While some couples may decide to end their marriage through mutual consent and apply for a divorce together, this is not always the case. Sometimes, one individual will want to move on with life and feel that the relationship has disintegrated beyond repair. Yet what happens if the other party is not interested in discussing divorce under any circumstances? Is it possible to go ahead anyway, and what do you need to do in this type of situation?
The Serving Process
The law does allow for one party to apply for a divorce entirely independently of the other, but there are certain rules to consider. Principally, you must ensure that they are served notice that you are applying for the divorce, and this must be done no later than 28 days before any court hearing (if your spouse is in Australia).
Listing and Getting a Date
In this case, you should work with your lawyer to file the paperwork and make sure that your case has been listed for a divorce hearing. When this happens, you are given a date and plenty of time to ensure that the other party is served. However, you must pay particular attention to this, as if you do not serve in accordance with the rules, your divorce hearing may be adjourned. In exceptional circumstances, it may simply be cancelled.
The court will give you a sealed copy of the application for divorce with supporting documents, and you also need to send an information brochure with further details. You will then need to get somebody to serve the documents to the other party as you cannot do this yourself. It may be possible to serve the application through regular mail so long as you include a stamped and pre-addressed return envelope. It is better if you get a third party (such as a professional process server) to do this instead. In this case, you will also need an affidavit from them to say that the documents were actually served.
Sometimes it can prove difficult to locate and serve the individual, and if you are unsuccessful, you may be able to apply to the court for dispensation. For example, they may allow you to send the documents by email instead if that stands a better chance of success.
Talk with your lawyer about the finer details. They'll help you to conform to the various rules and regulations to make the process as painless as possible in the circumstances.
Contact a law firm, such as Peter J Griffin & Co, to learn more.