Kristen Mitchell-Scott, Solicitor at Mitchells Solicitors, shares valuable advice on what to do when you cannot service Divorce Documents on your client’s ex-spouse, for when the ex-spouse is still living in Australia and also for when the ex-spouse has moved overseas.
For your clients, the decision to separate from their spouse is incredibly difficult. Their relationship may have been deteriorating for some time and when separation actually happens, it is an emotional time. After a year passes and they become eligible to file for divorce, more often than not, your clients have reached the point where they do not want to see their ex again, much less communicate with them. This is understandable, but it makes it very difficult when you are trying to serve the Divorce papers on your client’s behalf (I refer, of course, to a Sole Application for Divorce). So, what is the best way forward when you cannot effect service on your client’s ex-spouse?
The Courts do provide some leeway:
- If the ex-spouse is still living in Australia, then you have until twenty-eight (28) days before the Divorce Hearing date within which to effect service;
- If the ex-spouse has moved internationally, which can happen more often than one would think, then you have forty-two (42) days before the Divorce Hearing date within which to effect service.
Your client may have already made their own attempts to contact their ex-spouse, solely for the purpose of serving them with divorce documents. If they have not been successful, they should provide you, as their lawyer, with any contact information they have for their ex-spouse, in order for you to write to them. You must then make all reasonable attempts on your client’s behalf to serve their Divorce Application on the ex-spouse.
If the ex-spouse is still not contactable, or appears to be ignoring the communication, then the solutions are for you, on your client’s behalf, to:
- Make an Application to the Court for Substituted Service; and/or
- Make an Application to the Court for Dispensation of Service.
If successful, the Court will grant you the opportunity to attempt service of the Application for Divorce in other ways. Generally, you will be permitted to forward the documents to a third party, likely a relative of your client’s ex-spouse, who can then pass the documents on to that person. Of course, it is best to obtain your client’s instructions as to who would be the best intermediary.
In addition, or in the alternative, the Court may permit you to attempt service on the ex-spouse via email. You will most likely then be ordered to prepare an Affidavit (for yourself and your client) that sets out your compliance with the Court Orders for Substituted Service.
Dispensation of Service
In making this Application, you are trying to avoid spending further time (and your client’s money) on attempting to serve the ex-spouse. It is important to set out all the reasonable attempts that you have made to serve the ex-spouse.
If you are successful, the Court will agree that service is no longer required. Further, provided all the other requirements for a divorce are met, the Court will generally grant the divorce.
Material Required for an Application for Substituted Service or Dispensation of Service
It is essential that you include the following information in your Application:
- Evidence all attempts you and/or your client have made to find and/or contact the ex-spouse – copies of any text messages / social media messages / emails are very helpful;
- The last time your client had successful communication with the ex and the circumstances of that communication;
- The ex-spouse’s last known address;
- Any enquiries or contact your client has made with the ex-spouse’s relatives or friends as further attempts to try and contact the ex-spouse;
- If the ex is employed and whether your client or you, acting on your client’s instructions, have made with their employer;
- If the 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 the Application is for Substituted Service – why the method/s you are suggesting is/are likely to be successful;
- Any reasons why the ex-spouse is not contactable;
- Details of any property that your client currently holds jointly with the ex-spouse, and any child support or maintenance received – any correspondence from Centrelink in respect of child support will need to be included with your application (if relevant);
- Any costs to your client of trying to locate the ex and whether this has caused them financial hardship; and
- Any other relevant information that will assist the Court in granting the Application.
It is likely that the Application will be heard at the same time as the Divorce Hearing and attendance is required. At the hearing, the Court may require additional information to be provided as to attempts to serve the ex-spouse and may, in some cases, order further attempts at service to made, including a search of 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 have a client who you believe needs assistance with their Divorce Application, or is having trouble serving their ex-spouse, please contact Kristen Mitchell-Scott of Mitchells Solicitors
Kristen Mitchell-Scott 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. She will commence her Master of Applied Law (Family Law) at the College of Law in 2020. Contact Kristen via email, phone (07) 3373 3633 or LinkedIn