What do I do when my spouse will not respond to me with my requests to serve them with Divorce Documents?
There is no denying that the decision to separate from your spouse is a tough one. The relationship may have been deteriorating for some time and when separation happens, it’s an emotional time. Quite often, the parties have then reached the point where they don’t want to even see their ex again, much less communicate with them. This is understandable, but it makes it very difficult once 12 months have passed and you are ready to file for Divorce. You can unilaterally file, that is no problem – but the question then becomes, if your ex won’t respond to you, how do you serve them?
The Courts do provide some leeway:
- If your ex is still living in Australia, then you have 28 days from the date of filing your application within which to serve them.
- If your ex has moved internationally, which can happen more often than you would think, then you have 42 days from the date of filing your application within which to serve them.
So you try the conventional method of a text to maybe obtain their current address. When that does not work, you try emailing them. If you have already obtained a lawyer to assist you in preparing and filing your Divorce Application, you may even have your lawyer send them a letter via email. Sometimes this works – and you have no further worries. Basically, you have to make all reasonable attempts to serve your Divorce Application on your ex.
If you still cannot contact them, then you have a couple of options:
- Make an Application to the Court for Substituted Service; and/or
- Make an Application to the Court for Dispensation of Service.
If you are successful, then the Court will grant you the opportunity to attempt service of the documents in other ways. With a Divorce, generally, you will be permitted to forward the Divorce Application to a third party, likely a relative of your ex, who can then pass the documents on to your ex. In addition or in the alternative, you may be granted the ability to serve the documents on your ex via email.
Dispensation of Service
In this Application, you are basically applying to skirt the issue of service. You have made all reasonable attempts to serve your ex (you may even have already tried emailing them the documents) and it has not worked. If you are successful here, the Court will agree that service is no longer required and, provided all the other general requirements for a divorce met, will generally grant the divorce.
Material Required for an Application for either Substituted Service or Dispensation of Service
It is essential that you tell the Court the following information in your Application:
- Evidence of all attempts you have made to find and/or contact your ex – copies of text messages / social media messages / emails are very helpful;
- The last time you successfully communicated with your ex and the circumstances of that communication;
- Your ex’ last known address;
- Any enquiries or contact you have made with your ex’s relatives or friends as further attempts to try and contact your ex;
- If your ex is employed and, if so, any enquiries you have made with their employer;
- If your ex is now living overseas – which country they now reside in, the length of time they have lived there, and whether they intend to travel to or return to Australia
- If your Application is for Substituted Service – why the method you are suggesting is likely to be successful;
- Any reasons why your ex is not contactable;
- Details of any current jointly-held property and any child support or maintenance – any correspondence from Centrelink in respect of child support will need to be included with your application;
- If applicable, any costs to you of trying to locate your ex and whether this has caused you financial hardship; and
- Any other relevant information to assist the Court in granting your Application.
Your Application will be heard at the same time as your Divorce Hearing and you will be required to attend. If you are legally represented, your lawyer will be required to attend on your behalf. At the hearing, the Court may require you to provide additional information as to your attempts to serve your ex and may, in some cases, order you to make further attempts at service, including to search the electoral roll.
Mitchells Solicitors recently had a case where the ex was living overseas and, despite numerous attempts from our client to serve him with the documents, our client’s communication was continuously ignored. We were able to obtain a successful application for dispensation of service based on the persistence of our client and, ultimately, the divorce was granted.
If you would like assistance with your Divorce Application, or you are having trouble serving your ex-spouse, please contact Kristen Mitchell-Scott of Mitchells Solicitors on +617 3373 3633 or via email on firstname.lastname@example.org .
Kristen Mitchell-Scott is part of the Mitchells Solicitors family law team, and holds dual degrees in Bachelor of Laws (Honours) and Bachelor of Arts, majoring in Japanese and Criminology from the University of Queensland, and a Graduate Diploma in Legal Practice from the College of Law.
We offer a FREE 10-minute phone call consultation. Please contact us on +617 3373 3363.