Service of the Petition and other documents is an important step in the divorce proceedings as without service, the proceedings will not get to its natural ending where the decree nisi and subsequently the decree absolute are granted.

The following is the concern of a reader of the Star who is now ready to serve the Petition and other documents: "Greetings. Please assist me with a second opinion. My counsel has given me the divorce petition and affidavit to serve on my wife; however, I am concerned about the terms/conditions under which she may receive them. These include:

- serving her only at her place of residence

- only during time 6 a.m. - 6 p.m.

- only during days Monday - Friday

- not on a holiday

Are these legal requirements? If they are, what is the rationale?"

Let me respond by saying that a petition for dissolution of marriage or for nullity of marriage must be effected by personal service on the respondent. If the petition is for the presumption of death and dissolution of marriage it must be served on anyone who would have an interest in the respondent's estate or by two consecutive publications in the newspapers.

Permission

Service of the petition and other documents by the petitioner will not be regarded by the court as a proper service.

Service is usually proved by the process server swearing to an affidavit of service, which sets out the document served, date, time and place of service, the means by which the respondent was identified and such other information that would satisfy the court that the information about the divorce proceedings had come to the attention of the respondent.

Application may also be made for substituted service, that is to say, instead of personal service, the court may give permission for the petition and other documents to be served on someone else or to be published in the newspapers or any other means approved by the court.

Circumstances

When giving instructions to your lawyer you would have given, in most circumstances, an address for the respondent. It is expected that the respondent would be served at this address and if this is not so, the affidavit of service should say where the petition and other documents were served. Sometimes for convenience, it is served at the workplace of the respondent or at a place agreed by the parties but this must be mentioned in the affidavit.

A petition or any document in matrimonial proceedings may be served outside the jurisdiction without permission of the court but the respondent, depending on where he resides overseas, would have between 28 to 56 days to file acknowledgement of service.

Guidelines

With respect to your instructions to serve the petition and other documents between 6 a.m. to 6 p.m. between Monday and Friday and avoid public holidays, these guidelines, to the best of my knowledge, are not outlined in Part 76 of the Civil Procedure Rules, 2002 but I am aware that they have been used over the years as general guidelines for service of court documents and might have been part of the old Civil Procedure Rules or part of the Resident Magistrate's Court Rules.

My view is that the court will be very concerned about whether or not it is the respondent who was served with the petition and other documents. Obviously, if the documents were served at midnight on a public holiday, the court might ask questions about access to the respondent at that time but if the respondent is elusive and that is the only time to effect service, then service of the documents might be approved by the court if the circumstances are outlined in the affidavit of service.

In all of these matters, the court is likely to apply what is called the overriding objective, which is generally to deal with each case fairly and expeditiously and ensuring that the parties are on equal footing.

Keith N. Bishop is an Attorney-at-Law and partner in the firm of Bishop & Fullerton. He may be contacted by email at knbishop@gmail.com or by text at 779-2871.