Can I Divorce Without My Spouse Knowing?

In Australia, the other party must always be informed of and given the opportunity to respond to legal proceedings. This includes a divorce. As such, procedural fairness means it is generally not possible to divorce your spouse without them knowing. There are, however, limited exceptions when a divorce can proceed with minimal direct involvement from your spouse. This article outlines these exceptions and the legal limitations on divorcing someone in Australia without their knowledge.

Divorce procedure

Under the Family Law Act 1975, marriage is a legal contract and dissolving this contract requires procedures that recognise both individual’s rights. To obtain a divorce, at least one of the spouses must apply and prove eligibility to the Federal Circuit and Family Court of Australia (“the court”) or the Family Court of Western Australia. The only ground for divorce in this country is that the marriage has “irretrievably broken down” which is proved by the fact that the spouses have lived separately for at least twelve months.

Requirement for service

An important part of seeking a divorce is the requirement for process service. Anyone who brings a sole application for divorce must ensure that the other party is aware of the application and receives a copy of the divorce documents. Being notified about the application gives the former spouse the chance to participate and even object to the divorce proceedings.

Notifying the other party of the application is called “service” and it is a vital part of divorce proceedings. A failure to properly execute service can prevent a divorce application from proceeding.

Service of a divorce application can be undertaken by a friend, family member or professional process service. When documents are served in person it is called “personal” service, and generally speaking, this is the preferred method of notifying a spouse of a divorce application. As part of personal service, the server will ask the person receiving the documents to acknowledge receipt. Obviously, service is not required when the parties bring a joint application for divorce, as both parties should be fully aware of the application they have made together. If personal service of a divorce application is not possible, the applicant can use service by post. In such cases, the posted documents will include a written acknowledgement for the other party to confirm receipt of the application.   

Substituted and dispensation of service

If an individual is unable to locate their former spouse, or if the spouse is deliberately dodging service, there are further options for “substituted service” or “dispensation of service” of a divorce application. These alternative methods of notification require approval from the Court, which generally only grants permission after the applicant has exhausted all reasonable methods to serve their former spouse in person or by post.

If the applicant has unsuccessfully tried to reach their spouse at their known address, the court may permit “substituted” service via email, social media site or even via a family member of the former spouse, who can confirm that the spouse received the legal documents. In order to obtain permission for substituted service, the applicant must prove to the court that these methods of contact are likely to reach the spouse.

Rarely, the court may allow complete “dispensation” of service if the applicant has made extensive efforts to locate their spouse and they are still untraceable. The court only grants this type of order when it is satisfied that all avenues of service are exhausted and dispensing with service is the last resort. The types of diligent efforts that the court would expect include contacting all the former spouse’s friends, family and employers, and potentially even engaging a private investigator to try and locate them. Dispensation of service is essentially the only way to divorce a spouse without them knowing. As this is contrary to the law’s intention, the court sets a high bar for any applicant wishing to divorce without properly notifying their spouse. 

Default divorce

Sometimes an applicant is able to effect service to their former spouse, but the spouse does not acknowledge receipt, respond or attend court hearings. In that case, the applicant can proceed with the divorce after 28 days (or 42 days if service was outside Australia). As long as the spouse is given a fair chance to respond, the applicant can continue with a default divorce process without their spouse knowing the particulars of the proceeding. It is important to note that default divorce does not assume that one spouse is unaware of the proceeding, but rather that they are choosing not to participate.

Australian law mandates that both parties be informed of a divorce proceeding, so there is little chance of divorcing a spouse without their knowing. An applicant must make extraordinary efforts to locate their spouse and serve divorce papers. The experienced family law solicitors at Go To Court Lawyers can provide advice about substituted service, dispensing with service and default divorces. Please contact our team on 1300 636 846 for any legal advice or representation.