The A to Z of serving your divorce documents

If you make a sole application for divorce you must formally ‘serve’ the divorce documents on your spouse. This doesn’t mean that you can just stick the documents in an envelope and post them. Or email them. Or even hand them yourself to the person. The technical term ‘service’ refers to the approved and detailed methods for giving notice to another person that they are involved in a legal case. And you need to be able to prove to the court that you have used one of them properly.

This Insight explains all about formal service of divorce documents, about how it can be difficult, about the two main methods of getting it done (Service by Post and Service by Hand), what to do if your spouse if overseas and how to file your proof of service.

Problems with service can hold up your divorce for months at a time. It pays to think carefully about how to achieve it, to act as quickly as possible after filing for divorce and to follow the rules to the letter.

What are the downsides of not properly serving your divorce documents?

When you go to court for a divorce, and especially if your former partner is not present, the court will give special attention to the issue of service. If it decides the other party has not been properly served (that is, that they have not had proper notice that you are divorcing them!), your divorce hearing may be adjourned.

How does the court decide whether proper service has occurred?

The other person may be in possession of your documents and yet still ‘not served’ according to the law. The court will be looking for written ‘proof’ of proper service, as filed in court by you. The rules about service are all about getting that proof in the required form. This is what makes service of divorce a sometimes-tricky business, as an uncooperative, or absent, spouse can frustrate your efforts to get that necessary written proof.

Time limits

If you have any inkling that service on your former partner is going to be an issue, get onto the task quickly after you file the application. (Lots of people leave it too late!) The rules say that 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. If you don’t meet these timeframes, the court could adjourn your divorce hearing.

What documents must be served for a divorce?

Whichever method you use, you will need to package-up the documents that are required to be served. These include:

• a ‘sealed’ copy (that is, one printed from the portal with the court stamp on it) of your ‘Application for Divorce’ with the ‘Notice of Application for Divorce’ attached to the front
• a ‘sealed’ copy of your ‘Affidavit of eFiling’
• a copy of the ‘Marriage, families and separation’ brochure
• any other documents filed relating to your Application (though not including any passport/citizenship/marriage certificates/reduction of fees form/concession cards filed).

Service by post

You should only try to serve your divorce documents by post if you are completely confident that the other person will understand the written instructions about what they have to do, and also cooperate with you by following them. If you are not confident about this, do not waste precious time with this method! (Go directly to the ‘Service by hand’ method detailed below.)

If you think that you will get your spouse’s cooperation for the mail method, this is what you must do:

☐ Package-up the documents required to be served (see the section above).

☐ Attach the following extra documents to the package of documents required to be served:

• A blank ‘Acknowledgement of Service (Divorce)’ form
• A covering letter to your former partner asking them to keep the divorce documents but to please sign and return to you the ‘Acknowledgement of Service (Divorce)’ form
• A stamped, self-addressed envelope (to help the process along just a bit!)

☐ Pack it all off in a big envelope in the mail! You don’t have to send it by registered post, but it’s not a bad idea to have that proof of the date you sent it. Make of a note of this in any case.

If and when you receive the signed Acknowledgement of Service form from your spouse, then it’s your turn for more form-filling:

☐ Complete the’ Affidavit of Service – by post’ and attach the Acknowledgment of Service form signed by the other person. But don’t sign it! You will need first need to find an ‘authorised person’ (a solicitor, barrister or JP) to witness your signature.

☐ In the presence of the authorised person, make the required oath and sign the ‘Affidavit of Service – by post’.

☐ They will sign as your witness on your Affidavit and they must also sign the Annexure note at the bottom of the Acknowledgement of Service (Divorce).

If the other party doesn’t return the Acknowledgement of Service, and you have run out of time before the hearing to achieve it any other way, you will need to ask the court for an adjournment. If there is no proof of service, your divorce will not be granted. Seek an adjournment by contacting the registry of the family court at the location at which you filed (by email is fine). Quote your file number and the current date of the hearing, explain that you are having difficulty with service, and request an adjournment. You should have no problems with this.

Service ‘by hand’

Service ‘by hand’ means that the other person has been given the documents in person. But not by you! Proper service by hand of a divorce only occurs when it is done by any other person who is over 18 years old. This might be a mutual friend or a relative—someone who’ll be able to reach your spouse. Or, if you prefer, a professional process server. Both you and the server need to be aware that the server must make an oath and sign an Affidavit of Service by hand form, before an ‘authorised person’ (a barrister, solicitor or JP) after and only if service has been achieved.

If the person serving doesn’t know your spouse, they must be able to identify them, either:

• from a photo, or
• because your spouse signed the Acknowledgement of Service form (Divorce) form, or
• because your spouse identified themselves in conversation beforehand.

Instructions for the person serving:

• the server needs to be physically present with your spouse when they serve the documents
• the server must try to hand the documents to your spouse and to ask them to sign the Acknowledgement of Service form and give it back (to the server)
• if your spouse refuses to sign, and refuses to take the documents, the server should simply put them down, telling your spouse what they are, and leave without them

Using a professional process server is a very good idea for serving a former partner who is determined to be uncooperative and avoid service. This usually costs less than $100 for (several attempts at) service in a metropolitan area. Process servers understand the technical requirements and difficulties around proper service of family law documents very well.

