The Family Procedure Rules 2010

CHAPTER 2 E+W SERVICE OF THE APPLICATION FOR A MATRIMONIAL ORDER OR CIVIL PARTNERSHIP ORDER IN THE JURISDICTION

Interpretation E+W

6.3.  In this Chapter, unless the context otherwise requires, a reference to an application—

(a) is a reference to an application for a matrimonial or civil partnership order; and

(b) includes an application by a respondent as referred to in rule 7.4.

(Part 7 deals with applications in matrimonial or civil partnership proceedings.)

Methods of service E+W

6.4.  An application may be served by any of the following methods—

(a) personal service in accordance with rule 6.7;

(b) first class post, or other service which provides for delivery on the next business day, in accordance with Practice Direction 6A; or

(c) where rule 6.11 applies, document exchange.

Who is to serve the application E+W

6.5.—(1) Subject to the provisions of this rule, an application may be served by—

(a) the applicant; or

(b) a court officer, if so requested by the applicant.

(2) A court officer will not serve the application if the party to be served is a child or protected party.

(3) An application must not be served personally by the applicant himself or herself. (Rule 6.14 deals with service of the application on children and protected parties.)

Every respondent to be served E+W

6.6.  The application must be served on every respondent.

Personal service E+W

6.7.  An application is served personally on a respondent by leaving it with that respondent.

Service of application by the court E+W

6.8.—(1) Where the application is to be served by a court officer, the applicant must give the court officer an address at which the respondent is to be served in accordance with rule 6.4.

(2) Where the court officer has sent a notification of failure of service to the applicant in accordance with rule 6.21, the applicant may request the court officer to serve the document on the respondent at an alternative address.

Service by the bailiff E+W

6.9.—(1) An applicant may request that an application be served by a bailiff delivering a copy of the application to the respondent personally.

(2) The request must be made in accordance with Practice Direction 6A.

(3) Where the bailiff is unable to serve the application, the applicant may apply to the court for an order under rule 6.19 (service by an alternative method or at an alternative place).

(Practice Direction 6A contains provision about when a request under this rule is appropriate.) (Rule 6.22 provides for notice of non-service by a bailiff.)

Where to serve the application – general provisions E+W

6.10.—(1) The application must be served within the jurisdiction except as provided for by Chapter 4 of this Part (service out of the jurisdiction).

(2) The applicant must include in the application an address at which the respondent may be served.

(3) Paragraph (2) does not apply where an order made by the court under rule 6.19 (service by an alternative method or at an alternative place) specifies the place or method of service of the application.

Service of the application on a solicitor within the jurisdiction or in any EEA state E+W

6.11.—(1) Where a solicitor acting for the respondent has notified the applicant in writing that the solicitor is instructed by the respondent to accept service of the application on behalf of the respondent at a business address within the jurisdiction, the application must be served at the business address of that solicitor.

(2) Subject to the provisions of Chapter 4 of this Part, where a solicitor acting for the respondent has notified the applicant in writing that the solicitor is instructed by the respondent to accept service of the application on behalf of the respondent at a business address within any EEA state, the application must be served at the business address of that solicitor. (“Solicitor” has the extended meaning set out in rule 6.2 and “EEA state” is defined in Schedule 1 to the Interpretation Act 1978 M1 .)

Marginal Citations

M1 1978 c.30.

Service of the application where the respondent gives an address at which the respondent may be served E+W

6.12.  Subject to rule 6.13, the respondent may be served with the application at an address within the jurisdiction which the respondent has given for the purpose of being served with the proceedings.

Service of the application where the respondent does not give an address at which the respondent may be served E+W

6.13.—(1) This rule applies where—

(a) rule 6.11 (service of application on solicitor); and

(b) rule 6.12 (respondent gives address at which respondent may be served),

do not apply and the applicant does not wish the application to be served personally under rule 6.7.

(2) Subject to paragraphs (3) to (5) the application must be served on the respondent at his usual or last known address.

(3) Where the applicant has reason to believe that the respondent no longer resides at his usual or last known address, the applicant must take reasonable steps to ascertain the current address of the respondent.

(4) Where, having taken the reasonable steps required by paragraph (3), the applicant—

(a) ascertains the respondent's current address, the application must be served at that address; or

(b) is unable to ascertain the respondent's current address, the applicant must consider whether there is—

(i) an alternative place where; or

(ii) an alternative method by which,

service may be effected.

(5) If, under paragraph (4)(b), there is such a place where or a method by which service could be effected, the applicant must make an application under rule 6.19.

Service of the application on children and protected parties E+W

6.14.—(1) Where the respondent is a child, the application form must be served on—

(a) one of the child's parents or guardians; or

(b) if there is no parent or guardian, an adult with whom the child resides or in whose care the child is.

(2) Where the respondent is a protected party, the application must be served on—

(a) one of the following persons with authority in relation to the protected party—

(i) the attorney under a registered enduring power of attorney;

(ii) the donee of a lasting power of attorney; or

(iii) the deputy appointed by the Court of Protection; or

(b) if there is no such person, an adult with whom the protected party resides or in whose care the protected party is.

(3) Any reference in this Chapter to a respondent or party to be served includes the person to be served with the application form on behalf of a child or protected party under paragraph (1) or (2).

(4) The court may make an order permitting an application form to be served on a child or protected party, or on a person other than the person specified in paragraph (1) or (2).

(5) An application for an order under paragraph (4) may be made without notice.

(6) The court may order that, although an application form has been sent or given to someone other than the person specified in paragraph (1) or (2), it is to be treated as if it had been properly served.

