Can one spouse refuse divorce? Usually, when a divorce is initiated, both parties are clear about wanting to be divorced. Property settlement and child custody arrangements may be worked out quickly by the separating spouses or they may need some professional mediation to find a solution, or they may lob ‘bombs’ at each other for months (and hopefully not years). Whether it’s amicable or not depends on each couple, but generally the actual separating and divorcing is one thing that each ‘side’ has agreed upon. But what happens if only one person wants a divorce and the other spouse wants to refuse divorce? What happens then?
Different countries, states or cultures may have slightly different laws regarding the dissolution of a marriage. There haven been some standout Jewish cases in the last few years where the husbands have not been willing to divorce their wives under Jewish law. One very recent one is that of John and Rivka Abayahoudayan, a couple living in the UK. While a civil divorce went through under British law back in 2002, until John Abayahoudayan grants his wife a “get,” or Jewish bill of divorce, his wife Rivka is unable to remarry in a synagogue. A Jewish court has taken the unusual step of naming and shaming him, inviting members of the community to shun him and urging synagogues to deny him entry. For 15 years he has refused his wife a divorce so that she can move on. Under Jewish law this is considered domestic abuse when a husband repeatedly refuses to give a ‘get’. Rivka is considered an ‘agunot’, or ‘chained wife’.
In the US, Nick Cannon, who has been married to Mariah Carey for a number of years has so far refused to sign-off on the divorce papers that he initiated in 2014. Until the divorce is final she is unable to remarry, which it seems she is wanting to do with James Packer. Fortunately for Carey, although it would be quicker for Cannon to just sign the papers, he cannot keep her married once the divorce proceedings are underway. Cannon is unable to refuse divorce from his wife under US laws.
Can a divorce be granted ‘secretly’?
A couple living between two homes in New York and France had been married for 20 years – or so the wife thought. Cristina Carta Villa is now suing her ‘husband’, Gabriel Villa, to nullify a divorce she says she knew nothing about. Apparently, just months after they were married in 1994 in New York, he secretly divorced her in the Dominican Republic. It was done in an attempt to shield his assets. The wife says that, “It’s a fraud”. She says that she never knew about, let alone consented to, a Dominican divorce, which was never registered in New York. She “has no recollection of [giving] any authorization to anyone to proceed with a divorce, or even thinking about divorce from the man she had just recently married.” If legal authority was given, she was either “surreptitiously impaired, drugged or misled” into giving it, claim court papers. Cristina argues that the divorce is not even legal in the Dominican Republic because the various requirements and process were incomplete. The validity of a marriage is one of the few ways in which one spouse can refuse divorce proceedings.
Can One Spouse Refuse Divorce?
Although it may be just one spouse that initiates the divorce, at least under the Family Law Act in Australia, you cannot divorce in secret or refuse divorce from the other. You can, however, make an application for divorce even if the other party does not want a divorce. The ‘no fault’ divorce was established with the only ground for ending a marriage being that the relationship has broken down irretrievably. A marriage has irretrievably broken down when:
- the court is satisfied that a couple has lived separately and apart for at least 12 months
- the marriage has broken down to such an extent, that it is unlikely that the couple would get back together
If the couple are still living in the same house, it needs to be proven that the couple are no longer sharing the same bed, socialising with each other or doing household chores together.
You can get back together for up to three months without restarting the 12 month separation period. For example, if you are separated for four months, get back together for almost three months and then separate again for eight months, this will be considered a total of 12 months’ separation. However, if you were back together for four months only the most recent eight months would count as separation.
If you have been married for less than 2 years, you can only get a divorce if you and your partner go to a counselling session, or if there are special circumstances. If your partner refuses to participate, you can still get a divorce. If this applies to you, get legal advice.
Once a couple has been separated for more than 12 months, either party is able to file an application even if the other wants to refuse divorce. They just need to have the other party served with the divorce papers. If the party being served the papers will not take the document, the person serving the application (anyone 18 years or over – it does not need to be the applicant) can place the document down in their presence while stating that: either the husband or wife is seeking a divorce; these are the papers; and the appropriate court will hear the divorce application on a date to be established.
Although the other party who wants to refuse divorce can respond within 28 days of being served with the application for divorce, if the court is satisfied that the marriage has broken down irretrievably and the couple have been separated for more than 12 months, opposition for a divorce is very limited. The other spouse does not have to agree to the divorce or sign anything. The divorce order will still be made.
Professional Help When You Need It
At Divorce Lawyers Brisbane we understand that the process of obtaining a divorce can be a traumatic event in your life. We are able to help our clients through this difficult time by handling this process with compassion and efficiency. We can also respond to your spouse’s unwanted divorce application.
When proceeding with your divorce you will need to make separate arrangements to resolve any property matters and care arrangements for any children.
You have one year from the date of your divorce to make an Application to the Court for a property settlement. However, we recommend that all property matters between you and your partner be finalised as soon as possible following your separation.
Please contact us today for a free, 10-minute phone consultation.