In Divorce made Simple 3 I explained I would, in this blog, attend to the issue of what to do if you have not been able to illicit a response from the respondent when the Court originally served the divorce papers by post AND you tried to serve the papers either using a bailiff or private process server and they were also unsuccessful in serving the divorce papers on the respondent.
This means that you are unable, in effect, to proceed on to the next stage of your divorce. The reason for this, simply put, is that you cannot prove to the Court that the respondent has received the divorce papers and as a consequence of that the Court cannot permit your case to proceed further. There may be a genuine reason why the respondent has not been served with the divorce papers, for example they are on holiday abroad or they have moved or other such circumstances, in which case simple sensible enquiries may lead you to the correct address details for the respondent and you can go back to asking the Court to serve the papers again or use a process server again etc.
1. Substituted Service
However it may be the case that the respondent is trying to evade the service of documents. This is when things get a little bit more interesting. The Courts have now accepted that if you are able to show that, for example, the respondent regularly attends their parents home or regularly go to work or they have perhaps a facebook account which is regularly in use or linked-in account etc then you may be able to serve them by alternative means. This is known as substituted service.
You would need to make an application to the Court which would involve a fee (or you could apply to be exempted from the fee if you are of very limited means) for substituted service. This will usually mean you will need to appear before a Judge but it may be dealt with in writing by way of a long and detailed letter and in these circumstances, in among other things, you would need to explain to the Judge how you have tried to serve the respondent previously and, more importantly, how you intend to serve the respondent and how you believe that the respondent will definitely become aware of the papers being served upon him or her by this method of substituted service.
1a) Service of Papers at Work
The simplest example of that is being able to serve the respondent with the papers at work. For example we are aware that Lucy works at XYZ Limited at 123 Anytown Road and that she works usually from 9am to 5pm. You could arrange for the papers to be served by a process server at her place of work but usually that is something that would already been considered. Making things a little bit more complicated let’s assume we do not know where Lucy works or that she does not work at all and that she has, in fact, moved towns and we do not know which town she is presently located in.
1b) Facebook Etc
If you see regular activity on, for example, facebook and you can perhaps take screen shots of her postings on facebook then you may be able to convince the Judge that serving the papers on facebook or linked-in etc would come to the attention of the respondent and as a consequence once that has come to their attention the Court may state that service can be substituted that way.
More traditional methods of substituted service previously adopted by the Court where advertisements put in local newspapers in the last area that the respondent was known to live. Usually their parents address can be a useful alternative place of service in which case you would want the documents either sent by recorded delivery or to be personally posted at that address knowing that perhaps the respondent once or month or so visits and at some stage they will become aware of the legal proceedings you have issued.
2 Deemed Service
If none of the above is possible there is an alternative of deemed service. This is where you would invite the Court to accept that service of the documents has taken place even though the respondent has not formally returned the Acknowledgement of Service form and a process server has not been engaged.
For example you may receive an email from the respondent stating he or she has received the divorce paperwork and there is no way they are willing to sign the paperwork and that for example they have torn the paperwork up and have no intention of assisting in the proceedings.
If you make an application to the Court (again involving a fee unless you can make an application for exemption of the fee or seek a reduced fee) by appearing before the Judge or in the alternative by way of a long letter, the Judge may accept the evidence clearly indicates the respondent has had the papers and will therefore deem (i.e. assume) that service of the papers took place on day X.
Whatever that day is you will need to wait a further 29 days before you can proceed to the next stage.
If you are dealing with issues of personal service or bailiff service and in particular if you are dealing with issues of substituted service or deemed service then it is a case that is becoming somewhat more complex and in these circumstances our belief is that independent legal advice would be beneficial as you could create more difficulties in your case and certainly will more likely than not increase your stress and very likely also delay matters.
This information provided in this article is not intended to constitute legal advice and each relationship breakdown requires careful consideration in our view by a fully qualified Solicitor before decisions are made and before you embark on a certain course of action.
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