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Divorce - Dispensing With Rules of Service


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What is Dispensation of Service ?


Occasionally, a party applying for a divorce order may be faced with significant challenges of being unable to serve divorce papers on a spouse due to unknown whereabouts. Thankfully the Court has discretion to dispense with the rules pertaining to the service of documents – i.e. to waive the requirement of serving divorce papers personally when the respondent cannot be located or it is impractical to do so. This dispensation of service is not granted lightly, however, and the court must be satisfied that all reasonable attempts to locate and serve the respondent have been exhausted.


Issues with locating a former partner arise surprisingly frequently after separation, whereby your former spouse becomes untraceably after separation, leaving no known address or means of contact. There can also be instances where the respondent may be deliberately evading service.


Obtaining a Dispensation of Service is not an easy task. The court demands comprehensive evidence that every reasonable effort has been made to locate the respondent. This typically involves attempts to contact the respondent through various channels like phone calls, emails, social media, or inquiries with known acquaintances and family members. Engaging the services of a process server or private investigator to trace the respondent's whereabouts may also be necessary. It's essential to document all these efforts meticulously, as they form a crucial part of the evidence supporting your application.


Before seeking a Dispensation of Service, it's worth considering if Substituted Service is possible. This method involves serving the divorce papers on a third party who is in regular contact with the respondent. However, if the respondent has cut off ties with known contacts or does not have a stable location like a place of employment, substituted service may not be viable.


Case Study


To help illustrate in what circumstances a Dispensation of Service may be granted, let's consider one of our recent cases. In this case our client had lost all contact with his spouse post-separation. After separating nearly 15 years ago, they had lost all contact with each other, with the spouse taking the only copy of their marriage certificate and vanishing without leaving any forwarding address or contact information. Attempts to communicate with the spouse through known acquaintances and her family proved futile. Even her own brother either could not or would not provide accurate information.


In an attempt to trace the spouse, we assisted the client in engaging a private investigator, who conducted a skip tracing search, which yielded several possible addresses. We then assisted the client in hiring a process server to serve divorce papers at these locations. However, all attempts were unsuccessful. Furthermore, the client's efforts to find alternative contacts for substituted service proved in vain as all direct communication channels with the spouse, including phone and social media, had been severed.


We have assisted our client in making further searches utilising different databases to try to locate the respondent, which were also unsuccessful. We then prepared a comprehensive affidavit in support of client’s application in a proceeding seeking an order for dispensation of service, meticulously documenting all attempts made to locate the spouse, demonstrating that every reasonable effort had been exhausted.


During the hearing of our client’s Application in a Proceeding our office made submissions and summarised the contents of our client’s Affidavit and the attempts made to locate his former partner. The Registrar carefully perused the Affidavit and was satisfied that our client made exhaustive efforts to locate his former partner.


Considering the evidence presented and the exhaustive attempts made to trace the respondent, the Court granted a Dispensation of Service, allowing our client to proceed with the divorce application without the requirement of serving the spouse.

This case if one of many examples that highlight the importance of having a properly prepared affidavit and documenting all attempts meticulously to provide compelling evidence in support of an application for dispensation of service.


Takeaway


Given the hurdles, it is generally advisable to seek legal advice when preparing an application for Dispensation of Service. An experienced family lawyer can guide you through the process, helping you to compile the necessary evidence and draft an affidavit detailing your attempts to locate the respondent and the difficulties faced.


While it may be challenging, an Order for Dispensation of Service provides a means to progress with divorce proceedings when the respondent is completely untraceable and Substituted Service is not an option. However, as stated above, given the complexities involved, it is crucial to navigate this process with expert legal advice and support. Contact Surge Legal now on 02 8722 5021 for a free consultation regarding your divorce matter.




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