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Divorce factsheet 5 – Serving divorce documents when your spouse is in prison

This factsheet is the last of five factsheets to help you with your divorce. This factsheet explains how to serve divorce documents on your spouse if they are in prison. You will find more information in Factsheet 2 ‘Serving Your Divorce Documents’.

Serving the divorce documents

How do I serve the documents?

If your spouse is in prison, there are special rules about serving divorce documents. Before you can serve the documents, you will need to know:

  • the name of the correctional centre or prison where your spouse is located, and
  • your spouse’s Master Index Number (MIN).

You are not allowed to personally hand the divorce documents to your spouse. Instead, you must have the divorce documents mailed to the person in charge of the prison where your spouse is located along with a letter, requesting they forward the documents to your spouse.

Does my spouse have to sign the divorce papers?

Your spouse does not have to sign anything for you to get divorced, but before the court will grant your Application for Divorce you must prove the papers were served according to the rules.

Can my spouse attend the divorce hearing?

Your spouse is not required to attend the divorce hearing, but they can ask to attend the divorce hearing by telephone or video-link. When you serve your divorce documents on your spouse, you have to give them a copy of rule 5.07 of the Family Law Rules 2004 which states how a prisoner can attend the court.

What if I don’t know which prison my spouse is in?

If your spouse is in prison in NSW, you will need to contact Corrective Services on 02 8346 1000 (8.30 am to 4.30 pm) or email sentence.admin@justice.nsw.gov.au

If your spouse is in prison in another state, you will need to contact the corrective services department in that state.

What documents do I serve?

You will need to serve the following documents:

  • Application for Divorce and any other sealed documents. You must not make any changes to these documents once they have been sealed (stamped) by the court.
  • Acknowledgement of Service for the person in charge of the prison to sign and return to you. This is proof that the documents have been served to your spouse.
  • The court brochure ‘Marriage, Families and Separation’. You can get this brochure from the court registry or online at www.federalcircuitcourt.gov.au/wps/wcm/connect/fccweb/reports-and-publications/publications/family-law/marriage-families-and-separation). This provides information for your spouse.
  • A cover letter to the person in charge of the prison (see page 3).
  • Notice of Court Attendance (see page 4 of this factsheet).
  • A copy of Rule 5.07 Family Law Rules 2004(see page 4 of this factsheet).
  • A stamped self-addressed envelope for the Acknowledgement of Service document to be returned to you.

You must make sure the required documents are served at least 28 days before the divorce hearing date if your spouse is in Australia.

Filing the documents in court

Once you have received the signed Acknowledgement of Service, you will need to file this proof of service document with the court.

If you applied online, you can file the documents by uploading them onto the Commonwealth Courts Portal. See Factsheet 4 ‘How to Use the Commonwealth Courts Portal (Divorce)’ for instructions on how to upload documents to the portal.

If you are applying by paper, you can mail or take the hardcopy documents to the court registry that is hearing your divorce.

Preparing the cover letter to the prison

This is a sample cover letter to the person in charge of the prison.If you do not want your spouse to know where you live, state this in your letter and make sure your address is not on your Application for Divorce.

[General Manager]

[Name of Correctional Centre]

[Postal address of Correctional Centre]

[DD Month YYYY]

[Your name]

[Your address]

Dear General Manager

RE: SERVICE OF DIVORCE DOCUMENTS, [Your spouse's name], MIN [MIN number]

I am writing to request that the enclosed divorce documents are served on [your spouse's name], MIN [MIN number].

Please hand the following enclosed documents to [your spouse's name]:

  1. Application for Divorce
  2. ‘Marriage Families and Separation’ brochure
  3. Notice of Court Attendance
  4. Copy of rule 5.07 of the Family Law Rules 2004

Once you have handed the documents to [your spouse's name], please sign and return the enclosedform: Acknowledgement of Service (Divorce).

I have enclosed a stamped self-addressed envelope for the return of the signed Acknowledgement of Service (Divorce).

The matter is next listed at the [Location eg Sydney, Parramatta]  Registry of the Federal Circuit Court on [DD Month Year] at [time]. [Your spouse's name] does not have to attend the divorce hearing but may do so in accordance with rule 5.07 of the Family Law Rules 2004 (enclosed).

Please note that my address is to be kept strictly confidential and is not to be shared with my spouse. (Include this if relevant.)

Thank you for your assistance with this matter.

Yours sincerely

[Your full name]

Preparing the Notice of Court Attendance

You must inform your spouse in writing about the option to attend the divorce hearing by electronic communication under rule 5.07 of the Family Law Rules 2004. As the Respondent to an Application for Divorce, your spouse does not need to attend the divorce hearing.

The following is a sample Notice of Court Attendance

Dear [your spouse's name]

RE: NOTICE OF COURT ATTENDANCE, APPLICATION FOR DIVORCE, COURT FILE NUMBER

Please note that this divorce matter is next listed at [Location eg Sydney, Parramatta] Registry of the Federal Circuit Court on [DD Month Year] at [time].

As the Respondent, you do not have to attend. However, if you wish to attend, you will need to do so in accordance with rule 5.07 of the Family Law Rules 2004.

A copy of that rule is attached for your information.

Including rule 5.07 of the Family Law Rules 2004

Include a copy of this rule with your divorce documents. You can get a copy of this rule online at www.legislation.gov.au

Attendance of party or witness in prison

(1)  A party who is in prison must attend a hearing by electronic communication.

(2)  A party who intends to adduce evidence from a witness in prison must:

  • (a) arrange for the witness to attend and give evidence at the hearing by electronic communication; and
  • (b) advise the court and the other parties about that arrangement at least 2 days before the date fixed for the hearing.

(3)  A party may seek permission from the court for a party or witness who is in prison to attend the hearing in person.

Example: A party may apply for an order under sub-rule (3) if a prison or court has no facilities for the hearing to proceed by electronic communication.

(4)  A request under sub-rule (3) must:

  • (a)  be in writing;
  • (b)  be made at least 7 days before the date fixed for the hearing;
  • (c)  set out the reasons why permission should be granted; and
  • (d)  inform the court whether the other party objects to the request.

(5)  Sub-rules 5.06(4) and (7) apply to a request under this rule.

Need Help?

1. Legal Aid NSW can give you free help with your divorce. You can:

  • come to a class to get information about your divorce application, or
  • contact a lawyer.

For more information see:

2. LawAccess NSW is a telephone helpline that gives free legal information, referrals to other services and legal advice in some cases. Call 1300 888 529 or visit www.lawaccess.nsw.gov.au

3. The court can give you information about their forms, the online filing system, and their procedures. Contact their National Enquiry Centre or call 1300 352 000.

See www.federalcircuitcourt.gov.au for more information about divorce, and details about your nearest court registry.

4. Public libraries have computers and scanners. You will need to make an appointment.
See www.nswnet.net/libraries

5. Factsheets in this series

Divorce factsheet 1 – Applying for divorce

Divorce factsheet 2 – Serving your divorce documents

Divorce factsheet 3 – Separation under the same roof

Divorce factsheet 4 – How to use the Commonwealth Courts Portal

Divorce factsheet 5 – Serving divorce documents when your spouse is in prison

This factsheet is intended as a general guide to the law. Do not rely on this information as legal advice. We recommend you talk to a lawyer about your situation. This information is correct at the time of writing; however, it may change. For more information contact LawAccess NSW on 1300 888 529.

© Legal Aid NSW June 2019