Separation is when you and your partner stop living together in a domestic or marriage-like relationship. Your partner does not have to agree to the separation, however they need to know that you think the relationship is over. There are no legal processes to become separated; it is something that you and your partner will have to discuss. Some separated couples stay on good terms. They may even catch up for coffee and have a laugh while they happily remember the good old days. When it comes time to get a divorce, they politely arrange to meet to sign the paperwork – “…and hey – since we are catching up anyway, why not catch a movie after filing our divorce papers with the Court?” Sound familiar? Probably not! That’s because the above scenario rarely, if ever, happens. To those couples who maintain that level of amicable communication and respect following separation – we salute you! But in the real world, it’s much more common to find that the reality of ending a marriage can cause deep emotional rifts between the parties which takes time to fully heal, if they ever do. In this difficult situation, you may be asking if you need your ex’s consent to get divorced.
Often the reason the parties separated in the first place was due to a breakdown in communication between them. After separation, parties are usually keen to limit contact with their ex and keep the lines of communication to a bare minimum. In other cases, parties drop out of contact entirely with their former partner. This can happen slowly or more suddenly, particularly if one party decides to pack up and relocate across town or to a new city, state (or country!) for a fresh start.
Before you know it, months and years can easily drift by without parties having any contact with one another. In some cases, separated couples stay in touch with their ex in-laws or may have mutual friends in common with their ex-spouse. In this way, even without a direct line of communication with the other party, they may hear news from time to time about what the other party is up to or where they are living.
For others, all communication can be cut off and people are left without any real information about where the other party is located, whether they are employed or not, and what they are up to generally in their lives.
Why do I need to know where my ex is anyway?
When you apply for a divorce in Australia, it is a legal requirement that in addition to the parties being separated for 12 months, both parties have been made aware that the divorce application process has been commenced.
For separated couples who are in touch with each other and willing to cooperate, this issue is easily solved – they can agree to make a joint application to the court for divorce. This simply means they have both signed off on the divorce application papers before they are lodged with the court. With a joint application, the court knows from the outset that both parties are aware that the divorce process is underway, because they have each signed the divorce application papers in the presence of a qualified witness, such as a Justice of the Peace.
So, if making a joint application to the court is an easy solution for couples who agree to cooperate, what about for everyone else who is not in a similar position?
Can’t I just apply for divorce without my ex?
If, for whatever reason, you want or need to apply for a divorce on your own, you can absolutely do so. This is called making a sole application for divorce. The court allows a single person to apply for divorce by themselves, without the other party signing the divorce papers.
We can hear you asking: “So, what’s the problem then? If I don’t need to apply together with my ex, why can’t I just lodge a sole application for divorce and be done with it?”
The reason is this: even in the case of a sole application, it is still a requirement that the other party be made aware that you have filed a divorce application with the court. Not only must the other party be notified, they must receive a copy of your signed and sealed application for divorce papers.
Delivering a copy of your divorce application to the other party is known as ‘service’ or ‘serving’ your divorce application on your ex. The court also requires that ‘service’ must be either by post or by hand.
- Service ‘by hand’ is what it sounds like. It means that an adult (other than yourself) must personally hand the divorce papers to your ex-spouse. There are professional agencies who can do this for you, known as ‘process servers’ or ‘service agents’. In most Australian cities, professional process servers charge between $100 – $150 for serving divorce papers in metropolitan areas. If your ex-partner is not cooperative or refuses to take the divorce papers, the process server can simply place them at their feet and walk away.
- Service by post is also exactly what it sounds like – you simply post a copy of your sealed application for divorce to the other party at an address where they will receive it, together with a second court form known as an Acknowledgment of Service. The problem with service by post is your ex must sign the Acknowledgment of Service form and return it to you within a short timeframe (think weeks not months). Service by post is a great option if you are confident the other party will sign the Acknowledgement of Service form and return them to you promptly.
How can I arrange to serve my ex when I don’t know where they are?
Rest assured – there is a solution for this situation, and you will still be able to proceed with your divorce application and get divorced from your ex.
The first thing to remember is that it is a legal requirement to serve your ex. The only way to get around this requirement is to get special permission, or “leave” from the court. There are a couple of the ways that the court will typically deal with this situation:
- give you special permission to substitute normal service (normal = service by post or by hand directly to your ex-spouse) and instead allow you to serve the sealed application for divorce on a ‘third party’ (some other person) who the court is reasonably satisfied will pass it on to your ex-spouse. For example, the court may allow you to serve the application for divorce on your ex’s parents or other close relative or friend who will be likely to pass it on to your ex. This type of special permission from the court is known as substituted service. In these cases, it is not typically expected that your ex will have to sign and return the Acknowledgment of Service form.
- another option the court has up its sleeve, is to entirely dispense with the requirement to serve your ex-spouse at all. In these cases, your divorce application would be permitted to proceed despite the fact that you have not served a copy of your application for divorce on your ex. This is known as dispensation of service.
However, before allowing substituted service or dispensation of service, the court will first need to be satisfied that you have made all reasonable efforts to locate your spouse. Making a reasonable effort to find your ex may include taking steps such as:
- Attempting to make contact your ex via their last known postal address, mobile number or email account;
- Attempting to make contact with your ex’s friends and relatives to enquire about your ex’s current whereabouts / contact details;
- Attempting to contact your ex via their last known employer; or
- Searching their name on social media platforms and sending them your sealed application by a messaging service
Please note, it may not be appropriate to take steps to contact or locate your ex-partner in cases where there has been a history of domestic violence. You should be especially cautious if there are domestic violence restraining orders or intervention orders in place. Seek legal advice first if this applies to you and you are unsure of your options.
Once the court has granted special permission for substituted service or dispensation of service, this will allow your application for divorce to move forward toward the final divorce order being made.
The process
- Choose whether you wish to make a Sole Application for Divorce or Joint Application for Divorce. If you don’t know where your ex is located, then we assume you will be opting to make a Sole Application. The next step will be to prepare your application for divorce and ensure the contents are correct and accurate to ensure it will be accepted by the court.
- Once you have lodged your application with the court, the court will place the court seal (a red stamp) on the application to confirm it has been officially lodged. A sealed (stamped) copy will then be provided to you so you can then serve the sealed copy on your ex-spouse.
- If you have undertaken all reasonable steps to locate your spouse, but were unsuccessful, you will then need to file an extra form with the court requesting substituted or dispensation of service. This form is known as an Application in a Case and should be filed together with an affidavit form. In the affidavit form you will need to provide details and explain to the court about the circumstances of your situation and why you are unable to locate or serve your ex by hand or by post.
- Once you have filed your Application in a Case and affidavit, you will need to attend the court hearing date set by the court. It is most likely that the Application in a Case will be considered on the same hearing date you were allocated by the court when you first lodged your application for divorce.
From this point, once the court has approved your request for substituted service or dispensation of service, you simply need to follow any final directions and orders of the court and your divorce will be finalised at the next court hearing date.
HOWEVER, you must be aware that a 12 month time limit will commence from that date for you to come to court for a property settlement. Getting divorced simply gives you the ability to remarry; it does not involve finalising your financial position in any way.
So as you can see, whether or not your ex refuses to sign the divorce paperwork will not inhibit your ability to get a divorce. Our team of experienced family lawyers will be able to help you every step of the way. Give us a call on (03) 9793 7888 or send us an email at admin@justfamilylaw.com.au to organise an appointment to help you with your divorce.