Step by step guide - Serving your spouse

If you filed a sole Application for Divorce, you will need to serve it on your spouse. If you don’t serve your spouse, the court may adjourn or dismiss your application.

You must serve your spouse at least 28 days before the court hearing, if they are in Australia. If your spouse is overseas, you must serve them at least 42 days before the court hearing.

If you are concerned about your residential address being disclosed to your spouse or are afraid to contact them, you should get legal advice.

Step 1: Decide how you want to serve your spouse 

You can’t personally serve your spouse. You can either:

• arrange for a person over 18 years old to serve a copy of your application on your spouse or their lawyer - this can be a friend, family member, sheriff officer, or professional process server, or
• post your application to your spouse or their lawyer.

You should only serve your spouse by post if you are confident they will sign and return to you the Acknowledgment of Service (Divorce). If they don’t do this, you will need to serve them by hand.

If your spouse has a lawyer, you should call or write to their lawyer and ask if they are willing to accept service of your Application for Divorce. If they say no, you will need to serve your spouse personally.

 If your spouse is overseas, there is a different process you must follow to serve them with your Application for Divorce. For more information about how to serve your spouse overseas, see Serving a legal document across international borders on the Attorney-General’s Department website. 

If your spouse is in prison, there are different rules you must follow to serve them with your Application for Divorce. 

Step by step guide: Serving your spouse in prison 

Step 2: Get your documents

You must serve your spouse or their lawyer with:

• a sealed copy of your Application for Divorce
• a sealed copy of your Affidavit for eFiling Application (Divorce)
• a sealed copy of your Affidavit, if required
• a copy of the Marriage, families and separation brochure
• any other documents filed with the court. 

You don’t need to serve your spouse or their lawyer with:

• your Marriage Certificate, citizenship or identification documents
  
• your Application for reduction of payment divorce or decree of nullity – financial hardship.

To download sealed copies of your documents from the Commonwealth Courts Portal:

1. log onto the portal
2. select ‘Available Files’
3. select your file number
4. under ‘Existing Applications’ select the plus symbol
5. under ‘Documents Filed’ select the document. 

Service by hand

If you are serving your spouse or their lawyer by hand, you will need an:

• Affidavit of Service by Hand (Divorce)
• Acknowledgement of Service (Divorce)
• Affidavit Proving Signature (Divorce).

Service by post

If you are serving your spouse or their lawyer by post, you will need an:

• Affidavit of Service by Post (Divorce)
• Acknowledgement of Service (Divorce).

 You can download a Divorce Service Kit (do it yourself kit) on Federal Circuit and Family Court of Australia’s website.

Step 3: Serving your spouse

Service by hand

To serve your spouse or their lawyer by hand, the server must:

• hand your spouse or their lawyer your Application for Divorce and supporting documents, or put the Application for Divorce and supporting documents down in your spouse’s presence and explain what the documents are
• ask your spouse or their lawyer to sign Part C of the Acknowledgment of Service (Divorce) - your spouse does not have to sign anything given to them
• sign and have witnessed by an authorised person (Justice of the Peace or lawyer) the Affidavit of Service by Hand (Divorce).

You may want to prepare the Affidavit of Service by Hand (Divorce) to give to the server when you ask them to serve your Application for Divorce and supporting documents.

You may want to give the server a photo of your spouse to make it easier for them to identify your spouse. If you do, you must make sure that a copy of this photo is attached to the Affidavit of Service by Hand (Divorce) when it is filed. 

If you use a process server, you will have to pay a fee. These fees are not set by the court, so you can’t apply to reduce the fee. You will need to negotiate with the process server privately. 

Service by post

To serve your spouse or their lawyer by post, you must:

• send your documents by pre-paid post in a sealed envelope to their last known address - remember to record the date you sent your documents
  
• ask your spouse or their lawyer to sign Part C of the Acknowledgement of Service (Divorce) and return it to you - your spouse does not have to sign anything you send to them
• provide a stamped, self-addressed envelope for your spouse or their lawyer to return the signed Acknowledgement of Service (Divorce) to you.

If your spouse or their lawyer does not sign and return the Acknowledgment of Service (Divorce), you will have to serve them by hand. 

You can’t use a postal delivery receipt as proof of service. 

Step 4: Preparing your Affidavit of Service (Divorce)

To prove to the court you have served your spouse or their lawyer, you must prepare and file an Affidavit of Service (Divorce) and attach the supporting documents. If you don’t the court may adjourn your matter while you file these documents or dismiss your application altogether. 

Service by hand

The person who served your spouse or their lawyer must prepare an Affidavit of Service by Hand (Divorce), which includes:

• the server’s full name, address and occupation
  
• your spouse’s full name 
• how the server identified your spouse
• the date your documents were served
  
• a list of the documents that were served 
  
• details of how the documents were served
  
• the Acknowledgment of Service (Divorce), signed or unsigned.
  

The server must have their Affidavit witnessed by an authorised person (Justice of the Peace or lawyer) before returning it to you. 

Instructions: Instructions for completing an Affidavit of Service by Hand (Divorce)

Sample: Affidavit of Service by Hand (Divorce)

Instructions: Instructions for completing an Acknowledgment of Service (Divorce) - service by hand

Sample: Acknowledgment of Service (Divorce) - service by hand

If your spouse signed the Acknowledgement of Service (Divorce), you will have to complete the Affidavit Proving Signature (Divorce).  

Instructions: Instructions for completing an Affidavit Proving Signature (Divorce)

Sample: Affidavit Proving Signature (Divorce)

The annexure note on the Acknowledgement of Service and the Affidavit Proving Signature will need to be witnessed by an authorised person (Justice of the Peace or lawyer).

Service by Post

If you were successful in serving your spouse or their lawyer by post, you must prepare:

• an Affidavit of Service by Post (Divorce) and attach to it the signed Acknowledgement of Service (Divorce).

You must include the following information in your Affidavit:

• your full name and your spouse’s full name
• your spouse’s full address
• the date you posted your documents 
  
• a list of the documents you served. 

Don’t sign your Affidavit until you are ready to have it witnessed. 

Instructions: Instructions for completing an Affidavit of Service by Post (Divorce)

Sample: Affidavit of Service by Post (Divorce)

If your spouse signed the Acknowledgment of Service (Divorce) and you recognise their signature, you should complete the Affidavit Proving Signature (Divorce). You will need to swear or affirm the Affidavit Proving Signature (Divorce) before an authorised person (Justice of the Peace or lawyer). You need to attach a copy of the signed Acknowledgment of Service (Divorce) to the Affidavit Proving Signature (Divorce).

Instructions: Instructions for completing an Acknowledgment of Service (Divorce) - service by post

Sample: Acknowledgment of Service (Divorce) - service by post

Step 5: Getting your documents witnessed

When you sign your Affidavits, you must have them witnessed by an authorised person (Justice of the Peace or lawyer).

The authorised person must sign the following sections:

• Acknowledgment of Service (Divorce)- Annexure note
• Affidavit of Service by Post (Divorce) – Part C
• Affidavit Proving Signature (Divorce) – Part C.
  

Step 6: Filing your Affidavit of Service

After your Affidavits have been signed and witnessed, you must file them with the court before the hearing. They are your proof that the documents have been served. 

You can file your documents online via the Commonwealth Courts Portal or at a court registry. 

After you have filed your Affidavit of Service and supporting documents you may need to prepare to go to the hearing.

For more information, see Going to the hearing.