Imagine a mountain climber preparing to ascend a steep peak. The journey may seem daunting at first, but with the right map and gear, the climb becomes manageable.
Well, navigating the path of applying for divorce through a sole application in Australia can feel much the same.
But fear not, the article we’ve put together here serves as your map, providing valuable insights to help you answer the question, “can you get a divorce without the other person signing in Australia?” and reach the summit.
Key Takeaways
- Sole divorce is possible in Australia when a marriage has irretrievably broken down and the couple has been separated for at least 12 months.
- Serving documents without the other spouse’s signature can be done through alternative measures, such as personal service or substituted service.
- Seeking legal advice from a family law specialist, like a divorce lawyer, and accessing resources are essential steps to take during this process.
Understanding Sole Divorce Applications
A sole divorce, a term as craggy as the mountain peak, refers to the situation where one spouse initiates the divorce proceedings without the consent or agreement of the other spouse. You might wonder how this is different from a joint application for divorce? Well, a joint divorce application requires both partners to agree to end the marriage, much like two climbers working together to scale a mountain.
Filing a sole application for divorce, on the other hand, is like a solo expedition, with one spouse deciding to forge ahead without the other’s cooperation. In Australia, a sole application for divorce becomes a viable option when the marriage has irretrievably broken down and the couple has been separated for a minimum of 12 months.
But what about consent? Does the lack of it create a roadblock? Well, surprisingly, Australia’s no-fault divorce principle means that consent plays no part in the divorce proceedings. Think of it as a weatherproof tent, providing shelter from the storm of blame and fault.
Legal Requirements for Divorce in Australia
Before you begin the process of submitting a sole application for divorce, understanding the legal requirements in Australia becomes necessary. The initial requirement states that the marriage should have irretrievably broken down. Besides, the couple should have separated for at least 12 months. This 12 month separation period is sort of like a waiting period, ensuring that the decision to divorce is not impulsive, but rather a well-considered one.
Residency requirements also come into play. Either you or your partner must have resided in Australia on a continuous basis for at least 12 months prior to filing for divorce. Think of it as setting up a base camp before the climb. The necessary documents to file for divorce include the Divorce Application and Marriage Certificate. In cases where the respondent lives overseas, additional steps may be required to serve the divorce papers.
Role of Consent in Divorce Proceedings
The role of consent in divorce proceedings often raises questions. Is it a sturdy anchor, providing security, or an obstacle to be overcome? In Australian divorce proceedings, consent proves to be more of an anchor, offering stability and agreement in related arrangements such as parenting or financial matters. Yet, the absence of consent doesn’t hinder the process. An individual can file for a divorce even without their partner’s agreement.
Interestingly, divorce papers can be served without the other spouse’s consent in Australia. In legal terms, consent in divorce proceedings is a written agreement between the parties, approved by the court. This agreement, known as a consent order, is a legally binding document that formalises the terms of the divorce settlement.
Serving Divorce Papers Without the Other Spouse’s Signature
Continuing our climb, we encounter another challenging phase – delivering divorce papers without the other spouse’s signature. But don’t lose heart. Just as there are multiple routes to the summit, there are several methods to serve divorce papers when the other spouse’s signature is not available. Service, the mechanism through which court documents are provided to a party, is like the compass guiding us on our journey.
However, certain circumstances might make the conventional route impractical. For instance, if your partner is disabled, lives overseas, or is jailed. These special circumstances might necessitate alternative steps when serving divorce papers. Once the divorce papers are served, it is necessary to file the service documents online through the Commonwealth Courts portal, much like marking a checkpoint on our climbing route.
Personal Service
Personal service is the initial method of delivering divorce papers. This is typically done by a third person, who is at least 18 years of age or a professional process server, who delivers documents on your behalf for a fee. Think of them as a trusted guide, ensuring that your divorce papers reach their intended destination.
The procedure can be as simple as sending the papers by post to the respondent’s last known address. The necessary documents for personal service may include:
- The divorce application
- Pertinent court documents
- A sealed copy of the affidavit of e-filing
- An acknowledgement of service form
It’s like packing the right gear before embarking on your climb.
Substituted Service
If personal service proves unfeasible, substituted service becomes the alternative. Like a detour on a difficult trail, substituted service offers an alternative method of serving divorce papers. It is typically used when the respondent is evading service or their location is unknown.
When applying for substituted service orders, an Affidavit of Service (General) is required. This document informs the court that the spouse has been served in accordance with applicable court orders. Should you be unsure about how to complete the affidavit, it’s recommended to seek legal advice, much like seeking guidance from an experienced climber in navigating a tricky passage.
Dispensation of Service
At times, the court might provide a dispensation of service, exempting the obligation to serve court documents, such as divorce papers. Think of it as a rare shortcut on the climbing trail, sparing you a strenuous stretch. However, the court only necessitates that the applicant make reasonable attempts to serve the documents, without creating financial difficulties or incurring undue financial difficulties.
