Short answer
When applying for divorce in Australia, you must decide whether to file a sole divorce application or a joint divorce application.
A sole divorce application allows one spouse to proceed without the other spouse’s agreement or signature, although formal service is ordinarily required. A joint divorce application is made cooperatively by both spouses and generally avoids the need for formal service.
The right option usually depends on whether your spouse will cooperate, whether communication is safe, where your spouse lives and whether formal service can be completed.
Additional issues may arise where:
- your spouse lives in Sri Lanka or another country;
- you were married overseas;
- your marriage certificate is not in English;
- you separated while living under one roof;
- you cannot locate your spouse;
- your spouse refuses to sign divorce documents; or
- there are family violence or safety concerns.
Australanka Lawyers is based in Officer, Victoria, and assists clients in Melbourne, south-east Melbourne and across Australia with sole and joint divorce applications, including divorces involving Sri Lankan marriages and spouses living overseas.
What is the difference between a sole and joint divorce application?
The main difference is who makes and signs the divorce application.
In a sole divorce application, one spouse applies independently. The other spouse does not have to consent to the divorce or sign the application. However, the filed divorce documents must ordinarily be served on the other spouse.
In a joint divorce application, both spouses apply together. Both spouses must cooperate and sign the required filing affidavit, but neither spouse has to formally serve divorce documents on the other.
A joint application may be procedurally simpler, but it is not always the most suitable option.
What is a joint divorce application?
A joint divorce application is made by both spouses together.
Both spouses are described as joint applicants. One spouse may prepare the online application, but both spouses must check that the information is correct and sign the required Affidavit for eFiling Application (Divorce).
The spouses can sign separately, but each signature must be witnessed correctly.
A joint divorce application may be suitable where:
- both spouses accept that the marriage has ended;
- both spouses are willing to provide the required information;
- both can review and sign the filing documents promptly;
- communication is safe and reasonably cooperative; and
- neither spouse is likely to delay the application.
The main procedural advantage is that formal service between the spouses is not required.
However, filing jointly does not mean the spouses must agree about parenting, property settlement, superannuation, spousal maintenance or child support. Those issues are legally separate from the divorce application.
What is a sole divorce application?
A sole divorce application is made by one spouse independently.
The spouse filing the application is the applicant. The other spouse is the respondent.
Only the applicant signs the filing affidavit. The respondent does not have to agree to the divorce, participate in preparing the application or sign any divorce documents.
A sole divorce application may be appropriate where:
- the respondent refuses to cooperate or sign;
- communication between the spouses is poor;
- contacting the respondent would be unsafe;
- the respondent is delaying the divorce;
- the respondent lives overseas;
- there is a history of family violence or coercive control;
- the respondent’s location is unknown; or
- the applicant wants greater control over the filing process.
The principal additional requirement is that the filed divorce documents must ordinarily be properly served on the respondent.
Sole and joint divorce applications compared
| Issue | Sole divorce application | Joint divorce application |
|---|---|---|
| Who applies? | One spouse | Both spouses |
| Who signs the filing affidavit? | The applicant | Both joint applicants |
| Must the other spouse agree? | No | Yes, to participate jointly |
| Is formal service required? | Ordinarily, yes | No |
| Can one spouse proceed independently? | Yes | No |
| Suitable where communication is poor? | Often more practical | Usually unsuitable |
| Can a spouse live overseas? | Yes, although service may be more complicated | Yes, if both spouses cooperate and sign correctly |
| Can supporting affidavits be required? | Yes | Yes |
| Does divorce decide parenting or property matters? | No | No |
Does my spouse have to agree to a divorce in Australia?
No. Your spouse does not have to agree if you file a sole divorce application.
Australia has a no-fault divorce system. The court does not determine which spouse caused the marriage to end. The legal ground is that the marriage has broken down irretrievably and there is no reasonable likelihood that the spouses will resume married life.
A respondent may oppose the divorce, but the available grounds are limited. A dispute may concern:
- whether the spouses have been separated for the required period;
- whether the court has jurisdiction;
- whether the marriage is legally valid;
- whether the respondent was properly served; or
- whether important information in the application is incorrect.
Refusing to sign the divorce documents does not, by itself, prevent a sole divorce application from proceeding.
Can I apply for divorce if my spouse refuses to sign?
Yes. If your spouse refuses to sign or cooperate, you may still be able to file a sole divorce application.
