What Is a Sole Divorce Application? What You Need to Know & Essential Steps?

Divorce is a difficult time for all involved. Even when the separation has been amicable, divorce is still a major lifestyle change and source of stress. It often involves dividing up assets, at least one person departing from the family home and a shift in familial relationships. When most people think of divorce, they tend to think of it as a mutual agreement between two parties—and this is certainly an ideal scenario. However, in some cases, a sole divorce application may be necessary. What is a sole divorce application? Let’s discuss the specifics and how to apply for a sole divorce.

What’s the Difference Between Joint & Sole Divorce Applications?

In essence, the difference between a joint and sole application is in the initiation. If both spouses complete a divorce application and sign an affidavit before an authorised witness, that’s a joint application. However, if just one spouse files for divorce, that’s a sole application. The ins and outs of how to apply for a sole divorce are slightly more convoluted as it’s not a mutual agreement. While a joint application requires little more than both parties’ signatures and a final decision from the court, a sole application will involve the initiating spouse’s signature, as well as an earnest attempt to contact the other party for a response.

Should I Apply for a Joint or Sole Divorce Application?

If you and your spouse are amicable, you should file for a joint divorce application together. However, if your spouse is either less agreeable or currently not in contact, it may be easier or even necessary to go down the sole application route. If you decide that a sole divorce application would best fit your situation, you can rest easy in the knowledge that the few extra steps shouldn’t significantly prolong the process.

Are There Grounds for Divorce?

Before you begin to apply for a divorce, you must first check if you’re eligible. By the rules of family law, this means that the marriage is broken down beyond repair and that you and your spouse have been separated for at least 12 months. If you have been married for less than 2 years, you will need to present a certificate proving that you attended marriage counselling. If you couldn’t attend marriage counselling with your spouse, you will instead need to file an affidavit.

To undergo the process in Australia, you and your spouse should ideally be Australian citizens or permanent residents. If you or your spouse are neither, you may still be eligible if you can prove that you’ve usually called Australia home for at least the past 12 months, during which time you were separated.

How to Apply for a Sole Divorce?

Once you’ve determined that you are eligible for a divorce, you will need to provide a copy of your marriage certificate and proof of jurisdiction (e.g. Australian birth certificate, passport, citizenship certificate or visa) along with your application forms. If your marriage certificate is not in English, you will need a certified translator to not only provide a translation but also to sign an affidavit.

Once you have your paperwork together, you’ll need to register for the Commonwealth Courts Portal and pay a filing fee. If you are receiving Centrelink benefits or can provide evidence of financial hardship, you can apply for a reduced fee. When completing the Application for Divorce and Affidavit of eFiling, you will need to sign (or eSign) before an authorised witness. Then, you can deliver the papers to your spouse by either hand or post.

If you’re delivering by hand, you will need to provide an Affidavit of Service by Hand, an Acknowledgement of Service and an Affidavit Proving Signature. If delivering by post, you will need to use Registered Post to send an Affidavit of Service by Post and an Acknowledgement of Service. If you cannot serve by hand or post for whatever reason, you must file an Application in a Proceeding, as well as an Affidavit requesting the court grant you either an alternative way (substituted service) to manage the divorce or a dispensation of service altogether.

What Happens Next?

Assuming your spouse does receive the papers by either hand or post, they do not actually need to agree to the divorce or sign the papers. At a bare minimum, however, they will need to sign the Acknowledgement of Service, from which point you can sign the Affidavit Proving Signature. Furthermore, the person who served the divorce papers will have to sign the Affidavit of Service to confirm when and how all parties carried out the process. If your spouse refuses to sign the Acknowledgment of Service, you’ll need to present a photo of them to the person who served the papers. This is to confirm their identity and to ensure that the third party did, indeed, serve the correct person.

If you cannot locate your spouse, you will need to prove that you attempted to contact them at their last known address. This can involve following up with family members, friends, or work colleagues, or even placing notices in the local newspaper. Should you find yourself in this situation, you will have to list their address as ‘unknown’. You will also need to upload a second application seeking either a substituted service or a total dispensation of service.

We’re Here for You

You can apply for a sole divorce application either alone or with legal assistance. Should you decide to hire help, Duffy & Simon provide a fantastic service. Backed by 40 years of experience, we are experts in family law, including in matters of child custody, family violence and financial agreements, as well as the ins and outs of how to apply for a joint or sole divorce. In other words, we can provide you with the tools to make your divorce (and any associated family law matters) as smooth and painless as possible.

If you could benefit from our services, please don’t hesitate to contact Duffy & Simon Lawyers today. We are compassionate lawyers who understand your situation and value transparency in all our interactions.