Under the Family Law Rules, you are required to serve the other party a divorce application, if you have made a sole application. If you have made a joint application, there is no requirement to serve the other party with any documents. This service should take place by either hand or post, but you are not able to be the one that will serve the other party. If you are need assistance with the divorce process, don’t hesitate to contact our specialist divorce lawyers.
If you are having difficulty locating the other party, you are able to apply for an order to either dispense with service or to carry out substituted service. Substituted service is when you serve a party by any way other than the usual manner of post or hand.
There are also strict time limits for serving the other party. If the other party is in Australia, you should serve the documents at least 28 days before the divorce hearing and if the other party is overseas, then at least 42 days before the divorce hearing.
Whilst there are no fees in relation to the service of documents, people often engage a process server to personally serve the other party. Each process server has its own schedule of fees for this service.
The Family Court website has some useful videos in relation to the Service of a Divorce Application.
Authorised Witness Needed When Signing Document
Complete the Affidavit of Service – by post (see Figure 1 below) and attach the Acknowledgement of Service (Divorce) (see Figure 2 below). You must sign Part C of the Affidavit of Service by post before an authorised witness (Justice of the peace/solicitor). The same authorised witness at the same time should also sign the Annexure note at the bottom of the Acknowledgement of Service (Divorce). Refer to s.59 of Federal Circuit Court Act 1999 for authorised witnesses.
Refer to the following images to help you complete the forms:
FIGURE 1: AFFIDAVIT OF SERVICE BY POST (DIVORCE)
FIGURE 2: ACKNOWLEDGMENT OF SERVICE (DIVORCE)
What Should I Do if a Signed Acknowledgement of Service Is Not Returned?
You will need to organise service by hand. If you cannot organise this within the time limits above you will need to ask the court by email to adjourn the matter so you have time to serve the documents. Refer to Family Law registries for an email address for the appropriate registry where the application for divorce was filed.
You cannot serve the documents for a divorce 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 respondent). The server can be a family member, friend or professional process server.
The documents you will need to give to the server are:
- Sealed copy of the Application for Divorce
- Sealed copy of the Affidavit of eFiling
- Copy of the Marriage, families and separation brochure, and
- Any other documents filed with the Federal Circuit Court relating to your Divorce Application, (except any passport/citizenship/marriage certificates/reduction of fees form/concession cards filed)
- Acknowledgment of Service (to be signed at Part C by the respondent).
What Do I Do Once The Documents Have Been Served By The Server?
If the respondent signs the Acknowledgement of Service (Divorce) (see Figure 1 below) the server must complete the Affidavit of Service by hand (see Figure 2 below) and attach the originally signed acknowledgement of service. The annexure note at the bottom of the Acknowledgement of Service should also be signed by the witness at the same time as witnessing the affidavit of service by hand.
If the server does not know the respondent, the applicant must complete the Affidavit Proving Signature (see Figure 3 below) and attach a photocopy of the acknowledgement of service.
If the respondent does not sign the acknowledgement of service, the server should complete the Affidavit of Service by hand and tick the appropriate box at Part B adding a note, if required, of the circumstances.
If the respondent’s lawyer is served and the acknowledgement of service is signed, there is no requirement to complete the affidavit of service by hand. You will only need to upload the acknowledgment of service.
These images will help you complete the forms correctly.
FIGURE 2: ACKNOWLEDGEMENT OF SERVICE (DIVORCE)