You can apply for a divorce on your own without your former spouses 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. Remember to be prepared with all relevant documents such as a passport, citizenship certificate and marriage certificate. 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’.
What are the differences between a sole or joint application?
Sole Applicants:
- Filed by One Spouse: Only one spouse initiates the divorce.
- Service Required: The filing spouse must serve the divorce papers to the other spouse.
- Proof of Service: The filing spouse must provide proof that the other spouse was served.
- Court Attendance: Required if there are children under 18; the applicant may need to attend the hearing.
- Respondent’s Role: The other spouse can agree, contest, or ignore the application.
Joint Applicants:
- Filed by Both Spouses: Both spouses agree and jointly apply for the divorce.
- No Service Needed: Since both spouses are aware and in agreement, no service of papers is required.
- Mutual Agreement: The application itself serves as proof of agreement.
- Court Attendance: Usually not required, even with children under 18, unless the court requests it.
- Simpler Process: Typically smoother and quicker due to mutual cooperation.
In summary, a joint divorce application is more straightforward, reflecting mutual consent. A sole application is used when one spouse must proceed independently, requiring additional steps like serving papers and providing proof of service.
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 divorce application documents, several steps must be followed to ensure the process moves forward correctly:
- Acknowledgment Form:
- Your former spouse will be required to sign an acknowledgment form to confirm that they have received the divorce documents. This form serves as proof to the court that your spouse has been properly notified of the proceedings.
- Affidavit of Proof of Signature:
- You will need to sign an affidavit of proof of signature. This affidavit verifies that the signature on the acknowledgment form is indeed that of your former spouse, ensuring the authenticity of the notification process.
- Process Server’s Affidavit:
- The process server, who delivered the documents, will file an affidavit with the court. This affidavit will include details such as the date, time, and location of the service, providing a clear record of how and when your spouse was served.
- Filing with the Court:
- Once all required documents, including the acknowledgment form, affidavit of proof of signature, and the process server’s affidavit, have been obtained, they must be filed with the court. This step must be completed prior to the hearing date to ensure that the court has all necessary documentation to proceed with the case.
This sequence of actions ensures that the court is fully informed and that the divorce process adheres to legal standards, facilitating a smoother progression towards the final hearing and decree.
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?
Whether you need to attend court for a sole divorce application depends on several factors, particularly if you and your spouse have children under the age of 18.
Key Points to Consider:
- Children Under 18:
- If you and your spouse have a child who is under 18 years old, you will be required to attend court for the hearing of the sole divorce application. This requirement ensures that the court can address any issues related to the welfare and custody of the child.
- Opposing the Divorce:
- If your spouse opposes the divorce, they will also be required to attend court for the hearing. This allows the court to hear both sides and make a fair determination based on the presented evidence and arguments.
- Requesting Remote Attendance:
- If you are unable to attend the court hearing in person, you can request to appear by telephone or video conference. This accommodation is often granted to ensure that all parties have the opportunity to participate fully in the proceedings, regardless of physical or logistical constraints.
- No Children or Non-Contested Divorce:
- If there are no children under 18 involved and your spouse does not oppose the divorce, you may not need to attend the court hearing in person. In many jurisdictions, uncontested divorces can be processed with minimal court appearances, relying on the submitted documentation to make a decision.
- Legal Representation:
- Having legal representation can sometimes allow you to avoid attending court in person, as your lawyer can represent your interests and handle procedural matters on your behalf.
Practical Steps:
- Check Local Court Requirements:
- Ensure you understand the specific requirements of your local court system, as procedures can vary widely by jurisdiction. This includes deadlines for requesting remote attendance and any documentation you may need to provide.
- Prepare Necessary Documentation:
- Make sure all required forms and affidavits are completed accurately and submitted on time. This includes any evidence supporting the divorce and information regarding child custody, if applicable.
- Consult with an Attorney:
- Consulting with a legal professional can help you navigate the process more smoothly, ensuring that you meet all legal requirements and deadlines.
In summary, whether you need to attend court for a sole divorce application largely depends on whether you have children under 18 and if the divorce is contested. If attendance is required but you face challenges in appearing in person, you can request to participate remotely. Always check the specific requirements of your jurisdiction and seek legal advice to ensure you are fully prepared.
