Marriage Breakdown - Husband won't Agree to Divorce?

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Danielle N

9 April 2014
My relationship with my husband has broken down and I want to separate. Do I have to leave our family home or can I make him leave under family law? He also said that he won't to agree to a divorce. I think he's being very unreasonable and is in denial. Can any of you family lawyers tell me what you think?


Well-Known Member
8 April 2014
You can't be forced out of the family home or force him out if the home is in joint names, unless in the very rare case that one of you gets a restraining order for sole use and occupation. If your home is in the name of only one person, the other person could be forced out until there is a property settlement.

If either of you doesn't have enough money to live separately or refuses to move, then you might be left separated but still living under the same roof until there is a property settlement. But if you and your husband live in the same home during part or all of the 12-month separation period, you need to provide extra information in an affidavit to the court before you can apply for a divorce.

The Family Law Courts site gives a good outline and states that in your affidavit, you need to prove that there has been a change in the marriage, gradual or sudden, showing you and your spouse have separated.

You will need to explain any:
  • change in sleeping arrangements
  • reduction in shared activities or family outings
  • decline in performing household duties for each other
  • division of finances; for example, separate bank accounts, and
  • any other matters that show the marriage has broken down; for example, if you have notified family and friends of your separation.

Your affidavit should also explain:
  • Why you continued to live in the same home following separation and what intention, if any, you have of changing the situation.
  • Living arrangements you made for any child of the marriage under 18 years during the time you were living under one roof.
  • What government departments you have advised of your separation if you receive a government benefit; for example, Centrelink or the Child Support Agency. If correspondence has been received from these departments about your separation, attach a copy to your affidavit.
Go see a family lawyer to discuss your specific situation, your rights and the options to facilitate your divorce.

Lisa M

9 April 2014
Sounds like you need a family lawyer to help deal with your husband who may well be stubborn/difficult to deal with as you seek to divorce him a start a new chapter in your life.

He doesn't have to agree to the divorce, but it can still go ahead anyway without his mutual agreement. Once you've separated for at least 12 months and the relationship is irretrievably broken down, then you can make a divorce application. There are very few grounds to object to a divorce application once you've been separated for more than 12 months. Divorce doesn't resolve property or parenting matters and you'll still need to negotiate those matters.