How to Serve an Australian Divorce Application on a Spouse in Sri Lanka

By Miyuru Asiri Dissanayake
Principal Solicitor, AustraLanka Lawyers

If your husband or wife has returned to Sri Lanka after separation, you may be wondering whether you can still obtain a divorce in Australia. In many cases, an overseas spouse does not prevent an eligible person from applying for divorce in Australia. However, where you make a sole Application for Divorce, the Court’s service requirements must be followed carefully.

This is general information about Australian procedure. The correct overseas service route depends on the facts, the filed documents, the current Court rules and applicable international arrangements.

For an overview of Australian divorce eligibility, sole applications and practical steps when the other spouse remains overseas, read My Spouse Lives in Sri Lanka — Can I Get Divorced in Australia?

Can I apply for an Australian divorce if my spouse lives in Sri Lanka?

In many cases, yes. The fact that a spouse lives overseas does not itself decide whether an Australian court can grant a divorce. Eligibility and jurisdiction must be assessed under the Family Law Act 1975 (Cth). A marriage solemnised in Sri Lanka may be relevant to an Australian divorce application where the legal requirements are met.

Joint application or sole application?

If both spouses agree, a joint application is usually simpler because the documents do not need to be served on the other spouse. If the other spouse will not cooperate or cannot be contacted, a person may still be able to file a sole application. In that case, the respondent generally needs to be served with the required documents unless the Court orders another course.

When must documents be served on a spouse in Sri Lanka?

The Federal Circuit and Family Court of Australia states that, where a spouse is overseas, divorce documents must be served at least 42 days before the hearing. This is a minimum period. Overseas service arrangements, proof of service and any court application can take longer.

Which divorce documents are usually served?

The Court identifies the following documents for service in a sole divorce application:

a sealed Application for Divorce with the Notice of Application for Divorce attached;
a sealed Affidavit for eFiling;
the Marriage, families and separation brochure;
an Acknowledgment of Service (Divorce); and
other relevant filed documents, subject to the Court’s stated exclusions.

The exact bundle should be checked against the particular court file and the Court’s current service guidance.

How can the documents be served?

The Court describes service by post, by hand and through a lawyer who has agreed in writing to accept service. Service by post is generally appropriate only where you are confident that your spouse will sign and return the Acknowledgment of Service. If it is not returned, further steps may be required.

You cannot personally serve your own divorce documents. Service by hand must be carried out by another adult. The Court’s ordinary guidance refers to a friend, family member or professional process server, but overseas service has additional requirements. Before attempting service in Sri Lanka, the applicable international process and the Attorney-General’s Department guidance should be checked.

What if my spouse refuses to sign or ignores the documents?

A spouse’s refusal to sign does not necessarily prevent a divorce application from proceeding. The question is whether service has been lawfully completed and can be proved to the Court. If service is by hand, the Court’s ordinary guidance explains that a server may be able to leave the documents in the spouse’s presence after identifying the documents. The proper approach for service in Sri Lanka should be checked before action is taken.

What if my spouse cannot be found?

After reasonable attempts to locate and serve the respondent, it may be possible to apply for an order for substituted service or dispensation of service. Both require a court order and supporting evidence. The Court’s fact sheet explains that an affidavit should set out the steps taken to locate the spouse, including the last known address, communications, enquiries of relevant people and other reasonable attempts.

Can I use email, WhatsApp or social media?

Do not assume that an email, WhatsApp message or social-media message is effective service of a divorce application. The Court identifies electronic communication as a possible form of substituted service only where the Court makes an order authorising the alternative method. Evidence will usually be needed to show that the method is likely to bring the documents to the spouse’s attention.

Divorce is different from property settlement

A divorce legally ends the marriage. It does not determine property or financial issues. If either spouse owns land, businesses, bank accounts or other interests in Sri Lanka, those matters may require separate consideration in an Australian property settlement. For a broader explanation, read Property Settlement in Australia Involving Sri Lankan Assets. For a focused discussion of disclosure, see Do I Have to Disclose Property I Own in Sri Lanka in an Australian Property Settlement?.

Frequently asked questions

Can my spouse stop the divorce by refusing to sign?

Not necessarily. A sole application may still proceed if the legal requirements, including service requirements, are met.

Can I serve the documents myself?

No. The applicant cannot personally serve their own divorce documents.

What if my spouse ignores the documents?

If the Court is satisfied that the respondent has been properly served, or has made an appropriate service order, the matter may still proceed. Each case turns on its evidence and procedural requirements.

If we married in Sri Lanka, can we still divorce in Australia?

In many cases, yes, provided the Australian legal requirements are met.

Need advice?

Cross-border divorce matters involving Sri Lanka can involve procedural issues, particularly where a spouse cannot be located, will not cooperate or where overseas assets are involved.

Contact AustraLanka Lawyers, call +61 423 469 407 or email miyuru@australankalawyers.com.au.

Official sources and legislation

This article is general information only and is not legal advice. Legal and procedural requirements can change and depend on the facts of each matter. An enquiry does not create a solicitor-client relationship. Any legal engagement must be confirmed in writing.