This is the 4th instalment from our eBook- Your Complete Guide to Divorce. Today our focus is on serving your application that has often been filed with the Court. The full eBook will be available for free at our website at www.your-divorce.com.au or email us at firstname.lastname@example.org and we will be happy to send you a copy. Enjoy.
Chapter 4 – Serving your application for Divorce
Once your divorce has been filed in the Federal Circuit Court and the Commonwealth Portal you have been allocated a hearing date. If your application is a joint divorce signed by you and your former spouse because both of you have filed the application there is no need to serve it on the other party. However, for the bulk of people it is necessary in a sole application to arrange service.
How does the Court allow for Service
The Family Law Act provides for the service of a divorce either via post or for the application to be served in person. Because the Act was written in 1974, it overlooked modern means of service such as email.
When a divorce is served other than by personal service, it is necessary to get a form called an acknowledgment of service signed by the recipient i.e. your spouse. An original signed acknowledgment is no longer required and it is very common that we receive acknowledgements by email. If the acknowledgment is received, an affidavit of service is then prepared which attaches the acknowledgement of service and the applicant will then need to sign/swear the affidavit confirming that the signature on the document is that of their spouse. Again, seriously bearing in mind it might have been several years since you saw your spouse sign anything it remains that is commonly how service of the application is notified to the Court. However, it is not uncommon for parties to not know the physical address of their spouse, but may have email contact details. It is possible that if the application for Divorce is served by email and an acknowledgment is received from the former spouse that you can file what is called an application in a case and supporting affidavit which seeks a variation from the standard service by post to enable a Court to make the order that the service by email was sufficient. This is a small further step but a necessary one to more easily obtain your divorce without the unnecessary cost of arranging personal service.
Personal service of the application
In some cases your former spouse does not wish to or refuses to sign the acknowledgement of service. This will cause the need to arrange personal service. An applicant cannot serve their own application but an adult third party can serve the application. It is usually the case that a professional process server is engaged at a cost of $160.00 – $250.00 to arrange personal service. Once the application has been handed to the respondent’s house then an affidavit confirming the details of how service occurred is then prepared and filed with the Court.
What if I cannot find or do not know where my former spouse lives
There are two possible ways for your divorce to continue to proceed, if you either cannot locate your former spouse or simply have no idea where they live. These are called a request for substituted service or alternatively a request for dispensation of service.
Substituted service is possible when a Court can be satisfied that giving the application to a third party (such as a relative of your former spouse e.g. parent) in all likelihood will bring the application to their attention. As a practical example, if you are aware your adult children are in contact with your former spouse then the application could be posted to them and sufficient commentary then given in an Affidavit as to why they are likely to bring it to the other party’s attention. Once you get an application in that case it is noted an affidavit will be required. Ina perfect world, the third party could put something in writing confirming that they will give it to the former spouse but this does not always occur and may not be absolutely necessary.
Application for dispensing with service
Where your former spouse cannot be directly served with the divorce application and there is no one who can bring it to their attention, there is the possibly the Court can still order a Divorce (by waiving service). The Court will once again need an application for this extra order and an extensive Affidavit indicating why in all circumstances there is no possibility of serving your former spouse personally or anyone that would bring the application to their attention. This arises commonly where the former spouse may move or return to an overseas location and where they might have no relatives left in Australia. Also, you may not know where they live overseas or have a contact address or email. You will need to set out chronologically how separation occurred, why you have lost contact with your former spouse, issues in relation to whether there are any relatives or other people who could bring the divorce to their attention and indeed finally, whether service could be affected by some other means such as email, Facebook or the alike. If none of these apply then a Court will ultimately order a Divorce if it is satisfied that there is genuinely no likelihood that service can be affected.
Once service has been affected
If service is affected either by post or in person, or a variation allowed by the Court an affidavit will be prepared setting out details of the service and filed with the Court. In the case where substituted or dispending the service occurs a more detailed affidavit will be required to be filed in order for your application to proceed.
We trust you enjoyed the preview of our chapter on Service. Our next blog will provide details (of Chapter 5) being with respect to the hearing itself. Again contact us on our address details above should you require any assistance or enquiries at this time.
Best wishes from the team at Your Divorce