Serving divorce documents when spouse is in prison

If your spouse is in prison, there are special rules about serving divorce documents. Before you can serve the documents, you will need to know:

• the name of the correctional centre or prison where your spouse is located, and
• your spouse’s Master Index Number (MIN).

You are not allowed to personally hand the divorce documents to your spouse. Instead, you must have the divorce documents mailed to the person in charge of the prison where your spouse is located along with a letter requesting they forward the documents to your spouse.

Your spouse does not have to sign anything for you to get divorced, but before the court will grant your Application for Divorce you must prove the papers were served according to the rules.

Your spouse is not required to attend the divorce hearing, but they can ask to attend the divorce hearing by electronic means. When you serve your divorce documents on your spouse, you must give them a copy of rule 15.18 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 which states how a prisoner can attend the court.

If your spouse is in prison in NSW, you will need to contact Corrective Services on 02 8346 1000 (8.30 am to 4.30 pm) or email sentence.admin@justice.nsw.gov.au

If your spouse is in prison in another state, you will need to contact the corrective services department in that state.

You will need to serve the following documents:

1. Application for Divorce and any other sealed documents. You must not make any changes to these documents once they have been sealed (stamped) by the court.
2. Acknowledgement of Service for the person in charge of the prison to sign and return to you. This is proof that the documents have been served to your spouse.
3. The court brochure Marriage, Families and Separation.
4. A cover letter to the person in charge of the prison (see below).
5. Notice of Court Attendance (see below).
6. A copy of Rule 15.18 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (see below).
7. A stamped self-addressed envelope for the Acknowledgement of Service document to be returned to you.

You must make sure the required documents are served at least 28 days before the divorce hearing date if your spouse is in Australia.

Once you have received the signed Acknowledgement of Service, you will need to file this proof of service document with the court by uploading it onto the Commonwealth Courts Portal. See Factsheet 4: Filing your divorce application online for instructions on how to upload documents to the portal.

This is a sample cover letter to the person in charge of the prison. If you do not want your spouse to know where you live, state this in your letter and make sure your address is not on your Application for Divorce.

(Top left of letter):
[General Manager]
[Name of Correctional Centre]
[Postal address of Correctional Centre]
[DD Month YYYY]

(Top right of letter):
[Your name] [Your address]

(Body of letter)
Dear General Manager,

RE: SERVICE OF DIVORCE DOCUMENTS, [Your spouse's name], MIN [MIN number]

I am writing to request that the enclosed divorce documents are served on [your spouse's name], MIN [MIN number].

Please hand the following enclosed documents to [your spouse's name]:

1. Application for Divorce.
2. Marriage Families and Separation brochure.
3. Notice of Court Attendance.
4. Copy of rule 15.18 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021.

Once you have handed the documents to [your spouse's name], please sign and return the enclosed form: Acknowledgement of Service (Divorce).

I have enclosed a stamped self-addressed envelope for the return of the signed Acknowledgement of Service (Divorce).

The matter is next listed at the [Location e.g. Sydney, Parramatta] Registry of the Federal Circuit and Family Court of Australia on [Date Month Year] at [time]. [Your spouse’s name] does not have to attend the divorce hearing but may

do so in accordance with rule 15.18 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (enclosed).

Please note that my address is to be kept strictly confidential and is not to be shared with my spouse. [Include this if relevant.]

Thank you for your assistance with this matter.

Yours sincerely,
[Your full name]

Dear [your spouse's name],

RE: NOTICE OF COURT ATTENDANCE, APPLICATION FOR DIVORCE, [COURT FILE NUMBER]

Please note that this divorce matter is next listed at [Location e.g. Sydney, Parramatta] Registry of the Federal Circuit and Family Court of Australia on [Date Month Year] at [time].

As the Respondent, you do not have to attend. However, if you wish to attend, you will need to do so in accordance with rule 15.18 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021.

A copy of that rule is attached for your information.

Include a copy of this rule with your divorce documents. You can get a copy of this rule online at www.legislation.gov.au. It is also printed below.

Attendance of party or witness in prison

1. A party who is in prison must attend a hearing by electronic communication.
   
   
2. A party who intends to adduce evidence from a witness in prison must:
   a) arrange for the witness to attend and give evidence at the hearing by electronic communication; and
   b) advise the court and the other parties about that arrangement at least 14 days before the date fixed for the hearing.
   
   
3. A party may seek permission from the court for a party or witness who is in prison to attend the hearing in person.
   Example: A party may apply for an order under sub-rule (3) if a prison or court has no facilities for the hearing to proceed by electronic communication.
   
   
4. A request under sub-rule (3) must:
   a) be in writing; and
   b) be made at least 28 days before the date fixed for the hearing or trial to start; and
   c) set out the reasons why permission should be granted; and
   d) inform the court whether the other party objects to the request.
   
   
5. Subrules 15.16(5) and (8) apply to a request under this rule.