Hi there. The law does not require both parties to be in Australia for a divorce application to be finalised. However, to commence proceedings, divorce application documents must be served on the other party. If the other party lives overseas, there are special procedures that must be followed when filing for divorce with the court.

If your husband is living overseas, you must serve your divorce application on him by hand or post at least 42 days before the court hearing. If you do not know his overseas address, and he cannot otherwise be located, you must have taken all reasonable steps to locate him. You will need to prove that you have taken these steps in a legal document submitted to the court called an ‘affidavit’.

You may then apply to the court for an order modifying the service rules in your case. This is known as an application for ‘substituted service’. If the order is granted by the court, you can serve the documents on a third party who will bring the divorce documents to your husband’s attention, or serve the documents by post rather than by hand. In very exceptional circumstances, the court may allow you to proceed without serving the divorce documents on your husband (called ‘dispensation of service’).

You can file your divorce application using the interactive online form on the Commonwealth Courts Portal (www.comcourts.gov.au) or by completing the form and filing it with the Family Law Registry at either Melbourne or Dandenong Magistrates’ Courts. For more information, visit the Family Court website (www.familycourt.gov.au), which provides a helpful guide to applying for divorce.

Suggested way forward

You should speak to a family lawyer who can help you to understand your legal rights and responsibilities when serving documents on a spouse who is overseas. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.