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In many international cases, it is customary to arrange for personal service of the divorce petition and accompanying originating documents, rather than relying on conventional service from the court. This personal service may be through the Transmitting Agency run by Central Authorities around the world. Most English family court offices are geared up to this, although some, perhaps many, require a special application before the district judge of the day in order to issue expeditiously. This may be to obtain priority in a race to issue under the lis pendens Brussels II Regulation.
It is often advisable to issue the application for financial provision on divorce (Form A) at the same time as the divorce petition. After all, many forum disputes are not about the divorce but about the financial outcomes. Getting on with the financial proceedings at the same time as issuing the divorce makes perfect sense, is efficient and cost-effective.
At this point the court rules, specifically r 2.61A (4b) Family Proceedings Rules 1991 rather get in the way! They state that a court office must serve a copy of the Form A on the respondent within 4 days of the filing of the notice. Unlike the divorce petition, there is no option to choose whether there will be court service or personal service. It must be court service. There was a perfectly good rationale when the Rules were produced. The procedure for resolution of financial matters on divorce is very timetabled. There is a particular period after the issue of the Form A for various steps to be taken. There was concern when the Rules were being prepared that if there was the possibility of personal service, the Respondent might find himself receiving notice late and immediately being under time pressures to comply with a court imposed timetable. So the court serves.
Where papers are being served abroad including through the Transmitting Agency and especially where they have to be translated to comply with the requirements of local service or the element of timing is crucial, it is much better if service of the Form A takes place at the same time as the divorce petition.
Accordingly leave is required to arrange personal service of Form A rather than court service. Some district judges are realistic and alert to international elements and give leave easily, especially when coupled with assurances that service will take place as quickly as possible. Anecdotally, some district judges make it difficult for practitioners and simply do not understand the international dimension.
If there will be any delay in the papers getting to the Respondent, it is wise also to ask for a delayed First Appointment hearing date. Also always take along a draft order
Therefore this is a plea to district judges to give solicitors assistance and to understand why we seek leave to serve Form A ourselves, and not through court service. We are not creating chaos with the court timetable. We are doing the best possible in the international context for our clients.
He is an English specialist accredited solicitor, mediator, family arbitrator, Deputy District Judge at the Principal Registry of the Family Division, High Court, London and also an Australian qualified solicitor, barrister and mediator. He is a Fellow of the International Academy of Matrimonial Lawyers and author of A Practical Guide to International Family Law (Jordan Publishing, 2008). He is chair of the Family Law Review Group of the Centre for Social Justice. He can be contacted on firstname.lastname@example.org.
The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.
This work provides commentary, checklists, procedural guides and precedents on the subject in a...