Am I required to serve the Application for Divorce on the other party?

Service is a requirement to allow the other party to be notified of the pending application for divorce involving them. You can refer to Family Law Rules 2004 r7.09 for information on service of a person with a disability and r7.10 for information in relation to service of a person in prison.

If you have made a joint application, you do not need to serve your spouse with any documents.

If you filed a sole application you are required to serve the application. You will need to arrange for certain documents to be served on your spouse either by post or by hand, see How can you serve documents below.

What if I am unable to locate my spouse?

The divorce application asks for your spouse's address for service. If you are unable to locate your spouse, even after you have taken all reasonable steps to locate him/her, you can apply for an order to dispense with service or for substituted service.

Before you proceed read Are you having trouble serving your divorce application.

For more information see Cannot serve the divorce documents below.

Are there time limits for service of the Application for Divorce?

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.

Are there any fees?

There are no fees involved in filing of service documents.

How to apply for a divorce: serving divorce papers 

View You Tube video about How to apply for a divorce: serving divorce papers.

How can you serve documents?

You can serve divorce documents on your spouse by post or by hand. If you cannot serve the documents you must apply to the court for a service order.

You should only attempt service by post if you are confident your spouse will sign and return the Acknowledgement 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.

The documents you will need to post to your spouse at their last known address are:

  • a sealed copy of the Application for Divorce with the Notice of Application for Divorce attached to the front
  • sealed copy of the Affidavit of eFiling
  • a copy of the Marriage, families and separation brochure
  • a copy of the Marriage, families and separation brochure
  • an Acknowledgement of Service (Divorce)
  • an Acknowledgement of Service (Divorce)
  • any other documents filed relating to your Application for Divorce, (except any passport/citizenship/marriage certificates/reduction of fees form/concession cards filed).
  • a letter asking your spouse to sign the Acknowledgement of Service at Part C and return it to you. You should also advise your spouse to keep the copy of the Application for Divorce sent by you.
  • a stamped self-addressed envelope for the return of the signed Acknowledgement of Service (Divorce).

To obtain a copy of the sealed application and Affidavit of eFiling print the documents:

Go into the Image of the Documents Filed buttonsection and select the Adobe pdf logo icons on the right hand side to print out both of the documents. 

Helpful hint - remember to record the date you posted the documents to your spouse.

What do I do once the documents have been served by post and the signed Acknowledgement of Service returned?

Complete the Affidavit of Service - by post (see Figure 1 below) and attach the Acknowledgement of Service (Divorce) (see Figure 2 below). You must sign Part C of the Affidavit of Service by Post before an authorised witness (Justice of the peace/solicitor). The same authorised witness at the same time should also sign the Annexure note at the bottom of the Acknowledgement of Service (Divorce). Refer to s.59 of Federal Circuit Court Act 1999 for authorised witnesses.
Complete the Affidavit of Service - by post (see Figure 1 below) and attach the Acknowledgement of Service (Divorce) (see Figure 2 below). You must sign Part C of the Affidavit of Service by Post before an authorised witness (Justice of the peace/solicitor). The same authorised witness at the same time should also sign the Annexure note at the bottom of the Acknowledgement of Service (Divorce). Refer to s.59 of Federal Circuit Court Act 1999 for authorised witnesses.

Refer to the following images to help you complete the forms:

Figure 1: Affidavit of Service by Post (Divorce)

Image showing to select I swear OR I affirm. Applicant signs before an authorised witness and the witness must also sign the annexure note on the Acknowledgment of Service (Divorce)

Figure 2: Acknowledgment of Service (Divorce)

Image showing where respondent needs to sign, but doesnt need to be before a witness. The same witness who is witnessing the server's Affidavit of service by post has to sign the Annexure note at the same time.

What should I do if a signed Acknowledgement of Service is not returned?

You will need to organise service by hand (see below). If you cannot organise this within the time limits above you will need to ask the court by email to adjourn the matter so you have time to serve the documents. Refer to Family Law registries for an email address for the appropriate registry where the application for divorce was filed.
You will need to organise service by hand (see below). If you cannot organise this within the time limits above you will need to ask the court by email to adjourn the matter so you have time to serve the documents. Refer to Family Law registries for an email address for the appropriate registry where the application for divorce was filed.

You cannot serve the documents on your spouse yourself.

You must arrange for a person over 18 years of age (the server) to serve the documents on your spouse (the respondent). The server can be a family member, friend or professional process server.

The documents you will need to give to the server are:

  • sealed copy of the Application for Divorce
  • sealed copy of the Affidavit of eFiling
  • copy of the Marriage, families and separation brochure, and
  • copy of the Marriage, families and separation brochure, and
  • any other documents filed with the Federal Circuit Court relating to your Divorce Application, (except any passport/citizenship/marriage certificates/reduction of fees form/concession cards filed)
  • Acknowledgment of Service (to be signed at Part C by the respondent).

What do I do once the documents have been served by the server?

If the respondent signs the Acknowledgement of Service (Divorce) (see Figure 1 below) the server must complete the Affidavit of Service by hand (see Figure 2 below) and attach the original signed Acknowledgement of Service. The annexure note at the bottom of the Acknowledgement of Service should also be signed by the witness at the same time as witnessing the Affidavit of Service by hand.

If the server does not know the respondent, the applicant must complete the Affidavit Proving Signature (see Figure 3 below) and attach a photocopy of the Acknowledgement of Service.

If the respondent does not sign the Acknowledgement of service, the server should complete the Affidavit of Service by hand and tick the appropriate box at Part B adding a note, if required, of the circumstances.

If the respondent’s lawyer is served and the Acknowledgement of service is signed, there is no requirement to complete the Affidavit of Service by hand. You will only need to upload the Acknowledgment of service.

