In most cases, when family lawyers are representing a client who wishes to get a divorce, that client’s ex-partner will normally be employing their own lawyer to represent them. However, there are scenarios where one spouse wishes the divorce to proceed but the other spouse does not, or the other spouse refuses to cooperate with the divorce proceedings, for whatever reason.
This can prove stressful and challenging to the partner who wants the divorce to happen, and often makes them feel like they are trapped in a marriage they want to get out of, even if they have already separated from their ex-partner. One point we must make here is that ultimately, if you meet all the necessary and legal criteria for a divorce, then your ex-partner cannot stop the divorce from being granted.
Part of the reason for this is that unlike many other countries, a divorce in Australia does not cast blame upon one spouse or the other for the marriage failing. For example in the USA, adultery can be grounds for divorce, and in the UK, one of the grounds for divorce can be unreasonable behaviour by the other spouse.
In both of these examples, there is blame apportioned to one of the spouses and, as is their right, the person who is being accused of adultery or unreasonable behaviour can defend themselves against those accusations, and thus lawfully prolong the divorce process.
In Australia this should not happen because the only grounds for divorce here, is that the marriage has broken down irretrievably, and in addition, there is no likelihood of the couple reuniting, assuming they have already separated.
If you start divorce proceedings, unfortunately there are several ways in which your spouse can delay the process, albeit they will not be able to stop the divorce from ultimately being finalised.
Ways they could use are to simply ignore any correspondence, including failing to acknowledge the divorce papers. They could also refuse to disclose information that has been requested, and in particular details of their financial situation. They could also refuse to make any agreement in relation to the children, be they the parent with whom the children live, or the absent parent.
In the case of financial information and arrangements for the children, a court order can be sought so that the judge orders disclosure of information, and also order arrangements for the children such as visitation. Again, a spouse may still refuse to cooperate but once a court order has been issued they will now find themselves in danger of being in contempt of court and ultimately face imprisonment.
There can be many reasons why your ex-partner might wish to prolong or even prevent your divorce, with some being more vitriolic than others. They might genuinely believe there is a chance to save the marriage and are doing what they can to prevent it from ending. Whilst that is perfectly understandable, it takes two to save a marriage and if one spouse is 100% certain it is over, then divorce is going to be the result.
At the other end of the scale is the desire simply to be obstructive and uncooperative to in some way get back at an ex-partner, and to stop them from moving on with their life. Given that irretrievable breakdown is the only grounds needed for a divorce, their behaviour would seem to prove beyond any doubt that the marriage has reached that point.