What happens when one spouse doesn’t want a divorce?

By 25 March, 2019Divorce
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We like to think that things in life ought to run smoothly. Unfortunately, we all know that this is not the case. At times this can apply to your divorce application and the finalisation of your marriage. In this blog, we discuss some common roadblocks and how we overcome them to get your divorce finalised.

Roadblocks in getting started

The first test in getting a divorce up and away is the mental hurdle of actually deciding to make the application. Once you have passed the point of procrastination and are filing your application the next step is locating your marriage certificate. If the other party has the certificate and won’t give it to you or you can’t find it, in Australia it is possible to order a further copy from the registry in the State in which you are married. Whilst this may cause a few weeks of delay and then an expense of about $60.00, it is a roadblock which can be overcome.

Sometimes people are married overseas and their marriage certificate is not in English. To get around this roadblock we are required to engage an appropriately qualified translator to convert the marriage certificate into English. If this is needed we need to obtain a quotation for the cost of doing so from the translator and let you know the amount to assist you in proceeding with your divorce.

Where is my spouse

Many people apply for a divorce after a lengthy period of time following their separation. When there are no children of the relationship, it’s not uncommon for the one party to completely lose track of where the other party is living. Thus we enter the roadblock of “service”. Service of your application is curable in a number of ways including making fuller inquiries as to where your spouse may be and finding them, arranging service of your application on a third party who will bring it to their attention or is likely to do so and lastly, if you have no idea where the former spouse is located for example, if they have moved overseas, then to seek that the court proceed with the divorce without service of the application (formally called dispensing of service).

One of the first tasks Your Divorce undertakes when we receive your application is to establish which of these issues, if any, might arise and we work with you to find the best solution. Whilst ultimately further paperwork may be required the roadblock of service is usually overcome.

My Spouse doesn’t want a divorce

In our experience nearly all divorce applications proceed without the other party being in attendance. On a rare occasion, a spouse can contest the divorce proceeding and can attend the hearing to raise an objection. This objection is usually raised around the length of separation, whether you have been separated for 12 months. Sometimes this issue is raised because of a division of property matters (for example an inheritance received after separation may be treated slightly differently to an inheritance received before separation).

Historically, unless there is an urgency for the divorce to proceed if there is a genuine objection as to the length of separation it may be more cost effective to withdraw your application now and re-file it after the 12 month period is agreed between the parties rather than go through the expense of contesting a divorce application on this point. Once again the roadblock of your spouses’ objection can be overcome.

As a side note, an objection from your spouse to refuse you to be divorced for religious reasons is not a valid objection and there is no roadblock in this regard.

Arrangements for the children

Where there are children under the age of 18 years at the time of filing the divorce application, details as to their care and management are required to be included in the application. On rare occasions, there can be a contest as to what is stated in your application as to their care and living arrangements and what your spouse says is the case. As noted above, if there is a dispute your spouse would need to file affidavit material contesting the issue and ultimately appear at the hearing. In our experience, this is very, very rare and the likelihood of a roadblock arising because of the children’s care issues is most unlikely.

We haven’t settled our property yet, we can’t get divorced

The good news is that this is not a roadblock at all. There is no initial deadline for a property settlement to be undertaken prior to the filing for an application for divorce. However, a divorce does trigger a time limit if you have not resolved your property matters in that either party will need to have commenced an application for resolving their property division 12 months after the divorce is finalised otherwise the permission of the court is required, which is not always given. Again, in our experience, most people will resolve or are well advanced resolving their property matters two to two and a half years after their separation which is when the earliest possible time limit could expire.

Conclusion

The team at Your Divorce work hard at making your divorce application as simple as possible. We are in the business of problem-solving. If you have any preliminary inquiries, of course, you may email us at help@yourdivorce.com.au or simply complete the initial application and we will clarify any outstanding matters with you. If we hit any roadblocks we will push them out of the way with your assistance.