Proving service of my Divorce Application

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Divorce Applications need to be served on your spouse if you have not jointly applied for a Divorce.

Service is the process of sending or giving the Court documents to your spouse. Before you give a copy of your Divorce Application to your spouse you must file them in the Court. Service ensures that all parties to the court proceedings are aware of when and where the proceedings will take place and have received all the necessary documentation in advance.

If you have made a joint application, you do not need to serve your spouse with any documents.

If you are unable to locate your spouse and you have taken all reasonable steps to locate them, you may be able to apply for an Order to Dispense With Service or for substituted service. For more information on this please visit the Family Court Website.

Effecting service if you and your partner are unrepresented can be done in one of 2 ways.

OPTION 1:

Ordinarily you should attempt personal service on your spouse. This means that you must arrange for a person over 18 years of age to hand a copy of the documents to your spouse. You must not serve the documents on your spouse yourself.  You may enlist the services of a professional process server, a family member or friend/colleague.

The documents your spouse must receive are:

  • Sealed copy of the Application for Divorce;
  • Copy of the Marriage, families and separation brochure; and
  • Acknowledgment of Service (to be signed at Part C by the respondent).

Once service has been effected by hand you should complete (or have your process server complete) and Affidavit of Service – by hand and file it in the court. If you spouse has signed the Acknowledgment of Service you should attach this to the Affidavit.

OPTION 2:

You can attempt service by post, but you should only do so if you are confident your spouse will sign and return the Acknowledgement of Service (Divorce) to you. If they do not return the Acknowledgement of Service (Divorce) form the Court cannot be sure your spouse has received the documents and therefore your Divorce may be delayed. Personal service by hand is always the safer option.

The documents must send by post are:

  • Sealed copy of the Application for Divorce;
  • Copy of the Marriage, families and separation brochure;
  • Acknowledgment of Service (to be signed at Part C by the respondent);
  • A letter addressed to your spouse asking them to sign the Acknowledgment of Service; and
  • A stamped self-addressed envelope for them to return the signed Acknowledgment of Service to you.

If you attempt service by post you must also complete an Affidavit of Service – by post and file it in the court. If your spouse had returned the Acknowledgement of Service you should attach this to your Affidavit.

Time Limit for Service

If your spouse is in Australia, you must provide them with a copy of the documents at least 28 days before the Court hearing. If they are outside Australia you must provide them at least 42 days before the Court hearing.

The Court may adjourn your matter or your Application may be dismissed and you may have to start over again (including the payment of a second filing fee) if:

  1. You have not provided some or all of the necessary documents by hand or by post to your spouse;
  2. You have not provided the documents to your spouse in time;
  3. You are unable to prove that your spouse has received the documents (i.e. they have not provided an Acknowledgement of Service, and/or you have not filed an Affidavit of Service.