“Am I ever gonna’ see your face again?” – The Angels
A response of no to this question has times where it can be a blessing and times where it could be a curse, especially in our line of work!
As much as you might not want to see your former spouse, you might need to know where they are when you want to serve a divorce application and what you can do if you cannot locate them.
The rules relating to service of divorce applications require the person seeking the divorce to serve the application on the other party personally.
Personal service is required under the Federal Circuit Court Rules to ensure that the other party is aware of the application as they have a right to contest it.
The documents must be personally served by a person over the age of 18 years on the party that is to receive them. However, the rules prevent anyone who is a party to the proceedings to serve their own documents.
There are a number of ways that you can personally serve the documents including:
- by post, as long as you are confident that they will return to you the acknowledgment of service; the defendant is required to prove that they have received the documents and are aware of the proceedings. If there is no acknowledgment returned, service is not considered to be valid;
- an agent called a process server or a Bailiff/Sheriff’s Officer to serve the documents. A process server is a licensed commercial agent who can serve documents or make enquiries about someone’s whereabouts in order to serve them.
Sometimes people might not want to cooperate or do not want to be found. In this case, an application can be made to the Court for substituted service as long as all other avenues have been exhausted before making the application. The Court will need to be convinced that you have tried to locate the other party before granting this type of application.
Substituted service can occur in a number of ways, and some examples include:
- service by email;
- service by Facebook – but care must be taken here. Section 121 of the Family Law Act provides that it is an offence to publish identifying information about someone who is party to family law proceedings. If a Court has authorised substituted service, by Facebook, the use of private communications such as sending the documents by Facebook Messenger is recommended;
- attaching the documents to a prominent place at an address where they will be noticed. This might be the person’s current address or the address of a relative who can bring the documents to the other party’s attention;
- serving the documents on some other family member who is over 18, for example, a parent or other relative; and
- in some circumstances, where the other party has not been seen or heard of, the Court will authorise the publication of a notice in a newspaper circulating either in the person’s previous last known place of residence or an Australian wide publication. This is also known as dispersing with service. If a person cannot be found, there is no reason for a Court to refuse to allow a divorce to go through simply because one party cannot or does not want to be found.
Special arrangements are also made for:
- serving divorce documents on a person living overseas; or
- if a person is in jail.
You need to serve your documents at least 28 days prior to the hearing of the Divorce Application. If the other party is overseas you must serve your documents at least 42 days before the hearing.
While you can apply for divorce without seeking legal advice there is value in guidance to navigate the sometimes tricky world of substituted service. Our team can assist you with substituted service in your Application for Divorce, contact us to find out about our fee packages.
You can also find out more about the divorce process in this article – What is the process for Divorce in Australia?