Dispute Resolution
Can I File for Divorce If My Partner Doesn’t Want It?

The process of filing for divorce in Australia can be complex, but understanding the key aspects can make it smoother. In this blog, we will cover the grounds for divorce, requirements, and important considerations.

An application for divorce is made under s48 of the Family Law Act 1975 which states

Divorce

(1) An application under this Act for a divorce order in relation to a marriage shall be based on the ground that the marriage has broken down irretrievably.

(2) Subject to subsection (3), in a proceeding instituted by such an application, the ground shall be held to have been established, and the divorce order shall be made, if, and only if, the court is satisfied that the parties separated and thereafter lived separately and apart for a continuous period of not less than 12 months immediately preceding the date of the filing of the application for the divorce order.

(3) A divorce order shall not be made if the court is satisfied that there is a reasonable likelihood of cohabitation being resumed.

Separation under s49 of the Act states

Meaning of separation

(1) The parties to a marriage may be held to have separated notwithstanding that the cohabitation was brought to an end by the action or conduct of one only of the parties.

(2) The parties to a marriage may be held to have separated and to have lived separately and apart notwithstanding that they have continued to reside in the same residence or that either party has rendered some household services to the other.

To obtain a divorce in Australia, you must be married for at least two (2) years and separated for at least twelve (12) months under the Family Law Act 1975. Either party can initiate a divorce provided that:

The parties have been separated for at least 12 months (under the same roof or no longer cohabitating together)
Their marriage has broken down irretrievably and there is no likelihood of a resumption of the relationship.

For a divorce order, you will require?

Proof of marriage including your marriage certificate (translated into English if it is in another language)
Proof of visa if you are not an Australian Citizen or permanent resident

You may file a divorce application without the consent of your former spouse, however, you will need to notify them of your application via personal service. Accordingly, yes, it is possible to obtain a Divorce order if your former spouse does not want a divorce, provided that you consider the marriage to have broken down irretrievably and provided 12 months have lapsed since the separation date.

Seeking Legal Support

Navigating the divorce process can be emotionally challenging. If you have questions or need assistance, reach out to our Family Law Team at 1300 557 819. We specialize in guiding individuals through divorce proceedings and can provide the necessary support and guidance for a smoother experience.

Remember, every divorce case is unique, and it’s crucial to consult with legal professionals to ensure your rights are protected and the process is handled appropriately.