Manage Your own Divorce

After you have filed your Application for Divorce with the Federal Circuit Court, you will need to serve your divorce documents. “Serving” means posting or having someone deliver the documents to your spouse in accordance with the court rules.You cannot give the documents to your spouse yourself. If your spouse is in Australia, you must serve them at least 28 days before the hearing date. If they are overseas, you must serve them at least 42 days before the hearing date. You can get a Divorce Service Kit from the court registry. Have one posted to you 1300 352 000, or download from www.familylawcourts.gov.au

2Serving your divorce documents

This factsheet is one of four factsheets about managing your own divorce. It is intended as a general guide to the law. It should not be relied on as legal advice and it is recommended that you talk to a lawyer about your particular situation. At the time of printing, the information shown is correct, but may be subject to change. If you need help, call LawAccess NSW on 1300 888 529.

September 2014

What does “serving” mean?

You must get someone over 18 to go to your spouse’s address, workplace, or any place that you know they will be and hand deliver the documents to your spouse. You can pay to have the Sheriff of the Local Court, or a private process server to serve the documents for you. They should know all the steps they need to take to comply with the rules for service.

The person who serves the documents must hand to your spouse:the Application for Divorce (one of the copies filed and stamped by the court)

the Marriage, Families and Separation brochure

any other supporting documents (e.g. an affidavit)

The person who serves the documents must then complete:an Affidavit of Service by Hand and sign it in front of a Justice of the Peace (JP) or lawyer. You must file this at court.

Your spouse does not have to do anything when they are served. They may agree to sign the Acknowledgement of Service and give it back to the person who serves them. If your spouse does this, you should also file the Affidavit Proving Signature at court.

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Service by hand

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Checklist for service by hand

Arrange for someone over the age of 18 to serve your documents on your spouse.

Give that person:

The Application for Divorce (one of the copies filed and stamped by the court)

Any other documents filed with the court supporting your application (e.g. an affidavit)

The Marriage, Families and Separation brochure

The Acknowledgement of Service

Make sure the person serving your spouse understands the steps they must take to effectively serve the documents.

After your spouse has been served, you must get back:

A completed Affidavit of Service by Hand

If your spouse signed the Acknowledgement of Service:

it should be annexed to the Affidavit of Service by Hand; and

you should complete and sign the Affidavit Proving Signature in front of a JP or lawyer. (Make sure a copy of the Acknowledgement of Service is attached to this document)

Make copies of all service documents (for your records):

File at the court original and one copy of:

Affidavit of Service by Hand

Affidavit Proving Signature (if appropriate)

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Service by post

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You can post the documents to your spouse’s address. Choose this method only if you are sure your spouse will sign and return the Acknowledgement of Service to you.

Post to your spouse:the Application for Divorce (one of the copies filed and stamped by the court),

the Marriage, Families and Separation brochure,

the Acknowledgement of Service,

any other supporting documents filed (e.g. an affidavit), and a stamped, self-addressed envelope.

When your spouse signs and returns the Acknowledgement of Service:Complete and file:

an Affidavit of Service by Post (with the Acknowledgement of Service attached) AND

an Affidavit Proving Signature.

These forms must be signed in front of a JP or lawyer.

If your spouse does not sign and return the Acknowledgement of Service you must arrange service by hand.

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Checklist for service by post

Post to your spouse:

The Application for Divorce (one of the copies filed and stamped by the court)

Any other documents filed with the court supporting your application (e.g. an affidavit)

The Marriage, Families and Separation brochure

The Acknowledgement of Service

A stamped, self-addressed envelope

Make a record of the date you posted the documents to your spouse

Receive back from your spouse the completed Acknowledgement of Service

Complete and sign in front of a JP or lawyer:

Affidavit of Service by Post

Affidavit Proving Signature (make sure a copy of the Acknowledgement of Service is attached to this document)

Make copies of all service documents (for your records)

File at court the original and one copy of:

Affidavit of Service by Post

Acknowledgement of Service

Affidavit Proving Signature

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If you don’t know where your spouse is:

Application in a Case

Step 1- You have to try to find out where your spouse is. You should:

Call any phone numbers you have for them, including any workplace.

Contact their family or friends and ask if they know where your spouse is. If they refuse to tell you, ask if they will give the documents to your spouse for you.

Search for them in the phonebook.

Search for them on social media (e.g. Facebook).

Keep a record of your attempts to find your spouse, including notes of conversations. You may need to give this information to the court.

Step 2- If you can’t find an address for your spouse you need to ask the court for permission to serve the documents in a different way (apply for substituted service):

Think of the best way to make sure your spouse gets the Application for Divorce.

Complete an Application in a Case and an Affidavit.

The kind of orders you can ask for are:

“That the rules for service be dispensed with provided that the applicant sends by ordinary pre-paid post the Application for Divorce and the brochure ‘Marriage, Families and Separation’ to, _______________(ADDRESS), being the address of ______________ (NAME of person who lives at address) with a letter requesting that they forward the documents to the respondent”.

