Embarking on the difficult journey of divorce is never easy, and when it comes to the legal processes involved, things can get even more overwhelming. In Australia, the serving of divorce papers is necessary for the dissolution of some marriages, and it's essential to do it correctly to ensure a smooth transition from marriage to divorce
In our comprehensive guide, we will unravel the intricacies of serving divorce papers in Australia.
Whether you're considering filing for divorce or have already initiated the process, understanding the ins and outs of serving divorce papers will empower you to confidently make informed decisions and navigate the Australian family law system.
We cover why you may need to serve divorce papers, various methods of serving and the potential obstacles you might encounter. Get the knowledge and insights you need to embark on this legal journey right here.
Which kind of divorce requires me to serve divorce papers (joint/sole)?
Not all divorce applications require you to serve divorce papers.
If you are applying for a joint divorce, you will be pleased to know that you are not required to serve divorce papers.
However, if you are applying for a sole divorce application, then the service of divorce papers to your ex-partner is a requirement.
Further reading: Joint and sole application for divorce: What's the difference.
What is the purpose of serving the Application for divorce on the other party?
The serving of divorce papers is an essential step in a sole divorce process.
Its main purpose is to let your ex-partner know that you have already initiated the process.
It also informs the other party of every detail written in the application, providing them with all the necessary information related to the divorce.
How to prepare the service documents
After filing the divorce application at a family law registry, you need to prepare the following documents:
- Affidavit of Service by hand or by post
- Acknowledgment of Service
- Application for Divorce
- Affidavit for eFiling
- Notice of application for divorce
- Marriage, Families, and Separation brochure
- A stamped self-addressed envelope
- Any other related documents
You can download the service forms from the Commonwealth Courts portal.
The steps and the required documents vary for every service type. To know what other requirements you need to prepare, refer to the related section below.
What is the time limit to serve divorce papers?
The time limit for the serving of divorce papers depends on where the other party is.
If your ex-partner is in Australia, the time limit is at least 28 days before the court hearing.
If your ex is abroad, you need to serve the divorce papers at least 42 days before the hearing.
How do I serve my divorce application to my ex?
By hand
The serving of divorce papers cannot be done by the party involved, so you cannot do it yourself.
It must be served by someone above 18 years old.
You can either hire a professional process server or ask a friend or family member to do it.
By electronic communication
When serving divorce papers by electronic communication, be sure to send the documents to your ex-partner's active email address. You must be confident that your ex will sign and return them accordingly.
If the serving of divorce papers by electronic communication doesn't work, you must serve the documents by hand.
By post
Before you choose to serve the divorce papers by post, you must know your ex-partner's current address. Aside from the documents listed above, include a letter requesting to return the signed Acknowledgment of Service.
Make sure that your ex acknowledges and returns the documents. Otherwise, the Court won't consider the application served. If your ex-partner doesn't return them within the allotted period, you must serve the divorce papers by hand.
To your ex-partner's lawyer
Your ex-partner can choose to accept the documents through a lawyer.
When the lawyer signs and dates an acknowledgment of receiving the papers, that's your proof that they've been served properly.
You'll want to make sure you file this acknowledgment with the Court. If that's all done correctly, you don't have to worry about any other service documents.
However, if you can't get that acknowledgment from the lawyer, you'll have to figure out a way to serve the papers directly to your ex.
What if my ex is in prison?
If your ex-partner is in prison, the serving of divorce papers must be done by hand.
Here's what you need to do:
- Fill out and sign the Affidavit of Service by Post
- If you don't know which prison your ex is in, contact the state/territory correctional services
- Get your ex-partner's Master Index Number (MIN)
- Write a self-addressed cover letter posted to the prison chief or whoever is in charge. The letter should have the following:
- Your ex-partner's name and MIN
- A request to hand over the documents to your ex
- A request for the person in charge of the prison to sign and return the Acknowledgment of Service
What if my ex has a disability and cannot sign?
If your ex has a disability and cannot sign, you can serve the documents to the guardian. The guardian can be a family member or a person appointed by the State.
If your ex is confined in a facility, whoever is in charge can acknowledge the divorce application.
What if I cannot find my ex to serve the divorce papers?
If you have tried every single method and still can't reach your ex, these are your options:
Service with conditions
Service with conditions is a special case where the Court allows you to serve the divorce documents by post instead of doing service by hand.
This also enables you to serve the divorce papers to a third party approved by the Court. This person should guarantee that the documents are delivered to your ex-partner.
Dispensation of service
Dispensation of service is allowed by the Court only when absolutely necessary. This method enables the court to exempt or waive the necessity for formal service.
Apply to court for service order
To request a service order from the Court when you are unable to serve the divorce application yourself, you can use the Commonwealth Courts Portal's eFiling system, which offers two options.
The first is the Guided option which involves an online interactive application form where you can upload the required supporting documents.
The second is the Unguided option, which allows you to fill out an online form and upload both the application and supporting documents.
If you're not registered on the portal or lack electronic access to your file, contact them at registerme@comcourts.gov.au with relevant details to create or grant access to your registration.
Once registered, select your file number, choose "File a New Application," confirm your understanding of obligations, and proceed with either the Guided or Unguided option.
Complete the required sections, including the Affidavit, and submit the application after verifying its contents. This process streamlines applying for a service order when personal service is not feasible.
Note: When applying for a service order, you also need to attend a hearing on the date set by the Court.
What next when the divorce papers are signed?
Once the divorce papers are signed and returned, you must sign the Affidavit of Service (with the Acknowledgment of Receipt attached) in the presence of an authorised witness. This will be the proof that the divorce papers have been served to your ex-partner.
After this, you must upload the forms to the Commonwealth Courts Portal.
If you cannot do it electronically, you can post them directly to the Court registry where your divorce application has been filed.
Final words: Serving of divorce papers
Understanding the process of serving divorce papers is essential for anyone navigating the challenging waters of divorce proceedings. This crucial step sets the legal framework for the entire divorce process, ensuring that both parties are informed and given an opportunity to respond. From selecting a suitable method of service to adhering to legal requirements, serving divorce papers demands careful attention to detail.
While the process may vary by jurisdiction, the overarching goal remains the same: to provide due process and fairness to all parties involved. Whether through personal service, certified mail, or publication, serving divorce papers ensures that both spouses have a clear understanding of the impending legal actions and can make informed decisions about their future.
In this emotionally charged journey, knowledge truly is power. By understanding how the serving of divorce papers works, you can take the first step toward closure, resolution, and ultimately, a fresh start in their post-divorce lives.