Your spouse’s signature is not required for a sole application. However, you must ordinarily prove that the filed documents were properly served on them.
If your spouse deliberately refuses to accept the documents, that does not necessarily prevent effective service. The method of service and supporting evidence must satisfy the applicable court requirements.
How long must we be separated before applying for divorce?
Before filing for divorce, the spouses must ordinarily have been separated for at least 12 months and one day.
It is possible to be separated even though both spouses continue living in the same home. This is commonly called separation under one roof.
Short periods of reconciliation may affect how the separation period is calculated. The dates and circumstances should be checked before filing to avoid an application being delayed or refused.
What is separation under one roof?
Separation under one roof occurs when spouses remain living at the same address after their marital relationship has ended.
If the spouses lived under the same roof during any part of the 12 months immediately before filing, additional affidavit evidence will generally be required.
The evidence may address:
- changes in sleeping arrangements;
- changes to the marital relationship;
- reduced shared social or family activities;
- household and domestic arrangements;
- financial arrangements;
- arrangements for any children;
- whether family members or friends were informed of the separation;
- communications with government agencies; and
- when one spouse communicated that the marriage was over.
For a sole application, the applicant must ordinarily provide an affidavit and should also consider an affidavit from an independent person who knew about the separation.
For a joint application, each spouse should ordinarily provide a separate affidavit. If only one spouse can provide an affidavit, independent corroborating evidence should be considered.
Can I apply for divorce in Australia if I married in Sri Lanka?
A person who married in Sri Lanka may be eligible to apply for divorce in Australia.
A foreign marriage will generally be recognised if it was valid under the law of the country where it was solemnised and is not invalid under Australian law.
At the time the divorce application is filed, either spouse must also satisfy an Australian jurisdiction requirement. This may include where either spouse:
- is an Australian citizen;
- regards Australia as their home and intends to live in Australia indefinitely; or
- ordinarily lives in Australia and has lived in Australia for at least the 12 months immediately before filing.
A copy of the Sri Lankan marriage certificate must ordinarily be filed with the divorce application.
For related cross-border issues, see our guide on being married in Sri Lanka and divorcing in Australia.
What if my Sri Lankan marriage certificate is not in English?
If the marriage certificate is not in English, an English translation must be filed.
The person who prepared the translation must complete the required Affidavit – Translation of Marriage Certificate. The affidavit must verify the translation, attach the marriage certificate and translation, and state the translator’s qualifications.
Differences between names appearing on the marriage certificate, passport, citizenship certificate or other identification documents should be identified before filing. Additional affidavit evidence may be required to explain a name discrepancy.
Incorrect or incomplete marriage documentation can delay the divorce application.
What if my spouse lives in Sri Lanka or another country?
You may still apply for divorce in Australia if your spouse lives overseas, provided the applicable jurisdiction and other legal requirements are satisfied.
A joint application may be possible if both spouses can communicate, check the application and sign the required documents correctly.
For a sole divorce application, the respondent must ordinarily be served:
- at least 28 days before the hearing if the respondent is in Australia; or
- at least 42 days before the hearing if the respondent is overseas.
The applicant cannot personally serve the respondent.
Overseas service should be considered before filing. The correct method may depend on the country, any applicable international convention, the respondent’s address and whether the respondent will acknowledge receiving the documents.
Sending divorce documents by email, WhatsApp or social media should not be treated as automatically satisfying the service requirements. Those methods may require an order for substituted service unless the applicable rules or a court order permit the method used.
For a focused overview of the Australian divorce pathway where the other spouse is in Sri Lanka, read My Spouse Lives in Sri Lanka — Can I Get Divorced in Australia?
What if I cannot locate my spouse?
Not knowing your spouse’s current address does not necessarily prevent you from obtaining a divorce. However, you must ordinarily make reasonable attempts to locate and serve them.
Depending on the evidence, the court may order:
- substituted service, allowing documents to be delivered by another method likely to bring them to the respondent’s attention; or
- dispensation of service, removing the requirement for service in exceptional circumstances.
Possible substituted-service methods may include email, text message, social media, WhatsApp or delivery through a relative or another person.
An affidavit should clearly record the searches, enquiries and contact attempts already undertaken. Dispensation of service is a significant order and ordinarily requires substantial evidence showing that the respondent cannot be located or served.
