Serving Divorce Papers
If you are seeking a divorce, you must let your husband or wife know by ‘serving divorce papers’ on them. This means they must be handed a copy of the application for divorce and associated documents.
Serving the Application
The Court will keep the original application, stamp the copies (called ‘sealing’) and give the copies back to the applicant.
The following documents must then be posted or sent to (‘served on’) the other party (‘the respondent’):
- a sealed copy of the Form 4; and
- a pamphlet outlining the effects of divorce (available from the Registry).
The respondent must be served at least 28 clear days before the hearing date (42 clear days if they are overseas). There are several methods of service.
The Family Court website also provides a step-by-step guide to serving divorce papers.
The respondent can be handed the documents by a person (Reg 7.12 Family Law Rules 2004 (Cth)). A friend or relative, or a professional process server, can serve the documents (with or without the presence of the applicant). A professional server will charge a fee.
If the applicant uses personal service through a friend or relative they should get the following documents from the Registry at the same time as the application for dissolution is filed:
- an Affidavit of Personal Service;
- an Acknowledgment of Service ;
- pamphlets outlining the effects of divorce. Family Court brochures are available from the Registry.
The server should hand the documents to the respondent only. It is not enough to leave them with someone else who lives or works with the respondent. If the server does not know the respondent they should identify the respondent by asking for their full name, the full name of their spouse and the date and place of marriage.
The documents must be left with the respondent. If they will not accept them the server should put them down within the view of the respondent. The person serving the documents should also say “Your husband or wife (whichever applies) is seeking a divorce from you. These are the papers and the Court will hear the application on…(name the date)”.
The respondent should also be asked to sign the Acknowledgment of Service form. It does not matter if the respondent refuses to sign this form. The applicant can rely on the affidavit sworn by the person who served the documents to prove that the respondent received them.
Once the documents are served, the server should fill out and sign an Affidavit of Personal Service in front of a Justice of the Peace or solicitor. The Acknowledgment of Service, if signed, should be attached to this affidavit and also signed by the Justice of the Peace as an annexure. These documents are then filed in the court as proof of service.
The documents can be served on the respondent, if the respondent will cooperate by signing the application, by post. If postal service is used the applicant will have to get the following documents from the Registry:
- an Affidavit of Service by Post;
- an Acknowledgment of Service;
- an Affidavit of Proof of Signature.
Unlike personal service, the applicant can post the documents to the respondent themselves. Included with the sealed application and the pamphlet on the effects of divorce, there should also be an Acknowledgment of Service for the respondent to sign and a stamped envelope with the applicant’s name and address on it.
If the respondent does not sign and return the Acknowledgment of Service, another method of service will have to be attempted.
If the form is returned, the applicant should fill out and sign an Affidavit of Service setting out the date on which the papers were sent. It will also be necessary for the applicant to complete an Affidavit of Proof of Signature attached to the signed Acknowledgment form. In this affidavit, the applicant has to set out how they know that the signature on the Acknowledgment is the respondent’s. A common form of words is: “During the course of our married life I saw the respondent sign cheques and other documents on many occasions.”
If the documents are to be served overseas, the mode of service may depend on whether the country is a ‘convention country’ (that is, a country with which Australia has an agreement about civil proceedings, including the service of documents. There are a set of rules where service is in a non-convention country (Reg 7.19 and 7.20, Family Law Rules 2004 (Cth)).
If you need to serve papers on a spouse in a convention country it must be done at least 42 days before the court hearing. The regular methods of service apply – postal service or personal service.
Substituting or Dispensing with Service
If the applicant does not know the whereabouts of the respondent, or has for some other reason been unable to serve the respondent an application can be made to the court for substituted service. The court can order some other type of service. If the applicant knows the address of a family member of the respondent they can post the douments to that person. The divorce documents must be in a sealed envelope addressed to the respondent and mailed as “confidential”. The letter the family member should ask them to pass the documents to the respondent. The applicant needs to swear an affidavit outlining that this has been a substituted service.
Sometimes the court will waive the requirement for service altogether. The applicant will need to make a separate application for dispensation of service. They will also need to swear an affidavit setting out the efforts that have been made to find the respondent. The court will not usually require the applicant to go to great expense in trying to track down the respondent, especially if they are not financially well off. It will not be necessary, for example, to hire private detectives.
The following inexpensive enquiries are often sufficient to show attempts at service:
- writing to the respondent’s family and friends, telling them of the divorce and asking them for information on the respondent’s whereabouts;
- writing to the last known employer of the respondent and asking whether they left a forwarding address;
- conducting a search of Motor Registry’s driving license and car registration records.
The application for dispensation of service and the supporting affidavit should be filed at the same time as the application for dissolution. The application may be decided by a Registrar or Deputy Registrar of the Court without need for the applicant to attend court. The court may order an alternative form of service such as by advertisement in a newspaper.