Serving a divorce (sole applications only)

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 will not be satisfied that service has occurred. 

When serving by post you need to include:

• 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).

Steps

1. Post all the documents to your spouse 

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

2. Your spouse returns the signed Acknowledgment of service (Divorce).

   Note: If your spouse does not return a signed Acknowledgment of Service you will need to arrange for Service by Hand.

3. You complete the Affidavit of Service by Post (Divorce) form BUT DO NOT SIGN IT YET.

   At question 6 you will need to indicate that you recognise the signature contained within the signed Acknowledgment of Service (Divorce) as belonging to your spouse.

4. In front of an authorised witness (e.g. a Lawyer or Justice of the Peace), sign the Affidavit of Service by Post (Divorce) and the annexure note on the Acknowledgment of Service (Divorce) signed by your spouse.

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

   On the Acknowledgement of Service, the JP is not witnessing the signature of your spouse, they are witnessing that it is the Acknowledgment of Service referred to in your Affidavit of Service by Post (Divorce).

5. File the Affidavit of Service by Post (Divorce) with the Acknowledgment of Service (Divorce) attached on the Commonwealth Courts Portal.

   See 'What do I do once the service forms are completed and signed?' for details on how to file the service documents.

What should I do if my spouse does not return the Acknowledgment of service?

You will need to organise service by hand. If you cannot organise this within the time limits the Court may adjourn the matter so you have time to serve the documents.

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.

Steps

1. Find someone over 18 years to serve the documents for you (e.g. friend, family member or professional service).

   Helpful hint - Remember you cannot serve the documents yourself. 

2. Give the server all the documents they will be serving on your spouse. 

   The server needs to hand the documents to your spouse. The server must identify your spouse so the Court knows that the documents have been given to the right person. Details about the steps the server must take are contained in the Divorce service kit.

   If the server is a family member or friend who knows your spouse, this is enough proof of identity – they must write how they know your spouse in the Affidavit of Service by Hand.

   If the server does not know your spouse, then they must identify them. The server can identify your spouse by:

   • a photograph
   • asking questions; for example, ‘What is your full name?’ or ‘Are you the husband/wife of [state name of applicant]?’, or
   • having another person present at the time of service who knows your spouse.

3. If your spouse accepts the documents, the server must ask them to sign the Acknowledgment of Service (Divorce).

   If your spouse refuses to accept the documents, the server can put them down in the presence of your spouse and state what they are. For example, ‘Your spouse is applying for a divorce and I am serving you with the divorce application. The divorce application is listed for hearing on [date of hearing] at [location of hearing]’.

4. The person serving the documents needs to complete an Affidavit of Service by Hand (Divorce).

   At Part B they must identify precisely what documents were served upon your spouse.

   At Part C they need to clearly record how they identified your spouse including recording any conversation they had with your spouse to confirm their identity.

   Once they have completed the affidavit they need to swear/affirm the document. They cannot sign at Part D, until they are in front of an authorised witness (e.g. a Lawyer or Justice of the Peace).

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

5. If the person who served the documents doesn’t know your spouse or was unable to identify them, but your spouse signed the Acknowledgment of Service (Divorce) then you must also file an Affidavit Proving Signature (Divorce) to swear/affirm that you recognise the signature on the Acknowledgment of Service (Divorce) as your spouse’s signature. 

   This document needs to be sworn/affirmed before an authorised witness (e.g. a lawyer or justice of the peace). You will also need to have the annexure note on the Acknowledgment of Service (Divorce) signed and witnessed by the same authorised witness.

6. File the Affidavit of Service by Hand (Divorce) on the Commonwealth Courts Portal. 

   If applicable, also file the:

   • Acknowledgment of Service (Divorce) and 
   • Affidavit Proving Signature (Divorce).

See 'What do I do once the service forms are completed and signed?' for details on how to file the service documents.

If your spouse has a lawyer and they agree to accept service, you can serve the documents on the lawyer. If the lawyer has not confirmed that they will accept service, you will need to arrange to serve your spouse another way. 

A signed and dated Acknowledgment of service from their lawyer is proof of service. You must file this acknowledgment with the Court. If the acknowledgment is properly completed, you do not need to file any other service documents. Note that the date on which the lawyer acknowledges service must be at least 28 days prior to the hearing date. 

Steps

1. Write to your spouse’s lawyer and ask them if they are willing to accept service of the divorce documents.
2. If the lawyer responds yes, then provide:
   • all documents filed
   • a copy of the brochure Marriage, Families and Separation, and
   • an Acknowledgment of Service (Divorce) for the lawyer to sign.

3. The lawyer returns a signed Acknowledgment of Service (Divorce) to you.

   If you cannot get a signed and dated Acknowledgment of Service (Divorce) from the lawyer, you will have to arrange for service directly on your spouse. See Service by hand or Service by post.

4. File the returned Acknowledgment of Service (Divorce) on the Commonwealth Courts Portal.

See 'What do I do once the service forms are completed and signed?' for details on how to file the service documents. 

There are special requirements when a document is required to be served by hand if your spouse is overseas, is a prisoner or has a legal incapacity.

Your spouse is overseas

If your spouse 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 filing an application to serve under the Hague Convention in accordance with the Family Law Regulations 2024. If the country is not a party to the Hague Convention, you should get legal advice about filing an application to dispense with service or substituted service. See 'What if I don’t know where my spouse lives or I can’t serve the divorce documents?' for more information.

See the Attorney-General’s Department website for general information about serving an Australian civil legal document overseas.

Special service

There are special requirements when a document is required to be served on a person with a legal incapacity or a prisoner.

Special service on a person with a cognitive impairment

If a person has an impairment or disability that means they would not be able to understand the documents handed to them, then documents must be served on:

1. the person’s litigation 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.

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 envelope and cover letter setting out:
  • The name and MIN number of the respondent.
  • A statement that they documents are being served pursuant to Rule 2.38 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 and a request that the documents are handed to the respondent.
  • A request that the person in charge sign the Acknowledgement of Service (Divorce) 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 Affidavit of Service by Post (Divorce) or an Affidavit setting out their compliance with Rule 2.38 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021.

NOTE: if a prison accepts service upon prisoners by electronic communication (e.g. email) then it is permissible to email documents by way of service to the prison.

See 'What do I do once the service forms are completed and signed?' for details on how to file the service documents. 

If you are unable to serve the documents 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 another way, including but not limited to methods such as by text message, email, social media or through a relative or third person who the court is satisfied will bring the court documents to the attention of the person to be served, or
• Dispensation of service which allows the Court to dispense with the requirement of service. This is a very serious step. It means that your spouse will not be aware that there is a divorce application or ultimately that they are divorced. Substantial evidence is required to demonstrate that your spouse cannot be located by any means. Dispensation of service will only be granted in exceptional circumstances.

To apply for an order for substituted service or seeking to dispense with service, you will need to file an Application in a proceeding and an Affidavit. For more information on what is required in your application see, Are you having trouble serving your divorce application. 

Unless the Court gives you permission, you must appear before a Registrar on the divorce hearing date if you file an Application in a Proceeding. You might need to arrange a different hearing time for your application if you Application for Divorce is listed for a hearing without appearances. 

You should eFile this application on the Commonwealth Courts Portal.

Steps

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 the Application in a proceeding form and upload the application and supporting documents.

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.
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.

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 or by emailing it to the Court.

Unless otherwise advised by the Court, you are required to attend the divorce hearing if you are applying for an order for substituted service or a dispensation of service.

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

If a service order is made

If the Judicial Officer considering your application for service orders is satisfied that an order about service should be made, then they will make orders about what you need to do next