Sole divorce application

Sole divorce applications: How to apply without your spouse

Applying for divorce is a major step, and it’s important to understand the process and your legal obligations. A sole divorce application allows you to apply for divorce without your spouse joining the application. This means that if your spouse does not agree to apply, you can still apply on your own. In this article I’ll explain what a sole divorce application is, who can file one, the process involved, and what to expect.

What is a sole application for divorce?

A sole application for divorce is when one spouse applies to the Family Court to legally end a marriage without the other spouse applying jointly. Unlike a joint application, the applicant is solely responsible for filing the application, serving documents, the associated costs and satisfying the Court that the marriage has irretrievably broken down.

Under the Family Law Act 1975 (Cth), the only ground for divorce in Australia is the irretrievable breakdown of marriage, proven by being separated for at least 12 months and 1 day with no reasonable likelihood of reconciliation.

Who can file a sole divorce application?

A sole divorce application can be filed by anyone who is legally married, provided the requirements of the Family Law Act 1975 are met. These include:

• You and your spouse have been separated for at least 12 months and there is no chance of reconciliation.
• At least one spouse is an Australian citizen, permanent resident, or regards Australia as their home and intends to live here indefinitely.
• A valid marriage certificate is available.

If you have lived under the same roof during part or all of the separation period, you may still apply but will need to file an affidavit explaining the circumstances

How to make a sole divorce application

Step 1: Seek legal advice

Before starting, it’s beneficial to consult a family lawyer. Divorce can have flow-on effects for parenting, property settlement, and spousal maintenance. Legal advice ensures you understand your rights and obligations under the Family Law Act 1975.

Step 2: Prepare your sole divorce application

Applications are filed online through the Commonwealth Courts Portal. You will need your marriage certificate, personal details, and information about any children under 18. If your marriage certificate is not in English, it must be translated and accompanied by an affidavit.

Step 3: File the application

Once complete, your application is lodged with the Court. A filing fee applies, though concessions are available in certain circumstances.

Step 4: Serve the divorce papers on your spouse

Because this is a sole application, you must serve the documents on your spouse at least 28 days (or 42 days if they are overseas) before the hearing. Service must be completed by someone other than you (for example, a process server) and supported by an Affidavit of Service.

Step 5: Attend the court hearing (if required)

You may need to attend the divorce hearing if:

• There are children under 18,
• Your spouse files a Response to Divorce opposing the application, or
• You are applying for substituted service or dispensation of service because you cannot locate your spouse.

It is beneficial to seek advice from a family lawyer to discuss if you are required to attend the divorce hearing.

Does my spouse have to sign the divorce papers?

No. In a sole divorce application, your spouse does not need to sign the papers. However, they must be served with the application and given an opportunity to respond. If they oppose the divorce, they may file a response to divorce, but they must show that the 12-month separation requirement has not been met or that the Court lacks jurisdiction

What happens after the divorce papers have been filed?

If the Court is satisfied that the legal requirements have been met, it will grant a divorce order. The divorce becomes final one month and one day after the order is made. Once final, you are legally divorced and free to remarry if you wish.

It’s important to remember that divorce does not automatically resolve property, financial, or parenting issues. You have 12 months from the date of the divorce order to start property settlement or spousal maintenance proceedings in Court.

Get personalised legal support with your sole divorce application

A sole divorce application can be straightforward, but errors in filing, service, or affidavits can delay your divorce. At Turnbull Hill Lawyers, our Family Law team provides practical guidance to make the process as smooth as possible.

Call us today. Our experienced divorce lawyers can assist with every stage of your sole divorce application and other family law needs.