Podcast Episode 16: How do I get a divorce if I don’t know where my ex is?

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Jessica Hamilton (JH): Hello and welcome to the Family Five podcast with Ivy Law Group, where we will tackle the tough family law issues in the time it takes you to drink your coffee. I’m Jessica Hamilton, I’m the Marketing Manager for Ivy Law Group, and I’m joined by my boss, Shane Neagle, who is the Director of Ivy Law Group and the family lawyer extraordinaire. In this podcast, we will take a 5 in 5 approach, five questions in five minutes. Our aim is to keep the podcast light, easy to understand and to give you some valuable information to take away with you.

Jessica Hamilton (JH): Hello and welcome back to another episode. It’s been a little while. We’re just returning from a break. How are things in Shane land? 

Shane Neagle (SN): Going well, I’ve actually been in Litigation City, Jessica. So, it’s good to be talking again. And today, talking about divorce. 

JH: Yeah, it’s good to be back doing the podcast. Before we go on to divorce, let’s just start with separation first. So, for example, what if you happen to separate with a partner and you want to start your property and parenting proceedings, but you can’t find them, what do you do? 

SN: It goes back to the sleuth skills of, if someone’s trying to hide, we’ll just do the old-fashioned things. Check the White pages, check LinkedIn, Facebook, see what they’re up to, check out with their friends if there’s photos of them, and sometimes engage a private investigator. 

JH: All right. So going on to that. Say you’ve been separated from a partner or spouse for the 12 months now, and you want to officially file for divorce. But again, you cannot find your ex. What happens then? 

SN: Well, if we’ve failed in all of those efforts we just spoke about, then we’d often advise clients to then seek an application for substituted service. The court would require evidence from the client [that] efforts have been made, and that includes having process servers go out to try to find someone, and there’s a chance that it’s very clear to the court that they knew they were there, because there’s a photo from a private investigator showing the person on the other side of a window, but wouldn’t come and receive the document. And the court says, well, okay, what we want you to do is advertise in the Sydney Morning Herald or for your last effort. And if that’s done, we’ll make the order, that person’s been served. 

JH: Okay. So, looking at another scenario, then what if your former partner or spouse is not a citizen of Australia? First question is can you still get divorced? Secondly, what if they are a citizen but they’ve moved overseas? 

SN: I know you don’t like me getting technical, Jessica, but pursuant to section 39 already, open bracket, close, with number three, close bracket, of the Family Law Act, the court’s got jurisdiction to hear a divorce matter, provided either husband or wife are either an Australian citizen by birth, descent or by grant of Australian citizenship or ordinarily living in Australia and have done so for 12 months before the filing of the divorce, immediately before, or regard Australia as a home, and intend to live in Australia indefinitely. Only one of the above needs to apply for one person in the couple and have the jurisdiction requirements met, and the same applies if they’ve moved overseas.

JH: So, what does that actually mean, Shane? in layperson’s terms. 

SN: So, you can both be living overseas, and the application can be made. How straightforward is that? 

JH: Much better. Much better.

JH: Okay. So, another scenario. This time, you actually know where your former partner or spouse is, but they refuse to sign the divorce papers. Can you file an application for divorce without them? 

SN: In Australia we have the no fault divorce system. So, you don’t need to rock up to the court and prove why the relationship broke down, as they still do in the USA. This means that the only ground for divorce is that the marriage has broken down, and there is no reasonable chance for the people to get back together, and that they’ve been separated for 12 months. There’s often conflict between the parties following separation, and sometimes it’s so offside with each other. One person wants to rush down to get the divorce [and the other doesn’t]. And what we normally see and where, you know, people are compliant, is that they’ll do a joint application and then they share the almost $1,000 filing fee. 

Now, when the other person is AWOL or really anti [divorce], then you can still make a sole application. Now the really important thing to know is that when you have children that are under 18, one party has to attend that divorce hearing because the court wants to know what are the parenting arrangements going on and if they see anything that’s extreme, the court might not grant the divorce.
 
One important part of the process of a divorce, and when it’s filed by either party, is actually filing a response to the divorce, because we often see that the applicant has put facts in there that are clearly not right, or our client might disagree with, if they’re filing the response. And that’s critical because that can be seen as concession by omission, that you agree that the relationship was that long. And then sometimes they say, well, it’s seven years and you didn’t say anything. Now it’s something that can hurt you. We try to make sure the response says, no, we don’t agree with seven years. It was 14 years. 

JH: So I guess. That does lead us onto the next question. What if your former partner or spouse has taken the kids overseas? 

SN: If the children are overseas, the court would still want to know the best understanding of the person that’s still living in Australia, what the arrangements are. Well, they’re living with X and they’re living in Majorca. And as I understand, they’re going to a local school, but that’s usually an issue that’s unaffected or impacted by divorce normally. 

JH: So, can you stay separated without ever actually divorcing? 

SN: Yeah. There’s no obligation that the person gets divorced in Australia. The only thing that is really important to note is that when it involves in a marriage, in a Will, if you’ve left everything to your wife but never divorced, well, that Will could stand up. Once you divorce, it automatically vetoes the Will under the Succession Act, New South Wales. 

JH: So that brings us to the end of the episode today. So, it’s time for the joke portion. What have you got for us today, Shane? 

SN: What did the personal injury lawyer name her daughter? Sue. I used to be addicted to soap, but I’m clean now Jessica.

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JH: Thanks for tuning in, and don’t forget to save us to your favorites wherever you listen to your podcast so that you don’t miss an episode. It’s important to note that the contents of this podcast are intended as a general guide to the subject matter. And if you are looking for specific advice about your individual circumstances, then we would recommend getting in touch with one of our friendly family lawyers.