Helpful information about Serving your Divorce
One of the most common requests I receive from self represented parties is to serve divorce documents. The process of completing the full divorce application from start to finish can be a daunting one for most people. This is because, there are many steps which need to be completed correctly, if your Application for Divorce is to be accepted on the day of the Hearing for the matter.
In Australia, getting a divorce occurs via the Federal Circuit and Family Court of Australia. By far the simplest way to complete the Application for Divorce is to lodge the application via the Commonwealth Courts Portal.
The requirement to serve the documents on your former spouse must be completed in the manner which satisfies the Court. While a process server is not required to serve the documents, you’re not allowed to serve the documents yourself if you are the Applicant. Another part of the service which the Court expects you to complete is seeking your ex-spouse, the Respondent, sign an Acknowledgment of Service. The Acknowledgment of Service is a document where your ex-spouse is saying they’ve received the Application for Divorce and associated documents.
To make matters worst, some ex-spouses do not wish to cooperate with the process of being served with divorce documents, yet the service must proceed despite their efforts to avoid being served. Despite the efforts of a difficult partner, there are still ways to achieve successfully serving the divorce documents, which will satisfy the Court and allow your application to run it’s course.
One more complication which arrises when serving documents is the need to give your ex-spouse the appropriate notice of the hearing date. Presently, the divorce documents are expected to be served at least 28 days before the date of the hearing. Usually you get three to five months from to the date you file your documents until when the hearing happens. Though while that sounds like a lot of time to get your documents served, if your ex-spouse chooses to be difficult, the time can get away very quickly and you can find yourself out of time to serve the documents.
So what happens if you haven’t served your divorce documents within the appropriate time frame? Never fear, all is not lost if you’re inside the 28 day period and you still haven’t served your ex-spouse. You can email the Federal Circuit and Family Court of Australia (enquiries@fcfcoa.gov.au), quoting your file number, your name and your ex-spouses name and request an adjourned date (a later date) for your divorce hearing. The Court will respond to you, usually granting the adjournment, else seeking more information about your request. Once the new date (adjourned hearing date) has been set, you can resume efforts to serve your divorce documents upon your ex-spouse. There’s no fee for requesting the adjourned date, but you mustn’t repeatedly seek adjournments, else the Court may dismiss your matter altogether. Best to always serve the documents as soon as possible to ensure you’re not needing to seek an adjournment at all. On last thing about asking for an adjournment, if you do seek an adjourned date for your divorce hearing, you’ll also need to serve a copy of the email from the Court on your ex-partner, so they know about the new time and date of the hearing.
So what do you need to serve for your divorce application? The simple answer is…. anything you’ve filed in the Court for your matter. Whether you’ve used the Commonwealth Courts Portal or filed your documents manually at one of the registries around Australia, you will receive or can download a copy of the ‘sealed documents’. Sealed documents means documents which have the Court stamp or ‘Court Seal’ placed on them. The Seal of the Court is an indicator to anyone viewing the documents that the documents have been filed in the Court.
The sealed documents will usually include at a minimum your Application for Divorce (including Notice to Respondent on top), Affidavit for eFiling and Marriage Certificate. If you were not born in Australia but became an Australian Citizen, you will also usually file your Citizenship Certificate. A lessor seen document which sometimes filed are Affidavit of Translation of Marriage Certificate, if your Marriage Certificate was issued in a language other than English. Occasionally, you may also need to file a separate affidavit to satisfy the Court if any minor issue arises with your Application after you’ve filed it or an error is discovered after you’ve filed your divorce application.
One last item to be served with divorce applications in Australia is the Brochure issued by the Court called Marriage, Families & Separation. Most good process servers know that this brochure must be served as well and will simply include it, even if you forget to ask for it to be served.
So basically the idea is, that if you’ve filed the documents in the Court, you should be giving a copy of all those filed documents to your ex-spouse. The point of giving the documents to your ex-spouse is so that they can’t claim later they didn’t know about anything that was in the filed documents. If they disagree with what has been filed, they can seek to correct what they disagree with, hence the purpose of the 28 days notice.
