Understanding Divorce When One Spouse Refuses to Cooperate
A common concern for separating couples is what happens if one spouse refuses to sign the divorce papers. Many people mistakenly believe that both parties must agree to the divorce for it to proceed. However, in NSW, you can still obtain a divorce even if your ex refuses to cooperate.
Australia follows a no-fault divorce system, meaning the only legal requirement is that the marriage has irretrievably broken down, demonstrated by 12 months of separation. If one spouse does not want the divorce, they cannot prevent it—but the process may require additional steps.
This guide explains how to proceed with a divorce if your ex refuses to sign, how to serve them with documents, and what legal options are available if they are uncooperative or missing.
Can You Get a Divorce Without Your Ex’s Consent?
Yes. Divorce does not require both parties to agree. If your ex refuses to sign, you can proceed with a sole divorce application.
- Joint Divorce Application – Requires both spouses to sign and cooperate.
- Sole Divorce Application – One spouse files for divorce and serves the papers to the other.
- The court will grant the divorce even if the other party refuses to participate, provided all legal requirements are met.
Key Insight: No one can stop a divorce in Australia if the marriage has irretrievably broken down and the separation period has been met.
Step-by-Step Process for Divorce If Your Ex Refuses to Sign
Step 1: File a Sole Divorce Application
- Submit a Sole Application for Divorce through the Commonwealth Courts Portal.
- Provide proof of 12 months of separation.
- Pay the required court filing fee ($1,060 standard or $350 concession).
- Ensure you have a copy of your marriage certificate (translated if not in English).
Step 2: Serve Divorce Papers to Your Ex (28–42 Days Before Hearing)
If you file a sole application, you must serve the documents to your ex at least 28 days before the court hearing (42 days if they live overseas).
How to Serve Divorce Papers:
- By Hand – A third party (friend, family, or professional process server) delivers the papers.
- By Post – If you expect your ex to acknowledge receipt.
- By Court Order (Substituted Service) – If your ex avoids service. ✔ Once served, your ex must sign an Acknowledgement of Service and return it.
Important: You cannot serve divorce papers yourself—someone else must deliver them on your behalf.
What If Your Ex Refuses to Accept the Divorce Papers?
If your ex refuses to sign or acknowledge the divorce papers, you still have legal options:
- Substituted Service – If your ex is avoiding service, you can ask the court for permission to serve them via email, social media, or a third party.
- Dispensation of Service – If you cannot locate your ex, the court may allow the divorce to proceed without serving them.
- Court-Ordered Divorce – If all reasonable efforts to serve your ex fail, the court can still grant the divorce.
Key Insight: The court will not delay the divorce just because your ex does not want to participate.
What If Your Ex Contests the Divorce?
Your ex cannot stop the divorce simply because they don’t want it. The only valid reasons to contest a divorce are:
- Disputing the 12-month separation period – Your ex must prove that you have not been separated for the required time.
- Disputing the court’s jurisdiction – This applies if neither party meets Australian residency requirements.
If no valid legal objections exist, the divorce will be granted.
Best Practice: Keep records of separation dates, financial independence, and living arrangements to counter any objections.
What Happens If Your Ex Is Missing?
If you cannot locate your ex to serve the divorce papers, you must:
- Show the court you have made reasonable attempts to locate them.
- Provide evidence of searching through social media, last known addresses, and contacting friends/family.
- Apply for dispensation of service if all attempts fail.
Court Decision: If satisfied with your efforts, the court may allow the divorce to proceed without serving your ex-partner.
Divorce Hearing and Finalisation
- If a joint application is filed, no court attendance is required.
- If a sole application is filed and children under 18 are involved, the applicant must attend the hearing.
- If the court grants the divorce, it becomes final one month and one day after the hearing.
- You can then download your Divorce Order from the Commonwealth Courts Portal.
Finalisation: Once granted, the divorce is legally binding, and you are free to remarry.
Common Questions About Divorce When an Ex Refuses to Sign
1. Can My Ex Prevent the Divorce From Going Ahead?
- No. If 12 months of separation has passed, your ex cannot stop the divorce.
- They can only contest the separation date or legal jurisdiction, which rarely succeeds.
2. What If My Ex Refuses to Acknowledge Service of Papers?
- Apply for Substituted Service (e.g., email, social media, last known address).
- If all efforts fail, request Dispensation of Service to allow the divorce to proceed.
3. What If My Ex Disagrees With the Divorce But Does Not Contest It?
- If your ex does not file a response, the court will proceed with granting the divorce.
- They do not need to sign or appear for the process to move forward.
4. Does Divorce Automatically Finalise Property or Parenting Matters?
- No. Divorce only ends the marriage—separate legal agreements are needed for assets and child custody.
- Property settlements must be finalised within 12 months of divorce.
5. How Long Does the Divorce Take If My Ex Refuses to Sign?
- The process may take an additional 4–8 weeks due to extra service requirements.
- If substituted or dispensed service is needed, it can add further court time.
Conclusion: Moving Forward When Your Ex Won’t Sign Divorce Papers
If your ex refuses to sign divorce papers, you can still proceed with a sole application. While delays may occur due to service issues or objections, the court will ultimately grant the divorce if legal requirements are met.
- Sole applications proceed even if one party refuses to cooperate.
- Proper service of documents is required, but alternative methods exist if an ex is uncooperative.
- Divorce only dissolves the marriage—property and parenting matters require separate legal steps.
At Jones Hardy Law, we provide expert legal guidance on divorce applications, property settlements, and family law disputes to ensure a smooth and stress-free process. For professional legal assistance, contact Jones Hardy Law today at JonesHardyLaw.com.au for a confidential consultation.
