What happens if a divorce is filed in the US or the UK but the Defendant lives in Portugal?
With life’s unexpected outcomings, many foreign colleagues working in countries that do not belong to the European Union, such as the US or the UK, ask for our advice regarding divorce procedures against Portuguese citizens or foreigners residing in Portugal.
This article will attempt to clarify how a defendant residing in Portugal can be served here, in a way that guarantees the parties fundamental right of access to justice.
Serving papers thorough Central Authorities under the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters
The first necessary and logical step after a divorce is filed is to serve the divorce papers to the defendant. As it is expected, this process becomes more difficult when such defendant resides in a different country.
With the purpose of creating “appropriate means to ensure that judicial and extrajudicial documents to be served abroad shall be brought to the notice of the addressee in sufficient time” and simplifying and expediting such procedures, the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters was concluded on 1965.
Under these Convention, each Contracting State designated a Central Authority, which shall facilitate service of judicial and extrajudicial documents to other Contracting States. This Authority shall itself serve the documents (or arrange to have them served) to the addressee residing abroad, upon request by the authority or judicial officer competent under the law of the State in which the documents originate.
In simple terms, if a divorce is filed in the US or the UK and the defendant resides in Portugal, the UK or US competent authorities shall forward a request to the Portuguese Central Authority (the Directorate-General of Justice Administration – Ministry of Justice) who will then serve the documents to the Court of the area where the Defendant usually resides. This will generally be done according to the usual proceeding established under the Portuguese law, which prescribes the following:
- “service by registered mail with acknowledgement of receipt;
- service by regular mail in case of failure of the service by registered mail;
- personal service by a court clerk/implementing agents;
- if the first attempt is not successful, personal service by a court clerk/implementing service by prior arrangement of the exact time of the service on the person to be served or on another person present at the specified location who is shown to be in the best position for passing on the communication.”
The forwarding authority in the requesting Contracting State may also request to the Portuguese Authority that a particular method is used, as long as the method is compatible with Portuguese law.
The authorities of the State of origin must always include in the request an official translation of the documents to Portuguese.
After these proceedings, the addressed Central Authority shall complete a certificate, in the form of the model annexed to the Convention, which should state the following: (1) if the document was served, the method, place and date of service, as well as the person to whom the document was delivered; (2) if the document wasn’t served, the reasons which have prevented service. This certificate must be sent directly to the applicant.
Alternative methods for serving divorce papers to Portuguese residents
Even though in theory this proceeding is fairly simple, practice has demonstrated that these steps take far longer to be concluded than expected. From the moment the Portuguese Central Authority receives the request to serving the divorce papers, it may take from 30 to 60 days – and this is the time frame of action for the Portuguese Central Authority alone. The whole international service process under the Hague Service Convention is estimated to take between three to six months. And the process can take even additional time, in case of incorrect or missing information, with delays of anywhere from two to four months in effectuating service.
Furthermore, after all this time, if the defendant fails to appear in Court, the service may be dismissed, if the Plaintiff can not prove the documents to have been properly delivered and/or effected in sufficient time to enable the defendant to defend.
For these reasons, people often seek swifter, more convenient ways of serving documents in Portugal. The one we find most convenient is to effect the service of judicial documents through judicial officers, officials or other competent persons of the State of Destination, in accordance with article 10, b) of the Hague Service Convention. In Portugal, service can be effected through court clerks, implementing agents, lawyers and solicitors, who shall serve the papers in accordance with the Portuguese Law, as would the Portuguese Central Authority.
If this method is employed, in order to substitute the certificate issued by the Portuguese Central Authority, an Affidavit must be emitted by a Portuguese Notary, where the entity responsible for the paper service shall state the method used and its conformity to Portuguese Law. If these steps are met, this method of service shall be considered valid according to US and UK’s legal framework.