Divorce is rarely easy, but the paperwork shouldn’t add extra stress—especially if your former partner refuses to cooperate. A common question for separating couples is “Can I still get a divorce if my spouse won’t sign the papers?”
The short answer is yes. Under Australia’s Family Law Act 1975, you can apply for divorce on your own through a “sole application”. This article breaks down how sole‑application divorce works, why a Binding Financial Agreement (BFA) is still vital, and what steps you should take to safeguard your assets, parenting arrangements, and future estate planning.
Whether you’re just starting the separation journey or you’ve been living apart for years, read on for a plain‑English guide from our family law team at Irvine Lawyers—and discover why booking an appointment with Laurie Irvine now can save you time, money, and unnecessary heartache later.
Divorce in Australia: The Legal Foundations
Australia follows a “no‑fault” divorce system. The Federal Circuit and Family Court of Australia (FCFCOA) will grant a divorce if:
- The marriage has irretrievably broken down; and
- You have lived separately and apart for at least 12 months, even if you still share the same roof (extra proof is required in that situation).
Importantly, the Court does not require both parties to agree or even participate. One spouse can lodge a sole application and proceed without the other’s signature—provided the legal service rules are followed, which we explain below.
Joint vs Sole Application: Key Differences
| Feature | Joint Application | Sole Application |
| Who signs | Both spouses sign the Application for Divorce. | Only one spouse signs. |
| Service requirements | No formal service—both parties receive Court notifications. | The applicant must formally serve the sealed application and documents on the respondent. |
| Court appearance | Usually no appearance unless children under 18 are involved. | Applicant may need to attend if children under 18 or if service is disputed. |
| Common scenario | Amicable separation. | Ex‑partner is unco‑operative, overseas, or cannot be located. |
Serving Divorce Papers Without a Signature
Personal Service
After filing your sole Application for Divorce online through the Commonwealth Courts Portal, you must serve the documents on your spouse at least 28 days before the hearing (or 42 days if they are overseas). You cannot serve them yourself; a process server or trusted adult over 18 must deliver:
- A sealed copy of the Application for Divorce
- The Court brochure (Marriage, Families and Separation)
- The Acknowledgment of Service form
If your spouse accepts the papers, they sign the Acknowledgment of Service, which your process server swears or affirms in an Affidavit of Service. Your ex’s signature on the divorce application itself is not required.
What if They Won’t Cooperate?
If your former partner refuses to sign the Acknowledgment or deliberately evades service, the Court still has solutions:
- Substituted Service – You ask the Court for permission to serve the papers by email, social media, or on a family member who is in close contact.
- Dispensation of Service – If you can prove every reasonable attempt to locate your spouse has failed, the Court may waive the service requirement altogether.
These applications require detailed evidence—another reason an experienced family law solicitor is invaluable.
Defended Divorce: Can They Stop It?
Although Australian divorce is “no‑fault”, an unco‑operative spouse can still lodge a Response to Divorce. In practice, a defended divorce is more bark than bite: the Court only needs to be satisfied that the marriage has irretrievably broken down and the 12‑month separation rule is met.
A respondent normally raises one of two objections:
- Separation period disputed – They insist you were still “together” inside the 12‑month window. Bank statements showing separate finances, witness affidavits attesting to separate bedrooms, or text messages that mark the end of the relationship will usually settle the question.
- Jurisdiction challenged – They claim neither party has the necessary connection to Australia. Proof of citizenship, permanent residency, or habitual residence quickly overcomes this hurdle.
The Court lists defended matters on a tighter timetable, often requiring a short case‑management hearing (in person or by Teams). If the objections look flimsy, the judge will grant the divorce and may order the respondent to pay your additional costs.
Why engage a lawyer early? Laurie Irvine drafts robust service affidavits, pre‑empts likely objections, and can push for costs when a defence is clearly without merit—saving you months of delay.
Parenting and Property: Why Timing Matters
A common misconception is that divorce automatically resolves property settlement and parenting arrangements. In reality, these issues sit alongside divorce and must be addressed separately.
Property Settlement Deadlines
After your divorce becomes final (one month and one day after the hearing), you have 12 months to commence property proceedings if an agreement isn’t already in place. Missing the deadline can severely limit your rights.
Binding Financial Agreements (BFAs)
Entering a Binding Financial Agreement before, during, or after divorce can:
- Lock in an asset division that both parties must follow;
- Protect inheritances, superannuation splitting, and business interests;
- Reduce the emotional and financial cost of litigation.
Because a BFA is a contract under the Family Law Act 1975, each party must receive independent legal advice for it to be enforceable. Laurie Irvine regularly drafts and reviews BFAs to ensure our clients’ financial future is secure.