(7) Where a document is served in accordance with this rule—

(a) it must be endorsed with the notice set out in Practice Direction 6A; and

(b) the person commencing the proceedings must file a witness statement by the person on whom the application form was served stating whether—

(i) the contents of the application form; or

(ii) the purpose and intention of the application,

were communicated to the child or protected party and, if not, why not.

(8) Paragraph (7)(b) does not apply where the Official Solicitor is, as the case may be—

(a) the litigation friend of the protected party; or

(b) the litigation friend or children's guardian of the child.

Deemed service – receipt of acknowledgment of service E+W

6.15.—(1) Subject to paragraph (2), an application is deemed to be served if the acknowledgment of service, signed by the party served or the solicitor acting on that party's behalf, is returned to the court office.

(2) Where the signature on the acknowledgment of service purports to be that of the other party to the marriage or civil partnership, the applicant must prove that it is the signature of that party by—

(a) giving oral evidence to that effect at the hearing; or

(b) if the application is undefended, confirming it to be so in the [F1 statement] the applicant files under rule 7.19(4).

Textual Amendments

F1 Word in rule 6.15(2)(b) substituted (6.4.2012) by The Family Procedure (Amendment) Rules 2012 (S.I. 2012/679), rules 1, 6 (with rule 30)

Deemed service by post or alternative service where no acknowledgment of service filed E+W

6.16.—(1) Subject to paragraph (2), if—

(a) an application has been served on a respondent by post or other service which provides for delivery on the next business day;

(b) no acknowledgment of service has been returned to the court office; and

(c) the court is satisfied that the respondent has received the application,

the [F2 court] may direct that the application is deemed to be served.

(2) Where—

(a) the application alleges 2 years' separation and the respondent consents to a matrimonial or civil partnership order being granted; and

(b) none of the other facts mentioned in section 1(2) of the 1973 Act M2 or section 44(5) of the 2004 Act, as the case may be, is alleged,

paragraph (1) applies only if—

(i) the court is satisfied that the respondent has received notice of the proceedings; and

(ii) the applicant produces a written statement, signed by the respondent, containing the respondent's consent to the grant of an order.

Textual Amendments

F2 Word in rule 6.16(1) substituted (22.4.2014) by The Family Procedure (Amendment No.3) Rules 2013 (S.I. 2013/3204), rules 1, 10 (with rule 137); S.I. 2014/954, art. 2

Marginal Citations

M2 Section 1(2) has been prospectively repealed by section 66(3) of and Schedule 10 to the Family Law Act 1996.

Proof of personal service where no acknowledgment of service filed E+W

6.17.—(1) This rule applies where—

(a) an application has been served on a respondent personally; and

(b) no acknowledgment of service has been returned to the court office.

(2) The person serving the application must file a certificate of service stating the date and time of personal service.

(Practice Direction 6A makes provision for a certificate of service by a bailiff.)

(3) If the respondent served was the other party to the marriage or civil partnership, the certificate of service must show the means by which the person serving the application knows the identity of the party served.

Proof of service by the court etc. E+W

6.18.—(1) Where a court officer serves an application by post, or other service which provides for delivery on the next business day, the court officer must note in the court records the date of—

(a) posting; or

(b) leaving with, delivering to or collection by the relevant service provider.

(2) A record made in accordance with paragraph (1) is evidence of the facts stated in it.

(3) This rule does not affect the operation of section [F3 31N of the 1984 Act]. (Section [F4 31N of the 1984 Act] provides that where a summons or other process issued from [F5 the family court] is served by an officer of a court, service may be proved by a certificate in a prescribed form.)

Textual Amendments

F3 Words in rule 6.18 substituted (22.4.2014) by The Family Procedure (Amendment No.3) Rules 2013 (S.I. 2013/3204), rules 1, 11(b)(i) (with rule 137); S.I. 2014/954, art. 2

F4 Words in rule 6.18(3) substituted (22.4.2014) by The Family Procedure (Amendment No.3) Rules 2013 (S.I. 2013/3204), rules 1, 11(a) (with rule 137); S.I. 2014/954, art. 2

F5 Words in rule 6.18 substituted (22.4.2014) by The Family Procedure (Amendment No.3) Rules 2013 (S.I. 2013/3204), rules 1, 11(b)(ii) (with rule 137); S.I. 2014/954, art. 2

Service of the application by an alternative method or at an alternative place E+W

6.19.—(1) Where it appears to the court that there is a good reason to authorise service by a method or at a place not otherwise permitted by this Part, the court may direct that service is effected by an alternative method or at an alternative place.

(2) On an application under this rule, the court may direct that steps already taken to bring the application form to the attention of the respondent by an alternative method or at an alternative place is good service.

(3) A direction under this rule must specify—

(a) the method or place of service;

(b) the date on which the application form is deemed served; and

(c) the period for filing an acknowledgment of service or answer.

Power of the court to dispense with service of the application E+W

6.20.—(1) The court may dispense with service of the application where it is impracticable to serve the application by any method provided for by this Part.

(2) An application for an order to dispense with service may be made at any time and must be supported by evidence.

(3) The court may require the applicant to attend when it decides the application.

Notification of failure of service by the court E+W

6.21.  Where—

(a) the court serves the application by post or other service which provides for delivery on the next business day; and

(b) the application is returned to the court,

the court will send notification to the applicant that the application has been returned.

Notice of non-service by bailiff E+W

6.22.  Where—

(a) the bailiff is to serve an application; and

(b) the bailiff is unable to serve it on the respondent,

the court officer will send notification to the applicant.