Can You Avoid A Divorce On A Technicality?

In the recent case of Ali v Barbosa, the court explored whether a divorce is valid, despite the husband “technically” not being served with the wife’s divorce petition.

The wife in this case applied for a divorce. The law says that the petition has to be sent to the other party to make them aware of their spouse’s intention to divorce. The wife’s petition was posted to the husband at his address. The husband claimed he never received the petition and no longer lived at that address.

As with many cases we deal with at Geldards, the wife instructed a process server to physically hand the petition to the husband. The process server was unable to do this. The husband effectively avoided being given the petition.

Finally, the wife applied for and obtained an order which stated that the husband had been deemed to have received the petition and which allowed her application for a divorce to continue. The divorce was subsequently pronounced.

The husband tried to claim that the divorce was not valid because procedure had not been followed when he was “deemed to have received the divorce.” The court did not accept this.

The lesson to be learnt from this case, is that a procedural error in serving a petition does not necessarily mean that the divorce is invalid. There are circumstances where a spouse is deliberately trying to avoid service, and on that basis, it would be unjust to prevent the petitioning spouse from proceeding.

If you require help or assistance with divorce or any other family matter, please do not hesitate to contact a member of our Family team.

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