A sole Application for Divorce generally requires the other spouse to be served, either via personal service or via post, at least 28 days prior to the Divorce Hearing. How then can a Divorce be granted if you are unable to serve your spouse?
Where a spouse cannot be located, the Court may Order:
- substituted service: service via alternative methods such as email, social media messaging, service on a relative likely to be in contact with your spouse, or service at a last known workplace; and/or
- dispensation of service: the Court excuses service altogether, usually where you can show reasonable efforts have been made to locate your spouse, but your spouse cannot be found.
To apply for substituted service and/or dispensation of service, you are required to file an Application in a Proceeding setting out the Orders you seek and a supporting Affidavit. For substituted service, the Application in a Proceeding should set out the methods you seek to effect service. The Court will have regard to the following factors when considering the application:
- the proposed method of bringing the document to the attention of the person to be served;
- whether all reasonable steps have been taken to serve the document or bring it to the notice of the person to be served;
- whether the person to be served could reasonably become aware of the existence and nature of the document by advertisement or another form of communication that is reasonably available;
- the likely cost of service;
- the nature of the proceeding.
Your Affidavit should address the above factors, and should include evidence of your efforts to locate your spouse including attempts to:
- contact your spouse via last known phone numbers, residential and email addresses, social media platforms, and through known contacts and relatives of your spouse;
- searches of publicly available sources such as electoral roll searches, online directories, and professional registers;
- enquiries through a private process server/investigator; and
- enquiries of known institutions where lawful and appropriate (such as last known employer).
It is important that every effort be documented including dates, screenshots, evidence of returned mail, and witness statements.
Following the filing of your Application in a Proceeding and supporting Affidavit a hearing will be listed for you to make submissions as to why the Court should make the orders you seek for substituted service or dispensation of service.
The evidence you are to present to satisfy the Court you have performed all reasonable steps to serve your Application for Divorce or bring it to the notice of the person to be served can be difficult. Swan Family Lawyers can assist you by advising you what and how to collect evidence, by preparing the Court documents, and appearing on your behalf in Court. Please contact us at Swan Family Lawyers on 8227 1970 to discuss how we can help you today.