Affidavit of service by hand (divorce)

An Application for Divorce may be served by personal service (r 2.42 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021). The server must give the respondent a copy, or if they will not take it, put it down in their presence and tell them what it is (r 2.35(1)-(2)). The server must not be the applicant (r 2.35(3)). Evidence of service of a divorce application must be given by affidavit in the approved form (r 2.45), and service can be proved by the server identifying the person served, by a photograph identified by someone who knows them, or by another person who saw the handover (r 2.46). This is that affidavit, made by the server.

When you need it

• You filed a sole Application for Divorce and someone over 18 (a friend, family member or process server) handed the documents to your spouse.
• Your spouse did not return the Acknowledgment of Service sent by post, so you arranged service by hand.
• Not for joint applications, which do not need to be served.

1. 1

   Part A - the server

   The server's name, address, occupation and relationship to the person served.

2. 2

   Part B - details of service

   The respondent's name, the date served, and each document served (Application for Divorce, the Marriage, Families and Separation brochure, and others). Tick how it was served: handed over, attempted, or put down in their presence after they refused, with the address.

3. 3

   Part C - identity of the person served

   Tick every method that applies: an attached photograph, seeing them sign the attached Acknowledgment of Service, knowing them (explain how), or a conversation at service (give its details).

4. 4

   Part D - swear or affirm

   The server signs only in front of a lawyer, Justice of the Peace (with JP number) or other authorised person. The same witness also signs the annexure note on the Acknowledgment of Service if one is attached.

• Attach the signed Acknowledgment of Service (Divorce) if your spouse signed it. If the server could not identify your spouse but your spouse signed it, you also file an Affidavit Proving Signature (Divorce).
• eFile the service documents on the Commonwealth Courts Portal under your Application for Divorce; if you cannot, post them to the registry where the divorce will be heard.
• The court's divorce service page says service must be at least 28 days before the hearing if your spouse is in Australia, or 42 days if overseas.
• Check the Portal at least 7 days before the hearing in case your spouse has filed documents or the hearing time has changed, as the court suggests.

• The server should record exactly what was said to confirm identity, for example asking the person's full name.
• If identification is by photograph, rule 2.46(3) requires someone who knows your spouse to identify the photograph as well, so plan for that evidence.
• If your spouse is in prison, overseas or has a legal incapacity, special service rules apply. See the court's divorce service page.