The courts in England and Wales take a rather flexible approach to service of a petition on a Respondent, almost anything goes – Facebook, email, smoke signals. If you can prove that the receiving party was aware of the proceedings, that is good enough for our courts. If you has receive a text from the other side which says something along the lines of “not coming on Thursday – up yours”, there has been effective service as far as our courts are concerned because the receiving party knows about the hearing.
The reason that our rules on service are so flexible is not that we have no rules – we do, but it is down to the other provisions allowing substituted or alternative service or even no service both for the divorce itself and other family applications. Our rule say:
“6.19
(1) Where it appears to the court that there is a good reason to authorise service by a method or at a place not otherwise permitted by this Part, the court may direct that service is effected by an alternative method or at an alternative place.
(2) On an application under this rule, the court may direct that steps already taken to bring the application form to the attention of the respondent by an alternative method or at an alternative place is good service.
(3) A direction under this rule must specify –
(a) the method or place of service;
(b) the date on which the application form is deemed served; and
(c) the period for filing an acknowledgment of service or answer.”
6.20
(1) The court may dispense with service of the application where it is impracticable to serve the application by any method provided for by this Part.
(2) An application for an order to dispense with service may be made at any time and must be supported by evidence.
(3) The court may require the applicant to attend when it decides the application.
Service by an alternative method or at an alternative place”
6.35
Rule 6.19 applies to any document in proceedings as it applies to an application for a matrimonial or civil partnership order and reference to the respondent in that rule is modified accordingly.
6.36
The court may dispense with the service of any document which is to be served in proceedings.”
The recent case of Wilmot v Maughan [2017] EWCA Civ 1668 in which the Court of Appeal decided that regardless of the fact that a husband in Turkey had not been served properly pursuant to the Hague Service Convention 1965 [see below] but had instead been served by email, the court was able to order service out of the jurisdiction by an alternative method – even if it had never expressly said that was!
Some may be shocked to find out that as a result of the somewhat pragmatic approach to service, our regime is the source of much amusement amongst some overseas lawyers in relation to this issue. Overseas lawyers and judges from other jurisdictions simply would not accept that documents can be emailed, sent by Facebook or handed over by a James Bond wannabe. Indeed, postal service is actually prohibited in many jurisdictions. Why? Presumably because their postal system lacks integrity. Personal service effected by an individual may be a criminal offence in some overseas domestic criminal laws. The truth is that if you fail to abide by the rules, the overseas court is very unlikely to assist you. Ours, however, seems to want to help and turn a blind eye to the more uncouth ways to serve documents.
International Conventions
The UK is a signatory to the Hague Convention on Service 1965 and the 2007 EU Regulation on Service (Denmark though not a member of this Regulation has chosen to apply it, by virtue of a separate declaration). Importantly, given Brexit, all of the EU states are also members of the 1965 Hague Convention.
It will therefore be interesting to see if our judicial system will review serving the Facebook divorce petitions…