Divorce without consent, is it possible?

Insight Legal Solutions: husband signing paperwork during divorce without consent

There have been countless times over the past decade that I have heard a client say their ex will not sign the divorce papers until this happens, or that happens.  This usually revolves around using the divorce as a bargaining chip to negotiate parenting arrangements, financial agreements or property settlements.

My clients in these situations are always so happy to hear me say “you don’t need their consent … you can do a sole application!”  There are very limited grounds upon which someone can object to a divorce application noting that the main thing you need to show the court is that there has been an irretrievable breakdown of the marriage – which is usually evidenced by a separation period exceeding 12 months.

There are two ways to obtain a divorce in Australia – a joint application and a sole application. 

  •  A joint application is handy where possible, particularly if you have kids under 18, as it means no one has to go to court and no one needs to serve documents on the other. A joint application is signed by both parties, filed with the Court online and in due course it will be looked at by a Registrar of the Court and the divorce order will be issued.  
  • sole application is a bit trickier but a great option if you are not so amicable with the other side, if they are using the divorce as a bargaining chip or if they do not want to ‘consent’ to the divorce. The application is signed and filed by just one party and then served on the other party. You then must prove to the Court that the other party has been served properly in accordance with the Rules of the Court.  If there are children of the relationship who are under 18 then you or your lawyer will need to appear at the divorce court hearing before a divorce order is made.   The reason why an appearance is required is so that the Court can satisfy themselves that there are proper arrangements in place that provide for the children’s care, welfare and development.  This usually is not a difficult hurdle to jump over and the divorce is usually granted at the divorce hearing and a divorce order is issued in due course.

Other things that might interest you about applying for a divorce:

  • You have to be separated for 12 months before a divorce can be applied for.
  • You can be separated under the one roof but special conditions apply, requiring some additional information needing to be provided to the Court.
  • Divorce applications can be objected to but only on very few grounds given Australia’s no-fault divorce theory.
  • A divorce order is not effective until 1 month and 1 day after the divorce order is made by the Court  (so approximately one month after your divorce hearing).
  • Once a divorce is granted, the clock starts ticking on limitation periods relating to property settlements.

For more information on how we can help you with your divorce (at a fixed fee!) please contact us on 02 4408388 to make an appointment.  At Insight we are all Accredited Specialists in Family Law, assuring you of our proven expertise in our primary area of practice – family law.