Serving your divorce documents

Yes. The court will not serve your spouse for you. You must arrange service of the sealed divorce documents on your spouse unless the FCFCOA gives you special permission (called a service order).

If you and your spouse have applied jointly for a divorce, you do not need to serve the divorce documents on each other.

The divorce documents must be served at least 28 days before the divorce hearing date if your spouse is in Australia, or at least 42 days before the divorce hearing date if they are overseas.

No. There are strict rules about serving divorce documents. You must arrange service by hand or by post on your spouse or your spouse’s lawyer. You are not allowed to personally serve the divorce documents on your spouse.

If you want to serve the divorce documents in a different way, you will have to ask the FCFCOA for special permission by filling in an Application in a Proceeding and an Affidavit to seek an Order for Substituted Service or Dispensation of Service (see below).

Unless you have a special service order, you must serve on your spouse:

• your Application for Divorce and any other sealed document, such as an Application in a Proceeding or Affidavit

• the Acknowledgement of Service (Divorce) for your spouse to sign and return to you (if possible) and the FCFCOA brochure Marriage, Families and Separation. You can get this brochure from the court registry or online at: www.fcfcoa.gov.au/fl/pubs/marriage-families-separation.

No. Your spouse does not have to sign anything. Even if your spouse refuses to sign any documents, the FCFCOA can grant a divorce order. But you must prove your spouse was served according to the rules.

You must fill in the proof of service forms carefully, otherwise the court might order you to serve your spouse again. If you think the court may have questions for you about service, you should attend your divorce hearing. If service is not proved, the court could delay or cancel your Application for Divorce.

You can ask anyone over 18 (not yourself) to serve the divorce papers. Your server may be a friend, family member, the local sheriff or a professional process server.

If you are asking a friend or family member to serve the documents, make sure the person is familiar with the rules of special service. These rules can be found in the Divorce Service Kit.

The sheriff and professional process servers will charge a fee to serve your spouse. They will need an address and a description or photograph of your spouse. 

You can post the divorce documents to your spouse’s address. If you post the divorce documents, your spouse must sign and return to you the Acknowledgement of Service (Divorce) as proof of service. You will need to file this document at the court.

If you post the documents but do not get the Acknowledgement of Service (Divorce), you must try to serve your spouse in another way.

Yes. If your spouse has a lawyer, call or write to the lawyer first to check if they will agree to accept service of your divorce documents on behalf of your spouse.

If the lawyer agrees to accept service, you can post or hand deliver all the sealed court documents, the court’s ‘Marriage, Families and Separation’ brochure, and the Acknowledgement of Service (Divorce) to the lawyer’s office address.

Make sure the lawyer signs the Acknowledgement of Service (Divorce). This is your proof of service which you will need to file with the court.

If the lawyer says ‘No’” or does not reply, you must not send your divorce documents to the lawyer. You will have to find another way to serve your spouse.

The rules of service are strict. In special circumstances, the court may give permission for a divorce to be granted without the usual service requirements.

You can ask for a Substituted Service Order to allow you to serve your spouse an alternative way, such as posting the divorce documents to a stated address, or to a friend or family member. You can even ask to serve your spouse by email, Facebook Messenger private message, social media (e.g. WhatsApp or WeChat), through their workplace, or by publishing an advertisement in the newspaper.

There are special service requirements for people in prison. For further information, see Factsheet 5: Serving divorce documents when your spouse is in prison.

It’s very important that you try to find your spouse. If, after all your best efforts, you have been unable to locate them, you can ask the court for a dispensation of service if you have:

• proof that you have tried to find them, and
• checked they are not dead

When asking the court for a substituted service or a dispensation of service, you will need to describe all the recent and historical searches you have made to find your spouse.

