Do I need to give the other party a copy of my application?
Unless you make the application together, you must make sure the other party receives a stamped copy of your application and the brochure called, Marriage, Families and Separation at least 28 days before the hearing date (or 42 days if the other party is overseas).
See Family Law Rules 2004 (Cth) rr 7.03 and 2.03.
This is called service.
An explanation of what you need to do to satisfy the Court is contained in both the text and a video on the Federal Circuit Court Website.
The Court will only be satisfied that you have served the other party if you file either an:
If you are confident that the other party will sign an Acknowledgment of Service (Divorce) and return it to you, you can post the documents with the Acknowledgment to the other party.
Once the other party has returned the Acknowledgment to you, you will need to complete an Affidavit of Service by Post (Divorce), sign it before a Justice of the Peace or lawyer and file it, together with the Acknowledgment.
If you are not confident the other party will sign an Acknowledgment and return it to you, you should arrange for a friend or relative over the age of 18 years, or a professional process server (listed in the Yellow Pages) to personally hand the documents to the other party.
Whoever serves the documents must ask the other party to sign the Acknowledgment and if they do so, take the Acknowledgment and an Affidavit of Service by Hand (Divorce) to sign in front of a Justice of the Peace or lawyer.
If you recognise the other party's signature on the Acknowledgment, you can also take the an Affidavit Proving Signature (Divorce) and a copy of the Acknowledgment to sign in front of a Justice of the Peace or lawyer.
All of the service documents must be filed in Court.
See Federal Circuit Court Rules 2001 (Cth) rr 25.05-25.06.
What if the other party is overseas?
If the other party is overseas the method of service will depend on whether the country is a party to the Hague Service Convention. The Attorney-General's Department keeps a copy of the convention, a list of all convention countries and the details of their central authority. This information is also available from the website for the Hague Conference on Private International Law.
If the country is a Hague Convention country the documents can only be served in a certain way. The Registrar may be able to, and in some cases must, forward the documents to that country which can take many months.
If the country is not a Hague Convention country, normal service is allowed, either personally or by post.
See Family Law Regulations 1984 (Cth) pt IIAB.
What if I do not know the other party's whereabouts?
If you do not know where to find the other party or for whatever other reason are unable to serve the other party, the Court can order that:
- you serve someone else instead (this is called substituted service); or
- you need not provide any service at all (this is called dispensing with service).
The Court does not usually require you to go to great expense in trying to track down the other party, especially if you are experiencing financial hardship. It is not necessary, for example, to hire a private detective. The following inexpensive inquiries are often sufficient:
- searching the telephone book;
- telephone the other party, tell them of your application and ask of their whereabouts;
- telephone the other party's family and friends, tell them of your application and ask for the other party's whereabouts;
- follow up with the other party's last known employer or solicitor, asking for a forwarding address;
- placing advertisements in newspapers.
To apply for substituted service or dispensation from service, you need to file a separateApplication in a Case and an Affidavitsetting out the efforts you have made to find the other party and what, if any, financial hardship you are experiencing. These documents may be filed at the same time as your application or at a later time when it becomes clear that you cannot find the other party.
If you are not being represented by a lawyer, it is best to seek legal advice before making either of these applications.
You can call the free Legal Help Line for advice on 1300 366 424.
See also 'How to apply for a divorce: serving divorce papers' on the Federal Circuit Court's You Tube channel.
The content of the Law Handbook is made available as a public service for information purposes only and should not be relied upon as a substitute for legal advice. See Disclaimer for details. For free and confidential legal advice in South Australia call 1300 366 424.