You can apply for a divorce on your own without your former spouse's consent, this is called a sole application for divorce. You might need to do a sole application for divorce if:
- Your former spouse does not want to get a divorce; or
- You are unable to locate your spouse.
So long as you can prove that your marriage has become 'irretrievably broken down', you can establish the grounds for divorce.
In saying that, all partners have the right to know and be informed about the divorce hearing. Accordingly, there are strict deadlines when submitting court documents. Should your partner oppose a divorce, they can file a response prior to the hearing.
Your spouse is required to both receive, read and sign the sole divorce application . This is done by way of a 'service of documents'.
How do I serve a sole divorce application?
In order to serve the sole divorce application, your application should be served at least 28 days prior to the hearing date (should your spouse be in Australia or overseas).
Service must be delivered by hand, it must be delivered by a person other than yourself – for example, a friend, relative or Process Server.
What is a process server?
We use organisations called 'Process Servers' whose job it is to find and give people documents. Once they have effected service, they complete an 'Affidavit of Service' swearing that they delivered the documents to the other party. The affidavit will then need to be filed with the Court. This is what is called 'Proving Service.'
What will happen when they receive the divorce application?
Once your former spouse has received the documents they will be required to sign an acknowledgement form to confirm that they have received it.
You will be required to sign an Affidavit of Proof of Signature to verify their signature.
The process server will also file an affidavit which includes the details of the service, such as date, time and location.
Once all of the documents have been obtained, the documents must be filed to the Court prior to the hearing date.
What if my spouse refuses to sign?
Should your spouse refuse to sign the application, you will then have to use a Process Server to deliver the documents, providing them with a photo of your spouse. The Process Server will then be required to sign an Affidavit stating that the documents have been successfully served.
What if I don't know where my spouse lives to serve them?
In the instance that you are unaware of where your spouse lives, you will be unable to serve documents to them. When this scenario occurs, you must prove that you have attempted to locate your spouse. The methods that you have attempted to use must be recorded in an Affidavit. These methods include, but are not limited to:
- Trying their last known address;
- Asking their family and friends;
- Ask at their place of employment;
- Placing notices in the newspapers; and
- Anything else to prove that you have attempted to try and find them.
Once you have attempted these methods, you are then able to apply for either:
- A substituted service – such as serving the documents to another person who can then pass them to your spouse; or
- An order to dispense with service.
Will I need to attend Court for a sole divorce application?
You will be required to attend Court for the hearing of the Sole Divorce application should you and your spouse have a child who is aged 18 years old or under. Your spouse will only be required to attend Court for the hearing should they oppose the divorce. Should you be unable to get to Court to attend the hearing in person, you can request to appear by telephone.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.