Can I Get Divorced if I Can’t Find My Spouse?

KEY TAKE-OUTS

• It is not uncommon for people to make an application for divorce after the 12-month separation period has lapsed when they are unaware of the whereabouts of their former spouse.
• It may be a more complicated, costly and lengthy process, however, you can still get divorced if you can’t find your ex!
• If you have taken all reasonable steps to locate your former spouse and are still unable to serve the application on them, you may be eligible to apply for substituted service or an order to dispense with service.

The short answer is YES. It is not uncommon for people who can’t find their spouse to make an application for divorce after the 12-month separation period has lapsed.

How to get a divorce if you can’t find your Spouse

This can be achieved by making a sole application for divorce, which means that your former spouse will not be required to sign the application before it is filed in the Court. However, you will be required to serve the application on your former spouse 28 days prior to the Divorce Hearing. Service can be affected by post or in person.

If you have taken all reasonable steps to locate your former spouse and are still unable to serve the application on them, you may be eligible to apply for substituted service or an order to dispense with service.

This will involve making an Application in a Proceeding with an affidavit addressing how you have made all reasonable steps to serve the application on your former spouse, such as:

• What attempts, efforts and enquiries you made to find your ex.
• When you last saw, spoke to or communicated in any way with your ex, and the circumstances of that sighting or communication.
• The last known address of your ex.
• Who your ex’s closest relatives and friends are, what enquiries you have made with these people about the location of your ex and any replies received.
• Your ex’s last known place of employment (if any).
• What enquiries you have made with your ex’s last known employer and any replies received (if applicable).
• Details of any property, bank accounts or businesses jointly owned with your ex.
• If your spouse is living overseas, provide details about the country they reside in, how long they have lived there for and if they plan to travel or move back to Australia.
• Any reasons why your ex may not be contactable.
• The costs of trying to locate your ex and whether such costs are creating financial difficulties for you.
• Any other relevant information that may help the court.

What options do I have if personal service is not possible?

‘Substituted service’ is when the Court allows the application for divorce to be served on your former spouse via email, post, social media or through a third party that affiliates with your former spouse and has the capacity to bring the application to your former spouse’s attention.

What is Dispensation of Service?

‘Dispensation of Service’ is when the court makes an order waiving the requirement of you needing to serve the application for divorce on your former spouse provided that the court is satisfied that you have exercised all reasonable steps to locate and serve the documents on your former spouse.

So rest assured – it may be a more complicated, costly and lengthy process, however, you can still get divorced if you can’t find your spouse!