My ex won t sign divorce papers Australia

In Australia, the only grounds for divorce are that the marriage has broken down irretrievably and there is no reasonable likelihood you will get back together.

Both parties aren’t obligated to sign the divorce application, if one spouse doesn’t want the divorce to proceed they have very limited grounds to oppose the divorce and it is likely the divorce will still take place.

Once your spouse has been served the divorce papers they can file a formal Response. This is a document that expresses when someone opposes the divorce and the legal reasons why the divorce Application should be dismissed. The Response is then served on you or your family lawyer.

Sole Divorce Application

If you make a sole application, you are known as the applicant and the other party is known as the respondent. With a sole application, there is a requirement that the application is served upon the other party (respondent), and that appropriate proof is provided to confirm that the application has been served.

Related Article: Applying For Divorce In Australia

How Do I Serve A Divorce?

Service is a requirement to allow the other party to be notified of the pending application for divorce involving them. It is not possible for you to personally serve the divorce papers on your spouse, instead someone 18 years or older will need to serve the divorce papers on your spouse. This can be a family member, friend or a professional process server.

Documents must be served on your spouse at least 28 days before the court hearing if they live in Australia. If they are overseas, the requirement is that documents are served at least 42 days before the hearing.

Documents can be served by post or by hand, and can be on your spouse personally or their lawyer, if their lawyer is willing to accept the documents.

If you’re serving your spouse by post, you’ll want to be confident they will actually sign and return the Acknowledgement of Service (Divorce) to you. If you are not confident that your spouse will comply, it is best to have them served by hand.

If your spouse refuses to take the documents from the server, the server can place them somewhere in the presence of your spouse, stating what they are, and this will fulfil service requirements.

Seeking Legal Advice

It’s advised that you obtain legal advice to understand your rights and responsibilities before apply for a divorce or other application in relation to a divorce. A lawyer can help explain how the law applies to your specific case.

If you have received a copy of an Application for divorce, this means your spouse has applied for a divorce and you have been served. In a sole application, your spouse (who filed the application with the Court) is known as the applicant and you (as the other party) are known as the respondent.

You should read the application as soon as possible and acknowledge you have been served.

What documents should I receive?

To be properly served, you should receive the following documents from your spouse:

• a copy of the Application for divorce
• a copy of the Marriage, Families and Separation brochure
• a blank Acknowledgment of service form, to be signed by you. See How do I acknowledge I have been served? below
• a copy of the Affidavit for eFiling signed by your spouse, and
• any other documents filed by your spouse at the time of the Application for divorce including the Marriage Certificate, any affidavit in support. These additional documents will vary.

How do I acknowledge I have been served?

When you were served with the Application for divorce, you should have also been provided with a form called an Acknowledgment of service (Divorce). You should sign the Acknowledgment of service (Divorce) and return it to your spouse. If you were served:

• by hand (in person, by someone other than your spouse, handing you the documents), you should have already signed the Acknowledgment of service (Divorce) and returned it to the person who served you.
• by post, you should have been provided with a pre-paid envelope. Place the signed Acknowledgment of service (Divorce) into that envelope, and post it like any other letter. You should do this as soon as possible. If you do not receive a pre-paid envelope when you are served, you are still required to sign the Acknowledgment of service and post it to your spouse.
• via your lawyer, your lawyer should sign the Acknowledgment of service (Divorce) on your behalf, and provide it to your spouse.

The applicant will then file the signed Acknowledgment of service with the Court to show that you have been served.

What else do I need to do?

If you agree with the facts in the application and want the divorce granted, you are not required to do anything further. You are also not required to attend the hearing. See Divorce hearing for details.

If you believe there is an error in the Application for divorce filed by your spouse or you do not want the divorce to be granted, you will need to file a Response to divorce as outlined below.

If the divorce is granted, it will be finalised one month and one day later, unless a special order is made by the Court to shorten that time. You will then be able to access your divorce order online from the Commonwealth Courts Portal. For details see How do I prove I am divorced?.

What if the application has errors of fact?

If you want the divorce granted but disagree with the facts in the Application for divorce, you may file (and serve) a Response to divorce. You need to state which facts you disagree with in the Response to divorce.

The errors might, for example, be that dates of birth are incorrect or the details regarding the children have changed. If you file a Response to divorce, you must attend the divorce hearing.

Can I oppose a divorce application?

If you do not want the divorce granted, you must complete, file and serve a Response to divorce and attend the divorce hearing (see Divorce hearing).

If you have been separated for more than 12 months, you can only oppose the divorce if:

• there has not been 12 months separation as alleged in the application, or
• you allege that the Court does not have jurisdiction to grant the divorce.

Note: jurisdiction means that you do not believe the Court has the legal power or authority to make a decision, such as a divorce order. See Can I apply for a divorce? for details.

You need to clearly set out the reasons why you do not want the divorce to be granted in the Response to divorce.

When do I file the Response to divorce?

If you want to file a Response to divorce, you need to file it:

• if served in Australia – within 28 days of the application being served on you, or
• if served outside of Australia – within 42 days of the application being served on you.

For information about filing the Response see How do I eFile?

You must also serve the Response to divorce on your spouse. See How do I serve family law documents? for a step-by-step guide.

If you file a response, you must attend the divorce hearing. If you do not attend, the Court may decide the divorce application in your absence. See Divorce hearing.

Practice directions

Practice directions are procedural guidelines issued by the Court. They complement legislation, rules and regulations. They provide specific direction about the practice and procedure that must be followed in certain types of proceedings.

Practice directions are issued by the Chief Justice/Chief Judge upon advice of judges of the Court, pursuant to the Court’s inherent power to control its own processes, as well as the power under the Federal Circuit and Family Court of Australia Act 2021 for the Court to give directions about the practice and procedure to be followed in a proceeding.

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