If you have tried everything in Step 1 above and still can’t find any way to serve your spouse you will need to ask for dispensation of service:

“That the rules for service be dispensed with.”

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Affidavit

The affidavit is your evidence about your attempts to locate your spouse. You must tell the court how you have tried to locate your spouse and why the proposal you have put forward in your Application in a Case is the best way to make sure your spouse knows about the divorce. You should include paragraphs like:

1. I am the Applicant.

2. I do not know where the Respondent lives or works.

3. The Respondent and I separated on _________ (DATE).

4. I last lived with the Respondent when we were at _________ (ADDRESS AND TIME).

5. I last saw the Respondent _________(PLACE AND TIME of the last time you saw or spoke with your spouse after separation).

6. When I was living with the Respondent they worked at _________(EXPLAIN why you don’t know where your spouse works now – did you try to call their old workplace?).

7. The last place of residence of the Respondent known to me was _________(EXPLAIN how you know your spouse does not live there anymore).

8. A White Pages search revealed no matches for the name _________(YOUR SPOUSE’S NAME). (Or, if there were matches, how do you know it wasn’t your spouse?)

9. I have a phone number on which I used to contact the Respondent. However _________ (EXPLAIN why you cannot reach your spouse on that phone number now).

Include any contact details of your spouse’s family or friends, or anyone still in contact with your spouse. Tell the court how you know they are still in contact with your spouse and attempts you have made to communicate with those family members or friends.

In considering your application for substituted service or dispensation of service, the court will look at the attempts you have made to find your spouse. The court will then decide what you will need to do next. For example, the court may order you send your spouse an email, send letters to family, or that you advertise your application in a newspaper.

More information about service and the affidavits required is contained in the court’s Divorce Service Kit. The Marriage, Families and Separation brochure can also be found at www.familylawcourts.gov.au

Where are the Federal Circuit Courts? Help to manage your own divorce

463 Kiewa Street, Albury NSW 2640

Level 1, 26 Gordon Street, Coffs Harbour NSW 2450

Corner Macquarie & Wingewarra Streets, Dubbo NSW 2830

2/29–31 Molesworth Street, Lismore NSW 2480

61 Bolton Street, Newcastle NSW 2300

1–3 George Street, Parramatta NSW 2124

97–99 Goulburn Street, Sydney NSW 2001

1/43 Burelli Street, Wollongong NSW 2500

For more information online about applying for divorce see www.familycourts.gov.au

Legal Aid NSW runs free classes to help you fill out the Application for Divorce. Ask us to arrange an interpreter when you book. Visit www.legalaid.nsw.gov.au/divorce-classesIf there are no classes, you can make an appointment to see a lawyer for free advice. Legal Aid NSW offices can be found on our website under Contact Us, or call the Family Law Early Intervention Unit on 1800 551 589. LawAccess NSW provides legal information, referral and, in some cases, advice. Call 1300 888 529.

If you need an interpreter call the Translating and Interpreting Service (TIS) 131 450

You can order more copies of this factsheet from www.legalaid.nsw.gov.au/publications

It is available in Arabic, Simple and Traditional Chinese, Farsi/Dari, Thai and Vietnamese. September 2014 MNLA60029

National Relay Service (NRS) 133 677

Photo disclaimer: The people in these photographs have no involvement with Legal Aid NSW

1. Complete the Application for Divorce c

2. Sign the Application for Divorce in front of a JP or lawyer c

3. Make two copies of the Application for Divorce and any supporting court documents c

4. File:

• original and 2 copies of your application c

• original and two copies of any other court documents (e.g. an affidavit)

• copy of your marriage certificate c

• citizenship certificate or passport (if required) c

• application for a reduction of the filing fee, with a copy of your pension card or financial details (if required)

5. Pay the filing fee (full rate or reduced) c

6. If required, arrange to serve your spouse and file proof of service with the court. See: Serving your divorce documents (factsheet 2) c

7. If required, attend the hearing. See: Divorce hearing (factsheet 3) c

8. Obtain your divorce order from the court c

9. Remember property settlement and/or spouse maintenance applications must be filed within 12 months of divorce c

10. Update your will c

Check List for Divorce

Tips for affidavits

You can obtain a blank Affidavit form from the Family Law Courts registry by calling 1300 352 000 or online at www.federalcircuitcourt.gov.au

Attach extra pages if you need more space.Number every paragraph.When you are writing about what someone said, put it in quotation marks. If you cannot recall the exact words said, use the phrase “words to the effect of”. For example: He said to me words to the effect of “that’s fine.”You can attach documents, such as:- a bank statement that shows you set up your own bank account after

separation- a letter you wrote to your spouse about separation.

To attach a document, you should write in the affidavit: “annexed to this affidavit and marked “A” is a copy of the letter ”. You should then write “A” at the top of the front page of the document you are attaching.If you have more than one document, mark each one A, B, C, D etc. in the order that you refer to them in your affidavit and attach them in that order to the back of your affidavit.Sign the affidavit in front of a lawyer or a Justice of the Peace (JP). There may be a JP at the court. Sign (and have your witness also sign) the bottom of each page.

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