You do not need your spouse’s signature, agreement or cooperation to get divorced in Australia. Divorce is no-fault: the only thing you must establish is 12 months of separation and that the marriage has broken down irretrievably. One person can apply alone, and the divorce can be granted even if the other spouse objects, ignores the paperwork, or cannot be located.
If your spouse refuses to sign
File a sole application through the Commonwealth Courts Portal. Your spouse does not sign anything. Instead, the application must be served on them, usually by post or by a third party handing it to them, at least 28 days before the court hearing if they are in Australia, or 42 days if overseas. You cannot serve the documents on them yourself in person.
A spouse who disagrees can only oppose the divorce on narrow grounds, essentially by disputing that you have been separated for 12 months or that the court has jurisdiction. Not wanting the divorce is not a ground to stop it.
If your spouse cannot be found
You must first make reasonable efforts to locate them: contacting family and friends, last known addresses and employers, and searching online. If genuine efforts fail, you can apply to the court for substituted service, serving the documents another way, such as by email, social media, or through a relative, or for dispensation of service, where the court waives the service requirement entirely. You will need an affidavit setting out everything you tried.
If your spouse is overseas
You can still apply in Australia if you or your spouse is an Australian citizen, lives in Australia, or ordinarily resides here and has done so for at least a year. Marriages that took place overseas can be dissolved in Australia if the jurisdictional requirements are met; you will normally need your marriage certificate and, if it is not in English, a translation.
Things to watch
If there are children under 18, the court must be satisfied proper arrangements exist for their care before granting a divorce, and as a sole applicant you (or your lawyer) generally must attend the hearing. Remember also that once the divorce is final, you generally have only 12 months to bring a court application for property settlement or spousal maintenance, so do not let an uncooperative ex run down your clock on the money side either.
Frequently asked questions
Can my spouse stop the divorce by refusing to respond?
No. Once served, or once service is substituted or dispensed with, the application proceeds whether or not they participate.
What if my spouse says we were not separated for 12 months?
The court decides on the evidence. A clear record of when separation was communicated, messages, emails, changed living arrangements, helps. This is one situation where legal advice before filing is particularly valuable, especially if you were separated under one roof.
Do I need a lawyer to file for divorce?
Not necessarily. Many people file themselves. A lawyer becomes valuable when service is difficult, jurisdiction is unclear, your spouse is obstructive, or property and parenting remain unresolved.
Dealing with an uncooperative ex?
This is one of the most common situations we see at Garrison Lawyers, and there is always a path through. A one-off 90-minute consultation maps out your specific route, service, time limits, property and parenting, so an obstructive former partner stops controlling the timetable. Book through our consultations page or call (02) 4210 9288. We act for clients across Wollongong, Lake Heights, Shellharbour, Kiama, the Illawarra and the Shoalhaven.
Or start your enquiry right now
Prefer to skip the phone call? Tell us briefly what is happening and when suits you, and we will come back to you within one business day to confirm a time.
This article is general information only, current at the date of publication. It is not legal advice and does not take your circumstances into account. For advice about your situation, speak with a family lawyer.