If an Application for Divorce has been made and it is not a joint application (i.e. requiring the consent of both parties), the applicant is required to serve a sealed copy of the application on their former spouse (the respondent) along with a copy of the prescribed Federal Circuit and Family Court brochure “Marriage, Families and Separation”.
Service can be made either by way of service by hand or through the post.
Service through Post
The documents can be posted to the respondent but must include an Acknowledgement of Service for the respondent to sign. The court will not accept that the respondent has been served by post if a signed acknowledgment is not filed with the court. The applicant will also need to sign an Affidavit of Service by Post (Divorce).
An Application for Divorce has to be served at least 28 days prior to the divorce hearing if the respondent is located in Australia and 42 days if the respondent is located overseas. If you do not serve the respondent within that timeframe, the divorce hearing will need to be adjourned to a date after the time limits. If you consider that the other spouse will not sign and return the Acknowledgement of Service at all or within the necessary timeframe, you should proceed with service by hand.
Service by Hand
An applicant cannot serve their former spouse personally. They can however be present when the service occurs. Service by hand must be done by any an adult and can be a family member, friend or a professional process server.
After the server has served the Application for Divorce upon the respondent, they will be required to sign an Affidavit of Service setting out their service of the documents on the respondent. If the respondent also signed an Acknowledgement of Service at the time of service, that should also be filed with the court.
Service via a Solicitor
If the respondent has a solicitor acting for them already in relation to separate parenting or property matters, you can contact the solicitor and inquire whether they will accept service of the divorce documents on behalf of their client.
If they hold instructions to accept service, the documents can then be served on the solicitor via the post or be delivering them to the solicitor’s office by hand. You will need to request for the solicitor to sign an Acknowledgment of Service to confirm their receipt of the documents on behalf of their client and file it with the court. You do not need to file any other service documents.
What can I do if I can’t find my former spouse?
If you are having difficulties locating a spouse to serve your Application for Divorce, you can apply to the court for an order for substituted service or dispensation of service.
To read more about how we can assist you in getting an order for substituted service or dispensation of service click here.
