A spouse cannot stop a divorce simply by dodging or refusing the court papers. Court documents are normally handed over in person. But if a spouse is actively avoiding service or refuses to accept divorce papers, the person who filed (the petitioner) can ask the court for an order of substituted service. This lets the case move forward even though the other spouse has refused to take part in receiving the papers.
What is service, and why does it matter?
"Service" simply means formally delivering court documents to the person on the other side, so they know a case has been filed against them. Under Order 5, Rule 17 of the Civil Procedure Rules (2010), together with the practice rules for matrimonial causes in Kenya, personal service is the standard way of doing this. That means the papers are delivered to the spouse directly.
Personal service is the starting point. Substituted service is the exception for when that starting point fails because the spouse is deliberately avoiding it.
What is substituted service?
Substituted service is a different way of delivering the papers, but it only happens if the court allows it. The petitioner has to apply to the court for an order. The court can then authorise service by:
- publishing an advertisement in a nationwide newspaper;
- sending the papers by registered post;
- emailing them; or
- delivering them by electronic messaging, such as WhatsApp.
Once the court has authorised a method and it is followed, the divorce proceedings can advance legally, whatever the other spouse's personal refusal.
Practical points
If you are the one trying to serve your spouse, a few sensible steps may help:
- Keep a record of every attempt you make to hand over the papers, including dates and what happened.
- Keep copies of any messages, emails or postal receipts.
- Do not assume you can switch to WhatsApp or a newspaper notice on your own. The court has to give an order first.
- Speak to an advocate about how to apply for substituted service in your situation.
If you are the spouse who has received word of a case, remember that refusing the papers is not a way of making the case go away. The court can allow other methods of reaching you, and the case can continue. It is usually better to read what has been filed and get advice on how to respond.
Entertainment and general information, not legal advice. For advice on your own situation, speak to an advocate.