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One Sided Divorce
– How to Get Divorced Without Co-operation From Your Ex

Couple arguing over signing divorce papers - a one sided divorce may be necessary
Want to get a divorce but your ex is making it difficult? Whether they are simply refusing or you can’t locate them, it is still possible to apply for divorce on your own.

When are sole applications for divorce necessary?

Usually, married couples apply for divorce together. But that isn’t always possible.

There are two main reasons why you’d need to apply on your own.

  1. Your ex doesn’t want to get a divorce.
  2. You cannot locate your ex.

Mutual Divorce vs One Sided Divorce

Mutual Divorce

The process for mutual divorce, also called joint application divorce, is as follows

  1. Separation for a minimum of 12 months.
  2. One spouse fills out the divorce application.
  3. The other spouse reviews and signs the application.
  4. The application is filed to the Court online.
  5. A hearing date is allocated.
  6. Court hearing date arrives. You do not need to attend.
  7. Divorce is granted if you have met all the requirements.

One Sided Divorce

A one sided divorce, also called sole application divorce, is not always as straightforward. However, as long as your ex can be served, the process typically goes as follows

  1. Separation for a minimum of 12 months.
  2. One spouse (the applicant) fills out the divorce application.
  3. Once satisfied all criteria have been met, the Court sets a hearing date.
  4. Applicant must have the divorce application served on the other spouse (the respondent) by post or in person by a third-party nominated server at least 28 days before the hearing date.
  5. The respondent signs the Acknowledgement of Service form, the applicant signs an Affidavit of Proof of Signature form, and the nominated server will sign an Affidavit of Service.
  6. All forms are filed to the Court.
  7. Court hearing date arrives. If you have kids under 18, you or your lawyer must attend.
  8. Divorce is granted if you have met all the requirements.
Woman signing for service of divorce application papers in one sided divorce
Photo by Mikhail Nilov on Pexels

My ex won’t sign divorce papers

Don’t panic. An ex refusing to sign is frustrating, but the Court can still grant your divorce.

If your ex is served the divorce application but refuses to sign the Acknowledgement of Service, the nominated server will mark this refusal on the Affidavit of Service and then sign it in front of a Justice of the Peace. These forms are then filed to the Court in support of your divorce application.

I can’t locate my ex

If you’ve been unable to serve your ex because you don’t know where they are, the Court will want proof you’ve taken reasonable steps to find them first. This requires you to make an Application in a Proceeding with an affidavit.

If the Court is satisfied that you have done all you can to locate and serve your ex, you may be able to apply for substituted service or an order to dispense with service.

A substituted service allows documents to be served by email, post, social media or by a third party that can bring the application to the attention of your ex.

A dispensation of service completely waives the requirement to serve the documents. This is only allowed in special circumstances.

Can my ex dispute a divorce order?

There are only two grounds on which your ex can dispute a divorce.

  1. You have not been separated for 12 months.
  2. There is no jurisdiction.

In cases where someone disagrees with the separation dates, or there was a period where reconciled, there may be a dispute over whether you have met the separation requirement. In this case, your ex will need to file a document to the Court and explain it at the divorce hearing. The same will need to be done if there are any facts on the divorce application they disagree with.

Jurisdiction can pose a problem for spouses married overseas. However, you can apply for a divorce in Australia if you meet (and can prove) one of the following criteria.

  • You or your spouse is an Australian citizen
  • You or your spouse live in Australia or have lived in Australia for the past 12 months
  • You consider Australia your home and intend to live here indefinitely

Is there automatic divorce after a long separation in Australia?

There is no such thing as an automatic divorce. Separation for one year is the minimum requirement to be able to get a divorce.

The purpose of this article is to provide general information. It does not constitute legal advice. Please get in touch to discuss your specific circumstances.

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