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How To Serve Divorce Papers Australia.
Want to know how to serve Divorce Papers in Australia?
All Individual Divorce Applications filed by only one of the separated spouses needs to be served or ‘given’ to the other spouse. Read more to find out all the weird and wonderful ways we can Serve Divorce Papers
Today’s important topic is to discuss Serving a Divorce Application.
Why can it be so hard and how YourDivorce.com.au can save you time, stress and 💰
Our story starts with you!! When you are a couple who has separated and want to move forward with your life, getting a divorce should be simple and straightforward.
On many occasions this is not the case and we have found serving your divorce application is usually the biggest hurdle or problem to overcome.
That’s where Your Divorce comes in
Almost 5 years ago, pre pandemic believe it or not, Your Divorce was created to provide Australia’s first online end to end law firm dedicated solely to arranging divorces for people safely and from the comfort of their own home.
Over these 5 years Your Divorce has assisted thousands of individuals in obtaining their divorce so they can move forward with their lives.
Arranging serving these divorces we have encountered nearly every possible variation of difficulties in serving the divorce application on the former spouse.
Whether their spouse is overseas, in prison, in nursing care, hard to contact, missing, or simply being evasive we have found a way to satisfy the Court that the divorce can proceed to finalisation.
Is Service Of The Divorce Application Needed At All?
All Individual Divorce Applications filed by only one of the separated spouses needs to be served or ‘given’ to the other spouse.
A Joint Divorce Application is filed and signed by both parties to the marriage.
As both parties have signed initially it does not need to be served after filing.
We have observed that because both parties don’t always communicate well enough after separation to arrange a joint application only about 20% of Divorce Applications are filed jointly.
So 4 out of 5 Divorce Applications are individual and need service.
What is the process?
The Family Law Act is quite old and allows service either by post or personally.
Service must usually occur 28 days prior to the Hearing Date of the Divorce Application but if a spouse is overseas that time is 42 days prior.
Firstly, Service of the Divorce Application by Post
Service by post means just that. The Divorce Application, a brochure called Marriage, Families and Separation and an Acknowledgment of Service Form are sent by post to the other party.
It is hoped that the other party signs and returns the Acknowledgment of Service confirming they have received a copy of the Divorce Application and is aware what date the hearing is set down for.
Oddly the Court doesn’t ensure or particularly care how the Acknowledgment is sent back ie post/email/sms or even social media.
Secondly, Service of the Divorce Application in Person
Personal service of the Divorce Application is the other alternative under the Family Law Act.
Personal services means the other spouse is handed “or served” with the Divorce Application and supporting documents.
Even if they refuse to sign the Acknowledgment of Service ‘on the spot’ service is still considered valid.
To show the Court that personal service has occurred an affidavit, being a sworn statement, is signed by the person handing over the documents.
The Your Divorce team then ensures the correct affidavits are prepared.
It is not possible for one spouse to serve the other spouse the Divorce Application personally.
This point is often misunderstood, so let’s repeat it – it is not possible for a spouse to serve the Divorce Application to their former spouse personally.
There are some alternative methods on How to serve Divorce Papers Australia, so let’s look at those:
The Court has the power to vary or allow the Divorce Application to be served in other ways apart from post or in person (personally).
To get the Court to agree to allow a different method of service of the Divorce Application you need to show the Court that the main 2 methods have been unsuccessful.
OR
In the case of personal service it is not physically able to be done or it is too expensive/costing potentially 100’s or even 1,000’s of dollars.
An example – the former spouse is living in a remote location or overseas where no process servers exist.
Usually the varying of how service is to be done occurs at the first Court hearing date after the Divorce Application is filed and you tell the Court why you need to try and serve the Divorce Application in another way.
Option 1: Serving the Divorce Application by email
The most common method of varying how service occurs is service of a Divorce Application by email.
The Court will usually allow service by email when the physical address of the former spouse is not known or not readily able to be found.
Example not on the electoral roll and a place of work is not known.
Quite commonly a spouse will retain the other party’s email address post separation and this may be the only method of contacting the former spouse – particularly if they are overseas.
It is usual practice to try and contact the former spouse with a lead up email to confirm the address is still valid prior to emailing the actual Divorce Application.
The Court will usually then accept a signed Acknowledgment of Service or an email from the former spouse which mentions directly receiving the Divorce Application as evidence of service so the divorce hearing can proceed.
Option 2: Serving the Divorce Application via Social Media
Social Media broadly means all electronic forms of communication such as Facebook, WhatsApp, Weibo, Telegram or other channel where an owner of the social media account can be identified and sent a message.
Similar to email, serving the Divorce Application through social media requires showing sufficient reasons or evidence to the Court that this is the most practical or only reasonable way of notifying the former spouse that a Divorce Application has been filed.
Even where the former spouse refuses to directly communicate or acknowledge the existence of the Divorce Application if the Court is satisfied they have or will receive it then the divorce hearing may proceed.
