There are several steps to a divorce proceeding. If you’re a single applicant, one crucial step is serving the divorce documents on your spouse. This process, known as personal service, is a key part of serving divorce papers and ensures that your spouse is formally notified of the divorce application.
Understanding the legal requirements around divorce documents and personal service will help make the process as smooth and efficient as possible. It’s also recommended that you obtain legal advice to ensure you meet all the necessary steps before your court hearing. Here’s what you need to know.
Key points
Serving Divorce Papers
Sole applicants must serve the divorce documents on their spouse to formally notify them of the divorce application. Service ensures your spouse is aware of the proceedings, the court hearing date, and has the opportunity to respond.
If personal service isn’t possible, you may apply for substituted service, allowing the divorce documents to be served on a family member or another person connected to your spouse. There are specific rules around how and when you must serve divorce documents to ensure the process is legally valid.
Who can serve court documents?
You can’t serve the divorce papers yourself if you’re making a sole application. In family law matters, the rules require that you arrange for a third party over the age of 18 to serve documents on your behalf. This person could be a friend, a family member, or a professional process server. It’s important to follow the correct procedure when you serve documents to ensure the service documents are legally valid and recognised by the Court.
What are the service forms?
The respondent should be served the following documents:
A sealed copy of the application for divorce.
A sealed copy of the Affidavit for eFiling.
A copy of the Marriage, families and separation brochure.
An Acknowledgment of service (Divorce).
Any other documents supporting your Application for Divorce.
How to Serve Divorce Papers
There are three ways to serve divorce papers in Australia.
In family law matters, personal service is the recommended method of serving divorce documents. This involves the server handing the documents to your spouse in person and requesting that they sign the Acknowledgment of Service. Personal service ensures compliance with family law requirements and helps confirm that your spouse has received the documents.
You can have the respondent’s lawyer served if they accept service.
You can also post the documents. This is riskier. You must be confident that they’ll return the signed acknowledgement of service. If they refuse, you may need to arrange for personal service.
What are the deadlines?
Under family law regulations, if your spouse is in Australia, you must serve the divorce papers at least 28 days before the scheduled date in the court. If your spouse is overseas, the timeframe extends to 42 days before the divorce hearing date. In some cases, you may also serve the documents on your spouse’s lawyer if they have authorised them to accept service, ensuring compliance with family law requirements.
Proof of Service
Once the papers have been served, provide proof to the Court.
File an affidavit of service. This confirms when and how the service was completed.
If your spouse signs an acknowledgement of service, that needs to be filed with the Family Court as well.
If the server doesn’t know the respondent, the applicant must complete an affidavit proving signature (divorce).
Are you having trouble serving the papers? If you’ve made reasonable attempts to attempt service but have been unsuccessful, you can apply for substituted service. This option allows you to serve the documents on someone likely to bring the divorce application to your spouse’s attention, such as a family member or friend.
You may also seek permission to use postal service or overseas service if appropriate. Any application for substituted service must be supported by evidence of your attempts to serve and the documents filed with the court registry.
Can the Court waive the need for service? Yes, it can. This is known as a dispensation of service. Dispensing with service is an option in exceptional circumstances where you are unable to locate or reach your spouse despite making every effort to attempt service.
To apply, you must show the Court evidence of the attempts you made to serve them, along with the following documents—such as the divorce application, marriage certificate, and any supporting material. The Court will carefully consider your request in line with family law principles before deciding whether to waive the service requirement.
Tips to make it easier
Use a professional process server if you think you’ll have trouble locating or serving your spouse.
Make sure all your documents are completed correctly to avoid delays.
Keep communication open with your spouse if you can.
After the papers are served
Once you’ve successfully served your spouse, either by personally serving them or through an approved method, you’re ready to proceed with your application. You must file the acknowledgment of service, along with a supporting affidavit, through the Commonwealth Courts Portal.
If your spouse is in a convention country, ensure you follow the specific requirements for international service under the Hague Convention Service. Once all documents are submitted, the Federal Circuit and Family Court of Australia will review your application and set a court date. In some cases, if service altogether is not possible, you may also need to provide further evidence to support alternative service options.
What our clients say
Highly professional, wonderful team that always greet you as if they were just waiting to hear your voice. Rowena is an absolute powerhouse that goes in to battle for you, regardless of the misconduct from OP.
- Gemma Parry-Jones
An uncooperative spouse can be one of the most stressful parts of a divorce. At our firm, we take an empathetic approach that prioritises our clients’ emotional wellbeing while ensuring compliance with family law requirements. Our team has experience dealing with even the most difficult respondents, whether they are located in Australia or a convention country.
We assist clients in managing service, from preparing the sealed application and service documents to guiding the person serving the documents. Where required, we ensure a self-addressed envelope is provided so the respondent can easily return the signed acknowledgment of service after the respondent signs it. No matter how complex the situation, we’re here to help you navigate the process and move forward with your divorce.
Conclusion
An uncooperative spouse can be one of the most stressful parts of a divorce. At our firm, we prioritise your emotional wellbeing while helping you navigate complex family law matters. Our team has extensive experience dealing with difficult respondents, including those who need to be served overseas.
Whether your spouse is in Australia or a convention country, we’ll help ensure the sealed document is served correctly and in accordance with the Hague Convention requirements. If your spouse refuses to cooperate, we can assist you in preparing a supporting affidavit swearing to the steps taken to effect service.
We’ll also help manage the practical steps—such as providing a return envelope and ensuring the person serving the documents can obtain the acknowledgment of service after the respondent signs it. Whether you are dealing with a pending application or ongoing delays, we will support you every step of the way to keep your matter progressing in court.
