Petition for Divorce Rests on Distinction between “The Hague Service Convention” and “The Hague Apostille Convention”
We’ve blogged about the importance of accurate legal translation services for international divorces International Service of Process (ISOP), and about legal translation services for foreign document production. In divorce litigation, procedural issues like jurisdiction and service of process can be just as important as the substantive issues. In cases of international divorce, the requirements of the Hague Convention also can affect the outcome of the case. However, the requirements to be satisfied may depend on which Hague Convention applies.
In the 2019 case of G.K. v. G.M.D., the Family Court of Delaware drew a distinction between the “Hague Service Convention” and the “Hague Apostille Convention” in determining whether the wife in the case properly served the husband in Greece with a copy of her divorce petition. The jurisdiction of the court rested on the distinction between the requirements of the two Hague conventions and the nature of the documents to which the respective requirements applied.
Foreign Service of Process in a Domestic Divorce
In G.K. v. G.M.D., Wife filed a Petition for Divorce in Delaware, in the United States. Husband, who resided in Ekali, Greece, filed a Motion to Dismiss the case, claiming that Wife was not a resident of Delaware for six months before filing her Petition for Divorce, which was required under Delaware law. Husband also claimed that Wife had not effectively served him in Greece because she did not satisfy the requirements of “The Convention on Service Abroad for Judicial and Extrajudicial Documents in Civil and Commercial Matters,” also known as “The Hague Service Convention.”
A Delaware Family Court Commissioner denied Husband’s Motion to Dismiss, finding that Wife’s service upon Husband in Greece was proper. Husband appealed to the Delaware Family Court, which held that Wife was a resident of Delaware for the required period of time and that Wife had properly served Husband pursuant to the requirements of Delaware law. Accordingly, the Family Court issued a final decree of divorce. Husband appealed to the Supreme Court of Delaware.
The Supreme Court of Delaware vacated the divorce decree and remanded the case to the Delaware Family Court to determine whether, in fact, Wife was a citizen of Delaware or Greece during the six months preceding her filing for divorce. The court ordered a full evidentiary hearing on the issue, contingent upon Wife’s proper service upon Husband in Greece, whereas the court agreed with Husband that Wife’s service upon Husband did not satisfy the requirements of The Hague Service Convention and, therefore, was insufficient.
Legal Translation Services for “The Hague Service Convention”
The Court held that “to properly serve Husband under Greek law and The Hague Service Convention, [Wife] would need to go through the Central Authority of Husband’s region in Greece, which was the proper procedure required by The Convention.” Wife subsequently submitted to the court a Certificate of Service confirming that Husband was properly served on January 2, 2019, in accordance with requirements of The Hague Service Convention.
However, Husband filed a second Motion to Dismiss the Petition for Divorce, claiming that Wife still had not properly served him in Greece because Greece is a party to the Hague Apostille Convention and, because Wife did not use an Apostille to serve Husband, Wife’s service of process remained insufficient. Husband claimed, therefore, that the court had no jurisdiction over him to issue a decree of divorce.
Legal Translation Services for “The Hague Apostille Convention”
Wife argued that The Hague Apostille Convention did not govern her service of process on Husband and, therefore, she was not required to use an Apostille in her service on Husband. Wife argued that service of process in civil lawsuits is governed by The Hague Service Convention, which is the treaty applicable to her claim for divorce, whereas The Hague Apostille Convention is a distinct and separate treaty governing the transmission of public records between foreign jurisdictions. Thus, wife argued that her service on Husband was sufficient and that the court had jurisdiction over Husband.
Two Distinct Hague Convention Treaties
The Delaware Family Court determined that Wife submitted a certificate of service from the Central Authority in Greece, which affirmed that Husband was properly served with Wife’s petition for Divorce in Ekali, Greece, in accordance with the requirements of The Hague Service Convention. In response to Husband’s claim that Wife was required to use an Apostille in her service of process, the court held that
The Hague Apostille Convention “applies only to public documents. These are documents emanating from the authority or official connected with a court or tribunal of the state.” . . . [T]he document of import which Wife . . . served on Husband [was] the Petition for Divorce, a document which emanates from a private individual . . . and not a Court or tribunal.
Thus, the court held that Wife’s Petition for Divorce was not the type of document that required an Apostille pursuant to The Hague Apostille Convention, but rather, Wife was only required to serve Husband with a civil pleading through the use of the Central Authority, as required by The Hague Service Convention. Accordingly, the court denied Husband’s Motion to Dismiss Wife’s Petition for Divorce on the basis of improper service of process and will proceed with an evidentiary hearing on the issue of Wife’s citizenship.
This case is a prime example of how important it is in any case involving international civil litigation to know and satisfy the various requirements of the different Hague Convention treaties. If you are involved in any international civil litigation, at any stage of the discovery process, including multilingual cross-border e-Discovery, contact legal document translation service All Language Alliance, Inc. You can also email us from our website at www.languagealliance.com to request certified translation services from Greek, Norwegian, German, Swedish, French, Dutch, German, Portuguese, Spanish, and other languages to English, and from English to any foreign language to comply with legal translation requirements of any of the international Hague Convention treaties.
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*** This legal translations blog article should not be construed as legal advice. You should always consult a lawyer regarding your specific legal needs.***