The divorce element to separation can often be the quickest and easiest part of the process.

Filing for divorce is a separate issue to a property settlement and/or parenting arrangements and although people often confuse the issues, or assume they are intertwined, a divorce is dealt with independently. A divorce merely refers to the dissolution of a marriage.

This means that filing for divorce does not decide any financial or parenting issues and these will need to be dealt with separately. Once the divorce is finalised, however, it will start a limitation period for property settlement/spousal maintenance and you will have twelve months to file an Application in the Court after the Divorce Order takes effect, should this be necessary.

If your ex is saying they won’t agree to the divorce, can they really stop you?

The good news is, if your ex is truly only referring to the ‘divorce’ then they can only oppose the Order on two grounds, being:

1. That you have not been separated for the required period of 12 months; or
2. That the Court does not have jurisdiction to grant the divorce.

The first is relatively self-explanatory, in that you and your ex must be separated for a period of 12 months before you can file for Divorce. It is important to note that you can be separated and living under the same roof during this period. Further, you can recommence your relationship for up to 3 months before having to restart that 12-month period, but you must be separated for a total period of 12 months.

The second relates to lack of jurisdiction. To avoid this occurring you or your ex must either be an Australian Citizen, live in Australia and consider it your permanent home, or normally live in Australia and have lived here for at least 12 months before filing the Application for Divorce. If none of these apply to you, or your ex, then the Court will not have jurisdiction to grant your Divorce.

A few other possible ways that your ex could get in the way of you obtaining a divorce Order are:

1. If you have been married for less than two years, you and your ex can only obtain a divorce if you agree to counselling or if there are special circumstances. This does not mean that you cannot get divorced if your ex does not agree to counselling, however, there are additional steps involved and you should obtain legal advice.
2. If there is a reasonable likelihood that you will resume your relationship and your ex can satisfy the Court of that, then the Court may not grant your Divorce.

If you would like to obtain a divorce or are looking for further advice please contact our office to arrange an appointment.