Are you having trouble serving your divorce application

If you have made a sole application for divorce, you must arrange to serve the following documents to your spouse:

•  a sealed copy of the application for divorce
•  a copy of the 'Marriage, Families and Separation' brochure, and
•  any other documents filed with the Court, except the photocopy of your marriage certificate.

If you have made a joint application for divorce, you do not need to serve the documents.

Time limits - If your spouse is in Australia

The documents must be served at least 28 days before the court hearing. If your spouse is overseas, the documents must be served at least 42 days before the court hearing.

You can serve documents on your spouse in two ways:

• Service by Post
• Service by Hand

You cannot serve the documents on your spouse yourself

You must arrange for a person over 18 years of age (the server) to serve the documents on your spouse (the server). The server can be a family member, friend or professional process server.

If your spouse has a lawyer who is willing to accept service, you can serve the documents on this lawyer. A signed acknowledgment of service (Divorce) from your spouse’s lawyer is proof of service. You need to file this acknowledgement with the Court. You do not need to file any other service documents.

If you are having trouble serving the divorce application on your spouse, and have taken all reasonable steps to serve your spouse, you can apply to the Court for:

•     substituted service, or
•     dispensation of service.

The legal issues about substituted service and dispensation of service are complex. You should seek legal advice.

You need to decide which way to serve your application - by post or by hand. There are different steps to follow for each type of service. See below.

Service by post

Step 1 - Obtain these forms from the Divorce Service Kit at Related Links:

• Affidavit of Service by Post (Divorce), and
• Acknowledgement of Service (Divorce).

Step 2 - Post the following items to your spouse at his or her last known address:

• a sealed copy of the Application for Divorce and any other documents you have filed with the Court, except the photocopy of the marriage certificate
• a copy of the 'Marriage, Families and Separation’ brochure
• An Acknowledgment of Service (Divorce).
• a letter asking your spouse sign the Acknowledgment of Service (Divorce) and return it to you, and
• a stamped self-addressed envelope for the return of the Acknowledgment of Service (Divorce).

It is helpful to record the date you posted the documents to your spouse.

Step 3 - The signed acknowledgment of service is returned to you.

If it is not returned, you may need to arrange service of your divorce application by hand.

Step 4 - Complete the affidavit of service by post (divorce)

You must answer all questions on the Affidavit of Service by Post (Divorce), including question 6 which confirms that your spouse has signed the Acknowledgment of Service (Divorce).

Attach the signed acknowledgment of service (divorce) to the affidavit of service by post (divorce).

Step 5 - Sign the affidavit of service by post (divorce).

You need to swear/affirm the affidavit of service by post (divorce) before a person who is authorised to witness affidavits; for example, a lawyer or Justice of the peace.

The person witnessing the affidavit of service by post (divorce) must also complete the annexure note on the acknowledgment of service (divorce).

Step 6 - Make a copy of the completed service forms before filing them at a family law registry.

Step 7 - File the service forms at a family law registry before the hearing date. You need to file the original and a copy of the:

• Affidavit of Service by Post (Divorce), and
• Acknowledgement of Service (Divorce).

It is helpful to take your copy of the service forms with you if you are attending the court hearing.

Service by hand

Step 1 - Obtain these forms from the Divorce Service Kit at Related Links:

• Affidavit of service by hand (divorce)
• Acknowledgement of service (divorce). and
• Affidavit proving signature (divorce).

Step 2 - Choose a person to serve the documents

You cannot serve the documents on your spouse yourself. You must arrange for a third person over the age of 18 years (the server) to serve the documents on your spouse (the server). This server may be a family member, friend or a professional process server. Process servers are listed in the Yellow Pages.

Step 3 - Give the server these documents:

• a sealed copy of the Application for Divorce and any other documents you have filed with the Court, except the photocopy of the marriage certificate
• a copy of the 'Marriage, Families and Separation' brochure, and
• an Acknowledgment of service (divorce).

Step 4 -The server hands the documents to your spouse.

The server must identify your spouse, so the Court knows that the documents have been given to the right person. If the server is a family member or friend who knows your spouse, this is enough proof of identity.

If the server does not know your spouse, then they must identify him or her. The server can identify your spouse by:

• a photograph
• asking questions; for example ‘What is your full name?’ or ‘Are you the husband/wife of [state name of applicant]?’ and
• having another person present at the time of service who knows your spouse.

Step 5 - The server asks your spouse to sign the acknowledgement of service (Divorce).

If your spouse accepts the documents, the server must ask him or her to sign the Acknowledgment of Service (Divorce).

If your spouse refuses to accept the documents, the server can put them down in the presence of your spouse and state what they are. For example, ‘Your spouse is applying for a divorce, and I am serving you with the divorce application. The divorce application is listed for hearing on [state the date] at [state the court location]’.

Step 6 - The server signs the affidavit of service by hand (divorce).

The server must include any information or attach any documents to the Affidavit of Service by Hand (Divorce) which helped him, or she identify your spouse.

If the server identified your spouse with a photograph, you should also prepare a further brief affidavit stating that the person in the photograph is your spouse.

The server must then swear/affirm the Affidavit of Service by Hand (Divorce) before a person who is authorised to witness affidavits; for example, a lawyer or Justice of the Peace.

If your spouse signed the Acknowledgment of Service (divorce), it must be attached to the Affidavit of Service by Hand (Divorce). The witness is also required to complete the annexure note at the bottom of the Acknowledgment of Service (divorce).

Step 7 Sign the affidavit proving signature (divorce)

If your spouse signed the Acknowledgment of Service (divorce) and you recognize their signature, you should complete the affidavit Proving Signature (Divorce).

You will need to swear/affirm the affidavit proving signature (divorce) before a person who is authorized to witness affidavits; for example, a lawyer or Justice of the Peace.

Attach a copy of the signed Acknowledgment of Service (divorce) to the affidavit proving signature (divorce).

Step 8 - Make a copy of the completed service forms.

Step 9 - File the service forms at a family law registry before to the hearing date.

You must file the original and a copy of the:

•     Affidavit of service by hand (divorce)
•     Acknowledgement of service (divorce), and
•     Affidavit Proving signature (divorce).