrespective of the other’s agreement.
Service of Documents
There is no need to serve documents in a joint application since both parties are involved in filing. The applicant must serve a copy of the divorce application to the other spouse for a sole application.
Attendance at the Hearing
For a joint application, either party doesn’t need to attend the court hearing unless there are children under 18. For a sole application, the applicant must attend the hearing if there are children under 18.
Response to Divorce
With a sole application, the other spouse can file a Response to Divorce if they wish to dispute the application. This is not applicable in a joint application as both parties have already agreed to the divorce.
Ensuring Fair Child Arrangements in a Contested Divorce
Our client, the ex-husband of a sole applicant for divorce, sought Walker Pender Group’s assistance, concerned about the absence of arrangements for visitation rights and custody of their three children.
Walker Pender Group swiftly sprung into action. We assisted the client in preparing a detailed Response to Divorce, highlighting the importance of a fair and reasonable parenting plan.
We prepared comprehensive supporting documents, presenting evidence of our client’s active involvement in his children’s lives, emphasising the psychological benefits of their father’s continued involvement.
Our meticulous preparation resulted in the court adjourning the divorce hearing, giving the couple time to establish an agreeable parenting plan. The client’s ex-spouse eventually agreed to a fair custody arrangement and visitation schedule.
Through the expertise of Walker Pender Group, our client successfully contested the initial divorce application, ensuring the best interest of their children while securing his rights as a father.
Curious About Do Both Parties Have To Agree To A Divorce In Australia?
Walker Pender Group can clarify the answer to the question: Do both parties have to agree to a divorce in Australia?
Our experienced lawyers will guide you through the process, regardless of your situation. Contact us now to understand your rights and responsibilities during this challenging period.
