Discovering that your spouse wants a divorce is typically very painful, especially if you have been trying to save your marriage. Sometimes, you might strongly disagree about getting a divorce. So what happens if you are unwilling to agree to divorce? What are your options if you want to stop the divorce taking place? This article will explain the circumstances in which you can oppose a divorce and the process for doing so through filing a Response to Divorce in the courts.
Divorce law in Australia is governed by the Family Law Act 1975 (the Act). Under section 48 of the Act, the Federal Circuit and Family Court of Australia (the Court) can make a Divorce Order which legally dissolves a marriage.
It’s important to note that a Divorce Order is not a determination of issues of property settlement or parenting arrangements. It is simply legal recognition that a marriage has ended. For determination of property and parenting issues, a separate application needs to be made through the Court.
So what are the reasons why people can seek a Divorce Order in Australia – or, in other words, what are the grounds for divorce?
Grounds for divorce
Australia is a no-fault divorce jurisdiction. This means that there is no need to prove to a Court that one spouse is to blame for the breakdown of a marriage. The Court does not have to consider any reason why the marriage has ended, such as because of an extramarital affair. Instead, the only grounds for divorce in Australia are that the marriage has irretrievably broken down.
Legal reasons for opposing a divorce
If one party doesn’t want to get divorced, there are strictly limited grounds for opposing the divorce. It is not possible to oppose a divorce just because you don’t want to get divorced or hope to fix the marriage and stay together.
Here are the reasons why it may be possible for you to oppose an Application for Divorce.
1. If the Separation requirement has not been fulfilled
In order to obtain a Divorce Order, it’s necessary to satisfy the Court that the spouses have lived separately for at least 12 months prior to the Application for Divorce being filed.
This separation period is designed to allow spouses time to work on their issues or receive counselling or family law advice before proceeding with a divorce.
You and your ex do not have to agree you are separated. It is enough that one party has communicated to the other that the marriage is over for them. The other party may well disagree that the marriage is over, but this does not stop a Court from making a Divorce Order.
The 12 month period does not need to be continuous. Perhaps you and your spouse have resumed the relationship on occasion after separation (such as if there is a trial reconciliation). However, as long as you have separated again within a three month period and stayed separated until the Application for Divorce was filed, the 12 month period is dated from the initial separation date. Although the period when the relationship was resumed is not able to be included in the 12 month timeframe, the periods of separation before and after the reconciliation can be counted.
“Separation under the one roof”
For practical reasons, not everyone will immediately move out of a shared matrimonial home upon deciding to divorce. However, it is still possible to remain living together in the same home and be regarded as separated. This is known as being “separated under the one roof” and is quite common.
Since separation under the one roof can be more ambiguous than when one spouse moves out of the formerly shared home, the Court will look at evidence to determine genuine separation. For example, living and sleeping arrangements, whether or not sexual relations have continued, and matters of public reputation. The Court will also usually require an independent person to provide an Affidavit verifying that the parties are actually separated.
2. If there are jurisdiction issues
You can oppose a divorce if you can show that the Court does not have jurisdiction to grant a Divorce Order. Our Courts only have jurisdiction if either you or your spouse:
- regard Australia as your home and intend to live in Australia indefinitely;
- are an Australian citizen; or
- ordinarily live in Australia and have done so for the 12 months immediately before filing for divorce.
If jurisdictional grounds are not shown to exist, the Court will dismiss the application.
3. If arrangements for the children have not yet been made
If there are children of the marriage who are aged under 18, the Court must be satisfied that proper arrangements have been made for their care, welfare and development. If not, the Court may refuse to make the Divorce Order.
As part of the Application for Divorce, information is provided to the Court about the children’s parenting arrangements. If those arrangements are in dispute, you may first need to attend dispute resolution to reach agreement with your spouse, or seek parenting orders from the Court.
4. If there is a prospect of reconciliation
Finally, the Court must be satisfied that there is no reasonable prospect of cohabitation between the spouses being resumed.
Evidence regarding the likelihood of resuming cohabitation is provided by the applicant in the Application for Divorce.
If you wish to stop the divorce occurring on the grounds that there is a chance you will reconcile, then you will need to prove to the Court that both you and your spouse feel there is a chance of reconciliation. However, this can be difficult and unrealistic in situations where your spouse has made an Application for Divorce to end your marriage.
What if a spouse refuses to sign the paperwork?
Even if a spouse refuses to sign documents, the Court can still grant a Divorce Order. The person applying for the divorce, however, must still prove that their spouse was served the Application for Divorce documents by completing an Affidavit of Service.
What if a spouse has “disappeared”?
A spouse making themselves difficult to locate in order to avoid service will not be able to prevent a divorce taking place. Their spouse can still apply for divorce, provided they can prove they have made significant attempts to contact the other party.
Response to Divorce
If you do not want a divorce granted and wish to oppose your spouse’s Application for Divorce, you will need to file a Response to Divorce. This is a legal document detailing how and why a party opposes a divorce and why the Application should be dismissed. The Response to Divorce is then served on the applicant party.
If you file and serve a Response to Divorce, you will need to attend a court hearing to explain why the Application for Divorce should be dismissed.
How to file a Response to Divorce
To respond to an Application for Divorce, you can either:
- send back the Acknowledgment of Service if you agree with your ex’s Application for Divorce; or
- file a Response to Divorce. This may be either because you want to oppose the Application or because you wish to correct errors or dispute facts alleged in the Application, even if you agree with the divorce going ahead.
The Response to Divorce will set out the grounds on which you seek the dismissal of the Application for Divorce or the facts that need to be corrected.
It’s important to act swiftly because a Response to Divorce must be filed within 28 days (if the other party lives in Australia) or 42 days (if the other party lives overseas) of the Application for Divorce being filed.
Correcting errors or disputing facts in an Application for Divorce
It may be that you are happy for the divorce to proceed, but you disagree with facts contained in the Application for Divorce. For example, there may be errors such as incorrect dates or other factual details.
In that case, you would file and serve an Affidavit together with the Response to Divorce. The Affidavit would explain which facts you disagree with. This Affidavit must be filed and served at least seven days before a divorce hearing date.
You can download a copy of the Response to Divorce form from the Court’s website. There is no fee for filing a Response to Divorce.
Your best option if you find yourself facing an unwanted divorce is to seek the advice of a family lawyer who can help you achieve the most positive outcome. You may have valid grounds for opposing the divorce, or your family lawyer could assist you to explore alternative dispute resolution methods. They will also ensure your rights are protected during the divorce process.
For expert help with opposing a divorce or preparing a Response to Divorce, please contact Ryan & Seton Lawyers via phone call or our contact page to arrange a consultation.
You can find more information on divorce on the Court’s website.