These images will help you complete the forms correctly.

Figure 1: Acknowledgement of Service (Divorce)

Image showing where respondent needs to sign, but doesnt need to be before a witness. The same witness who is witnessing the server's Affidavit of service by hand has to sign the Annexure note at the same time.

Figure 2: Affidavit of Service by Hand (Divorce)

Image showing to select either I swear or I affirm. Server needs to sign before a witness.

Figure 3: Affidavit Proving Signature (Divorce)

Please note: The Affidavit Proving Signature (Divorce) is only required to be filed if the server does not know the respondent.

Image showing to select either I swear or I affirm, that applicant needs to sign before auth witness and the same witness must also sign the Annexure note on the photocopied Acknowledgement of Service (Divorce)

 

If you are unable to effect service on your spouse, even after you have taken all reasonable steps to, you can apply to the Court for an order for:

  • substituted service (which allows you to serve court documents on a third person who the court is satisfied will bring the court documents to the attention of the person to be served; or allows you to serve by post rather than service by hand);
    or
  • dispensation of service (which allows the court to dispense with the requirement of service) - please note dispensation of service will only be granted in exceptional circumstances.

You will need to have taken all reasonable steps to locate your spouse and refer to these steps in your affidavit supporting your application. See Are you having trouble serving your divorce application. If you need help to complete this type of application or are unsure whether you are eligible to file this application you should obtain legal advice. A lawyer can help you understand your rights and responsibilities before you apply. See Legal assistance.

See Rules 6.14 and 6.15 of the Federal Circuit Court Rules 2001 for further information on substituted service and dispensing with service.

To apply for an order seeking to dispense with service or for substituted service you will need to file an application in a case.  To eFile you should complete the online interactive form - see below.  If you eFile you are not required to complete the form.

How do I apply to the court for a service order when I cannot serve the application for divorce?

You should eFile the Application in a Case by completing the online interactive form. There is no need to complete the form in advance.

If you have not registered on the portal see How do I register for the Commonwealth Courts Portal. You will also need your file number and client number to link and access your file. If you do not have these numbers contact us by Live Chat and provide your full name, date of birth and the name of the other party. Once you are registered and linked go to step 1.

If you are already registered for the Portal and linked to your file go to step 1.

  1. Select the file number from the Available Files tab or search the file number e.g. ABC1234/2014 at Search for file > then click on the file number to open your file.

  2. Go to Image of the File a new application link 
  3. Select  Image of the Application in a case radio option  then Image of radio button to select the Federal Circuit Court of Australia then Image of the continue button
  4. Complete Title and Description then Create.
  5. Complete Step 1, Part A, B and C - on completion each Part should show a green tick Image of the green tick 
  6. Complete the Affidavit form (link provided above), scan and save the documents* on your computer drive where you will be able to find it easily.
  7. Upload the supporting affidavit at Step 2. You can file any further affidavits as an additional document.
  8. Complete Step 3. Statement of Truth and Save.
  9. Submit the application. You can open a preview of the document before you print.

*Use the PDF convertor in the right hand column if you need to convert the document to PDF.

Image showing the Add document, file a response and notify me

Note: An Application in a Case requires the manual allocation of a court date which will be processed within 3 working days. You can log into the portal to check the allocated date at any time. You can also select the envelope button (see above) to be notified by email of any activity on your file.

If for any reason you cannot eFile the application, follow the instructions on the Application in a Case and file it and the supporting Affidavit  at a family law registry. See Preparing an Affidavit for more information. You should have all your documents signed, witnessed (if required) and photocopied before you file.

After you have filed the documents

You should attend the hearing date for this application. If you are unable to attend in person, you may wish to apply to attend by phone by completing the Telephone/Video link attendance request form.

Please note: if you are overseas it is not possible to attend divorce hearings by phone. Other options for litigants overseas are to engage the services of an Australian lawyer to attend on your behalf or to file further material (eg material regarding any children of the marriage) and then seek leave of the Registrar to excuse your attendance. This is referred to the Registrar hearing your matter and may not be approved.

There is no court fee associated with filing an application in a case seeking an order for substituted service or to dispense with service.

Once the forms are completed and signed what do I do next?

You will need to upload the forms to the Commonwealth Courts Portal (www.comcourts.gov.au) see How do I eFile the service documents below.

How do I eFile the service documents?

  1. Scan the completed form and save the document on your computer where you will be able to find it easily.
  2. If you have not registered on the portal go to www.comcourts.gov.au to register. You will also need your file number and client number to link and access your divorce file. If you do not have these numbers contact us by Live Chat and provide your full name, date of birth and the name of the other party. Once you are registered and linked go to step 3. If you are already registered and linked to your divorce file go to step 3.
  3. Select the file number from the Available Files tab or search the file number e.g. ABC1234/2014 at Search for file > then click on the file number to open your file.
  4. Under select Image showing the plus sign at the appropriate application.
  5. Select Add document
    Image showing the add Document button, the Notify me after the divorce is granted button and teh Notify me of activity on this application button
    You can also select the envelope button to be notified when the divorce is granted.
  6. Select Affidavit of Service by Hand or by Post at Document Type.
    Select your name to choose who the document is filed on behalf of. 
    Click on Choose File, select the document from where you had saved it at step 1 above - this document must be in PDF format* and under 10 Mb.
    Click on Upload.
    *Use the PDF convertor in the right hand column if you need to convert the document to PDF.

If you are unable to electronically lodge the service documents you should post them to the family law registry where the application for divorce is being heard for filing.

Helpful hint - If you are attending the court hearing, take your copy of the service forms with you.