Technology and the Law – The Law runs last

By 9 August, 2019Divorce

In a large number of areas of emerging technology it is the case that technology moves faster than the law can keep up. An example, is 3D printing. It is not inconceivable that in the next few years you will be able to 3D print your next pair of Nike running shoes from the 3D printer in your house rather than buy them from the store. If they don’t fit properly or are the wrong size then who do you complain to – the 3D printer manufacturer, Nike or the supplier of the compounds from which the shoe is made. Currently there is virtually no law in this regard.

In a similar situation with respect to divorces, technology has moved well ahead of the law.

Service of the divorce application

The Family Law Act allows the service of the divorce application in one of two ways – these being either personal service of the application or service by post with the recipient spouse then to sign an Acknowledgment of Service (and presumably post it back to you).
Whilst the first issue may be finding a mail box and a stamp for your envelope a real and ongoing issue is that many people do not know the physical address of their former spouse after they have been separated for some time. However, it is not uncommon that these people will know how to contact their former spouse via email (sorry faxes – you too have gone by the way of the dinosaur).

This takes us to the alternative of whether it is in fact possible to serve your application for divorce by email. The strict legal position is that this is not allowed.

However with the process of filing service documents regarding your application if it is the case that you serve your Application and the Acknowledgment of Service by email on your former spouse, and they sign the Acknowledgment of Service and return it to us also by email, then the Affidavit of Service that you complete will simply state that you recognise the signature of your former spouse on the Acknowledgment. The Affidavit (although headed Affidavit of Service by Post) does not inquire as to how you physically gave the document to your former spouse (weird but true). Therefore provided the Acknowledgment has your former spouse’s signature on it, the Court does not make any inquiry as to how it was delivered by post, email, or pony express.

We ponder

If the law was able to catch up with technology there would be a fairly simple amendment to the Family Law Act which would enable service of your divorce application by email and provided the Acknowledgment of Service was returned signed by your former spouse then all would be well and we would not have to “fudge” how service was undertaken.

The team at Your Divorce works hard at ensuring your divorce application is served in a timely manner. If this means that we need to serve it by email and get the Acknowledgment that way we will work in those circumstances to demonstrate that your former spouse is aware of the application and so the application can proceed on time. We of course hope that the law will be updated at some point in the future but we are left with this old odd idiosyncrasy in the meantime. 312866

If you have any queries in relation to your divorce and wish to get your application underway, visit our website at your-divorce.com.au or contact us by email at help@your-divorce.com.au. We are here to assist.