Serving divorce documents when your spouse is in prison

Serving divorce

documents when your

spouse is in prison

Special rules for giving divorce documents

to your partner when they are in prison

DIVORCE FACTSHEET 5

2 DIVORCE FACTSHEET 5 I SERVING DIVORCE DOCUMENTS WHEN YOUR SPOUSE IS IN PRISON

Serving the divorce documents

How do I serve the documents?

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.

Does my spouse have to sign the divorce papers?

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.

Can my spouse attend the divorce hearing?

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.

What if I don’t know which prison my spouse is in?

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 [email protected].gov.au.

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

services department in that state.

DIVORCE FACTSHEET 5 I SERVING DIVORCE DOCUMENTS WHEN YOUR SPOUSE IS IN PRISON 3

What documents do I serve?

You will need to serve the following documents:

● 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.

● 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.

● The court brochure Marriage, Families and Separation. You can get this brochure

from the court registry or online at www.federalcircuitcourt.gov.au/wps/wcm/connect/

fccweb/reports-and-publications/publications/family-law/marriage-families-and-

separation). This provides information for your spouse.

● A cover letter to the person in charge of the prison (see page 4 of this factsheet).

● Notice of Court Attendance (see page 5 of this factsheet).

● A copy of Rule 15.18 of the Federal Circuit and Family Court of Australia (Family Law)

Rules 2021 (see page 5 of this factsheet).

● 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.

Filing the documents in court

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.

4 DIVORCE FACTSHEET 5 I SERVING DIVORCE DOCUMENTS WHEN YOUR SPOUSE IS IN PRISON

Preparing the cover letter to the prison

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.

[General Manager]

[Name of Correctional Centre]

[Postal address of Correctional Centre]

[DD Month YYYY]

[Your name]

[Your address]

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]

DIVORCE FACTSHEET 5 I SERVING DIVORCE DOCUMENTS WHEN YOUR SPOUSE IS IN PRISON 5

Preparing the Notice of Court Attendance

You must inform your spouse in writing about the option to attend the divorce hearing

by electronic communication under rule 15.18 of the Federal Circuit and Family Court of

Australia (Family Law) Rules 2021. As the Respondent to an Application for Divorce, your

spouse does not need to attend the divorce hearing.

The following is a sample Notice of Court Attendance.

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.

Including rule 15.18 of the Federal Circuit and Family

Court of Australia (Family Law) Rules 2021

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.

6 DIVORCE FACTSHEET 5 I SERVING DIVORCE DOCUMENTS WHEN YOUR SPOUSE IS IN PRISON

Need help?

LawAccess NSW

LawAccess NSW is a free information service run by Legal Aid NSW. Anyone who has a

legal problem in NSW can contact LawAccess NSW for legal help.

Click on the Chat with us button at www.legalaid.nsw.gov.au or call 1300 888 529

between 9am and 5pm, Monday to Friday (excluding public holidays).

Early Intervention Unit

The Early Intervention Unit is a Legal Aid NSW specialist service resolving family law

issues before they get serious. They provide free family law services at courts and

community organisations throughout NSW.

Call 1800 551 589 or visit www.legalaid.nsw.gov.au/my-problem-is-about/my-family-or-

relationship/parenting/early-intervention-unit.

The Federal Circuit and Family Court of Australia (FCFCOA)

You can get further information about court processes, forms, publications and

Do-It-Yourself kits on the FCFCOA website www.fcfcoa.gov.au. You can also visit

www.fcfcoa.gov.au/enquiries-hub to speak with someone via live chat or submit an

enquiry. If your matter is urgent or requires time critical intervention, call 1300 352 000.

Public libraries

Public libraries have computers and scanners. You will need to make an appointment. See

www.nswnet.net/libraries.

DIVORCE FACTSHEET 5 I SERVING DIVORCE DOCUMENTS WHEN YOUR SPOUSE IS IN PRISON 7

Notes

FEB 2024 MNLA60591

There are ve factsheets in the divorce series:

Factsheet 1

Applying for a divorce

How to get started.

Factsheet 4

Filing your divorce application

online

How to eFile your divorce application

on the Commonwealth Courts Portal.

Factsheet 2

Serving your divorce

documents

How to give your divorce documents

to your partner.

Factsheet 5

Serving divorce documents

when your spouse is in prison

Special rules for giving divorce

documents to your partner when

they are in prison.

Factsheet 3

Separation under the same

roof

How to apply for a divorce if you’ve

been living with your partner while

separated.

This publication is a general guide to the law. You should not rely on it as legal advice, and we recommend that

you talk to a lawyer about your situation.

The information is correct at the time of printing, however it may change. For more information contact

LawAccess NSW on 1300 888 529.

Order brochures online at: www.legalaid.nsw.gov.au/ways-to-get-help/publications-and-resources

For more information, visit: www.legalaid.nsw.gov.au

Do you need help to contact us?

If you need an interpreter, call the Translating and Interpreting Service (TIS National) on 131 450

(9am–5pm) and ask for LawAccess NSW.

Do you ﬁnd it hard to hear or speak?

If you are deaf, or have a hearing or speech impairment, contact us through the National Relay Service

(NRS). Ask for LawAccess NSW on 1300 888 529.