What is Service?
Service is the process of delivering or posting court documents to a party after they have been filed, in accordance with the rules of court. Service ensures that all parties have received the documents filed with the Court. Once you have filed with the court, you will be given a copy of the filed documents for you and also for your ex-partner.
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When should you serve your application?
If you have made a sole application, you must arrange to serve the following documents on your spouse:
- a sealed copy of the Application for Divorce
- a copy of the Marriage, Families and Separation brochure, and
- any other documents filed with the Court, except the copy of your marriage certificate.
If you have made a joint application, you do not need to serve your spouse with any documents.
If your spouse is in Australia, the documents must be served at least 28 days before the court hearing.
If your spouse is overseas, the documents must be served at least 42 days before the court hearing.
How can you serve documents?
You can serve the documents on your spouse in two ways:
1. Service by Post
You should only attempt service by post if you are confident your spouse will return the Acknowledgment of Service (Divorce) to you. Without this, the Court cannot be sure your spouse has received the documents. If you attempt service by post and do not receive the signed Acknowledgment of Service (Divorce), you may need to arrange service by hand.
2. Service by Hand
You cannot serve the documents on your spouse yourself.
You must arrange for a person over 18 to serve the documents on your spouse (the server). The server can be a family member, friend or professional process server.
Filing the Service documents
After the documents have been served on your spouse, you will need to file the service forms with the court electronically (eFile) through the Commonwealth Courts Portal (www.comcourts.gov.au ). Visit the How do I serve a divorce? page at www.federalcircuitcourt.gov.au for more details. If for any reason you cannot eFile the service documents make a photocopy and file the original and the copy by posting them to the family law registry where the Application for Divorce was filed.
Serving your spouse's lawyer
If your spouse has a lawyer and he or she is willing to accept service, you can serve the documents on your spouse’s lawyer. A signed and dated Acknowledgment of Service (Divorce) from your spouse’s lawyer is proof of service. You need to file this acknowledgment with the Court. If it has been properly completed you do not need to file any other service documents.
What if you cannot serve your spouse?
If you are having trouble serving the divorce application on your spouse, and have taken all reasonable steps to serve your spouse, you can apply to the Court for:
- substituted service, or
- dispensation of service.
The legal issues about substituted service and dispensation of service are complex. You should seek legal advice. For more information, see the fact sheet ‘Are you having trouble serving your divorce application?’.
You can get this fact sheet from www.federalcircuitcourt.gov.au
The information in this article is general in nature and should not be considered as professional advice. You should seek the advice of a registered professional who will be able to appropriately assess your specific circumstances before offering their expert opinion.