Keep a record of the times and dates, as well as the efforts you have made to locate your spouse including:

• calling any phone number you have for your spouse, including any places they may work
  
  
• contacting any of your spouse’s family or friends to ask if they know where your spouse is – if they refuse to tell you, or say they will give the divorce documents to your spouse for you, write down the time you had the conversation and what you remember each person said
  
  
• if your spouse is an Australian citizen, contacting the Australian Electoral Commission office on 132 326 and searching for your spouse on the electoral roll
  
  
• searching for your spouse on Google and in the White Pages (www.whitepages.com.au) and
  
  
• searching for your spouse on social media, e.g. Facebook, Instagram, Twitter.

You may be able to get permission to serve your divorce documents an alternative way. You will have to explain to the court how you know that the alternative way is an active, current connection to your spouse. For example, if you have found your spouse on Facebook, is their profile active? When did they last post something? Does it have a photograph of a person you recognise?

Asking for a substituted service or dispensation of service could delay your divorce hearing.

On the Application in a Proceeding form, you can seek an order for substituted service such as:

That the rules for service be dispensed with and service be deemed effected provided that the Applicant send the Application for Divorce and the Marriage, Families and Separation brochure to

• the Respondent at his/her email address, ____________(your spouse’s email address) or
• by post to the Respondent’s brother/sister/father/mother/friend etc. ____________ (full name of the person) at his/her address, ____________ (full address of the person) with a letter requesting that he/she forward the documents to the Respondent or
• by post to the Respondent at his/her address____________ (your spouse’s address)

If you have evidence in your affidavit to show you are unable to find your spouse or anyone or anything connected with your spouse, you can apply for dispensation of service by writing:

That the rules for service be dispensed with.

An affidavit is your sworn evidence to the court about your attempts to locate your spouse. You must tell the court how you have tried to find your spouse and why the order you have asked for in your Application in a Proceeding is the best way to make sure your spouse knows they are going to be divorced.

Sample affidavit:

1. I am the Applicant husband/wife in these divorce proceedings. I make this affidavit in support of my application in a proceeding for substituted/dispensation of service.
   
   
2. I was born on DD Month YYYY in (place of birth) and I am __ years old. (If you were born overseas, include details of your immigration/citizenship status).
   
   
3. The Respondent husband/wife is (your spouse’s full name). The Respondent was born on DD Month YYYY in (place of birth) and is __ years old. (If your spouse was born overseas, include details of their immigration status).
   
   
4. The Respondent and I were married on DD Month YYYY in (place of marriage).
   
   
5. There are no children of the marriage. 
   
   OR
   
   There is one child/are (number) children of the marriage, being (child’s full name) born on DD Month YYY and aged __ years old. (Include names and dates of birth of any other children, including children of either of you from previous relationships).
   
   
6. The Respondent and I separated on DD Month YYYY. (Insert details about why you say this date is the date of separation, e.g. was there a conversation?)
   
   
7. I do not know where the Respondent lives or works at present.
   
   
8. (Insert details about the last time you saw your spouse.)
   
   
9. (If there are children of the marriage, insert details about the time your spouse has spent with the children, and where this took place.)
   
   
10. (Insert details about the last time you spoke to your spouse, or their family/friends.)
    
    
11. (Insert details about your spouse’s last known address and explain how you know  your spouse does not live there anymore. Do the same in a new paragraph for theirold workplace, social groups or other locations.)
    
    
12. (Insert details about what contact details you have for your spouse, e.g. phone  number, email address, Facebook account, WhatsApp; last time you used those details to contact your spouse; and how you know they are still the current details for your spouse.)
    
    
13. (If you do not have any current contact details for your spouse, but you know of family, friends or colleagues who are in touch with your spouse, explain how you  know they are still in contact with your spouse and how you found their details.)
    
    
14. I ask this Honourable Court to grant the orders I seek in my application in a proceeding for substituted/dispensation of service by (describe proposed method of service).
     

You can get these forms by downloading them from FCFCOA’s website at www.fcfcoa.gov.au, calling 1300 352 000 or in person from your nearest FCFCOA registry.