The Court Process for Sole Divorces
Starting with the filing of the divorce application, here’s what you need to know:
Filing the Divorce Application
The initial phase in the court process involves filing the divorce application. This involves submitting the required documents such as a copy of the marriage certificate and the application for divorce.
The process also involves serving the divorce application. This step requires providing a court document to the other party. It’s akin to informing the authorities about the planned route and expected timeline of the climb.
Preparing Affidavits
Preparing affidavits is similar to organising the correct equipment for the climb. In the context of a sole application for divorce, an affidavit is a written statement of facts that is sworn or affirmed to be true.
The affidavit should include a comprehensive account of all factual matters within one’s personal knowledge that support the case. This may comprise details about:
- the breakdown of the marriage
- reasons for seeking a divorce
- any pertinent incidents or events
- any supporting evidence or documentation
Court Hearing and Decision
The court hearing marks the concluding and decisive phase of the divorce process, analogous to reaching the peak after a tough climb. The court hearing involves:
- Attending a scheduled court date
- Presenting evidence
- Considering the evidence presented
- Making a decision regarding the divorce application.
The court hearing is not a mere formality but a crucial stage in the process. The documents necessary for a divorce court hearing in Australia may vary depending on the particular details of the case. However, some typical documents that may be required include the application for divorce, marriage certificate, and any pertinent financial or parenting agreements.
Dealing with Financial and Custody Matters
Addressing financial and custody matters represents a vital part of concluding the divorce process. In a sole application for divorce, like a joint one, there are a number of financial considerations to be taken into account, including:
- the division of assets
- spousal support
- child support
- debts and liabilities
Whether it’s dividing the jointly owned home or who gets the cars, property and asset division is a significant part of the process. In terms of child custody and support, determining who gets custody and how much support is to be provided needs to be decided with the child’s best interests as the key consideration.
Property Settlement
Property settlement in a sole application for divorce is much like divvying up the spoils after a successful climb. The process involves identifying and valuing the assets, liabilities, and financial resources, including bank accounts and businesses jointly owned, of the couple. The parties may negotiate privately or seek the assistance of the Federal Circuit and Family Court of Australia to reach a fair and equitable agreement.
However, it’s not always smooth sailing. A spouse may decline a property settlement by not participating in disclosure or mediation requests. This can lead to delays in the settlement process. But don’t lose heart, it’s still feasible to finalise a property settlement without the other spouse’s participation. This would usually involve the Court making the final decisions.
Child Custody and Support
Determining child custody and support arrangements can be a tricky part of the journey, much like navigating a difficult trail on the mountain.
The court takes into account the best interests of the child when making custody decisions, with the aim being that the child can have a meaningful relationship with both parents, as long as it is safe for them to do so.
When it comes to child support, the parents’ income plays a big role in determining the support provided, however, it’s important to note that parents of a child have the duty of providing for their children financially.
Seeking Legal Advice for Making a Sole Application Divorce
Seeking legal advice becomes vital when manoeuvring through the intricate terrain of applying for divorce solely. A divorce lawyer can provide:
- Guidance and expertise in navigating the legal process
- Information about your rights and responsibilities
- Help in preparing the necessary paperwork
- Representation in court if necessary
A family and divorce law specialist plays a vital role in sole divorce proceedings. They offer legal counsel and direction to the individual seeking the divorce, assisting them in understanding the legal process and their rights and responsibilities.
Family Law Specialists
Identifying a family law specialist to assist you through the process is as significant as having a reliable guide for a challenging climb. A family law specialist experienced in divorce matters offers legal advice and direction to individuals pursuing a divorce without the other person’s agreement or participation.
At Clarity Lawyers, we’re family law specialists, with significant experience in helping people to navigate divorces, including when they are applying for divorce solely. We’re based in New South Wales but our services are available Australia-wide. You can book a free, no obligation consultation here.
Summary
Navigating the path of a sole application for divorce in Australia can be as challenging as climbing a steep mountain. However, with the right knowledge and guidance, you can successfully navigate this journey. From understanding the legal requirements, serving papers, going through the court process, dealing with financial and custody matters, to seeking legal advice, each step brings you closer to the summit.
Frequently Asked Questions
Is one sided divorce possible in Australia?
Yes, one sided divorce is possible in Australia as long as the couple has been separated for at least 12 months.
What not to do during separation?
Avoid taking drastic actions like transferring assets, changing beneficiaries or cancelling insurance policies during a legal separation. Refrain from moving out of the family home without consulting with a lawyer first. Avoid speaking negatively about your partner to mutual friends or family, as this will not help your case. Most importantly, do not enter into any new contracts on behalf of your spouse.
Do both parties have to agree to a divorce in Australia?
In Australia, a divorce can be granted if the marriage has broken down irretrievably and the parties have been separated for more than a year. There is no need for both parties to agree to the divorce in order for it to proceed.
