In the UK a divorcee has obtained permission of the court to serve divorce documents on her former husband living in NZ via the WhatsApp app on her phone, in a sign taken as part of a global trend to permitting more modern methods of serving court documents. Previously, the UK has allowed Twitter service, and elsewhere the US has served divorce papers via Facebook messaging.
“Service” is the process of sending or giving court documents to a party, which assures the court that all parties have received the documents that were filed with the court. In Australia, service of applications in divorce proceedings is typically effected via post or via personal service by a server (either a professional process server or any individual over 18 years other than the applicant). Service can be on the spouse personally or their lawyer if they have one, if the lawyer is willing to accept the documents.
Can service be effected via messaging apps and/or email in Australia?
Courts have the discretion to allow service by alternative methods if there’s a reasonable explanation for departing from the usual methods. So if service has not been possible in person or by post, and another kind of service is desired to be utilised, you’ll need to apply to the courts for an order for ‘substituted service’. This means it becomes possible to serve documents on the person in a different way (for example on a third party who the court is satisfied will bring the court documents to the attention of the party to be served (e.g. a new partner, or a family member), or by other methods such as email (if the court is confident that the receiving person will check their emails).
It’s likely instant messaging apps will be treated the same way as email. This means there will need to be evidence that the document sent was successfully delivered to the party or their solicitor (and that the solicitor forwarded it to their client).
With regard to email, there has been occasional legal disagreement over whether a particular email was merely received in an inbox as opposed to actually having come to the notice of the person it was supposedly sent to. Emails are transmitted and stored electronically by a server which is not in the email recipient’s premises or control, and requires a positive action on the part of the email recipient to actually read the email–it is not taken as automatic just because it was sent from the sender. As such, if you are serving documents by email, it’s essential to:
- obtain written consent from the other party (or their solicitor) to send documents by email;
- arrange your email program it set up to request a ‘read’ receipt;
- request a confirmation from the other party by reply email;
- call them to confirm they received the email; and
- also send the emailed document via fax or post to the recipient’s registered address for service.
If using a fax, also keep fax transmission reports as evidence of delivery.
Serving documents on someone outside Australia
Serving court documents on someone living outside Australia is regulated through our laws, the Hague Service Convention and bilateral agreements, and is frequently handled through diplomatic channels. However, service is also regulated by the laws of the country in which the documents are to be served, and local rules must be carefully followed.
It will probably eventually become stock standard around the world to serve documents by instant messaging apps like WhatsApp, or other social media and email programs. At the moment, though, remember it’s still necessary in Australia to first obtain the permission of the court to use these methods of serving court documents. If you need help with applying for an order allowing substituted service, please give us a call.
Source: Lexology
You may also like to read our blog on what you can do if you are having trouble serving court documents.
Do you need family law advice? Please call Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Legal Services on (02) 6223 2400 for an initial, free, no-obligation conference.
Please note our blogs are not legal advice. For information on how to obtain legal advice, please contact Alliance Legal Services.
