How to Divorce with Substituted Service

Service of divorce papers

Unless you are applying for your divorce jointly, you will need to serve the other party. Under the law, service is a requirement to allow the other party (called the respondent) to be notified of the pending application for divorce involving them. If your spouse is in Australia, the documents must be served at least 28 days before the court hearing. If your spouse is overseas, the documents must be served at least 42 days before the court hearing.

Divorce when the spouse cannot be found

Unfortunately, it sometimes happens that you cannot locate your spouse to serve the divorce application on the respondent. This can occur for any of a number of reasons. Sometimes, people simply walk out the door and leave no forwarding address. Sometimes the spouse simply returns to their home country overseas. In other cases the spouse simply cannot be located and no one has any idea where they are. At other times, the applicant knows where the respondent/spouse lives but they are avoiding service, or do not want to sign and return a joint divorce application that you sent through the post.

If you are unable to locate your spouse, even after you have taken all reasonable steps to locate him/her, you can apply for an order to dispense with service or for substituted service

Substituted service

Substituted service allows you to serve court documents on a third person who the court is satisfied will bring the court documents to the attention of the person to be served; or allows you to serve by post rather than service by hand.

Dispensation of service

Dispensation of service allows the court to dispense with the requirement of service – please note dispensation of service will only be granted in exceptional circumstances.

You will need to have taken all reasonable steps to locate your spouse and refer to these steps in your affidavit supporting your application. 

To apply for an order seeking to dispense with service or for substituted service you will need to file an application in a case and a supporting affidavit. Your lawyer will need to attend Court on the hearing date of your application.

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