Is a joint divorce application simpler or faster?
A joint divorce application may be simpler because formal service on the other spouse is unnecessary.
However, a joint application is not automatically faster. It may be delayed if one spouse does not provide information, check the application or sign the required documents promptly.
Where cooperation is uncertain, a sole divorce application may give the applicant greater procedural control. The applicant must still allow sufficient time to complete service and file the required service evidence.
The most appropriate option depends on the parties’ communication, safety, location and willingness to cooperate.
Do I have to attend the divorce hearing?
Many divorce applications are determined without either spouse attending. However, the court will indicate whether attendance is required for the particular application.
Attendance may be required or advisable where:
- the applicant elected to attend;
- the respondent requested to attend in a matter involving a child under 18;
- the respondent filed a response opposing the divorce;
- substituted service or dispensation of service is sought;
- additional affidavit evidence may need to be explained;
- the spouses were separated under one roof;
- circumstances have materially changed since filing; or
- the court directs a party to attend.
Applicants should check their hearing notice and the Commonwealth Courts Portal rather than assuming attendance is unnecessary.
Divorce hearings are generally conducted by telephone unless the court directs otherwise.
Can my spouse stop the divorce?
A respondent cannot ordinarily prevent a divorce merely because they do not want the marriage to end.
However, the application may be delayed, adjourned or refused if a legal requirement has not been established. Problems may include:
- insufficient evidence of 12 months’ separation;
- failure to establish Australian jurisdiction;
- defective or incomplete service;
- inadequate marriage documentation;
- insufficient evidence about arrangements for children under 18; or
- material errors or inconsistencies in the application.
Accurate preparation and proper service are important, even where the other spouse does not oppose the divorce.
Can I change a joint divorce application to a sole application?
If the application has not been filed and the other spouse no longer wishes to participate, an eligible spouse may generally prepare and file a sole application instead.
Once an application has been filed, the correct procedure will depend on its status and the documents already lodged. Legal advice should be obtained before attempting to change the application.
If there is uncertainty about whether the other spouse will cooperate, it may be more efficient to assess that issue before preparing a joint application.
Does divorce resolve parenting or property matters?
No. A divorce legally ends the marriage only.
A divorce does not determine:
- parenting arrangements;
- child support;
- property settlement;
- superannuation splitting;
- spousal maintenance; or
- ownership of property in Sri Lanka or another country.
Married parties generally have 12 months after their divorce becomes final to commence property settlement or spousal maintenance proceedings.
Starting proceedings after that period ordinarily requires permission from the court, and permission is not automatic. Property and financial matters should therefore be considered before the divorce becomes final.
When does a divorce become final?
A divorce ordinarily becomes final one month and one day after the divorce is granted, unless the court makes a special order changing that period.
The divorce order can then be downloaded from the Commonwealth Courts Portal.
A person should not make arrangements to remarry until the divorce has taken effect.
Which divorce application should I choose?
A joint divorce application may be suitable where both spouses communicate safely, agree to apply together and will sign the required documents promptly.
A sole divorce application may be more appropriate where:
- your spouse refuses to cooperate;
- you want to proceed independently;
- communication is unsafe or impractical;
- your spouse lives overseas;
- your spouse is delaying the process; or
- you are uncertain whether your spouse will sign.
A joint application is not inherently better than a sole application. The correct choice depends on the circumstances, service requirements and procedural risks in the particular matter.
How Australanka Lawyers can assist
Australanka Lawyers can assist with:
- determining whether a sole or joint divorce application is more appropriate;
- checking eligibility and separation dates;
- preparing and filing divorce applications;
- reviewing Sri Lankan marriage certificates and translations;
- addressing name discrepancies;
- arranging service in Australia or overseas;
- preparing separation-under-one-roof affidavits;
- applying for substituted service or dispensation of service;
- dealing with an uncooperative or missing spouse; and
- advising about the separate parenting, property and financial consequences of divorce.
Australanka Lawyers assists clients in Officer, Melbourne, Victoria and throughout Australia. Online divorce consultations are available.
General information about our family-law services is available on the Australian legal services page.
📞 WhatsApp/Text: 0423 469 407
📧 miyuru@australankalawyers.com.au
This article contains general information only. It is not legal advice and does not create a solicitor-client relationship. Divorce requirements and procedures depend on the circumstances of each case.