Your spouse abandons you, runs off with another person, and you do not know where they are.
Can you divorce them? What do you do with the jointly owned property and your spouse’s personal items that they left behind?
Firstly, it is important to consider the matters you need to resolve upon separation, which most commonly include:
- Property settlement: how you divide your assets and liabilities, including orders for spousal maintenance (where appropriate)
- Parenting matters: where your children live, how they spend time with the other parent, and other parenting related matters
- Child Support: whether you are required to pay or receive child support, and how this can be agreed/resolved
- Divorce: the severing of your marriage contract.
Property Settlement
Can you get rid of their personal items?
You do not have the legal right to dispose of your spouse’s property without first providing them with reasonable notice of your intent to do so, and adequate opportunity to arrange collection of items they may wish to keep.
Often this can be resolved through reasonable communication either directly, or via a legal practitioner.
It can be helpful to create a list or schedule of the items to be divided, and then keep all items safe and free from damage.
If you sell or dispose of items that existed at separation, in some cases the proceeds you retain (or the value of the item disposed) might be added back to the pool of property available for division.
How do you deal with joint property?
If you have jointly owned property such as vehicles, houses, and bank accounts, but cannot reach an agreement, you may need to commence proceedings in the Family Court to obtain property orders.
If you make reasonable attempts to serve your Family Court application upon your spouse and the Court is satisfied that you have made such attempts, orders can then be made to process your matter without your spouse being present.
This is called an ex parte order/hearing.
If your spouse continues not to engage in proceedings, then you can make application to proceed on an undefended basis. This means the Court will consider your application based on your evidence only and without input from your spouse.
If you are unsure what assets and liabilities your spouse has, and you have commenced proceedings in the Family Court, it is possible to issue subpoena/s to various institutions to obtain relevant information.
Commonly, subpoenas are issued to banking institutions and other financial providers.
For superannuation entitlements, the Family Court can directly access and distribute superannuation information from the ATO/MyGov, subject to a simple online application being made by either party.
For more detailed superannuation information, you can complete and issue a Form 6 Superannuation Information form to the relevant fund.
If there are documents that need to be signed by your spouse for the purpose of progressing property matters, then the Court can make orders that authorise you to sign on behalf of your spouse (for example, if you need to sell, rent, or transfer property), or that otherwise authorise a Registrar of the Court to sign on behalf of your spouse.
You can make an application for divorce either as a sole applicant (i.e., on your own) or through a joint application with your ex-spouse.
The sole ground for divorce is the irreconcilable breakdown of a relationship evidenced by a period of 12 months’ separation.
If you have no knowledge of the location of your spouse, or you are not in contact, then it may be necessary to file a sole application for divorce.
When you file your divorce application, you select your hearing date which is usually at least 8 weeks into the future.
If you make a sole application, you must comply with service requirements in order to be granted the divorce. This ordinarily means that you must use a third party who is over the age of 18 years (and preferably a process server) to personally serve a copy of your filed application and supporting documents upon your spouse.
This is called personal service.
If you do not know where your spouse is and do not have any contact details for them, it can be difficult to effect personal service.
Often the involvement of a process server can resolve service difficulties, as they are usually able to conduct searches upon public databases (i.e., electoral roll, etc) to source information about a person’s location. Process servers can also be instructed to facilitate service at a workplace, rather than a home address, if necessary.
If you have exhausted all reasonable attempts to personally serve your divorce application, you can make an application for an order for substituted service. This application involves preparing, signing, and filing an affidavit that details all the attempts you have made to contact your spouse to effect service of your application.
At your first divorce hearing, the presiding judicial officer will consider your application.
In historical cases, orders have been made for applicants to publish a notice in a newspaper and then file an affidavit attaching a copy of the notice.
In other cases, the Court may consider making orders for service to be facilitated by either means, such as via social media messaging service.
The Court otherwise has the discretion to make an order that service has been successful, even if personal service requirements have not been met.
Upon service requirements being satisfied (either directly, or by order of the Court), the divorce will be granted, and will take effect one month and one day after the order is made.