Once again detailed background information should be supplied to the Court to ‘convince’ the Court to proceed in this manner.
Can we suggest that advising your solicitor that the other party is on social media or contacting the other side yourself via social media early in the divorce process may save unnecessary delays in getting the divorce processed through the Court.
Option 3: Serving the Divorce Application by text (SMS)
It is possible to get the Court to agree to arrange or allow service of the Divorce Application by text (SMS).
Critically, the Court needs to know that the number used belongs to the former spouse and why this is known to be the case.
If you or your solicitor can get a response to a text message communication prior to serving the Divorce Application it can be helpful to convince the Court that the Application will come to their attention if sent in this manner.
As with other alternate service methods the Court will still need to know why service by text is the only or the most practical way service of the Divorce Application can occur.
On some occasions the Court will order a combination of service methods such as by email and via Facebook or text message.
Let’s now discuss some more complex service arrangements, the first of which is called
Substituted Service of a Divorce Application
What is this type of service?
The Family Law Act allows that the Divorce Application can be served on a third party such as another family member who is most likely to bring the Divorce Application to the attention of the former spouse.
Substituted service usually only occurs when all other means of serving or bringing to the attention of the former spouse Divorce Application are not possible or have failed.
A prime example of substituted service would occur when a former spouse has moved towns and cut off all contact from their spouse who wants to apply for a divorce.
If however there are parents of the former spouse and their address or contact details are known then obtaining a Court Order to allow service on them could occur.
You will need to show that it is likely that the parents are in contact with their son/daughter or can contact them if they need to.
Getting the parents’ agreement to pass on the Divorce Application will help getting an order for substituted service from the Court.
Substituted service is not a common method of service but can be a valuable option.
This leads us to the last available option being, Dispensing with Service.
What does Dispensing with Service of a Divorce Application mean?
Quite simply it means that in certain circumstances the Court will allow a Divorce Application to proceed even if not served or brought to the attention of the former spouse.
Dispensing with service occurs quite rarely.
To have a Court dispense with service will require detailed evidence of why, despite all reasonable enquiries, the whereabouts or location of the former spouse cannot be found and there is no one else who could bring it to their attention.
Usually searches of the electoral roll, organising a ‘skip trace’ search by a search agent, giving a background of how contact has been lost and other relevant family members will usually be required to be undertaken to obtain an order to dispense with service.
To assist in this area the team at Your Divorce have developed extensive precedents and resources to use in the circumstances where contact with the former spouse has been lost.
The final topic to discuss is the Service of the Divorce Application in very specific circumstances
Firstly, Service on a former spouse living overseas
The same rules regarding service apply where your former spouse lives overseas except they must be served 42 days prior to hearing (as opposed to 28 days if in Australia).
Depending in which country the former spouse resides and how effective the postal service is, the team at Your Divorce will seek information as to whether service by post is possible.
If postal or personal service is not possible or too expensive then it is not uncommon that the Court will allow service by another means such as email or social media.
Your Divorce regularly prepares affidavit material to advise the Court what is the best or most practical method of contacting the former spouse.
Where the proper process is followed there is no reason that a Divorce Application should be delayed or disallowed whether the former spouse lives in Zimbabwe, China or the UK.
Secondly, Service on a former spouse in prison
In these circumstances the Divorce Application is sent to the person in charge of the prison (interestingly in Australia they are the Officer in Charge not the warden).
Thirdly, Service on a former spouse in a Nursing Home or Care Facility
Service is usually effected by sending the Divorce Application by post to the person in charge of the facility.
Sometimes the Court may want more details about the capacity of the former spouse in terms of their understanding of the documents.
Finally, another case sometimes presented is
‘I know where my spouse lives but they are being evasive and deliberately refusing to accept the divorce application paperwork”
Service in these circumstances involves a ‘cocktail mix’ of what we have just covered.
The best approach is to give the Court a detailed chronology of what we know and what has been attempted to date.
A Court will usually then consider the information supplied, seek any additional information if considers necessary and then make one or more orders as to service by one or more means.
The Divorce can then proceed.
Despite these problems outlined, the team at Your Divorce has never experienced a Divorce Application not proceeding because the other side refuses too co-operate.
Taking Action to Finalise a Divorce Application?
We hope this has helped you understand how to serve divorce papers in Australia.
When considering a divorce application, we can say that being unsure if you can serve your Divorce Application on your former spouse should not hold you back from proceeding to move forward with your life.
The Team at Your Divorce have years of combined experience in obtaining your divorce in a simplified and safe manner.
We are Australia’s best online Divorce service. Here is why
This includes sorting out service of your divorce application no matter the varied circumstances you may face.
If you need to obtain further details or information then contact us:-
By email to: help@your-divorce.com.au
By telephoning 1300 531 137
Or Start your application online at www.your-divorce.com.au and we will then contact you at no financial obligation to discuss your individual circumstances.
Thank you for reading and Best Wishes from the Team at Your Divorce