How do I serve divorce documents?
When making a divorce application, you can make a joint application (you and your former spouse) or a sole application (yourself).
When making a joint application, both you and your former spouse need to sign the Application for Divorce. Because this application is signed by both parties, there is no need for either of you to serve the documents upon the other.
When making a sole Application for Divorce, only the person making the application needs to sign the Application. After signing, you need to serve the documents upon your former spouse so that they are aware of the application and have an opportunity to respond (if they wish to do so).
What documents do I serve?
- A sealed copy of the Application for Divorce;
- A sealed copy of the Affidavit of eFiling;
- A copy of the Marriage, families and separation brochure;
- An Acknowledgement of Service (Divorce);
- Any other documents related to your Application for Divorce; and
- A letter to your former spouse with instructions to sign the Acknowledgement of Service and return the Acknowledgement of Service to you (they can keep the other documents).
How do I serve the documents?
- By hand: A person over 18 years can serve the documents on your former spouse. This can be a family member, friend or professional process server. You cannot serve the documents on your former spouse yourself.
- By post: This is an option if you are confident that they will sign and return the Acknowledgement of Service to you.
- Upon your former spouse’s lawyer: Only if the lawyer has indicated that they will accept service.
Once the documents are served upon your former spouse, the following steps will need to occur:
- The person serving will need to complete the Affidavit of Service By Hand (Divorce) attaching the original signed Acknowledgement of Service.
- If the person serving does not know your former spouse, you (the Applicant) must complete Affidavit Proving Signature (Divorce) and attach a copy of the Acknowledgment of Service.
- If your former spouse’s lawyer accepts the documents, you only need to file the Acknowledgement of Service with the Court. An Affidavit of Service By Hand or Affidavit Proving Signature is not required.
What happens if I am experiencing difficulties serving my Divorce Application?
You need to make all reasonable attempts, namely do everything that you possibly can do, to serve the Application for Divorce upon your former spouse.
After all reasonable attempts are made and you still encounter difficulties serving the Application, you can apply to the Court for:
- An order for substituted service (service on a third person who the Court is satisfied will bring the documents to the attention of your former spouse, or using alternate method of service as opposed to service by hand); or
- An order for dispensation of service (where you do not need to serve documents on your spouse and where the requirements of service are dispensed with or waived).
The Court will only grant a dispensation of service in exceptional circumstances.
If you are seeking an order for substituted service or dispensation of service, you will need to complete and file an Application in a Proceeding and an Affidavit supporting your application.
Arranging service of your Divorce Application can be stressful if you encounter difficulties locating your former spouse or serving them. Priscilla McArdle can assist you through this process if you are experiencing difficulties.
Note: This Family Law update is a guide only and is not intended to constitute legal advice.