How to serve divorce documents
If you are making a sole application, your partner must be served with the divorce application. This means that your ex-partner must be given the divorce documents so that they are notified about the pending application of divorce.
You can serve the divorce documents on your spouse by post or by hand. The divorce documents will include:
A copy of the sealed application of divorce
Sealed copy of the affidavit of e-filing that you would have filed
Sealed copies of any other documents filed with the divorce application.
A copy of the Marriage, families, and separation brochure
An acknowledgement of service
By Post
In accordance with rule 2.42 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021, you can serve a divorce application. However, your spouse will need to sign and return the Acknowledgment of Service (Divorce) back to you. Therefore, you should only attempt service by post if you are confident your spouse will sign it.
By hand
Alternatively, you will need to arrange what is called a “personal service”. This is when you give your spouse documents by hand. You cannot serve the documents on your spouse yourself. Therefore, you will need to arrange someone else, over the age of 18 to serve the documents.
Once the documents are served, your spouse will need to sign the Acknowledgment of Service and the server will need to sign the Affidavit of Service by hand, both of which will be filed on the Commonwealth Courts Portal.
If your spouse does not take the copy of the document, the person may put it down in the presence of your spouse and tell them what it is. The server will need to explain these circumstances in the Affidavit of Service.
Spouse overseas
If your spouse is overseas, the method of service will depend on the country to which the documents are being served. Australia is a party to the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters 1965 (Hague Service Convention). This convention dictates how civil documents including divorce documents can be served to parties overseas.
The Hague Service Convention ensures that you will receive a certificate or affidavit confirming service or attempted service. This can be used as evidence of service which you will need to file on the Commonwealth Courts Portal. To effect service under the Hague Convention, you will need to make an application to the Federal Court Registry to forward the documents to the central authority of the Convention country. The application must contain the following documents:
The documents to be served
Draft request for service abroad in Form 1A, which is provided in the Family Law Regulations 1984
A summary of the document to be served in Form 1B, which is provided in the Family Law Regulations 1984
If the Registrar is satisfied that the requirements are complied with, the request will then be transmitted to the receiving country’s Central Authority, who will then process the request and attempt service in accordance with their domestic laws.
You will also need to provide an undertaking that you will cover all the costs that may be incurred in serving the documents overseas.
Case Study: Serving documents in India
As India is a Hague convention country but has opposed any form of service through post, you will have to take the following steps to validly serve documents in India.
Make an application to the Federal Court Registrar in the abovementioned forms.
If satisfied with the application, the Registrar will forward 2 copies of the documents to the Central authority in India, i.e., Department of Legal Affairs.
The Department of Legal Affairs will arrange for the documents to be served on your spouse.
You will be required to pay the costs arising out of the service effected by the department.
Finally, the Department of Legal Affairs will provide you with a certificate which would either state that the document has been validly served or state the reasons why it could not be served.
Unfortunately, this process can have long delays and can sometimes take up to 8-10 months for the service to be completed. In some situations, where such wait has become unreasonably long, you may be able to ask the court to waive off the requirement for personal service.
