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January 28, 2022 International Law

The Ever-Evolving Law Regarding Process Service in Family Law Cases

By: Stacy D. Heard

Process service in international family law cases has always been a hot legal topic. Courts in various jurisdictions have rendered decisions that may not be consistent with rulings from other jurisdictions. Additionally, with the increased use of electronic communication and social media platforms, the means of process service is likely to change. In a recent case out of Germany, we learned that service via WhatsApp, a messenger application that uses the internet to send messages, images, audio or video, is not effective process service. 

Process service is not proper if made through a messenger service. OLG Frankfurt vom 22.11.2021 (28 VA 1/21). In an order issued on December 14, 2021 by the Higher Regional Court of Frankfurt am Main (Oberlandesgericht Frankfurt am Main, OLG Frankfurt) held that a judgment of divorce obtained in Canada is not recognized in Germany. The court held that there was no proper service because the foreign divorce papers were sent to the defendant in Germany via the messenger service WhatsApp. It stated that it was irrelevant that the defendant had actual notice of the proceedings because foreign judgments can be recognized only when there is proper and timely service.

The court explained that the requirements for proper service between Germany and Canada are set out in the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (“HCCH 1965 Service Convention”). Article 5 of the HCCH 1965 Service Convention lists the methods of service and provides that “[t]he Central Authority of the State addressed shall itself serve the document or shall arrange to have it served by an appropriate agency, either by a method prescribed by its internal law for the service of documents in domestic actions upon persons who are within its territory, or by a particular method requested by the applicant, unless such a method is incompatible with the law of the State addressed.” Article 10 of the HCCH 1965 Service Convention allows for additional methods of service, including via postal service. The Court stated that service via postal service might cover service of documents as a WhatsApp attachment; however, Germany has objected to this expansion of service methods. Therefore, it does not apply in this case. Additionally, a party’s response to a WhatsApp message by saying “Hello, So I have to sign it?” does not change the rules on process service, because the recipient did not defend herself on the merits.

The HCCH 1965 Service Convention is the most well-known service of process treaty and includes most of the world’s industrialized countries. Most courts have determined that service outside the treaty procedures constitutes invalid service. However, every treaty country can have different procedures. Each country may make changes to the treaty that affects its sovereignty, such as which treaty provisions will be enforced and which will be prohibited, and whether translations will be required, and if so, into which languages. In effect, these provisions have the effect of allowing each foreign country to write its own treaty.

As is often the case in international law, it is unclear how far reaching this decision will be and if it will be followed by courts in other jurisdictions. Of course, non-treaty countries are not bound by the HCCH 1965 Service Convention.

This case underscores the necessary research required to determine what constitutes valid process service in the jurisdiction in which you are attempting service. It is essential to ascertain the current state of the law, including, but not limited to, any reservations and/or declarations to the HCCH 1965 Service Convention. Additionally, it is advisable to contact an attorney in the jurisdiction in which you are attempting to effect service to learn about the rules and procedures in that jurisdiction. In fact, contacting an attorney in that jurisdiction first is the most efficient manner to begin your research. International attorneys can be found through the International Academy of Family Lawyers (IAFL).

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Stacy D. Heard

Esq., Seattle, WA

The Law Office of Stacy D. Heard, PLLC
ABA Section of Family Law International Law Committee Chair