In Australia, when a spouse does not respond to divorce papers, the process can still move forward. The Family Law Act 1975 allows one party to apply for a divorce without needing the other’s agreement.
If the respondent ignores the application or refuses to participate, the court can proceed with a hearing and grant the divorce as long as all legal requirements are met.
However, failing to respond can have legal consequences, particularly regarding property division and financial settlements.
This article explains what happens if divorce papers are not responded to, how long a spouse has to reply, and what steps to take if they refuse to engage in the process.
What If Your Spouse Ignores the Divorce Application?
If your spouse ignores the divorce application, it does not stop the process. In Australia, the Family Law Act 1975 allows one spouse to apply for a divorce without the other’s agreement.
This is known as a sole application for divorce.
When you file a sole application, you are required to serve the divorce papers to your spouse. This means they must receive the documents in a legal manner, ensuring they are aware of the application.
However, once they receive the documents, they may choose to do nothing.
If your spouse ignores the application and does not file a response, the court may proceed with the divorce hearing in their absence.
In most cases, the court will grant the divorce as long as all legal requirements are met.
Can the Divorce Still Proceed Without a Response?
Yes, the divorce can still proceed if your spouse does not respond. The court’s main concern is whether the applicant has met all legal requirements. These include:
- Being separated for at least 12 months
- Proving that the marriage has irretrievably broken down
- Properly serving the divorce papers to the other spouse
If these conditions are met and there is no response from the other party, the court can grant the divorce at a scheduled hearing.
However, if there are children under 18, the court will want to ensure that proper arrangements are in place for their care.
The applicant must provide details about the children’s living arrangements, education, and financial support.
If the court is satisfied, the divorce will be approved even without the other spouse’s participation.
How Long Do They Have to Respond to Divorce Papers in Australia?
Once the divorce papers are served, the response time depends on where the spouse lives:
- If they are in Australia, they have 28 days from the date they receive the documents to file a response.
- If they are overseas, they have 42 days to respond.
- If the spouse does not file a response within this timeframe, the applicant can request the court to proceed with the divorce in their absence.
It is important to note that simply ignoring the papers does not stop the process. The divorce application can move forward once the required waiting period has passed.
What Are the Legal Consequences of Not Responding?
Ignoring a divorce application does not stop the divorce from being granted. However, there can be some legal consequences for the non-responding spouse, including:
1. Loss of the Chance to Oppose the Divorce: If a spouse believes the couple has not been separated for 12 months or that the marriage has not broken down, they must file a response to contest the divorce.
If they do not respond, the court will assume they do not object.
2. Proceedings without their Input: The court will proceed with the hearing even if the spouse does not attend or provide any input.
3. Potential Difficulties in Property and Financial Matters: While divorce itself does not determine property division or financial support, once the divorce is finalised, there is a 12-month time limit for either spouse to apply for a property settlement or spousal maintenance.
If the spouse ignores the divorce and does not take action, they may lose the opportunity to negotiate a fair settlement later.
Do You Need to Take Any Extra Steps If Your Spouse Does Not Respond?
If your spouse does not respond to the divorce application, you may need to take some additional steps to ensure the process moves forward smoothly.
1. Ensure Proper Service of Documents
The court requires proof that the divorce papers were properly served. If your spouse refuses to accept them, avoids service, or cannot be located, you may need to apply for:
- Substituted Service: This allows you to serve the papers through another means, such as via email, social media, or a relative.
- Dispensation of Service: If you have made every reasonable effort to locate your spouse but cannot find them, you can apply for the court to waive the service requirement.
2. Request a Hearing Without Them
If the spouse does not respond, you can request a divorce hearing in their absence. The court will review your application and, if everything is in order, grant the divorce.
3. Follow Up on Financial and Property Matters
Even if the divorce is granted, it is important to address financial and property settlements within 12 months after the divorce becomes final.
This includes dividing assets, debts, and superannuation. If no agreement is reached, either party can apply to the court for a financial order within this time frame.
Your Next Steps to Finalise Your Divorce
If your spouse does not respond to the divorce application, do not worry, the court can still grant the divorce.
However, ensuring that all legal steps are properly followed is crucial.
If you need help with serving documents, applying for substituted service, or handling financial matters after the divorce, seeking legal guidance is essential.
At Ipswich Family Lawyers, we specialise in handling divorce applications, even when one spouse is unresponsive.
Our experienced team can guide you through every step to ensure a smooth process. Contact us today for expert advice and assistance.
