After filing a Divorce Application you must then ‘serve’ your spouse with the Application to let them know you are seeking a Divorce from them.
You are not able to personally serve your spouse, however you may arrange for a Process Server or third party to attend upon your spouse to serve them with the Divorce Application. That person serving the Application must then complete an Affidavit of Service and request that your spouse complete an Acknowledgement of Service, which is then required to be filed with the Court.
Service By Post:
You may also serve your spouse by post as long as they return an Acknowledgement of Service. You would then complete an Affidavit of Post which would also be filed with the Court. You are also required to then complete an Affidavit of proof of signature to evidence to the Court the signature on the Acknowledgement is that of your spouse.
Notice Of The Application:
The Court must be satisfied as to the other spouses’ knowledge of the Divorce Application by being served 28 days prior to the Divorce Hearing. In the event your spouse has been served within 28 days of the Divorce Hearing, it is likely that the Registrar would adjourn the Hearing until such time that 28 days has expired to allow that spouse enough time to consider the Application and whether or not they sought to oppose the divorce.
In the event the other spouse is overseas, the Court requires that person to be given 42 days’ notice of the Application.
Dispensation Of Service And Substituted Service:
In some cases it may be difficult to locate the other spouse and for whatever reason you still wish to be Divorced from this person, or the other spouse is attempting to avoid service. This may require an Application for Dispensation of Service, or an Application for substituted service.
Some matters may require an Application to be made for the dispensation of service requirements or for your spouse to be served by alternate means also known as “substituted service”.
A dispensation of service is an Application that seeks the Courts permission to dispense and forego with all requirements of service due to particular circumstances and a parties inability to locate the other spouse. This may include if the spouse has been deported or if the spouse has been unable to be located or not kept in contact with for a number of years even through family members.
An Application for Substituted of Service may include seeking permission to serve your spouse by email or through a family member which you know has ongoing communication and contact with your former spouse.
To seek these Orders from the Court, you must file an Application in a Case with a short Affidavit outlining your attempts to serve your spouse or your legal representatives’ attempts to serve your spouse and communication with your former spouse. You must then outline the means that you propose to serve your spouse with if seeking an Order for substituted service. This Application will be heard on the same day that your Divorce Hearing is listed for. In the event an Application for Substituted Service is granted, the Divorce Hearing will be adjourned to allow for the substitution of the service to occur, in the event you have not already attempted those means.
In the event the registrar is satisfied as to the substituted service means, whether on the initial Divorce hearing date, or on a future date, or makes an Order to dispense with Service requirements, then the Divorce Order can be made, as long as all other elements of the Application are satisfied.
WHERE TO NEXT?
Taking the next step and contacting a family lawyer can be scary. Our lawyers will make you feel comfortable so you can talk about your situation. But first, ask yourself, Do I really need a lawyer?