This article aims to assist family lawyers dealing with divorce proceedings that take place in England
and Wales but require service in a foreign jurisdiction.
By David Wilkinson, Family Lawyer
When serving divorce proceedings in another country, it is vital to understand the laws and regulations of those nations. This article aims to provide readers with an overview of the applicable procedure where a case occurs between American or Canadian stakeholders but takes place on English or Welsh soil.
Part 1: Service and foreign jurisdictions
Why is effective service so important?
When it comes to serving divorce proceedings in foreign jurisdictions, strict compliance with Part 6 of the Family Procedure Rules 2010 (the “FPR”) is critical.
This is so not least because of the obvious need for effective service, but also because in a jurisdictional race, effective service is in certain cases a prerequisite to ensuring that the English court is seised of the proceedings (see Article 16(1)(a) of the Brussels II Revised EU regulation on jurisdiction – Regulation (EC) 2201/2003, “BIIR”). Therefore, where the foreign jurisdiction is another EU country, this latter point is crucial, because in such cases the court first seised will be given priority in terms of jurisdiction, and it is most likely that the proceedings brought in the competing jurisdiction would be stayed.
It should also be noted that in these cases Article 16, BIIR provides that a court will be deemed seised where:
“at the time when the document instituting the proceedings or an equivalent document is lodged with the court, provided that the applicant has not subsequently failed to take the steps he was required to take to have service effected on the respondent” (emphasis added).
Consequently, the strict timing applies to the filing of the instituting document (in England and Wales this is the divorce petition, on Form D8) and not to service of the proceedings itself. However, the point stands that in these cases, failure to take the required steps to effect service could result in the court not being seised of jurisdiction.
Where the foreign jurisdiction is not an EU country, then these priority rules do not apply. Notwithstanding this, if England and Wales is the preferable jurisdiction, then it would still be advisable to act promptly. Should concurrent foreign proceedings also exist in another non-EU country, then the English court may exercise its discretion to stay the domestic proceedings where the parties have a closer connection to that non-EU country (for more detail, see the judgment of Mittal v Mittal [2003] EWCA Civ 1255).
The Part 6, FPR requirements
Chapter IV, Part 6 of the FPR details the ways in which a respondent in a foreign jurisdiction might be served effectively. Practitioners should note that the court’s permission is not required for service out of the jurisdiction (rule 6.41, FPR).
Rule 6.43 provides, in respect of the service on a respondent outside the UK:
(3) Where the applicant wishes to serve an application form, or other document, on a respondent out of the United Kingdom, it may be served by any method –
(a) provided for by –
(i) rule 6.44 (service in accordance with the Service Regulation);
(ii) rule 6.45 (service through foreign governments, judicial authorities and British Consular authorities); or
(b) permitted by the law of the country in which it is to be served.
(4) Nothing in paragraph (3) or in any court order authorises or requires any person to do anything which is contrary to the law of the country where the application form, or other document, is to be served.
EU Countries and the Service Regulation
Under the Service Regulation (Regulation (EC) 1393/2007), a physical address in an EU country will be required for service on the respondent in the divorce proceedings (Article 1, paragraph 2). Consequently, if a respondent’s address is unknown, the Service Regulation will not assist.
The Service Regulation is annexed to the FPR in full, at Practice Direction (“PD”) 6B. One of the benefits of using the Service Regulation procedure is the convenience for the petitioner of filing the petition and other documents for service at the issuing English or Welsh court, instead of having to instruct his or her own agent in the foreign jurisdiction. Once filed with the court (with the acknowledgment of service, and a translation in duplicate, if necessary, per rule 6.45 and paragraph 4.1 of PD 6B) the documents will be forwarded to the Senior Master of the Queen’s Bench Division of the High Court, care of the Foreign Process Section.
