Service of documentsFamily Lawyers Adelaide

Service of documentsFamily Lawyers Adelaide
Service refers to the process of sending or giving court documents to a party after they have been filed with the Court. If you have made a sole application for divorce, 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 photocopy of your marriage certificate.

There are two ways you can serve documents on your spouse:

post them to your spouse at their last known address, or

arrange for a third person over the age of 18 years to hand it to your spouse (you cannot serve the documents yourself).

You should only post the documents to your spouse if you are confident he or she will complete and send back to you a signed Acknowledgement of Service.

If you are not confident your spouse will acknowledge service by post or you unsuccessfully attempted service by post, you will need to arrange for the documents to be personally served on your spouse.

If you do not know where your spouse is, after making all reasonable attempts to find them, you may ask the Court to dispense with service.

Time limits

If your spouse is in Australia, the documents must be served at least 28 days before the hearing date.

If your spouse is overseas, the documents must be served at least 42 days before the hearing date (you do not need to send the Marriage, Families and Separation brochure).

If you are unable to serve the documents within these time limits, speak to court staff at your nearest registry or call the Family Law Courts on 1300 352 000.

Service by post

Step 1

Obtain the following service forms:

Affidavit by Applicant for Service by Post (divorce), and

Acknowledgement of Service.

Step 2

Post the following items to your spouse at his or her last known address:

a sealed copy of the Application for Divorce and any other documents filed with the Court, except the photocopy of the marriage certificate

a copy of the Marriage, Families and Separation brochure, and

an Acknowledgement of Service.

It is helpful if you also send your spouse:

a written request that your spouse sign the Acknowledgement of Service and return it to you as soon as possible, and

a stamped self-addressed envelope to enable the signed Acknowledgement of Service to be returned to you.

Record the date you posted the documents to your spouse.

Step 3

When the Acknowledgement of Service is returned, fill in the Affidavit by Applicant for Service by Post (divorce). In particular, indicate whether or not your spouse has signed the Acknowledgement of Service (see question six on the form).

Swear or affirm the Affidavit by Applicant for Service by Post (divorce) in the presence of a lawyer, Justice of the Peace, or other person who is authorised to witness affidavits in your state or territory. Have the Acknowledgement of Service with you, as the person who witnesses your signature must also complete the Annexure Note at the foot of the Acknowledgement of Service.

Step 4

File the completed and signed Affidavit by Applicant for Service by Post (divorce) and Acknowledgement of Service at the Family Law Courts registry before the hearing date.

It is a good idea to make a photocopy of these forms before filing them with the Court.

Service by hand

Step 1

Obtain the following service forms:

Affidavit of Service (divorce)

Acknowledgement of Service, and

Affidavit of Proof of Signature.

Step 2

Arrange a third person over the age of 18 years (the server) to serve the documents on your spouse. The server may be a family member, friend or a professional process server. Process servers are listed in the Yellow Pages. You cannot serve the documents on your spouse.

Step 3

The server will need the following documents:

a sealed copy of the Application for Divorce and any other documents filed with the Court, except the photocopy of the marriage certificate

a copy of the Marriage, Families and Separation brochure, and

an Acknowledgement of Service.

If the server does not know your spouse, it is helpful to give them a recent photograph.

Step 4

The server will need to hand the documents to your spouse. If the server does not know your spouse, he or she needs to establish the identity of your spouse.

This may be from a photograph or by asking your spouse some questions, for instance:

What is your full name?

Are you the husband/wife of the applicant [your name]?

The server should ask your spouse to sign the Acknowledgement of Service. If your spouse refuses to take the documents and/or sign the Acknowledgement of Service, the server may put them down in his or her presence and tell them what the documents are.

Step 5

The server fills in the Affidavit of Service (divorce). If the Acknowledgement of Service was signed by your spouse, attach it. If a photograph was used to identity your spouse, attach it also.

Step 6

The server must swear or affirm the Affidavit of Service (divorce) in the presence of a lawyer, Justice of the Peace, or other person who is authorised to witness affidavits in your state or territory. If your spouse acknowledged service, the server must also take the Acknowledgement of Service, as the person who witnesses their signature must also complete the Annexure Note at the foot of the Acknowledgment of Service.

Step 7

If your spouse signed the Acknowledgement of Service and you recognise their signature, complete the Affidavit of Proof of Signature.

Step 8

File the completed and signed Affidavit of Service (divorce), Acknowledgement of Service and Affidavit of Proof of Signature at the Family Law Courts registry before the hearing date.

It is a good idea to make a photocopy of these forms before filing them with the Court.

What if you cannot find your spouse?

If you cannot directly serve court documents related to the divorce on your spouse (the respondent) after taking all reasonable steps to do so, you can apply to the Court for:

substituted service, or

dispensation of service.

Service is the process of sending or giving court documents to a respondent after they have been filed with the Court. Service shows the Court that the respondent has received the documents the Court is considering.

You should get legal advice before applying for substituted service or dispensation of service. You can get legal advice from:

legal aid

a community legal centre, or

a private law firm.

Court staff can help you with questions about court forms and the court process, but cannot give you legal advice.

Substituted service or dispensation of service

Q. What is substituted service?

A. It allows you to serve the court documents related to the divorce on a third person. In making an order for substituted service, the Court must be satisfied that the third person will bring the Court documents to the attention of your spouse.

Q. What is dispensation of service?

A. It means you do not need to serve court documents on the respondent. In making an order for dispensation of service, the Court must be satisfied that you have made all reasonable attempts to locate your spouse.

Applying to the Court for substituted or dispensation of service

You need to complete an application form and affidavit.

You need to set out all the steps you have taken to locate the respondent in your affidavit, for example:

What attempts, efforts and enquiries you made to find the respondent.

When you last saw, spoke to or communicated in any way with the respondent, and the circumstances of that sighting or communication.

The last known address of the respondent.

Who are the respondents nearest relatives and friends, what enquiries you made of these people about the respondent and any replies you received.

What employment, if any, the respondent had.

What enquiries you made with the respondents last known employer and any replies received.

Details of any current child support or maintenance arrangements or orders. If correspondence has been received from the Child Support Agency, attach a copy to your affidavit.

Details of any property, bank accounts or businesses that are jointly owned.

Whether the respondent was a member of any union, club or association and, if so, which ones.

Any reasons why the respondent may not be contactable.

Where the respondent lives overseas, details about which country they are living in, how long they have lived there and if they plan to travel or move back to Australia.

The costs of trying to locate the respondent and whether such costs are creating financial difficulties for you.

Any other relevant information that may help the Court.

Other points

An application for substituted service or dispensation of service related to a divorce application will usually be listed on the same day and time as the divorce hearing.

If you have applied for substituted service or dispensation of service, you must attend the court hearing. You may be required to give more information to the Court. This applies even if you have chosen not to attend the hearing on your Application for Divorce.

The Court may adjourn your case and direct you to take extra steps to locate the respondent. For example, to send a letter to the respondents relatives or friends, search the electoral roll or advertise in a local, national or overseas newspaper.

The Courts have a fact sheet Are you having trouble serving your divorce application? that contains this information. It is located under Related Links.’

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