Spousal Maintenance and Superannuation Splitting
Spousal Maintenance Explained
Under s 72 of the Family Law Act 1975, one spouse may have a duty to support the other if that person cannot reasonably meet living expenses and the payer can afford to help. The Court considers age, health, income disparity, time out of the workforce, and care of young children.
Typical maintenance orders include:
- Urgent or interim payments to keep rent paid and food on the table while property matters are still being negotiated.
- Periodic maintenance—often weekly or monthly—for a set period until the lower‑income spouse can re‑skill or find suitable work.
- Lump‑sum settlements rolled into the property division so no future payments are needed.
A carefully drafted Binding Financial Agreement can confirm, cap, or waive maintenance obligations, giving both parties certainty.
Why Superannuation Splits Matter
Super is frequently the second‑largest asset after the family home. The fund itself cannot be divided unless you obtain:
- Consent Orders approved by the Court; or
- A Binding Financial Agreement that satisfies formal advice requirements and is served on the super fund trustee.
Valuations come from the trustee (for accumulation funds) or an actuary (for defined‑benefit schemes). Most couples opt for a percentage split—say 40 %—so market fluctuations between agreement and implementation don’t upset the numbers.
Pro tip: A super split is tax‑neutral at the time it’s made, but future withdrawals are taxed in the recipient’s hands. Laurie Irvine can help you model the long‑term impact before you commit.
International or Missing Spouse: Extra Challenges
When your ex‑partner is overseas, off the grid, or refuses contact, service can feel daunting—but the Court provides flexible solutions.
If they live overseas: the Hague Service Convention streamlines delivery in many countries (UK, US, NZ). Where no treaty exists, an international process server or local lawyer can step in, though lead‑times stretch to several months.
If you can trace them online but not in person: the Court often allows substituted service by email, WhatsApp, or even Facebook Messenger, provided you show the account is active and messages are “seen”.
If all efforts fail: you can seek dispensation of service. You’ll file a detailed affidavit of exhaustive searches—electoral rolls, social media, ASIC records, mutual friends. Once satisfied you have done everything reasonable, the judge can waive service entirely and still grant the divorce.
Costs, Timeframes, and Court Attendance
- Filing Fee (2025 schedule): $1095 (concessions available).
- Process Server/Substitution Applications: Variable, usually a few hundred dollars.
- Time to Divorce Order: Approximately 3–4 months from filing to final decree, assuming service issues are resolved quickly.
You generally won’t have to appear in Court unless children under 18 are involved or you request dispensation of service. If an appearance is needed, Laurie Irvine can attend on your behalf, minimising stress and time away from work.
Why Talk to a Lawyer if Divorce Seems “Simple”?
DIY divorce kits look attractive online, yet hidden traps often cost more than a fixed‑fee consult.
Procedural risk
Small errors—late filing, the wrong service method, missing witness details—trigger adjournments and fresh Court fees. Self‑represented applicants are four times likelier to have their matter dismissed for technical reasons.
Financial exposure
Informal handshake deals about property or super may unravel years later. Without Consent Orders or a Binding Financial Agreement, either party can reopen negotiations within 12 months of divorce, or even later with Court leave.
Estate‑planning gaps
Divorce revokes gifts to a former spouse in your will, but not superannuation nominations. Laurie Irvine synchronises your divorce, BFA, and updated estate documents so every piece points in the same direction.
Wellbeing and time
A lawyer acts as your buffer, fielding hostile emails and negotiating timelines, letting you focus on children, career, and emotional recovery.
Protect Your Future Today
Divorce without your spouse’s signature is possible—but the paperwork, service rules, and follow‑on financial matters can be a minefield. Don’t leave your family’s security to chance.
???? Ready to move forward?
Book an appointment with Laurie Irvine now to:
- Lodge your sole Application for Divorce correctly the first time.
- Draft a watertight Binding Financial Agreement or consent orders.
- Start (or update) your will so your estate plan reflects your new circumstances.
Book online in minutes through our secure link: Schedule with Laurie Irvine
Or visit our website for more resources: Irvine Lawyers
Take control of your fresh start—speak with Laurie today and gain peace of mind for tomorrow.
Final Thoughts
A reluctant or missing spouse shouldn’t derail your path to freedom. With the right legal advice, you can secure a divorce, finalise a Binding Financial Agreement, and lay foundations for a stable financial and personal future—all within the framework of Australian family law.
At Irvine Lawyers, we combine clear guidance, empathetic support, and strategic planning to make your next chapter as smooth as possible. Book now and let Laurie Irvine help you turn the page with confidence.