If you have filed a sole Application for Divorce, you will need to serve the application on your spouse. The application and supporting documents can be served by hand or by post. If your spouse lives in Australia, you must serve the documents at least 28 days before the divorce hearing. If they live overseas, you must serve the documents at least 42 days before the hearing.
If you are no longer in contact with your spouse, it can be difficult to serve your divorce application. They may have changed their contact details or moved interstate or overseas. If you are unable to locate your spouse, you should make attempts to contact them or locate them in other ways, such as through their family, friends or employer. You should also try searching the electoral roll if possible.
If you are still unable to locate your spouse despite making all reasonable enquiries, you can make an Application in a Proceeding seeking:
Substituted service; or
Dispensation of service.
It is important from the Court’s perspective that your spouse has an opportunity to respond to your Divorce Application if they wish to.
Substituted service
Order for substituted service allows you to serve your spouse in another way. For example, if you are aware of your spouse’s email address, you could seek an order that allows you to serve the application by email. You can also seek an order that you be permitted to serve the documents to a third party, such as a relative, who can pass the documents on to them. You must be sure that the method of substituted service will be successful.
Dispensation of service
An order to dispense with service means that service is no longer required. This order can be made with or without conditions. The Court must be satisfied that you have taken all reasonable steps to serve your application and that the requirements for divorce have otherwise been met.
Procedural requirements
An application for substituted service or dispensation of service requires an Application in a Proceeding and a supporting Affidavit. Your Affidavit should set out the attempts you have made to serve your spouse, including:
Your attempts to contact and locate your spouse, including copies of any messages/emails;
The last known address of your spouse and details of your last communication with them;
Enquiries you have made of your spouse’s family or friends and any replies received;
Enquiries you have made with your spouse’s employer and any replies received;
Details of any child support or maintenance orders, including any correspondence with government departments;
Details of any jointly owned property;
The costs you have incurred trying to serve your spouse and whether further costs would create financial hardship for you;
If you are seeking substituted service, details of the way you propose to serve documents and the basis upon which you believe it will be successful; and
Any other relevant information.
The application will generally be heard at the same time as your divorce hearing. You should attend the hearing as the presiding Court Officer may ask you to provide further information.
You may wish to seek specialist family law advice before applying for substituted service or dispensation of service. If you would like to discuss your matter and how we can assist you, please contact us today at (02) 6225 7040 by email at info@rmfamilylaw.com.au or get started now online.
Author: Amy Davis