Divorce is rarely straightforward, and it can feel even more daunting when one spouse refuses to cooperate. Many people assume that both parties must agree before a divorce can proceed, but in Australia, that simply isn’t the case. Understanding how the law works — and what your options are — can help reduce uncertainty and give you clarity during a difficult time.
Whether you are facing emotional resistance, practical delays, or outright refusal, speaking with an experienced family lawyer early on can make a significant difference in how smoothly the process unfolds.
Divorce in Australia is Based on No-Fault Principles
Australia operates under a no-fault divorce system, which means the court is not interested in who caused the breakdown of the marriage. Instead, the only ground for divorce is that the marriage has broken down irretrievably, demonstrated by a minimum of 12 months’ separation. Importantly, this separation does not require mutual agreement – one spouse can consider the marriage over even if the other does not accept it or hopes for reconciliation.
Can a Divorce Go Ahead Without Consent?
Yes. If one spouse refuses to divorce, the other can still apply for a divorce on their own by lodging a sole application with the Federal Circuit and Family Court of Australia. The refusing spouse does not have the power to stop the divorce simply by saying “no”. That being said, the court’s role is limited to confirming:
- The marriage has irretrievably broken down
- The parties have been separated for at least 12 months
- Proper arrangements have been made for any children under 18
If these criteria are met, the court can grant the divorce regardless of one spouse’s objections.
What if the Other Spouse Disputes the Separation?
A common tactic when one spouse refuses to divorce is to argue that the separation period has not been valid. This can happen when couples:
- Continue living under the same roof
- Share finances or household responsibilities
- Appear outwardly as a couple
While this may complicate matters, it does not prevent divorce. The court allows for “separation under one roof”, provided there is evidence that the relationship had ended. This might include:
- Separate bedrooms
- Reduced shared activities
- Informing friends or family of the separation
- Changes to financial arrangements
Affidavits and supporting statements can help demonstrate this if the issue is contested.
Emotional Objections vs Legal Reality
It’s not uncommon for refusal to be driven by emotional factors such as denial, fear, religious beliefs, or a desire to delay property or parenting discussions. While these concerns are understandable, they do not override the legal framework. The court does not require both parties to be emotionally ready — only that the legal requirements are satisfied. Divorce is treated as an administrative process, separate from property settlements and parenting matters.
Does Refusal Affect Property or Parenting Matters?
A spouse’s refusal to divorce does not prevent:
- Negotiating or finalising a property settlement
- Making parenting arrangements or court orders
- Seeking spousal maintenance
In fact, divorce itself does not determine how assets are divided or how children spend time with each parent. These matters are dealt with separately and can often proceed before a divorce is finalised.
However, it’s important to note that once a divorce becomes final, there is a 12-month time limit to commence property or spousal maintenance proceedings (unless special permission is granted). This is another reason to seek legal advice early.
What if the Other Spouse Refuses to Engage at All?
If a spouse refuses to sign documents, respond to communication or attend court, the process can still move forward. As long as the divorce application is properly served and procedural requirements are met, the court can proceed in their absence. Service rules are strict, so ensuring documents are delivered correctly is crucial (failure to do so can cause delays, even if the divorce itself is uncontested).
When Legal Guidance Becomes Essential
While divorce may seem simple on paper, refusal by one spouse can introduce technical and emotional challenges. Legal guidance can help you:
- Prepare a strong sole divorce application
- Address disputes about separation dates
- Navigate service requirements
- Protect your position regarding property and children
Having professional support can also reduce stress and prevent costly mistakes that may affect future proceedings.
Moving forward when the other person won’t
A spouse’s refusal to divorce can feel like a loss of control at an already vulnerable time. The key thing to remember is that Australian law does not allow one person to hold another legally trapped in a marriage. With the right information and support, it is entirely possible to move forward, formalise the end of the marriage, and begin the next chapter with clarity and confidence… even if the other party refuses to let go.
