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Serving a divorce application

Information about serving a divorce application.

Service means the process of giving or delivering court documents to someone after they have been filed with the court. The purpose of service is to make sure that the other party knows about the application.

The court documents and the prescribed court brochure, Marriage Families and Separation must be served on the other party to the marriage.

Service is not needed for an application made jointly.

Different rules apply, depending on whether the application was served personally or by post.

See Federal Circuit and Family Court—Marriage, families and separation (prescribed brochure)(opens in a new window).

Time limits

The other party must be served at least 28 days before the date set down for the court hearing. If the other person is living overseas, this is increased to 42 days.

Personal service

Personal service means handing the copies of documents to the respondent.

An applicant is not permitted to serve documents on the respondent. The documents must be served by a third party who is aged over 18. It may be a friend, relative or process server. A process server is a professional who serves documents for a fee. Process servers are listed in the phone book.

The person who is serving the court documents must ask the respondent: 'What is your full name?' and 'Are you the former partner of (the applicant)?'.

Refusing to be served

If the respondent refuses to accept service, the person serving may place the documents in sight of the person to be served and advise them what documents they are.

The server must note the details of this refusal in an 'Affidavit of service' which will need to be filed with court.

See See Federal Circuit and Family Court—Divorce service kit(opens in a new window)

Acknowledgement of service

A copy of the divorce application may be served by post. This must be posted to the person’s last known address. This method relies on the other party filling in and returning the ‘Acknowledgement of service’ (divorce) form. If they do not return this document, the court will not be sure that they have been notified of the application.

It may also be possible to post the documents to the respondent’s solicitor if they have someone acting for them.

Service by post must include:

When the acknowledgement of service document has been returned, the applicant will need to complete an 'Affidavit of proof of signature' . Both of these documents must then be filed with the court.

See Federal Circuit and Family Court—Divorce service kit(opens in a new window)

Service overseas

If the other party (respondent) is living overseas they may still be served either by post or personally by a process server. If the person to be served is overseas, documents must be served at least 42 days before the hearing date.

No address for service

If the applicant does not know where the respondent is living, they may make a request to the court asking to allow them to dispense with requirement of service.

The applicant must complete an 'Affidavit of service' describing efforts made to locate the other party. The court may adjourn the divorce application and ask the applicant to take further steps to try to find the other party. The applicant may have to advertise in the newspaper, contact mutual friends or relatives or search the electoral role.

See Federal Circuit and Family Court—Divorce service kit(opens in a new window)

Substituted service

Substituted service allows court documents to be served on a third person who the court is satisfied will bring the court documents to the attention of the respondent. This may be a family member or close friend of the other party.

See Federal Circuit and Family Court—Are you having trouble serving your divorce application?

Serving a divorce application on a prisoner

Where a person needs to serve a divorce application (or other legal document) on a person in prison, the prisoner must be served by special service on the person who is in charge of the prison. At the time of service, the prisoner must be informed in writing of the requirement to attend by electronic communication.

See rr. 15.16, 15.18, 7.10—Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)(opens in a new window).

Serving a person with a disability

If a person has a disability that means they need assistance understanding the divorce application, the document must be served on the person's:

  • case guardian
  • guardian appointed under a state or territory law.

If no guardian, the document can be served on an adult who has care of the person. If the person is in a nursing home, hospital or other care facility, the document should be served on the person in charge of that facility. .

See r. 7.09—Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)(opens in a new window).

More information

Legislation

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)

  • Part 2.6—service, Division 2.6.4—service of application for divorce
    • r. 2.42—service of application
    • r. 2.43—additional requirements for service by post
    • r. 2.44—acknowledgement of service
    • r. 2.47—evidence of signature and identity of person served
  • r. 15.16—attendance by electronic communication
  • r. 15.18—attendance of a party or witness in prison
  • r. 2.37—special service on a person with a disability
  • r. 2.38—special service on a prisoner

See Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)(opens in a new window).

Federal Circuit and Family Court of Australia

This site has information to help people who are applying for divorce. See particularly:

Updated