Starting the process without your ex
If your ex won’t communicate or take part in the asset division process, you can still get the ball rolling by seeing a lawyer to help you consider the scope of relevant financial and property information, and file an application in the Family Court (or High Court).
Once your application and supporting evidence are filed, your ex will need to be notified. They will then be given an opportunity to respond. Importantly, there are strict deadlines for doing so. If your ex chooses not to engage or comply with the timetable, the court will continue the process without them and may make binding orders in their absence.
What the court can do when your ex doesn’t participate
If your ex remains detached from the process, tries to evade service, ignores communication, or continues to withhold information, the court can make a wide range of orders, including:
- Orders for substituted service (i.e. that the court documents be served on your ex via some other means such as email or leaving the documents at their workplace);
- Orders compelling disclosure of financial or other relevant information (these orders could be directed at your ex or at a third party who may be holding the information);
- Orders determining the classification and value of property, including whether certain items are relationship property or separate property;
- Orders requiring the sale or preservation of assets, and directing how proceeds are to be divided;
- Orders assessing compensation payable or adjustments necessary to align the division with the governing legal principles (i.e. addressing post‑separation contributions, occupational rent, or other financial disparities); and
- Any other orders needed to progress matters and ensure a fair division of property.
Fairness is still a factor
It is important to remember that your ex’s refusal to engage does not mean the court will automatically grant everything you seek. The Judge must still make a fair and legally sound decision based on:
- The available evidence;
- The statutory principles governing relationship property; and
- What can reasonably be inferred about your ex’s position, even if they have not participated.
The court’s role is to achieve a just division of relationship property, not simply to penalise a non‑participating party.
Who pays the legal costs?
Understandably, clients often worry about the cost of going to court, especially when they only need to do so because their ex refuses to co‑operate and reach an out of court settlement through amicable negotiations.
Helpfully, the court has the power to award costs where appropriate. This means that if your ex’s unreasonable behaviour (such as persistent non‑cooperation or disregard for court directions) has caused unnecessary delay or expense, the court may order them to contribute to your legal costs. Keep in mind, however, that costs awards generally reflect a contribution to (and not a full reimbursement of) legal expenses you have incurred in pursuing the matter through court.
The bottom line
A non‑cooperative ex can slow the process, but they cannot stop it. While it is generally more efficient and cost‑effective when both parties engage constructively, the law does not allow one party’s refusal to participate to stall matters indefinitely. The process can, and will, continue without them.