The Foreign Process Section is the relevant ‘transmitting agency’ (the terminology contained in the Service Regulation) for divorces commenced under English and Welsh law. Best practice should always involve speaking with the Foreign Process Section prior to sending the petition and other documents to court, to ensure that all requirements can be complied with in advance.
The ‘receiving agency’ in the foreign jurisdiction should confirm receipt to the Foreign Process Section within seven days (Article 6), and serve the documents as soon as possible, either in accordance with the local law, or in the manner requested by the Foreign Process Section (provided that the method requested is not incompatible with the local law, per Article 7).
Pursuant to Article 9, the date of service will be the date on which the documents are served in accordance with the law of the EU country addressed (subject to the limited exception contained in Article 8). It should be borne in mind that some EU countries do not accept postal service (e.g. Germany).
Note that, per the UK Government’s guidance webpage ‘Handling civil legal cases that involve EU countries if there’s no Brexit deal’ (published 13 September 2018), if a ‘no deal’ Brexit is effected then the UK would repeal the Service Regulation. This guidance states that in place of the Service Regulation, the UK would instead use the provisions contained in the Hague Convention (i.e. The Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, 1965). Whilst the Service Regulation remains in place (and where it applies) it will take priority over the Hague Convention (per Article 20, paragraph 1).
The Hague Convention
Where the foreign jurisdiction is a signatory to the Hague Convention (e.g. the USA), the divorce petition may be served through that foreign jurisdiction’s ‘designated authority’ (the terminology contained in the Hague Convention) or, per rule 6.45(1)(b):
if the law of that country permits –
(i) through the judicial authorities of that country; or
(ii) through a British Consular authority in that country.
Note that the Hague Convention will not assist where the “address of the person to be served with the document is not known,” per Article 1.
The initiating process under the Hague Convention is similar to that under the EU Service Regulation, though practitioners should also consult the Foreign Process Service specifically as to whether the legalization of the documents to be served might be required (see paragraph 3.2 of PD 6B). Some signatories to the Hague Convention also have ‘reservations’ in place which further restrict what service methods might be used in that particular jurisdiction. Again, this should encourage practitioners to consult with the Foreign Process Section prior to taking steps to serve in accordance with the Hague Convention.
Cases Outside the EU
In cases where the foreign jurisdiction is neither an EU country nor a signatory to the Hague Convention, practitioners are advised in the first instance to contact a suitably qualified legal practitioner in that foreign jurisdiction who is capable of properly advising on valid service requirements, in addition to making inquiries of the Foreign Process Section.
The FPR do provide for service in such cases via the government of the foreign jurisdiction or through a British consular authority in that jurisdiction (if the law of the foreign jurisdiction permits), as well as in accordance with the law of that jurisdiction. However, it is vital that practitioners first satisfy themselves that a particular method will be effective, in advance of attempting service via that particular method.
Part 2: Service Where the Respondent’s Address is Unknown
Where a respondent’s address is unknown and abroad, and full inquiries have been made to locate him/her which have subsequently proved fruitless, an application to dispense with service of the divorce petition can be made (see rule 6.20, FPR). This will always be an application of last resort, and practitioners should have first considered service by alternative methods (and the effectiveness of such method(s) if in respect of a foreign jurisdiction), such as by email.
The application for dispensing with service should be made on Form D13B, and practitioners should review the guidance notes on the form in full in order to ensure that a petitioner client will be able to satisfy the court that s/he has made all reasonable inquiries to trace the respondent.
Useful Information
The Foreign Process Section is based at the Royal Courts of Justice, London.
Address:
Foreign Process Section
Room E16
Royal Courts of Justice
Strand
London WC2A 2LL
Telephone: (+44) (0) 207 947 6691 /7786 /6488 /6327 /1741
Email: foreignprocess.rcj@hmcts.gsi.gov.uk
This article is about the service of divorce proceedings that originate in England and Wales and therefore is only applicable to those regions. This was provided by Slater Heelis – a family law firm based in Manchester, located in the North West of England.
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