What is uncontested divorce?
Updated: 19 May 2023 · Read time: 5 minutes
Uncontested divorce occurs when both spouses mutually agree to apply for a divorce.
This usually happens when either a joint application for divorce is filed, or when either spouse files a sole application for divorce and the other party signs their paperwork willingly.
Many separating couples in Australia prefer an uncontested divorce because it is generally smoother and less complicated than a contested divorce.
However, it is important to note that uncontested divorce does not automatically mean that all other matters have been agreed upon – you may face disagreement or contention when it comes to finance, property and parenting. Both you and your spouse have the right to individually apply for court orders surrounding these matters.
Is a court hearing required?
If a joint application is filed, you nor your spouse have to attend a court hearing, even if you have children together. That being said, the Court will still need to ensure that suitable caring arrangements have been agreed upon for your children.
Many separating couples prefer an uncontested divorce as it is less complicated than a contested divorce
If a sole application for divorce is made, you and your spouse must attend a court hearing if you have children together under the age of 18.
It is important to note that if you or your former partner wish to apply for orders that you cannot decide upon, you will likely have to go to court for the decision of these matters.
Do you have to serve the divorce to your former spouse?
The term ‘serve’ refers to the action of physically presenting the divorce applications and documentation to your former spouse.
In a joint application, serving the divorce application is not required since you are already doing it together. However, if you or your former spouse make a sole application for divorce, the application must then be served to the other person, who in turn must respond by signing an acknowledgement that they received the documents. The person can choose to delay signing this or decide not to sign it at all. They also have the right to file a separate application in response to the divorce.
However, the person who served the documents (the sole applicant) can also apply to the Court for an order that says the other person’s signature is no longer needed.
This all being said, in the case of an uncontested divorce, it is likely that other forms of dispute resolution such as mediation and negotiation will be successful.
It is important to note that only a very small percentage of divorce cases go to court.
How can you tell if you are eligible for an uncontested online divorce?
In order to apply for an uncontested online divorce, you must fulfil each of the following conditions:
- You are separated from your spouse – this must be for at least 12 months.
- You have been married for at least 2 years. However, there are options that allow you to file for a divorce without this – you can arrange to have a Counsellor’s Certificate (meaning you will need to discuss the reasons for your divorce with an appointed licensed marriage counsellor), or you can file an affidavit (which outlines the reasons for divorce).
- You have lived apart from each other for at least 12 months – ‘living apart’ takes into consideration factors such as whether you have separate bank accounts, whether you attend social events together or apart, and whether or not you still have a sexual relationship.
- Your former spouse consents to the divorce – meaning you both mutually agree to the divorce and consent to parental care arrangements and property settlement.
- You and your former spouse can provide detailed parental care arrangements for your children under the age of 18. These arrangements can be through the court (Parenting Orders) or agreed between the parties (Parenting Plans).
- Both you and your former spouse have an Australian mailing address
How much does it cost to lodge an uncontested online divorce application?
The required filing fee with The Court is $990. The total cost for an uncontested divorce will have additional legal fees if you engage lawyers for this service.
What documents do you need for an online uncontested divorce?
You will need the following documents to make an online application:
- A copy of your Marriage Certificate
- A copy of any financial or childrens’ orders previously made between you and your spouse
- A copy of any domestic violence orders in place between you and your spouse
- A copy of your passport (or citizenship papers if you were not born in Australia)
Do you need a solicitor to file for an uncontested divorce?
As long as you and your spouse are content with filling out the required online forms on the Federal Circuit and Family Court of Australia website, you do not need to have a solicitor.
However, you will also need to ensure you are in mutual agreement of how to divide your assets and the care arrangements for any children under the age of 18 you may have together. If issues arise here, you may need professional legal advice.
Can you move from a contested divorce to an uncontested divorce?
Many divorcing couples begin in a contested situation, but, through dispute resolution services such as negotiation, mediation, or even arbitration are able to shift to an uncontested divorce, thus allowing them to proceed amicably without proceeding to trial.
If you would like advice on a divorce application or any aspect of family law then don't hesitate to reach out to a member of our team.