So, to prepare for service ‘by hand’:

☐ Package-up the documents required to be served (see the section above), along with:

• A blank Acknowledgement of Service (Divorce) form
• A covering letter to your spouse asking them to keep the documents but to please sign and give the server back the Acknowledgement of Service (Divorce) form. (They may not comply with this…)
• A photo of your spouse, if you have one, and if the server doesn’t know them personally.

☐ Give all the documents to your serving person and, if they are not a professional, instruct them in what to do. Give them a blank Affidavit of Service by hand separately, ask them to read it. Remind them not to try to serve this: it’s for filling-in later.) Then, they’re off to try to serve!

☐ If they succeed, and your spouse has been properly served, then your server should complete the ‘Affidavit of Service by hand’ (but not sign it!), and seek out an authorised person to administer the oath and witness their signature:

• If your spouse has signed the Acknowledgement of Service, this should be attached to the affidavit. The annexure note at the bottom of the Acknowledgement of Service should be signed by the authorised person at the same time as they witness the Affidavit of Service by hand.
• If your spouse has not signed the Acknowledgement, the server must complete the bit in the Affidavit which set out details about how they were able to identify your spouse. The ‘details’ of a conversation about this might read: I asked the occupant of the house who answered the door at 11 Black Street, Red Hill: ‘are you Jake Bloggs?’. He said: ‘Sure am’. Alternatively, the server might have been able to identify them from your photo.

☐ All the signed and witnessed documents should then be returned by the server to you.

☐ Only if your spouse has signed the Acknowledgement of Service, and the server does not know your spouse, you will then need to complete an Affidavit Proving Signature (which tells the court your spouse’s signature is genuine), attaching a photocopy of the signed Acknowledgement of Service. It’s your turn, then, to see an authorised person to administer the oath and witness your signature on this Affidavit. The Annexure note at the bottom of your spouse’s Acknowledgement of Service should also be signed by the authorised person at the same time as they witness your Affidavit.

Where and when can service take place?

Service ‘by hand’ can take place anywhere or any time. It doesn’t have to be in private—in fact, a more public context, like the foyer of their workplace, may cause your spouse to be more cooperative.

Logically, the first place to send your server might be to your spouse’s address as last known to you (or to the friends or relatives you ask about this). As the server must be with your spouse personally to serve them, it makes sense for the server to go to the residence when your spouse is likely be there. (If your spouse is not at home, the server must not just leave the documents behind. This will not count as service.)

Sometimes an angry or difficult spouse will refuse to open the door to someone who looks like a process server or they be difficult to catch at home (though a professional process server will try at a number of different times of day and night). You may be better off asking the server to approach your spouse at their workplace (in the carpark at start or knock-off time is a good, semi-private option) or at any other place where you know they will be at a particular time.

Avoiding service of a divorce is a known issue and can be very frustrating and difficult for a divorce applicant. Most of the time, this is not about wanting to stay married, but more a play about power, anger or just being difficult for the sake of it. If this is an issue with your spouse and you can afford professional assistance with service, we recommend that you arrange this.

Service on your spouse’s lawyer

You can serve divorce documents on your spouse’s lawyer—if they have one, and if they are prepared to accept service of divorce documents on your spouse’s behalf. Check by phone or email about this beforehand. You can arrange this form of service yourself. Talk with the lawyer about the easiest way to achieve this. (Watch your time-frames though: lawyers can be slow to respond…).

If the respondent’s lawyer is effectively served by hand with the required documents, and they give you back a signed and dated Acknowledgement of Service, there is no requirement for an Affidavit of Service to be completed by the server.

If your spouse is overseas

Although there is a formal process for serving Australian court documents overseas, this is expensive, time consuming and even more complicated than the process here at home! In any case, if you can achieve a form of service by following the basic rules set out in this Insight, that is likely to satisfy the court in an application for divorce.

The main problem with a spouse overseas is finding them. You may need to do some detective work to discover where they might be living, working (shopping, swimming or drinking…) before sending out your server. A local private investigator may be able to assist with this.

It may be easiest to let your Google fingers do the walking and arrange for a professional process server in the relevant country, rather than to try to find a willing friend or relative. The Australian consular office in the country may be able to help.

Whoever you ask to conduct the service will need the entire package or documents for service, and all the additional documents, emailed to them beforehand. Be explicit in your email about how to carry out the service by hand so that it meets Australian requirements. Expressly ask for the server’s return to you of a signed and witnessed ‘Affidavit of Service—by hand’.

Filing your proof of service

Once the service is achieved, and you have the necessary signed and witnessed affidavit(s) in your possession (that prove that your spouse has been served in accordance with the rules), it’s time to file!

☐ Scan, upload and store a findable PDF copy on your device of all of the proof-of-service documents that you now hold and intend to file. Depending on your circumstances, this might include:

• your server’s Affidavit of Service
• your spouse’s (or their lawyer’s) Acknowledgement of Service
• your Affidavit Proving Signature

☐ Go to the Comcourts portal. Under ‘Family Law eFiling’ at the portal entrance, click on Electronically file on an existing family law file.

☐ Click on the file number for your divorce application in your file list (or use the search bar if you can’t see it there).

☐ Under ‘Existing applications’ click on ‘+’ at the listing of your divorce application.

☐ Select ‘Add document’

☐ At ‘Document type’, choose the method you used (Service by hand or Service by post)

☐ Select your name under ‘Filed by or on behalf of’

☐ One by one, select the relevant ‘Document type’, ‘Choose file’ and press ‘Upload’ for each of the proof-of-service documents you need to file.

All done!