Can you get a divorce without the other person signing in Australia?

By 22 October, 2018Divorce
dispute divorce settlement

The writer starts this article with a disclaimer. I am not a psychologist. That being said, having practised law for more than 25 years I have some degree of insight into the question is there a difference between divorcing your husband and divorcing your wife.

Divorcing your husband

Divorcing your husband can be problematic for a few reasons. Firstly it seems that men can have significant difficulty in accepting that a marriage is over as they feel they have failed in something. Because of this it is not uncommon for men to refuse to accept service of their divorce documents by post and personal service of the documents can be required. In more extreme cases men will go out of their way to avoid personal service as well, making it as difficult as possible for the wife to proceed with the divorce application.

There are ways around this issue including getting an order for substituted service of the divorce application. However service of the Application is something to be certainly considered in the first instance as to how this paperwork is best served on the husband to ensure the divorce application can proceed smoothly.

Secondly, the filing of the divorce application can cause the husband to become angry or express some form of frustration. Unfortunately Domestic Violence in Australia is still a significant and ongoing issue. Consideration should be given to any risk of any physical or emotional harm that may occur because you wish to file your divorce application. If there are still children of the marriage is it possible that their visitation with the father or your interaction with him about that visitation will be impacted by your filing the divorce application. Whilst the writer is of the view that you should not be deterred from filing a divorce application simply because you worry about what the other side will do it is a real world issue to consider matters such as timing of the service to minimise impact and risk to all parties including the children.

After service of the divorce the husband sometimes says ‘I am going to contest it’. What does this really mean ? In a majority of cases the husband is simply venting. There are very few contested divorces in the 50,000 or so applications made each year. The only significant reason generally that a divorce will be contested is that the parties have not been separated for the appropriate amount of time i.e 12 months. Whilst it is not unusual for an Application to contain errors such as dates of births of parties or the children’s ages, these are not material matters that will stop the divorce from ultimately going through.

Divorcing your wife

Problems can equally arise in relation to serving an Application for divorce on your former wife. Again emotions may be stirred particularly if the husband has re-partnered and this can lead to usually some emotional negative feedback from the wife particularly using SMS or texting as more commonly called.

Again the issue of children and how the husband spends time with them needs to be considered as serving the divorce application the day before commencement of Christmas holidays with the children has in the writer’s experience led to dispute in having the children spend time with the husband and unfortunate and unintended consequences.

Whilst women are less likely to avoid service they more commonly raise whether there are any errors in the Application which require correcting prior to the hearing.

Who files the most divorce applications?

There is very little publicly available evidence as to who files the most applications aside from the limited number of joint applications filed by husband and wife. Reviewing the Applications filed by the writer over the last 5 years it is however apparent that the applications for divorce are more predominantly filed by the wife. Is there a reason for this? Is it that men are too lazy or apathetic? Is it because women have re-partnered more quickly and wish to have the divorce go through – in my view less likely. Overall I think that women may be marginally more organised to sort out paperwork and thus file more applications. A controversial discussion topic perhaps but backed up by the writer’s own statistics.

In any event, whilst you ought be pragmatic and cautious in your timing of filing a divorce Application you should not be deterred. It is simply a legal process that will happen whether the other party wishes for it to or not.