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Mar 17, 2017
The law is fluid and often only changes when situations arise forcing an otherwise unanticipated outcome. This is a case study on service in family law divorce that our firm has dealt with.
The situation: Rachel and Harry were married in another country. Rachel and Harry separated and Harry moved to Australia. Then Harry met Sally in Australia and they decided to marry each other. Unfortunately, Harry is still married in his birth country. He wants to divorce Rachel but cannot find where she is living and cannot serve the divorce documents on her.
The problem: A number of problems may arise in a situation like this. Firstly, you may not be able to find your spouse to serve divorce documents on them. Secondly, they may not be able to read divorce documents in English. Thirdly, they may refuse to acknowledge they have received the documents. All these issues produce problems with fulfilling the requirement of service in seeking a divorce. Without proof of service the Divorce will not be granted.
The outcome: In some countries, diplomatic channels exist to serve documents. However, depending on the government and political state of the country, it may be difficult to be assured of service. You may be able to hire a process server (a person who serves documents professionally) to locate your spouse and serve the documents on them. The server can then sign an affidavit confirming the documents have been served. However, depending on the country, the services of a process server may be too expensive or corrupt. If none of these options are available, your last resort is to apply for substituted service. This means that the court gives you permission to serve the documents by email, Facebook or a similar platform. This other form of service will satisfy the requirement for service.
The implication: Service is an important part of seeking a divorce. Family Law court applications must always be served on the other party. If you cannot locate your ex-partner or are unable to serve the documents on them, there are a number of options to explore.
If you have a family law matter, concerns about how to get a family law property settlement or questions about family law and separation in NSW and want to find out more please do not hesitate to contact us on 9688 6023 or email us at info@franklegal.com.au.
This article is provided to the reader for general information. It is not legal advice. It was written by Andrea Spencer & Emily Graham and edited by James Frank.
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Family law: Back to Basics - the requirements for divorce
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