Serving the Divorce Application – Another curiosity

By 19 August, 2019Divorce

We have previously written about some of the interesting issues that arise regarding the service of divorce applications. Having previously dealt with:-

Substituted Applications for Service

We have another curiosity to reveal today.

When do we need an Affidavit from the divorce Applicant regarding service?

By way of recap, the Family Law Act allows for the service of a divorce application in the usual manner either by post with the Respondent spouse to sign an Acknowledgment of Service and return it or alternatively, the personal service of the Respondent spouse by any other person than the applicant themselves.

The legislation provides that if an Acknowledgment of Service is received when the Application is posted to the Respondent spouse then the Applicant must complete an Affidavit attesting that they recognise the signature on the document as that of being of their spouse (which could be inherently difficult in itself).

However, a curiosity arises when personal service of the application occurs. When personal service occurs the divorce application is handed to your Respondent spouse usually by a process server. Generally, one of two things occur;

  1. The respondent spouse accepts the documents and signs the Acknowledgment of Service on the spot; or
  2. The respondent spouse simply accepts the document being handed to them but refuses to sign an Acknowledgment of Service and is generally uncooperative.

When a process server serves an application personally, they will complete an Affidavit saying that they handed the document to the Respondent spouse and where this occurred and on what date. You would generally think that this would be sufficient to indicate that the Respondent spouse has been served with the application. However, the curiosity that arises is that if the Respondent spouse is co-operative and actually signs the Acknowledgment of Service that we still have to do an Affidavit from the Applicant confirming the signature. This takes time and is another step in the process. One would truly wonder why this step is necessary when if the Respondent spouse simply refuses to sign the Acknowledgment that the Court will accept the Affidavit of the process server as the sole means of proving service.

What were the Legislators thinking?

The writer believes that when drafting the Legislation back in 1975 that it was decided for simplicity that whenever an Acknowledgment of Service is received that to assist the Court the Applicant would need to swear that the signature on that document belongs to their former spouse. As we have noted above whilst this is theoretically simpler to understand it does, in fact, make life slightly more difficult for the Applicant spouse who then has to complete their Affidavit and find an appropriately qualified witness in the State in which they live and take time out of their lives which would otherwise not be required if the process server simply did not get the Acknowledgment signed in the first place.

Once again, this is a historical curiosity that could be fixed by re-drafting the Legislation but we are not holding our breath here at Your Divorce.

Can we help?

As always at Your Divorce, we love to help people and let people get on with their lives. If we can remove the pain of considering getting your divorce done as simply and as painlessly as possible then visit our application or email us at help@your-divorce.com.au and get the process underway.

We look forward to being of assistance.