Service by hand

Service by hand involves giving the documents to a server, who gives the documents to your spouse and completes an affidavit as proof of service.

Choosing a server

You need to arrange for a person over 18 years of age to serve the documents on your spouse. The server can be a family member, friend or professional process server.

You cannot serve the documents on your spouse yourself, unless it is by post or electronic communication, but you can be present to help the server identify your spouse.

Step 1: Provide the documents

You will need to provide the following documents to the server:

• Acknowledgment of Service. You complete Parts A and B before giving them to the server.
• Divorce Application. If you made your application online, you will also have an Affidavit of eFiling. Otherwise, you will have a copy stamped by the court. This lets your spouse know the application has been properly filed with the court, and shows the court date of the divorce hearing.
• Marriage, families and separation brochure.
• Any other documents filed with your Divorce Application, such as affidavits. You don’t need to serve your marriage certificate, or any fee reduction or residency documents (your passport, visa or citizenship documents).

Step 2: The documents are served on your spouse

After receving the documents, the server will now locate and identify your spouse and give the documents to them.

Identifying your spouse

It is important that you have evidence the application was served on the right person.

You may have chosen a server who does not know your spouse, so the Court will need evidence that the application was given to the right person. Options include:

• Giving the server a photo of your spouse. If your spouse refuses to sign the Acknowledgment of Service, you must sign an Affidavit of Proof of Identity. The affidavit is evidence the person in the photo is your spouse.
• Having someone accompany the server to help identify your spouse.
• If your spouse signs the Acknowledgement of Service, you must sign an Affidavit of Proof of Signature as evidence that you recognise your spouse’s signature on the Acknowledgement of Service.

If the server does not know your spouse, they should identify them by asking questions; for example, ‘What is your full name?’ or ‘Are you the husband/wife of [state name of applicant]?’.

Clear evidence of your spouse's identity is particularly important if your spouse does not sign the Acknowledgement of Service, respond to your application or attend the divorce hearing. The Court needs to be sure your spouse is aware of the application.

Giving the documents to your spouse

Once the server has identified your spouse, they will give them the documents to ask them to sign the Acknowledgement of Service.

If your spouse accepts the documents and signs the Acknowledgement, the documents have been served.

If your spouse doesn’t accept the documents or sign the Acknowledgement, it does not mean they aren’t served. The server can put the documents down in the presence of your spouse and briefly describe them. For example, ‘Your spouse is applying for a divorce and I am serving you with the divorce application’.

The server must record evidence on how service occurred in the Affidavit of Service, by completing all relevant parts of the affidavit.

Serving your spouse’s lawyer

If your spouse has a lawyer, you need to find out if they will accept service of the documents on behalf of your spouse. If they agree, you can serve the lawyer who will sign the Acknowledgement of Service. If you serve your spouse’s lawyer, you don’t need to complete an Affidavit of Service (you don't need to complete Step 3, and can file just the Acknowledgement of Service).

Getting the lawyer’s agreement is important, because a lawyer may have given your spouse legal advice, but that doesn’t mean they will be representing your spouse throughout the divorce process.

Step 3: Server completes the Affidavit of Service

Once the documents have been served, the server completes the Affidavit of Service as evidence of:

• whether your spouse accepted the documents.
• how the server identified your spouse.

Signing the documents

The server now has to sign the affidavit in front of an authorised witness (usually a lawyer or Justice of the Peace).

The server needs to attach the following documents to the affidavit before signing:

• the acknowledgment of service, if your spouse signed it
• any photos used by the server to help identify your spouse,

When signing the documents in front of the witness, the server will need photo ID so the authorised witness has evidence of their identity.

Now the service documents are ready to be filed.

Next steps

If service was successful, you can file the service documents.

If your spouse could not be located, you will have to apply for an order to dispense with service. You will need to tell the Court of the efforts you have made to locate your spouse.

Last updated: 29-Oct-2019

[ back to top ]