Clients sometimes ask us…
“I don’t know where my ex-partner is, so can I still get court orders?”
Yes, you can. There is no requirement that both parties participate in matters before the court, including matters relating to divorce, property/financial settlement and even parenting. Matters that are pursued by only one party, with no involvement by the other party, are known as “undefended” matters.
Given in Australia we have had a “no-fault” system for over 40 years now, there is no requirement that both parties consent to a divorce. Although parties can apply jointly for a divorce, it is not uncommon for one party to apply on their own. In most cases, the other party still needs to be notified of the divorce application but if you are unable to locate your spouse (you will need evidence of your attempts) and provided the court is satisfied as to the other criteria for divorce, an order will be made.
Although some parties may find their ex-partner wants to delay property settlement, it is unusual to find someone who wants to stick their head in the sand and avoid it altogether.
However, it isn’t completely unheard of.
Again, you will need to show your attempts to locate the other party and notify them of the proceedings. In that regard, social media is often a useful tool to attempt to locate spouses who are missing in action. Provided the court is satisfied the other party is aware of the proceedings and has chosen not to file documents in response and/or make an appearance, the court may then proceed to make orders for property settlement in accordance with the usual principles. It is important to remember, however, that just because the matter is undefended, you will not automatically receive 100% of the property pool.
For whatever reason, some parents are not involved in the lives of their children. If your ex-partner has no contact with you or the children, it is still possible to obtain parenting orders from the court.
You may wonder: why would that be necessary if your child lives with you and the other parent does not interfere?
On a day-to-day basis, it is unlikely to cause any problems. However, if you want the child to obtain a passport, travel overseas, undergo certain medical procedures or to enrol them in a new school, you may encounter problems. The issue stems from the fact organisations and agencies sometimes require the consent of both parents. If your ex-partner is an absentee parent, you may consider applying to the court for sole parental responsibility, enabling you to unilaterally make all long-term (and day-to-day) decisions relating to your child.
It is also possible to apply for orders that specifically permit you to obtain a passport without the consent or signature of the other parent to ensure you and the child can travel overseas without any hassle.
If you or someone you know needs expert advice from our specialist team of family lawyers, phone us on 1800 600 664 or complete the contact form on this page.
At Taylor & Scott “We Care For You”.