What happens if my ex won’t sign divorce papers?
It’s not an uncommon question for us to get from our clients going through the divorce process.
It’s important to note that you ex cannot prevent a divorce from proceeding by simply refusing to sign any divorce paperwork. It simple means you will need to file a sole divorce application, rather than a joint one.
Let’s take a look at how filing for divorce in Western Australia works, and what happens if your ex won’t sign divorce papers.
Filing For Divorce in Western Australia
Filing for divorce in Western Australia is possibly the easiest part of the entire separation process.
Australian Family Law applies the No Faultprinciple, which means that neither spouse need to prove fault on the part of their partner to file for divorce.
The only requirements are as follows:
- The marriage to have been irretrievably broken down.
- Spouses have been separated for at least 12 months.
- If the marriage has lasted under two years the separation period is 24 months and both partners must attend counselling
- If there are any children under the age of 18 years, appropriate arrangements are in place for their care.
- Either party must be an Australian citizen or permanent citizen and has resided in Australia for at least 12 months.
Applications for divorce are filed through the Family Court of Western Australia. Once your application is accepted the Court will set a hearing date.
Joint Vs Sole Divorce
Applications can be filed in two ways – Sole or Joint applications.
- Sole Application means one spouse signs the application and serves it onto the other party.
- Joint Application means that both spouses sign the application and there is no need for it to be served to the other party.
It is always best to seek legal advice regarding which method may be more appropriate for your case.
If you and your spouse agree to the divorce, a joint application may be the best option.
If your ex refuses to agree to the divorce, you can choose to file a sole application for divorce.
Serving Divorce Papers
If you have filed a sole application for divorce, you need to serve it along with certain documents on your spouse at least 28 days prior to the hearing date. You can do it either by post or have it hand delivered. Serving it by post is risky because if the Acknowledgment of Service is not returned, it will complicate and delay the process.
You cannot hand deliver the application and documents to your spouse yourself, but may use any person over the age of 18 to do so. If your spouse wishes to contest the divorce, they will have to submit a Response to Divorce and then appear in Court to explain their reason for contesting.
My Ex Won’t Sign Divorce Papers – What Now?
If your ex refuses to sign the divorce papers, it can certainly delay the process but cannot prevent it. If that is the case, obtaining legal assistance is strongly recommended to help you navigate through the process correctly.
The procedure will usually require you to submit an affidavit confirming the service of the documents, and once it is received by the Court, the divorce process will continue with or without your ex-spouse’s participation. To avoid this tedious task, you can use a professional server or the Australian Family Law Registry to serve the papers.
Work Out Your Issues At Family Mediation
If your ex won’t sign divorce papers, it’s not the end of the world. There is another option you can explore.
Family mediation provides an opportunity for you both to resolve your disputes amicably, thus avoiding the unpleasant situation of your ex simply refusing to sign the divorce papers. A family mediator may be the best person to establish their reasons and help them realise that they cannot legally prevent the divorce by not signing the paperwork.
If your ex is open to attending family mediation to try and resolve your issues, this can help you reach a mutually agreed divorce settlement, which in turn can prevent much stress for the whole family and avoid costly and lengthy litigation through the Courts.
Do you have an ex that won’t sign divorce papers? Not sure what to do next?