You do not need your ex’s permission to get divorced
The original page was right on the core point: Australian divorce law is based on irretrievable breakdown, not mutual consent. One spouse can apply on their own even where the other spouse does not want the marriage to end.
1. Do you need your spouse’s agreement?
No. Australia has a no-fault divorce system. The Court does not decide who caused the relationship to break down or require both spouses to agree that the marriage should end.
The Court instead looks at whether the legal test for divorce is satisfied. In broad terms, that means:
- the marriage has broken down irretrievably;
- the parties have been separated for at least 12 months immediately before filing; and
- there is no reasonable likelihood of resuming married life.
The Family Law Act also makes clear that separation can arise from the action or conduct of one spouse only.
2. What if your spouse refuses to sign anything?
You can file a sole application for divorce. Your spouse’s signature on the divorce application is not required.
What matters is that the application is properly filed and, in a sole application, that the required documents are properly served.
3. Service is the key step in a sole application
Service is the formal process of giving the filed divorce documents to your spouse.
If your spouse is in Australia, the documents generally need to be served at least 28 days before the divorce hearing. If your spouse is overseas, service is generally required at least 42 days before the hearing.
You cannot personally serve your spouse yourself. Another adult usually carries out service, and the required proof of service is then filed with the Court.
4. What if your spouse physically refuses the papers?
A refusal to take the documents from the server does not necessarily defeat service.
The Federal Circuit and Family Court says that if the spouse refuses to accept them, the server can put the documents down in the spouse’s presence and state what the documents are. The server must then carefully record the circumstances in the affidavit of service.
James makes a sole application. His former spouse refuses to take the papers from the process server. The server identifies her, explains that the documents are James’s divorce application and places them down in her presence. The server then records exactly what happened. Her refusal to cooperate does not itself give her a veto over the divorce.
5. What if you cannot find your spouse?
If you cannot locate your spouse despite reasonable attempts, you may be able to ask the Court for a different service order.
The Court can allow another method likely to bring the documents to your spouse’s attention, such as email, text message, social media or service through another person.
In exceptional circumstances, the Court can dispense with service if substantial evidence shows that the spouse cannot be located despite reasonable efforts.
Both options require a Court order and supporting affidavit evidence. The Court recommends obtaining legal advice before applying for dispensation or substituted service.
6. Can your spouse oppose the divorce?
Yes. A respondent can file a Response to divorce if they dispute facts in the application or oppose the divorce order being made.
But personal opposition to the idea of divorce is not, by itself, enough to prevent the Court making the order. The dispute needs to go to a legal requirement, such as whether:
- the parties were in fact separated for the required 12 months;
- there is a reasonable likelihood of cohabitation resuming;
- the Court has jurisdiction to deal with the divorce; or
- another legal requirement has not been satisfied.
Attendance becomes important
If the respondent files a Response to divorce opposing the application, they must attend to explain their opposition. The applicant should also attend because the Court may otherwise dismiss the divorce application if the opposition is left undefended.
7. Do you have to attend the divorce hearing?
Most divorce applications can be dealt with without attendance.
Attendance is generally required where a party has objected to the matter being heard without appearances, where the respondent files a Response opposing the divorce, or where an application concerning substituted or dispensed service is before the Court.
Divorce hearings are conducted electronically.
8. What if there are children under 18?
The Court still needs information about the arrangements for children of the marriage who are under 18.
However, since the June 2025 procedural changes, the mere fact that there are children under 18 does not by itself require a sole applicant to attend the divorce hearing.
9. What your spouse can — and cannot — do
Dispute facts, file a Response, raise a genuine jurisdiction or separation issue, or require you to prove proper service.
Simply refuse consent and thereby permanently prevent a divorce where the legal requirements are otherwise satisfied.
10. What happens after the divorce is granted?
If the Court grants the divorce, the order generally becomes final one month and one day later, unless the Court makes a special order shortening that period.
Once final, the divorce order can be downloaded through the Commonwealth Courts Portal.
The other person can make the process harder — but refusal alone does not decide the outcome
In most cases, the practical challenge is service rather than consent. If your spouse refuses to engage, a properly prepared sole application, proper service evidence and, where necessary, substituted or dispensed service can allow the matter to move forward.