How To Serve Your Application For Divorce 2023
An Application for Divorce is filed in the Federal Circuit and Family Court of Australia.
If it is a joint application, then it is signed by both parties to the marriage and does not need to be served.
However, an individual Application for Divorce is filed by only one party to the marriage and must be served on the other spouse.
Most divorce applications in Australia are individual applications and it is necessary to arrange service.
How this is undertaken is explained in detail below.
How Does The Court Allow Service Of A Divorce Application To Occur?
The Family Law Act provides for the service of a divorce application either by post or for the application to be served in person by a process server or third-party.
Because the Act was written in 1974, it overlooked modern means of service such as email.
When a Divorce Application is served by post, it is necessary to get a form called an Acknowledgement of Service signed by your former spouse.
An original signed Acknowledgement of Service is not required to be returned and it can be sent back by email.
Once received an Affidavit of Service is then prepared which attaches the Acknowledgement of Service and the spouse who is applying for the divorce will then need to sign an affidavit confirming that the signature on the document is that of the former spouse.
Curiously, it may have been several years since you saw your former spouse sign any paperwork, but this is the method adopted by the Court to confirm that the recipient of your Application for Divorce was in fact your former spouse.
Personal Service Of A Divorce Application
Where your former spouse does not wish to sign or refuses to sign an Acknowledgement of Service, an alternative will be to arrange for personal service of the Divorce Application.
The spouse applying for the divorce cannot serve their own application but an adult third-party can serve the documentation.
It is usually the case that a professional process server is engaged to arrange service.
The cost of a process server can be between $160-$250 to arrange service.
Once the Application for Divorce has been handed to the former spouse then the process server will complete their own affidavit which confirms the details of how service has occurred.
This paperwork is then filed with the Court.
Your former spouse does not have to sign anything when they are served but can voluntarily sign an Acknowledgement of Service.
Even if your former spouse refused to sign the Acknowledgement, service will be valid if the process server has correctly identified them as your former spouse.
Alternative Methods Of Service
The Family Law Act allows for service to be varied where personal service or service by post is not possible or in some cases is cost prohibitive – such as when your former spouse resides in a remote location or country.
In these circumstances you can apply to the Court to arrange service by other methods.
Service can occur by email, SMS/text message, through social media such as Facebook or in fact any other sensible means by which your former spouse will be put on notice that the Application for Divorce has been filed with the Court and a hearing date has been listed.
Substituted Service Of The Divorce Application
Substituted service of an Application for Divorce can occur when a Court can be satisfied that giving the Application for Divorce to a third party, such as a relative of your former spouse e.g. parent, will in all likelihood bring the Application for Divorce to your former spouse’s attention.
As a practical example, if you are aware your adult children are in contact with your former spouse then the Application for Divorce could be posted or given to them and then they will bring it to your former spouse’s attention.
Usually Substituted Service occurs where other methods of service discussed above have been ineffective.
If you are able, you can have the third-party confirm in writing that they will pass the Application for Divorce to your former spouse, and this will assist the Court in allowing service by this method.
This is not always possible, and each case will be determined by the Court based on its facts.
Application For Dispensing With Service Of The Divorce Application
Where your former spouse cannot be directly served with a Divorce Application by any means and there is no one who could bring it to their attention, there is the final possibility that the Court could still make an Order for divorce by dispensing or waiving the requirement for service.
The Court will need an Application filed by you or your solicitor as part of the divorce proceedings together with detailed affidavit material as to why there is no possibility of serving your former spouse personally or in any other way bringing the Application for Divorce to their attention.
An example where Dispensing with Service may occur is when your former spouse has moved overseas and have no relatives left in Australia.
Additionally, you are no longer aware of any email, social media or other address where service could occur.
Ultimately, if you can give the Court enough information about what attempts you have made regarding service then a Court will look to proceed with the Divorce Application even if actual service has not occurred.
Once Service Of The Divorce Application Has Occured
In serving the Divorce Application by post, in person or using a variation allowed by the Court there is need to file paperwork known as an affidavit setting out details of how service has occurred.
These affidavits do vary depending on the method of service and it is important that you complete the correct documentation so that your hearing is not adjourned to fix up the paperwork.
Some Further Thoughts
Service of the Divorce Application is the most common difficulty that occurs during the divorce process and is by far the most common reason for a divorce hearing to be adjourned and in some cases even dismissed where no appropriate evidence of service has been provided to the Court.
It is important to get proper advice as to serving the Divorce Application and the Team at Your Divorce understand the complexities involved in service.
If you have any doubts about how service can be affected than using the Team at Your Divorce will simplify the divorce process.
Acknowledgement Of Service Divorce can be a tricky subject.
If you are still unsure on anything, please contact our friendly staff, they are more than happy to assist.
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