Do Both Parties Have to Agree to a Divorce?
Does it take two people to conduct an argument? This may seem an obvious question, but it may often come up during divorce proceedings and especially if one party is not so keen on the whole idea. What will happen, therefore, if one of the individuals is in opposition and does not want to proceed with the dissolution?
What the Law Says
Nothing in the Family Law Act says that both parties have to file a petition for divorce. One of the individuals does, however, need to prove that the arrangement has broken down irretrievably. In this case, the court needs to be satisfied that the couple has been separated for at least 12 months. They will then assert that the issue is permanent, and it is unlikely that they will get back together in the future.
If you want to file for divorce, but your partner disagrees, you need to gather evidence to support your case. This can be a little more complex if you are both still living under the same roof, but that fact, by itself, does not have any bearing. Nevertheless, it's a good idea to bring in some witness evidence if you can. If it is clear to others that you are independent and do not socialise with each other, then this evidence can back up your position.
In an extreme situation, your former partner may refuse to engage with or may walk the other way when you try to talk about the divorce. If you are living apart, then you may not see them that often, but you will nevertheless need to serve papers so that they know what is going on. This can be done by a professional process server or any adult, and they will simply need to leave the papers in their presence and sign an affidavit to that end.
Remember, the key here is to prove to the court that you've been living apart for at least 12 months. You can bring any other evidence to support your claim that the marriage has broken down irretrievably, and in the absence of any evidence to the contrary, your divorce will probably be approved.
It's always a good idea, nevertheless, to bring in a divorce lawyer in an unusual situation like this. They will help you to navigate any legal problems on your way to dissolution.