How to Serve your former spouse with a divorce application
The Federal Circuit and Family Court of Australia has the jurisdiction or power to deal with dissolution of marriage (i.e. a divorce) under Part VI of the Family Law Act 1975.
A respondent to a divorce application is entitled to know that court proceedings regarding their marital status have been issued. Before the court makes an order for divorce, it is a requirement that the respondent is notified of the application.
The person issuing the application for divorce, being the applicant, will bear the responsibility of proving to the court that their former spouse has been correctly served with the application, or is at least aware of the nature of the court application.
There are particular requirements for service of divorce applications and a number of documents which must be filed with the court to prove that an applicant’s former spouse has received the divorce application in the correct manner.
Here we answer some common questions in relation to service of an application for divorce.
How is an application for divorce filed and how much is the filing fee?
Applications for divorce are now filed electronically using the Commonwealth Courts Portal. An application for divorce must be filed with the court before it can be served on the other party and the correct filing fee paid.
The current filing fee payable for an application for divorce is $1060. Some applicants might be eligible for a reduced filing fee of $350, depending on whether they meet an entitlement for a reduced fee. Click here to read the Court’s guidelines for eligibility for reduced divorce filing fees.
Am I required to serve the application for divorce on the other party?
If you and your former spouse are making a joint application for a divorce, there is no need for either of you to be served with the documents. However, if you are making a sole application, the documents must be served on your former spouse.
Are there time limits for service of the application for divorce?
If your former spouse is living in Australia, the documents must be served at least 28 days before the court hearing to determine the divorce application. If your former spouse is living overseas, the documents must be served at least 42 days before the court hearing.
How can you serve the documents?
You can serve a divorce application and associated documents on your former spouse by post or by hand.
Service by hand has correctly occurred when the respondent is personally handed the relevant documents by a person other than the applicant.
As an applicant, you can be present at the time of service by hand but cannot serve your former spouse yourself with the documents. As such, usually a process server will be engaged to complete service by hand.
If your former spouse refuses to accept the documents by hand, personal service can still be effected if the documents are put down and left in your former spouse’s presence and they are informed by the process server as to what the documents are.
If your former spouse has engaged a lawyer, personal service may also be effected by serving the documents on their lawyer.
Service by post will not be effective unless your former spouse agrees to sign and return an acknowledgement of service. So, unless you have arranged with your former spouse for their agreement to sign and return the acknowledgement of service, then personal service by hand should be used instead.
What if I am unable to serve by hand or post?
If you cannot serve the documents on your former spouse for some reason, such as you do not know their contact details, you can apply to the court requesting that you be allowed to serve the application in another way (substituted service) or avoid service altogether (dispensation of service).
If you cannot serve the documents because you are unable to locate your former spouse, you must firstly take all reasonable steps to try and locate them before applying to the court for substituted service or a dispensation of service.
While filing an application for divorce does not specifically require legal representation, the issues around service of the application can be complex and sometimes legal advice is required.
Our Family Law team at Harwood Andrews regularly assists clients with their divorce applications.
It is important to note that an application for divorce and subsequent divorce order do not finalise any arrangements between parties as to the parenting arrangements for their children, or the division of their assets (property settlement).
Tara Paatsch
Special Counsel
M 0412 660 842 | T 03 5225 5222
E tpaatsch@ha.legal
Lisa Hunt
Principal
M 0407 616 729 | T 03 5226 8584
E lhunt@ha.legal
This article was first written on 10 December 2021 and was updated on 16 April 2024.