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Law, Politics and Society

Khaled Noor

Marriage is a solemn commitment, a legally sanctioned contract between two people. Lord Penzance defied marriage as the ‘voluntary union for life of one man and one woman, to the exclusion of all others.’ This principle is enshrined in s.11(c) of the Matrimonial Cases Act 1973 (MCA 1973).
Under the Civil Partnership Act (CPA) 2004 s.1(1), same-sex partners were given the right to enter into a civil partnership. In 2013, the Marriage (Same Sex Couples) Act extended marriage to same sex couples.
A marriage contract changes the legal status of the parties – giving them new rights and obligations. The contract can be terminated in law by a divorce. The decree absolute terminates the marriage and radically changes the legal status of the parties.

The legal proceedings for divorce are relatively straightforward. The process begins with one of the parties (the Applicant) filing an application for divorce, which sets out the reasons why the applicant wants to terminate the marriage. The Divorce Centre or Family Court will send the other party (the Respondent) a copy of the divorce application (the ‘Petition’). However, divorce proceedings cannot begin within the first year of marriage [s 3(1) of the Matrimonial Cases Act 1973 (MCA 1973)].

Rule 6.5 of the Family Procedures Rules 2010 (FPR 2010) makes it clear that primary responsibility for the service of the divorce Petition on the Respondent lies with the Applicant/Petitioner. However, the Applicant may request the court to serve the Petition. The Court will effect service by posting the documents, by first class post, to the Respondent at the address given for the Respondent by the Applicant. This is known as ‘postal service’. Experience shows that postal service effected by the court is not always successful or effective.
Going through divorce can be stressful, especially if the court is unable to serve the Petition on the Respondent, or if the Respondent fails to return the form acknowledging receipt. In the latter case, this may be because postal service of the divorce petition has failed or because the Respondent is ignoring the Petition.
In any event, the courts must be sure that the Respondent has direct personal knowledge of the change which the Applicant is seeking to achieve through the divorce proceedings. In Akhtar v Rafiq [2006] 1 FLR 27, the High Court declared that the decree nisi and decree absolute were void because there had been no proper service of the divorce papers on the respondent wife.

Failure to respond
From personal experience in a few divorce cases I have deal with recently, I would say that it is often the case that a divorce Petition has been delivered to the Respondent and has therefore been duly served – but it is then ignored. This can often build exceptional delay into the process of applying for a decree nisi and, finally, the decree absolute which terminates the marriage. In such cases the Applicant may apply to the court for an alternative method of service to be used. Formally recognised alternatives to postal service by the court include the following: (i) personal service by the court bailiff; (ii) service through the Applicant; (iii) deemed service; (iv) alternative service; and (v) application for dispensing with service.

• Personal Service by the court bailiff
The petitioner may request personal service by a court bailiff by completing Form D89 and the district judge can direct the bailiff to serve the divorce Petition to the Respondent as requested. However, if the Applicant is legally represented (by a solicitor), an application for service by a bailiff will rarely be granted (FPR 2010, Practice Direction 6A, Paragraph 11.4). In that case, service by a process server is more appropriate. A process server serves (delivers) legal documents to an individual or Defendant involved in a court case.

• Service through the Applicant
The Applicant can request that service be effected (carried out) by the Applicant personally. However, Rule 6.5(3), FPR 2000 makes it clear that, “An application must not be served personally by the Applicant himself or herself.” However, his or her solicitor can serve the Respondent through an enquiry agent or a private bailiff service.

• Deemed service
If the Respondent fails to return the Acknowledgement of Service to the court, the Applicant can submit evidence that the petition has been received by the Respondent. If the court is satisfied by the evidence, Rule 6.16 (1), FPR 2010 allows the district judge to direct that the Petition is deemed to have been served. An Application Notice (Form D11) should be sent to the court, together with an application requesting the district judge for directions for the decree nisi to be granted along with an Order for service to be deemed. A fee of £50 is payable (unless the applicant is ‘fee exempt’).

• Alternative service
The Applicant may request an Order for an alternative service or for the service to be dispensed with if all efforts to trace the Respondent have failed. [Rule 6.1, FPR 2010]. An order for alternative service will only be permitted where the Applicant has made proper attempts to trace and serve the Respondent by post or in person. The method of alternative service permitted are normally specified by the court in the Order and may include sending an SMS text or WhatsApp message or leaving a voice message on a particular telephone number in cases where it is known that the Respondent uses that number. It is possible that the court may make such an Order on the basis of the court’s own motion. The Application is normally made on Application Form (Form D11) to the District Judge without notice to the Respondent.

• Application to dispense with service
If all attempts have failed, the Applicant can apply on Form D11 for the district judge to make an Order dispensing with the need for service of the Petition [Rule 6.20, FPR 2010]. The Applicant also need to file a statement in Form D13B. However, it is a serious matter for the district judge to make such an order as this could lead to a Respondent being divorced with having direct knowledge of the divorce proceedings. The district judge will make such an Order if he or she is satisfied that exhaustive enquiries have been made to trace the Respondent and that alternative service would not be appropriate.

Khaled Noor is a solicitor and non-practising barrister; and the Principal of Blackstones Solicitors.

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