When a marriage hits the buffers, ideally both husband and wife will agree to getting divorced.
However, many divorces are contested by one party which makes the whole process more difficult and leads to protracted negotiations.
What can make things even more tricky is if one spouse refuses to engage at all and ignores the divorce papers. So what can be done in this scenario?
What are my options if my ex does not acknowledge the divorce papers?
One of the first major steps in getting a divorce is for one divorcing party to complete a matrimonial order (formerly called a divorce petition) which essentially comprises the divorce application to court.
Once the application has been submitted and approved, the court will send a copy to the other spouse along with an ‘acknowledgement of service’ form.
They must respond to this form within 8 days – either agreeing with the divorce or contesting it (or objecting to any costs).
Once this has been done, the divorce can proceed to the next stage which is the application for decree nisi.
But sometimes the other party fails to respond to the acknowledgement of service form.
This may be due to an oversight or change of address – so as a first step it is worth contacting them informally to ask if they have received it OK.
However, occasionally there will be a stark refusal to engage in the divorce process, possibly as part of a strategy to contest the divorce.
In this latter scenario, there are certain steps which may need to be taken, which we will consider below.
Grounds for divorce
It is necessary to prove that there has been an ‘irretrievable breakdown of the relationship’ in order to get divorced (sometimes known as the ground for divorce).
Currently there are five different reasons (or ‘facts’) which can be used as evidence to support that the marriage has irretrievably broken down:
Desertion for at least 2 years
Separation for at least 2 years (with the consent of both parties)
Separation for at least 5 years
Unreasonable behaviour (eg domestic violence)
If the fact of ‘separation for at least 2 years’ was used in the initial divorce application, it may be necessary to change this to a different fact if your ex-spouse no longer wishes to engage in the divorce process.
This is also the case with ‘adultery’ – unless it can be proven. The other three facts can be used to proceed to the next stage.
NB: The Divorce, Dissolution and Separation Act 2020 will change the current necessity of relying on one of these five facts to prove grounds for divorce. Instead, all that will be required is for one spouse (or both) to make a statement that the marriage has irretrievably broken down. The new law will prevent one spouse contesting a divorce – so should make the process more straightforward. However, this law is not expected to come into effect until autumn 2021.
If your spouse has not responded to the acknowledgement of service form within 14 days – and you reasonably believe they are still living at the relevant address – it is possible to arrange for a court bailiff or process server to deliver the divorce papers to them personally.
This is known as ‘personal service’ and will normally incur a fee, along with some administration (although this can be arranged via a solicitor).
Once this has been completed, the bailiff or server will file a certificate of service with the court to confirm that they have achieved service successfully – it is then possible to apply for the decree nisi without the need for the acknowledgement of service form to be returned.
If there is evidence that your spouse received the divorce papers in the post, an application can be made to the court to rule that the papers were correctly served; this is known as ‘deemed service’.
Evidence may consist of an email or text message – pretty much anything which confirms that your spouse received the papers.
Once service is deemed to have taken place, the divorce can proceed to the stage of decree nisi without any need for the acknowledgement of service form to be returned.
Dispense with service
If none of the above methods work, and your spouse cannot be reached (eg they have left the country) it may be possible to ask the court to dispense with the requirement for service altogether.
However, this is generally only granted by the court in exceptional circumstances, and it is necessary to prove that reasonable efforts have been made to ascertain the contact details of your spouse (eg talking to friends and family, contacting them via email and other means etc).
Are you unable to locate your spouse to serve the divorce paper? Or maybe you believe they will contest to the divorce?
Check out our Missing Spouse Divorce Service, costing just £349. Saving you thousands compared with your local high street solicitor. This service is for people who are unable to locate their spouse or where they believe their spouse won’t consent to the divorce proceedings.
By Mark Keenan | 26th August 2020
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