Why does this matter?
One of the questions that has arisen in relation to the Divorce, Dissolution and Separation Bill is when the clock should start running on the proposed twenty-week period leading to the conditional order. The Bill states that it should be at ‘application’. That would avoid the problems caused by the respondent avoiding service. The Finding Fault research showed how service avoidance was a significant problem in a minority of cases, including those featuring domestic abuse, and had the potential to delay or completely derail the process.
However, there have been suggestions that the start point should instead be where there is evidence of service to ensure that the respondent has sufficient time. An amendment to that effect has been handed in. Two of the reasons that have been put forward for this include (a) that petitioners who choose to serve the petition instead of the court could delay service until the very last minute, and (b) any delay would be particularly unfair for respondents who are unaware of difficulties in the marriage/civil partnership and then receive a petition/application out of the blue.
To help inform debate on the issue, I have conducted some further analysis on the Finding Fault dataset. Part 1 of this post looks at the question of petitioners delaying service. Part 2 explores the likelihood of a ‘bombshell’ petition landing upon an entirely unsuspecting respondent.
SPOILER: On both issues the likelihood of the event happening is quite low and almost certainly lower than the documented risk of service avoidance. In qualitative terms, the potential impact of delayed notification is probably less than the impact of a significant delay in the final order or the risk of not being able to proceed caused by service avoidance. On balance, the evidence points towards starting the clock at application, but safeguards will be needed to protect the respondent. The government has already committed to requiring evidence of service before a conditional order may be made and to exploring other safeguards. The likelihood is that that will require changes to the Family Procedure Rules which will then be subject to further consultation.
What evidence is there of problems with service caused by the petitioner?
It is possible for petitioners to have a petition served on the respondent (FPR 2010, rule 6.5). However, the standard practice is that the petition is served by the court. In the Finding Fault undefended sample, the initial attempt at service was conducted by the court by post in all 300 cases, including domestic and international cases. Only if that initial service were unsuccessful, did the responsibility fall to the petitioner to try to effect service. This was most commonly pursued through use of a process server or by asking the court to deem service.
As the court undertakes initial service, there is little opportunity currently for the petitioner to be intentionally difficult. However, a minority of respondents will delay or avoid service. About a fifth of respondents will delay returning the acknowledgment of service or not return it at all (see Taking Notice).
Aside from limited opportunity, currently there is also very little incentive for a petitioner to be difficult. It is in the interests of the petitioner for the divorce to proceed as quickly and smoothly as possible. No advantage is generally to be gained by the petitioner by problems with service. On the contrary, the analysis in Taking Notice showed that service problems led to delays and/or failure to achieve decree nisi, contrary to the apparent wishes of the petitioner.
Only in very rare and specific circumstances might the petitioner gain an apparent advantage by frustrating service. An example would the recent case of Raani & Charazi  EWFC B202. The Orthodox Jewish petitioner husband sought permission to dispense with service on the basis that his wife could not be found. Decree absolute was granted (although later set aside). The (apparent) advantage to the husband was that he was able to circumvent s.10A Matrimonial Causes Act. That provision would otherwise prevent his civil divorce without his having first given his wife a Get to secure a religious divorce, thus trapping her in the religious marriage whilst securing his freedom. It is important to note that Raani was a case of preventing service altogether, rather than simply delaying it to the last minute.
In future, if the twenty-week clock starts at application, there would potentially be more incentive to delay service by applicants. Some may wish to get at their spouse by delaying service for as long as possible while the twenty-week clock runs down. That type of game-playing behaviour might potentially be curtailed by rules setting out time limits on service. There are no time limits currently on when a petition must be served after issue. However, there would still be limited opportunity for those minded to delay service, as it is unlikely that the standard practice of the court undertaking initial service would change. The rules might be changed to insist on initial service by the court. Consideration might also be given to creating rules for the small number of cases where initial service fails due to incomplete or inaccurate contact details, whether provided intentionally or not.
Part 2 explores the likelihood of a ‘bombshell’ petition landing upon an entirely unsuspecting respondent.