...old news for Clarion in Leeds
You may have seen press reports that on 27 March 2015 Judge Mathew Cooper of the Manhattan Supreme New York allowed Ellanora Baidoo when filing for a divorce to serve a divorce petition on her husband, Victor Sena Blood-Dzraku, via a private message on Facebook - as a last resort.
There have been hundreds of articles arising as a result, with the discussion that service of court papers by Facebook is “ingenious” and an innovative use of social media.
However, over on this side of the pond, I obtained an English Court Order nearly three years ago allowing service of matrimonial finance proceedings via Facebook. At the time, here at Clarion Solicitors in Yorkshire we were extremely proud of our result because, as far as our research showed, this was the first Order of its kind made by an English matrimonial court. It can therefore be said that our English Courts - which are often considered by foreign lawyers to be stuffy and old fashioned - are perhaps ahead of the game.
When filing for divorce why is service so important?
Divorce proceedings, and any other type of court proceedings, have to be served on the other party to the proceedings. In England, service can be effected by personal service, or post to the respondent's last known address. However, Judges can become quite anxious if they know that the respondent is not in fact living at their last known address when they are being asked to make an order that is prejudicial to that party.
For this reason, for nearly 25 years, the procedure rules have allowed for proceedings to be served by an alternative means which a Judge thinks fit, but only when personal service, or postal service is not possible. In the 1990s and 2000s the most common alternative means, in my experience, was via email. However, what if you have no email address for the defendant? The answer…. Facebook or another social networking site.
Filing for Divorce -Service by Facebook
As far as I am aware, the first English reported case which allowed service of court proceedings via Facebook is a High Court decision of AKO Capital LLP & another v TFS Derivatives & others. In this case Mr Justice Tear allowed service of a claim form via a user’s Facebook profile as he was satisfied i) the Facebook account belonged to the defendant and ii) the defendant checked his Facebook account frequently. This was a commercial case and, as far as I am aware, there remains no reported family law case.
In our case, we applied this 2 limb test. We could easily satisfy the Judge that the account belonged to the respondent: our client recognised her from her profile photo, she was friends with people our client knew were her relatives, and her details matched those our client knew to be true of the defendant. Secondly, although, I was not Facebook friends with the respondent, I was able to show that her account was active from the basic public information: the number of friends had changed as had the fan pages being followed; the respondent had been in contact with relatives.
We were able to satisfy the Judge that this 2 limb test had been met and to persuade him that service by Facebook was necessary as it was our client’s last resort: he divorced the respondent more than 20 years ago so had lost all contact with her, had no means of contacting her direct and believed from local people that she was living in Australia. He had instructed an enquiry agent to try to track the defendant down but the searches had not led anywhere leaving our client stuck with the defendant’s name on the title to his home and financial matters formally unresolved.
We were pleased to be able to persuade the Judge to give us permission to serve the court proceedings on the respondent via Facebook. She subsequently refused to engage in the proceedings but after the Judge gave various opportunities to be heard in court, he granted the overall financial order our client sought.
Serving by Facebook – the rules?
My view is that to effect service of court proceedings on a defendant/respondent via Facebook the following criteria must be met:
- the court’s permission must be obtained;
- all efforts to arrange service by post, and personal service must be exhausted, and evidenced by way of a report from a professional enquiry agent; and
- the Facebook account must demonstrably (a) belong to the person being served and (b) be active.
So, a word to the wise – do not Facebook friend any lawyers and be careful of how much of your account is available to the public!
For legal advice regarding filing for divorce on Facebook or any matrimonial or social media legal matters then get in touch with us via our ‘contact us’ page .
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