Contested vs Uncontested Divorce Explained: Turnbull Hill Lawyers

You will often hear the terms ‘contested’ or ‘uncontested’ when referring to a divorce. Before we distinguish the two concepts, it is important to establish what a divorce actually is, as the term is sometimes confused with the property settlement process.

A divorce is the legal termination of a marriage by the Federal Circuit and Family Court of Australia. It formally ends the marital relationship, allowing both parties to remarry if they choose.

Divorce does not deal with property division or parenting arrangements. That is handled separately, either through negotiations and/or a separate Court application.

In this article, I’ll be covering the differences between a contested and uncontested divorce in Australia.

What is an uncontested divorce?

An uncontested divorce (also known as a joint application for divorce) occurs when both parties agree on the facts of the separation, including the date of separation and the details of any parenting arrangement that may be in place. In an uncontested divorce, both parties sign the Application for Divorce as joint applicants. In doing so, they indicate to the Court that the details listed on the Application for Divorce are true and correct.

Because both parties are involved from the outset:

• There is no need for service.
• The process is generally faster and more straightforward.
• Neither party is required to attend the divorce hearing.

What is a contested divorce?

A contested divorce (also known as a sole application for divorce) is when one party applies for a divorce without the involvement or agreement of the other party.

The person who initiates the divorce is referred to as the Applicant. The other party becomes the Respondent. Only the Applicant is required to sign the Application for Divorce, and the Court filing fee is paid by them at the time of filing.  

Once the Applicant files the Application for Divorce, they must serve it upon the Respondent at least 28 days before the divorce hearing (or 42 days if the Respondent is overseas). The Applicant cannot serve the documents themselves a third party or process server must do it.

The Respondent does not need to agree to the divorce for it to proceed. If the Applicant can prove the marriage has broken down irretrievably and the legal requirements are met, the Court can grant the divorce.

When might you choose a contested divorce (or sole application)?

You may consider a sole application if:

• You and your spouse are not on speaking terms.
• Your spouse is overseas or uncontactable.
• You do not know your spouse’s residential address or address for service.
• Your spouse is unwilling to apply jointly.
• You simply prefer to manage the process yourself.

At Turnbull Hill Lawyers, we assist clients in contested and uncontested divorces. If you’re unsure where to start or are facing difficulties contacting your spouse, our trusted family law experts can provide the guidance you need. Please get in touch with is today.