To get a divorce in Australia, you must be separated from your former spouse for 1 year. During the period of separation, a lot of things can change. It is not uncommon for couples to lose contact with each other, especially when they do not have any children together. For example, you or your former spouse may move to a different state or different country, you may no longer have any mutual friends, or stop communicating with your ex-partner’s family. So, when you are ready to divorce you may find yourself with no contact details for your former spouse.
The good news is that you can still apply for a Sole Application for Divorce. A Sole Application for Divorce requires only one party to the marriage to sign before it can be lodged with the Courts. Once your application has been filed, there is a requirement that the other party is ‘served’ with a copy of the application. Service is a legal requirement so that the other party is notified of the pending application for divorce. In a divorce, service can be affected by hand or by post. Usually, the Court will only grant a divorce if service has been proved.
If, despite your best efforts, you are unable to locate your former spouse and have taken all reasonable steps to locate them, you can apply to the Court for:
- an order for substituted service; or
- an order to dispense with service.
This application is referred to as an ‘Application in a Proceeding’, and must be filed along with an Affidavit. An Affidavit is a written statement that is sworn or affirmed with a qualified witness, such as a Justice of the Peace or a lawyer. The person giving the evidence in an Affidavit is referred to as the ‘deponent’.
What is substituted service?
Substituted service means serving a legal document in a manner which is different than the standard ordinarily required. Typically, the Court grants an application to substitute personal service (physically giving legal documents to a person) for posting the document to their last known physical address, or email address, or via a third party such as a family member.
What is dispensation of service?
An order for dispensation of service allows you to proceed with your Application for Divorce with the requirement of service is waived entirely. In this scenario, you do not need to serve a copy of the application on your former spouse. The Court can make an order for dispensation of service with or without further conditions.
What are ‘reasonable steps’?
Before the Court can make an order for substituted or dispensation of service, they must be satisfied that you have taken all reasonable steps to locate your former spouse. These steps will be included in your Affidavit filed with your Application in a Proceeding. Examples of reasonable steps could include:
- Attempting to contact the other party via their last known postal address, mobile number, email address or social media;
- Making enquiries to the other party’s families and friends in an effort to obtain their contact details or locate them;
- Making enquiries to the other party’s last known employer in an effort to contact them;
- Searching the electoral roll; or
- Outlining any reasons why the other party is not contactable.
If you want to apply for Divorce and cannot find your former spouse, our expert team of family lawyers at Family Law Resolutions can help.