How Do I Serve Divorce Documents?

Serving divorce papers can be a confusing and at times, stressful part of the divorce process. Strict rules apply to ensure the other party is properly notified, and failing to comply can delay your application. The information below outlines how service works, what documents must be served, and what options are available if your spouse cannot be located.

A ‘Divorce Service Kit’ is available on the Federal Circuit and Family Court of Australia’s website and contains all the necessary documents for filing your application. You can access the website at https://www.fcfcoa.gov.au/fl/forms/divorce-service-kit.

Am I required to serve my spouse?

Whether you are required to serve your spouse depends on whether your divorce application is a sole or joint application.

No service is required when the parties have filed a joint Application for Divorce.

Should you initiate the Application for Divorce by yourself (i.e. a sole Application for Divorce), you are required to serve the other party.

The purpose of service is to provide evidence to the court that the respondent is aware of the divorce application and has been afforded sufficient time to respond should they wish to do so.

What documents do I Serve?

You should serve the documents that you have filed including but not limited to the following:

• A sealed copy of the Application for Divorce;

• A sealed copy of the Affidavit for eFiling Application;

• A copy of the ‘Marriage, families and separation’ brochure;

• An Acknowledgement of Service (to be signed by the respondent or their lawyer); and

• Any other documents relating to your Application for Divorce (e.g. Marriage certificate etc.).

How does Service occur?

Service can be conducted in a few different ways, including:

• A server who is over the age of 18 years old personally handing the documents to your spouse;

• By posting it to your spouse; or

• By sending it to your spouse’s lawyer.

You cannot personally affect service on your spouse.

The actual service of divorce documents needs to be completed at least 28 days before the divorce hearing takes place.

However if your spouse is overseas, you have a period of 48 days before the divorce hearing to affect service.

How do I prove Service has occurred?

Once service has been affected, you will need to file your evidence that your spouse has been properly served according to the rules.

The proof of service required depends on the method of service:

• Service by a commercial process server: An Acknowledgement of Service signed by the respondent, together with an Affidavit of Service sworn or affirmed by the process server, and an Affidavit Proving Signature sworn or affirmed by you;

• Service by post: An Acknowledgement of Service signed by the respondent, an Affidavit of Post needs to be signed, and an Affidavit Proving Signature sworn or affirmed by you; or

• Service on the respondent’s lawyers: An Acknowledgement of Service signed by the respondent’s lawyer.

What if I can’t locate my Spouse?

In the event that you are not able to locate your spouse after reasonable efforts, you may be able to apply to the court to seek ‘substituted service’ or ‘dispensation of service’, both of which require you to prepare and file an Application in a Proceeding with a supporting affidavit.

Substituted service allows you to serve divorce documents in an alternative way such as by text, email or through social media and requires you to file an affidavit detailing the efforts they made to serve the documents on the respondent.

Dispensation of service on the other hand, is when the Court waves the requirement to serve your spouse entirely. However this is only granted in very limited and exceptional circumstances. This process can be complex and difficult to navigate without legal assistance.

How We Can Help

If you are unsure how to serve your divorce documents, are experiencing difficulties locating your spouse and/or would like assistance with the whole process, our family law team can assist you.

To book your complimentary 20-minute initial consultation, contact us:

• by phone on (02) 9651 1380 

• email at office@meritlegal.com.au 

• click here to complete our enquiry form: https://www.meritlegal.com.au/contact

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***Disclaimer:

Information on this website or post does not constitute legal advice and that electronic dialogue with readers of this website does not constitute any form of client engagement unless specifically agreed. The information is provided on a general basis only. We strongly recommend that you to seek your own independent advice from a lawyer about your situation.