Sole Divorce Application Australia: Process & FAQ

Introduction

Should You File a Sole or Joint Application?

If your spouse does not agree to the divorce or cannot be contacted, you will need to file a sole application. Under Section 44(1A) of the Family Law Act 1975, a divorce application may be filed by one party alone (sole application) or by both parties together (joint application).

Choose a sole application if:

• Your spouse does not agree to the divorce
• Your spouse cannot be located or contacted
• Communication has completely broken down

Choose a joint application if:

• Both parties agree to end the marriage
• Both parties can cooperate on the paperwork

For the joint application process, see Joint Divorce in Australia: Requirements, Process & Costs.

Key differences in a sole application:

1. You must serve the documents. The divorce application must be formally served on your spouse (Rule 2.42)
2. You must prove service. File evidence with the court that service was completed (Rule 2.32(1))
3. Your spouse has a right to respond. They get 28 days (within Australia) or 42 days (overseas) after service

What Are the Legal Requirements?

The legal requirements for a sole application are the same as for a joint application. Below is a brief summary; for detailed guidance on each requirement, see Joint Divorce in Australia.

1. Irretrievable breakdown of the marriage. This is the sole ground for divorce (Section 48(1))
2. Twelve months of continuous separation. The separation must be continuous and run right up to the filing date (Section 48(2)). Separation started by only one party still counts (Section 49(1))
3. Jurisdiction. At least one party must be an Australian citizen, domiciled in Australia, or ordinarily resident for at least one year (Section 39(3))
4. Documents in English. Non-English documents need a translation and a translator's affidavit (Rule 2.17)
5. Children's arrangements. No longer a mandatory precondition after the 2023 amendments, but the court keeps discretion (Section 55A)

For how the court determines separation, including separation under one roof, see Separation Standards for Divorce in Australia.

How Do You Serve Divorce Papers on Your Spouse?

After filing, you must serve the divorce papers on your spouse within 12 months. Service is the most critical step in a sole divorce application. Under Rule 2.42, there are two methods: personal service and service by post.

Step 1: Prepare the Service Package

The package must include all of the following:

• A sealed copy of the Application for Divorce (Rule 2.42)
• The Marriage, Families and Separation booklet. Required by law (Section 12F + Rule 2.28(2))
• An Acknowledgment of Service form (Rule 2.44(1))

Step 2: Choose Who Will Serve the Documents

You cannot serve the documents yourself. Anyone else can. The law does not restrict the server's age, identity, or profession (Rule 2.35(3)). Common choices:

• A friend or relative. Someone who can identify your spouse on sight works well
• A professional process server. A paid service with experience in serving documents
• Your spouse's lawyer. If the lawyer agrees in writing to accept service, it counts as personal service (Rule 2.36)

Step 3: Carry Out Service

Option A: Personal Service (Recommended)

The server locates your spouse in person and hands over the service package (Rule 2.35(1)). If your spouse refuses to take the documents, the server can put them down in their presence and tell them what the documents are. This still counts as valid service (Rule 2.35(2)).

Option B: Service by Post

Send the documents by pre-paid post in a sealed envelope to your spouse's last known address (Rule 2.42(b)). The envelope must also include an Acknowledgment of Service form and a stamped return envelope (Rule 2.43).

Important: Proving postal service depends entirely on your spouse signing and returning the Acknowledgment of Service. If they do not return it, the court will not accept that service has occurred, and you will need to arrange personal service instead.

Step 4: Prove Service to the Court

After service, you must file evidence with the court. Under Rule 2.32(1), there are three ways to prove service:

1. Acknowledgment of Service signed by your spouse. File it with the court (Rule 2.44)
2. Affidavit of Service from the server. If your spouse will not sign, the person who served the documents files a sworn statement (Rule 2.45). If the server can identify your spouse, this should be included in the affidavit (Rule 2.46(2))
3. Your spouse files a response. Filing a Response to Divorce automatically counts as proof of service

What Happens After Service?

After service, your spouse has 28 days (within Australia) or 42 days (overseas) to decide whether to respond. The outcome determines your next steps.

Scenario 1: Your Spouse Does Not Contest

This is the most common outcome. If your spouse does not file a response within the deadline, the court may grant the divorce without either party attending (Section 98A(1)). If there are children under 18, the court must be satisfied that proper arrangements are in place (Section 98A(2A)).

Scenario 2: Your Spouse Contests the Divorce

If your spouse files a Response to Divorce, both parties must attend court. The hearing happens in open court. Both of you must attend or have a lawyer appear for you (Practice Direction 4.5).

Under Australia's no-fault system, the grounds for opposing a divorce are very limited:

• Whether 12 months of separation has been established (Section 48(2))
• Whether the court has jurisdiction (Section 39(3))
• Whether the marriage certificate is valid
• Your spouse cannot oppose the divorce simply because they do not want it

Scenario 3: You Cannot Serve Your Spouse

If you cannot locate your spouse or they are evading service, you may apply for substituted service or dispensation of service. Under Rule 2.34, you can ask the court to let you serve the papers another way, or to skip service altogether. You do not need to notify your spouse before applying.

Common methods of substituted service:

• Email
• Social media (e.g. Facebook)
• Through a friend or relative of your spouse
• Newspaper advertisement

To apply, you must file an Application in a Proceeding (Rule 5.02) and a supporting Affidavit (Rule 5.04) detailing the steps you have already taken to locate and serve your spouse.

Frequently Asked Questions

Q1: Can I serve the divorce papers myself?

No, the law says you cannot serve the documents yourself. Under Rule 2.35(3), the person who hands over the documents cannot be the person who filed them. You can be present when service happens, though. Anyone else, whether a friend, relative, or professional process server, can do the serving.

Q2: What if my spouse refuses to accept the documents?

Refusal does not prevent valid service. Under Rule 2.35(2), if your spouse will not take the documents, the server may put them down in their presence and tell them what the documents are. This constitutes valid personal service.

Q3: How long does a sole divorce application take?

From filing to taking effect, a sole divorce typically takes 4–8 months. This does not include the 12-month separation period. In an undefended matter, the timeline runs: file → serve → wait 28 days → hearing → 1-month waiting period → effective. The main variable is how quickly you can complete service.

Q4: Does a sole application cost more than a joint application?

The filing fee is the same: $1,125 (effective 1 July 2025). However, sole applications may involve additional costs for service, particularly if you need a professional process server or must apply for substituted service.

Q5: Is there a time limit for property settlement after divorce?

Yes, you must file a property settlement application within 12 months of the divorce taking effect. After that deadline, you need your former spouse's consent or leave of the court (Section 44(3)).