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What Are My Obligations When Serving Divorce Papers?

7th Dec 2020 Legal Advice
DivDivorce is never a positive experience for anyone involved, but often a necessary evil in situations or relationships where things have gone south. One of the most common questions we get asked at Oxford Partners is “what are my obligations when serving divorce papers?”. In today’s article, we have a look at how to serve your divorce papers after you have filed your divorce application. Read on to find out more. 

Getting Ready To Serve Your Documents

The first step and obligation in serving your divorce papers is to ensure that the documents are sealed and served to your spouse. In order for this process to happen, you will have to file your Application For Divorce which will be returned to you stamped with a red court seal. If you have made your application online via the Commonwealth Courts Portal, you will receive an email that contains a link to a PDF attachment of your divorce documents that have been stamped your divorce hearing date and location. Do note that even if you make your application online, you will still be expected to print a hardcopy to serve on your partner. If you made a paper application, your divorce documents will contain sealed photocopies of your application. The hearing date and location will also be noted on the documents. 

Serving The Divorce Documents

We often get a number of questions regarding the process of serving divorce documents, all of which we will touch on below:   
  • Will The Courts Serve Divorce Papers on Behalf?
  One of the most frequent things we get asked is if one party is required to serve divorce papers on their own accord or if the courts will handle it. The quick answer here is yes. You must arrange service of the sealed divorce documents on your own unless the court gives you special permission to do otherwise. If you and your spouse have a joint application for divorce, this process is nullified.   
  • When Do I Need To Serve The Application For Divorce?
  In most circumstances, you will need to serve papers at least 28 days prior to your arranged court hearing if your spouse is in Australia. Should your spouse be overseas, you will need to do so at least 42 days prior to the date of your hearing.   
  • Can I Do It Myself?
  By law, the applicant is not allowed to personally serve divorce documents on their spouse. There are strict laws around this and you are legally required to arrange service by hand or by post on your spouse or your spouse’s family lawyer. You can ask anyone over the age of 18 to serve the divorce papers on your behalf, including friends, family members or a professional process server. Do note that whoever you have appointed is legally expected to sign an affidavit to prove they have served your spouse within the time limit depending on your individual situation. The server must also have the complete affidavit signed and witnessed by a Justice of the Peace or Notary Public.  
  • What If My Spouse Refuses To Sign The Papers?
  By law, your spouse is not legally obliged to sign anything. However, it is important to note that even if your spouse refuses to sign the documents, the court can still grant a divorce order. In order for this to happen, you will have to prove that your spouse was served the documents in accordance with the rules of your state or area.  You must fill in the proof of service forms carefully, otherwise the court might order you to serve your spouse again. If you think the court may have questions for you about service, you should attend your divorce hearing. If service is not proved, the court could delay or cancel your Application for Divorce.

Finalising The Divorce

If all goes to plan, your divorce will be  granted and finalised one month and one day in standard situations. You will be able to log into the online portal and choose to receive a notification when your divorce has been granted. Once granted, you will be able to download your divorce order from the Commonwealth Courts Portal. _______________ Applying for a divorce and serving your divorce papers doesn’t need to be a laborious or stressful task with the help of Oxford Partners. Our experienced team of lawyers have decades of experience in matters of divorce and family law and are able to guide you through the process from start to finish. Call us today on (03) 9670 7577 to find out more.

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