Service & divorce applications
If you are making an application for divorce in Australia, and you are a sole applicant, you must serve a copy of the divorce application on your spouse. This ensures they are aware of the upcoming divorce hearing, and they have an opportunity to respond to your divorce application or attend the hearing if they choose. If you do not serve your spouse, the divorce may not be granted. In this weeks blog we look at the requirements for serving a divorce application.
General requirements for service of divorce applications
There are several options to arrange to have the documents served on your spouse:
Personal service by a third party: - You can arrange for another adult or a process server such as the NSW Sheriff’s Office to personally hand the documents to your spouse. You are not allowed to personally serve your spouse yourself. Whoever serves your spouse needs to complete an Affidavit of Service (by hand).
Personal service by post: - The documents are posted to your spouse, and they send you an acknowledgement of service. If you choose this method, you are required to complete an Affidavit of Service (by post).
Service on a solicitor: - Your spouse’s solicitor may hold instructions to accept service on their behalf. If they do, you can deliver, post or email the divorce application to them. You must confirm with the solicitor that they are able to accept the documents before you serve them.
Substituted Service: - If you cannot personally serve your spouse, or serve through a solicitor, you can apply for substituted service. An order for substituted service may request that you serve your spouse by email, or through a third party that the court is satisfied will give or show the documents to your spouse.
If you cannot serve your spouse at all, you can apply to the court to dispense with the requirement for service. This means the court makes an order waiving the requirement to serve the documents on your spouse if they are satisfied you have made all reasonable efforts to locate your spouse.
Serving divorces on spouses who live overseas
If your spouse is overseas and you have their contact details, you may be able to arrange service of the documents under the Hague Convention. You can check if the country your spouse is residing in is a party to the Hague Convention here: https://www.hcch.net/en/states/hcch-members.
Each country has their own costs and procedures, as well as the time they estimate it will take to effect service. It is essential that you allow sufficient time for the application to be served and for you to receive confirmation of service and file the correct documents with the Court before your hearing.
You may also use a process server in the country your spouse is residing. If you are unable to locate your spouse, you may have to use a private investigator or other similar service providers to assist you. You may also be able to contact your spouse’s friends or family, or search the electoral roll, or place an advertisement in the local or national newspaper in the country you believe your spouse is living.
Timeframe for serving the divorce application
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. If you cannot serve your spouse in time, the court may adjourn you divorce hearing.
If you wish to apply for a divorce and have concerns about how you can serve your divorce application on your spouse, contact our friendly team at Mastronardi Legal.
Please note: the information in this article is general in nature and is not legal advice. For legal advice about your circumstances, contact us to make an appointment with one of our solicitors.
