What If Your Spouse Refuses to Divorce?

Can you divorce if your spouse refuses?

Yes. The Law Reform (Marriage and Divorce) Act 1976 allows a joint petition, where you both agree, and a single petition, where one spouse files alone. Your spouse cannot veto the divorce by refusing.

Under Section 53, either spouse can file on the ground that the marriage has broken down and cannot be saved. You do not need your spouse’s permission. The court decides based on the evidence.

What must you prove?

You must prove the breakdown using at least one of the facts in Section 54:

• adultery, and you find it intolerable to live with your spouse
• unreasonable behaviour
• desertion for at least two continuous years
• living apart for at least two continuous years

Choose the one that fits your situation and back it with evidence. For unreasonable behaviour, you need specific incidents, not just general unhappiness or not getting along.

A lawyer can help you pick the right fact and prepare the evidence.

How a contested case runs

You file the divorce petition in the High Court. Your spouse is served with it and can file an answer (a written reply). If they oppose it, the case goes to trial.

At trial, both sides present evidence and may call witnesses. You must prove the fact you rely on. Your spouse may challenge your evidence.

The judge then decides whether the marriage has broken down.

If the court is satisfied, it grants a decree nisi (a first-stage divorce order). This can be made absolute (final) after three months, and the marriage then ends. The court can also deal with custody, maintenance and property.

If your spouse drags things out

Some spouses try to delay. They may avoid being served, stay away from court or file needless applications. The court has ways to handle this.

If your spouse cannot be served in the normal way, the court can allow substituted service, such as a newspaper notice or posting the papers at their last known address. If they still do not come to court, the court can go ahead without them.

Delay is frustrating, but it cannot stop the divorce if you prove your case.

How to prepare

• Gather evidence for the fact you rely on.
• Note down incidents with dates, what happened and any witnesses.
• Keep text messages, emails and photos that support your case.

Get legal advice early. A contested divorce is more complex than a joint petition.

It can also be stressful, especially if your spouse fights every step. Knowing the process and expecting it to take time helps you stay focused.

Looking to engage a divorce lawyer? If you are unsure which ground you can prove, request independent lawyer contact via WhatsApp: Request Lawyer Contact. For general information, use our guides and tools.