Service of an application for divorce

Insight

03.10.2022

Rules regarding service are complex; they depend both on the document that is being served and on where the respondent is being served. There have also been some recent amendments to the rules, following the introduction of no fault divorce, and our departure from the EU.

Regardless, it is crucial to get it right, as non-compliance with the rules can mean that service has not taken place, which can have very serious consequences.

This column will focus on the service requirements when serving an application for divorce or civil partnership dissolution proceedings, whether in England and Wales or outside the jurisdiction, where those proceedings were issued on or after 6 April 2022. Although it describes the general framework and applicable rules, there is no substitute for a careful reading of Part 6 of the Family Procedure Rules 2010 (‘FPR 2010’) in relation to each specific case.

Service of an application for divorce within the UK

The rules for service within England and Wales apply equally to service in Scotland or Northern Ireland (see FPR 2010, r 6.43).

Although petitions issued under the ‘old law’ had no time limit for service, with the introduction of no fault divorce came a new requirement to serve the application for divorce within 28 days of issue (although it is possible to apply to the court for an extension of this period) (see Family Procedure Rules 2010 (FPR 2010), rr 6.6A and 6.6B).

An application for divorce may be served by any of the following methods (FPR 2010, r 6.4):

personal service,
first class post, or other service which provides for delivery on the next business day,
where a solicitor is instructed to accept service, document exchange; or
email service.

The application may be served by either the applicant or the court.

Email service

When the rules were amended for the arrival of no fault divorce, they were amended to allow service by email. However, it is important to note that where the application is served by email, a separate notice confirming service must be sent by post to the respondent’s postal address (see FPR 2010, r 6.7A). Where the court is to serve the application it will do so by email if an email address is provided for the respondent (and will also send the required postal notice).

Personal service

The rules clearly state that the application must not be served personally by the applicant himself or herself (see FRP 2010, r 6.5). Personal service via a process server is permissible and whilst the rules do not specify this, it is accepted good practice whenever possible to avoid personal service at weekends(when the respondent may be unable to get advice), or at times when children are with the respondent.

Service outside of the UK

Prompt service in the relevant jurisdiction can be crucial in order to secure jurisdiction. It is not sufficient for the respondent to be aware of the proceedings, he or she must have been properly served. Again, the proceedings must be served within 28 days of issue, but the applicant can apply to extend this period.

It is important to note at the outset that permission is not required from the Court to serve out of the jurisdiction (FPR 2010, r 6.41). Further, although the FPR 2010 set out the available methods of service depending on where the application is to be served, the court can also order service out of the jurisdiction by an alternative method (for example by email, as was the case in Wilmot v Maughan [2017] EWCA Civ 1668, [2018] 1 FLR 1306), as long as it does not contravene the law of the country where service is taking place (see Bentinck v Bentinck [2007] EWCA Civ 175, [2007] 2 FLR 1). Where an order for alternative service is not sought, the options are explained below.

1965 Hague Service Convention Countries

Post-Brexit, the EU Service Regulation no longer applies. Instead, for countries who are signatories, we rely on the Hague Convention (Convention on the service abroad of judicial and extra-judicial documents in civil or matrimonial matters signed at the Hague on November 15 1965) (1965 Hague Service Convention). It has been ratified by many jurisdictions, including all EU member states. However, each country can set its own rules about how documents can be served within its jurisdiction (including whether service is permitted through judicial or consular channels).

There is an up-to-date status table on the Hague Conference website. It is important to check the individual reservations, declarations and/or notifications entered by contracting states (using the same status table) as these may impact how service may be effected. Helpfully, the website also contains details of objections to particular methods of service for each signatory.

The 1965 Hague Service Convention requires contracting states to designate central authorities to act as sending/receiving agencies. Details for each country are listed on the website. The Central Authority for England and Wales is the Senior Master of the Queen’s Bench Division, at the Foreign Process Section (‘FPS’) at the Royal Courts of Justice.

Rule 6.46 of the FPR 2010 provides that an applicant seeking to serve in accordance with the Hague Service Convention must file with the original court where the proceedings are pending:

the application;
any other document required by PD 6B;
any translation required by FPR, r 6.47 and
a request for service that specifies the mode of service preferred using Form N224.

In addition, the applicant must also complete the Model Form annexed to the Convention itself (comprising the request, certificate and summary with warning) also available via the Hague website, together with guidelines for completion.

A translation of the application form and other documents to be served must also be supplied unless the respondent is able to read and understand English and service is to be effected directly on that person, or English is one of the official languages of the country where service is to be effected. The translation must be accompanied by a statement from the translator that it is a correct translation, and which also must include the translator’s name, address and qualification.

Although the FPR state that the original court then sends the documents to the Senior Master/Foreign Process Section, in practice it is quicker to send or take the documents there directly. The Foreign Process Section will seek to effect service in accordance with the preferred method identified. The applicant will usually be liable to pay or reimburse the costs occasioned by service.

Some jurisdictions will require legalisation of documents to be served; others will ask for a formal letter of request from the Senior Master of the Queen’s Bench Division. Details of whether a particular jurisdiction requires either or both can be obtained from the Foreign Process Section.

Non-1965 Hague Service Convention countries

For those countries which are not signatories to the 1965 Hague Service Convention, service will be effected via the Foreign and Commonwealth Office (‘FCO’). In practice, the rules are very similar to those under the Hague Service Convention 1965. By r 6.46(2) the applicant must file with the original court where the proceedings are pending:

the application form or document to be served;
any other document required by PD 6B;
any translation required by r 6.47; and
a request for service that specifies the mode of service preferred in Form N224;

for onwards transmission to the FPS (although, again, in practice it is quicker to send the documents there directly). As before, a translation of the application form and other documents to be served must be supplied unless the respondent is able to read and understand English or English is one of the official languages of the country where service is to be effected.

Once the documents have been lodged with the FPS, they will forward them to the FCO with a request that the FCO should arrange service in the foreign country in accordance with applicable local laws (see r 6.46(4)(b)). The applicant will be required to give an undertaking to be responsible for the service costs incurred by the FCO, and to pay them on being informed of the amount (see r 6.48).

Direct service

Whether the country in question is a 1965 Hague Service Convention or not, another option is to serve the proceedings directly on the respondent, as long as the method of service complies with the law in the country in which the application is being served. This is likely to be far the quickest method of service and therefore the most likely to meet the new requirement to serve within 28 days of issue, but care must be taken. Some jurisdictions do not allow personal service, for example. It is therefore essential to take local advice as to the requirements that must be complied with in the particular jurisdiction.

As can be seen, the rules governing service are not straightforward. It is worth considering at an early stage whether an order for alternative service should be sought. Although the rules are clear that the court cannot authorise anything that is contrary to the law where service will take place, it is clear from Wilmot v Maughan that the court can order service by alternative means whether the 1965 Hague Service Convention applies or not. The Foreign Process Section is also of enormous help, and can provide valuable guidance.

If you require further information about anything covered in this blog, please contact Amy Radnor, or your usual contact at the firm on +44 (0)20 3375 7000.

This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.

Please note this content was originally published in the Family Law Journal. August 2022 edition, best practice section.