How do I serve a divorce?

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 rules 2.42 to 2.47 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 including information on service on a person with a disability and 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 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 conditions of service order.

To download and print a copy of the sealed application and Affidavit for eFiling or any other documents you have filed necessary for service from the portal go to your file on the Commonwealth Courts Portal then the heading List of Documents then the PDF icon in the right hand column of the appropriate documents for service.

The Divorce Service Kit contains the forms required when serving an application for divorce. Select from the following options for more information about the requirements for each type of service.

You should only attempt service by post if you are confident your spouse will sign and return the Acknowledgment 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 for eFiling
  • a copy of the Marriage, families and separation brochure
  • an Acknowledgment 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 Acknowledgment 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 Acknowledgment of service (Divorce).

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  and attach the signed Acknowledgment of Service (Divorce). 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 must also sign the Annexure note at the bottom of the Acknowledgment of Service (Divorce).

Helpful hint: It is important if you have your affidavit witnessed by a Justice of the Peace that the JP provides their JP number.

What should I do if a signed Acknowledgment 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. All Court registries have a generic email address. Type the name of the registry where your divorce is being heard followed by @fcfcoa.gov.au. An example is sydney@fcfcoa.gov.au.

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:

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

If the respondent signs the Acknowledgment of service (Divorce) the server must complete the Affidavit of service by hand and attach the original signed Acknowledgment of Service. The annexure note at the bottom of the Acknowledgment 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 and attach a photocopy of the Acknowledgment of Service.

If the respondent does not sign the Acknowledgment 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, explaining the circumstances.

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

Please note:

  • It is important if you have your affidavit witnessed by a Justice of the Peace that the JP provides their JP number.
  • The Affidavit proving signature (Divorce) is only required to be filed if the server does not know the respondent.
  • It is important if you have your affidavit witnessed by a Justice of the Peace that the JP provides their JP number.

If your spouse has a lawyer and he or she is willing to accept service, you can serve the documents on your spouse's lawyer. A signed and dated Acknowledgment of service from your spouse's lawyer is proof of service. You need to file this acknowledgment with the Court. If it has been properly completed you do not need to file any other service documents.

If you cannot get a signed and dated Acknowledgment of Service (Divorce) from the lawyer, you will have to arrange for service directly upon the respondent. See: Service by post/hand above.

There are special requirements when a document is required to be served by hand on a person with a disability or a prisoner.

Special service on a person with a disability

The document must be served on either of the following:

  1. the person’s case guardian
  2. the person’s guardian appointed under a State or Territory law, or
  3. if there is no one under paragraph (a) or (b) – on an adult who has the care of the person.

Note: the person in charge of a hospital, nursing home or other care facility is taken to have the care of a person who is a patient in the hospital, nursing home or facility.

Your spouse is overseas

If the respondent is not in Australia the method of service will depend on whether the country is a party to the Hague Convention. See the Attorney-General's Department website for information about serving legal documents across international borders. If the country is a party to the Hague Convention, service may be possible by arrangement with the Attorney-General's Department. If the country is not a party to the Hague Convention, you should obtain legal advice in relation to filing an application to dispense with service or substituted service. See Cannot serve the divorce documents below for more information.

Special service on a prisoner

The document must be served on the person in charge of the prison.

  • The applicant must find out the name of the prison where the spouse is located and their MIN number - contact state/territory correctional services.
  • The documents for service must be posted to the person in charge of the prison with a stamp self-addressed cover letter setting out:
    • The name and MIN number of the respondent.
    • A request that the documents are handed to the respondent.
    • A request that the person in charge sign the Acknowledgement of Service at Part C with a notation next to their signature that they are in charge of the prison.
  • The applicant must complete the affidavit of Service by Post.

The Court requires proof of service. See Once the forms are completed and signed what do I do next? below.

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:

  • Service with conditions (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. 

To apply for an order seeking to dispense with service or for substituted service you will need to file an Application in a proceeding. To eFile you should complete the online interactive form - see below. 

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

There are two options when eFiling an Application in a proceeding:

  • Guided – uses the online interactive application form together with uploading supporting documents
     
  • Unguided – complete an online form and upload the application and supporting documents.

If you are not registered on the Commonwealth Courts Portal or are registered but do not have access to your file electronically email us at registerme@comcourts.gov.au with your full name, date of birth, name of the other party, file number (if known) and your portal user name if you are already registered so we can create your registration or provide access to your file. Once you are registered or linked go to step 1.

  1. Select your file number from the Available Files tab.
  2. Select File a New Application.
  3. Confirm you are filing on your own behalf and that you have read obligations.
  4. Select Application in a Proceeding then select Continue.
  5. Choose the Guided or Unguided option – see information above.
  6. Enter a Title and a Description then select Create
  7. Complete Step 1, Part A, B and C - on completion each Part should show a green tick.
  8. Complete the Affidavit form, scan and save the document on your computer drive as a PDF where you will be able to find it easily.  Use the PDF convertor in the right hand column at the File a Document screen if you need to convert the document to PDF.
  9. Upload the affidavit at Step 2. You can file any further affidavits as an additional document.
  10. Complete Step 3. Statement of Truth and Save.
  11. Submit the application. You can open a preview of the document before you print.

Note: An Application in a Proceeding 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 proceeding and file it together with the supporting Affidavit the original plus a copy at a court registry.   

After you have filed the documents

You should attend the hearing date for this application. If you are unable to attend in person. Divorce hearings are held electronically, if you have not been provided with dial in details a reasonable period prior to the Court event, you should contact the registry directly where the divorce is being heard. All Court registries have a generic email address, the name of the registry followed by @fcfcoa.gov.au – for example sydney@fcfcoa.gov.au.

Please note: if you are overseas it may not be 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 proceeding 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 - 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 or you are registered but do not have access to your file electronically email  registerme@comcourts.gov.au with your file number, full name, date of birth and the name of the other party.   Once you are registered or have access to your file 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.
  4. Select + next to the Application for Divorce.
  5. Select Add document.
  6. From the Document Type drop down menu select Affidavit of service by hand or by Post.
  7. Select your name as the person filing the document.
  8. Click on Choose File and search for the document saved on your computer.  The document must be in a PDF format.  Use the PDF convertor in the right hand column if you need to convert the document.
  9. Click on Upload.

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