Sole Divorce Application

Sole Applications also differ from Joint Applications in that there is a requirement of service, meaning the filed court documents stamped with the Court’s electronic seal must be served on (given to) the ex-spouse to notify them of the court proceedings involving them. Service must be completed within specific timeframes depending on whether the ex-spouse lives overseas or in Australia.

If the ex-spouse lives overseas, service must be completed no later than 42 days prior to the divorce hearing. If they live in Australia, service must be completed no later than 28 days prior to the divorce hearing.

Generally speaking, service is a relatively straightforward process. Pursuant to the Rules, service must be effected one of two (2) ways:

1. Post, whereby you print out and send copies of the court documents to the ex-spouse’s address; or

2. Personal service, whereby a third party personally hands the court documents to the ex-spouse.

In some cases, service can be quite complicated, especially when the location of the ex-spouse is unknown, or they are dodging service or are unwilling to sign the Acknowledgment of Service. In these circumstances, you can make an Application in a Proceeding (“Application”) to the court seeking one or both the following options:

1. Substituted service; and/or

2. Dispensation of service.

Substituted service is where the party making the Application requests that the Court to allow service to be effected by alternative means like email or text message, or by serving the court documents on a third party (like a family member, friend or employer) who the Court is satisfied will bring to the attention of the ex-spouse.

Dispensation of service is a more difficult order to obtain. The Court must be satisfied that the party making the Application has made all reasonable attempts to locate the ex-spouse. If satisfied, the Court will grant orders that the requirements of service by dispensed with (or waived).

In submitting such an Application to the Court, you can seek orders for dispensation of service in the first instance, and in the alternative request the Court to make orders for substituted service. Ultimately, it is up to the Court’s discretion whether they grant substituted service or allow it to be dispensed with altogether. A copy of the Application you will need to prepare, sign and file can be found here.

In addition to the Application, a detailed Affidavit will also need to be filed setting out all attempts to locate the ex-spouse and any and all attempts of service on them. Evidence of the steps taken by you can be attached at the end of the Affidavit as “annexures”.  A copy of the Affidavit form you will need to prepare, sign and file can be found here.

Once the Application and Affidavit have been filed, a court hearing will be allocated which is normally the same time and date as the divorce hearing. The party making the application (or their solicitor) will need to attend a court hearing and appear before the Registrar. Even if there is not child or children under 18 years of age of the marriage, you will need to attend the hearing in the event an Application for substituted service or dispensation of service is made.

At the hearing, the Registrar may require you to provide further information to the Court, or they may decide to adjourn your case again and direct you to take further steps to locate or make additional service attempts on the ex-spouse. Ultimately, it is up to the discretion of the presiding Judicial Registrar if they are satisfied with the Application and decide to grant the Orders sought.

If you require assistance with a divorce application, please get in touch with the team at Ramsden Family Law.