My Ex Won’t Sign the Divorce Papers Australia

Even if your ex spouse won’t sign the divorce papers, you can still obtain a divorce in Australia.

It seems to be a common cliché played out in American media: the ex won’t sign the divorce papers as a way to drag out the process because a divorce cannot occur unless both parties sign.

This may be true elsewhere, but in Australia you will only need your ex spouses’ signature if you are applying for divorce ‘jointly’.

Divorce applications can be done in one of two ways: by both parties jointly, or by only one of the parties.

So, even if your ex spouse won’t sign the divorce papers, it doesn’t necessarily hinder your ability to initiate the divorce process and eventually attain your divorce in Australia.

What Happens if Your Ex Spouse Won’t Sign Divorce Papers in Australia?

Divorce applications can be done in one of two ways:

By both parties jointly, in which case they are both Applicants; or
By only one of the parties, as the sole Applicant.

In the case of a joint application, both parties need to sign the papers in front of a qualified witness before it is filed.

If only one party is applying for divorce, only they need to sign the Application. The other party (the Respondent) does not sign, but the Applicant must prove to the court that the Respondent has been duly served.

There are some benefits to making a joint application; for instance, you will not need to arrange formal service of the Application on the other party as you are both Applicants.

However, for many possible reasons, it is not always practical, comfortable, or safe to make a joint application for divorce.

Whatever the reason may be, a sole application can just as easily be made and, provided that you follow the rules and requirements set by the Court, this is usually a straightforward process.

Sole Divorce Applications: What to Do When Ex Won’t Sign the Divorce Papers in Australia

If you apply for a divorce as a sole Applicant, one of the most important things you must do is arrange for the papers to be served on your ex spouse.

This means that your ex will need to be provided with a copy of your filed Application, together with the other required papers.

How To Serve Divorce Papers

Under the Family Law Rules, personal service is required, meaning that hard copies of the papers are handed to the other party in person.

Importantly, the Applicant cannot serve the divorce papers themselves; this must be done by a third party, such as a process server.

The Respondent may be asked to sign a form to acknowledge that they have been served; however, this is not a requirement. Service can be affected even if the Respondent won’t take the papers that are being handed to them.

The person that serves the papers will need to complete an Affidavit of Service, which must be filed with the Court, to confirm that service was completed.

There are some cases where a divorce is not so straightforward, for instance:

where the Respondent cannot be served personally or cannot be located;
where the parties have been married for less than 2 years at the time of the application; or
where the parties have been living separately but under the same roof since the relationship ended.

There are additional requirements that must be satisfied to obtain a divorce in these cases.

Please note: The above applies to divorce applications filed throughout Australia except for Western Australia. Independent advice should be sought from a lawyer who operates in this jurisdiction.

Contact Us

For more information about what happens if your ex spouse won’t sign the divorce papers in Australia, contact Bambrick Legal today. We offer a free, no-obligation 15-min consultation for all enquiries.