When applying for a divorce in Australia there are necessary service requirements to ensure the Respondent is made aware of the divorce and given the opportunity to respond if they wish to do so.
In most cases, service is completed one of two ways- by post; with the Respondent signing an acknowledgment confirming receipt of the documents post, or in person, where the Respondent has the documents physically handed to them (or left in their presence after they are informed of what they are).
However, there are a number of other unique situations that are less straightforward and can require service to be completed in a different way. This article looks at how to serve the Respondent if they are incarcerated in prison or detained in an immigration centre.
Complex Service: Respondent is incarcerated
If your spouse is imprisoned at the time of the divorce application, there are specific requirements regarding how service of the divorce application must be completed. Instead of your former spouse (the Respondent in the divorce) being served with the divorce application it must instead be served on the person in charge of the prison. The person in charge of the prison would then provide the documents to the prison. There is no requirement that the Respondent signs anything in this situation.
The following example is a composite of multiple real matters with all identifying details have been changed.
Jane Smith has decided to divorce her spouse John Smith who has been incarcerated for the last 3 years. Jane Smith knows he is incarcerated in NSW but is unsure which prison he is incarcerated. Once we file the divorce application with the Court, we complete searches to locate the correct prison for service and confirm directly with the prison the best method for them to receive documents (they are able to have them either emailed or posted to them). We send documents per the prison’s request to their officer in charge. The officer in charge then has the documents provided to the prisoner and returns a document to us confirming they have done so and what day the documents were provided to the prisoner. We provide evidence of this successful service under the Court rules to the Court for their consideration prior to the hearing. The divorce is then granted at hearing.
Complex Service: Respondent is in an immigration detention centre
If your spouse is being detained in an Immigration Detention Centre at the time of the divorce application, they may still be able to be served normally under the Court rules by post if they can receive post at their location. As personal service can be challenging, unless permission is granted for someone to attend the facility, if the Respondent is unwilling to sign a document confirming receipt of the documents by post it might be necessary to prepare a further application requesting the Court provide an exception to the standard Court rules.
The following example is based on a real matter with all identifying details have been changed.
John Smith wanted to commence a divorce application but was aware that his wife Jane Smith had been detained due to her visa status and she was currently being held at an immigration centre. John Smith was aware of the location of the immigration centre that Jane Smith was being detained in. We contacted the immigration centre, and they indicated they would not provide any confirmation that documents had been handed to Jane Smith but if documents were posted there, they would be passed onto her per their standard procedure. As it was a secure centre process servers were unable to attend the detention centre to physically hand the documents to Jane Smith. We were able to post the documents to Jane, and she returned the required Acknowledgment that she had received them. If Jane had been unwilling to sign it would have likely been necessary to apply to the Court for an order allowing service to be completed or proven in another way since she could not be personally served with the documents.
If you need help completing your online divorce application or meeting service requirements, our expert team is here to support you. Call us on 1300 531 137, email help@your-divorce.com.au, or reach out to us via our contact form at Contact us.
