Please note that the following guide only applies to divorces started before 4pm on 5th April 2022. For divorces after this date, no fault divorce now applies.
To start divorce proceedings in this country, one party issues divorce proceedings (petitioner) and the other party (respondent) then acknowledges the service of the divorce papers. However, the respondent is sometimes unwilling to consent to the divorce process by acknowledging service. There are various options that can be considered to circumvent this issue when the respondent refuses to sign or where they cannot be located.
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In order to proceed with a divorce, a party must show that the relationship has irretrievably broken down and this has to be based on one of the five facts:
• Adultery- consent not required but the respondent must admit this (so effectively consent is required)
• Unreasonable behaviour- this does not require consent
• Two years’ separation with consent (the other party therefore has to sign)
• Five years’ separation without consent (so the other party does not need to sign)
• Two years’ desertion (again the other party does not need to sign)
If the petitioner has chosen a fact that does not require consent, then the other party’s refusal to engage is not an issue. However, if the fact is one that requires the other party to sign and acknowledge service, the petitioner does have to prove to the court that the respondent has been made aware of the divorce proceedings, which is difficult if they will not acknowledge them.
Where service of the divorce papers is not acknowledged by the respondent in the relevant time frame then it is always worth prompting them in case it is a genuine error or oversight. If they then fail to respond or outright refuse, then the petitioner will need to consider other methods of satisfying the court that the respondent is aware of the divorce papers.
The first option is using the governments online divorce application service (https://www.gov.uk/apply-for-divorce). Since the papers are sent by the court then this may circumvent the issue of having to prove service.
Where service is not being acknowledged, the petitioner can serve the papers via the court bailiff or a process server. These are professionals and using this type of service can reduce the delays that arise when the petitioner tries to deliver the papers personally. The respondent will not be able to claim that they have not received the paperwork since there will be an affidavit or witness statement from the official to confirm that this has happened. The respondent is still expected to send acknowledgement of the papers. If they still fail to do this and the court has the evidence that the papers have been correctly served, then the petitioner will be able to apply for the Decree Nisi after seven days without the acknowledgement of service.
If the respondent is refusing to sign, the petitioner has to apply to the court that the divorce papers are deemed to have been served. The petitioner will need to prove to the court why this order should be granted. The court may require evidence that the papers have been delivered and are being ignored. Any correspondence that has been received by the petitioner from the other party confirming the documents have been received could be used to evidence this. This could include letters, emails or text messages. It is at the judge’s discretion to agree to deemed service.
Where it is not possible to use a process server or deemed service, then the court will expect the petitioner to use other methods to contact the respondent. The petitioner can seek permission to use alternative service to notify the other side about the divorce proceedings. Examples could include serving the papers on a related person (a family member or employer), service by fax or email placing an advert in a paper read by the respondent. There have been examples in other countries of service by social media, such as Facebook, being permitted.
If the court is satisfied that all reasonable enquiries have been made to locate the other party then they may all an application for dispensed service, which allows the proceedings to go ahead without the respondent’s acknowledgment. The courts will only allow this where all other avenues have been exhausted since it can result in the respondent being unaware when the divorce is finalised.
If the petitioner does not have a physical address for the respondent (or they are missing) then the above routes may help in this situation as well. If there are no contact details available, including via other contacts, then the petitioner could apply to the courts for a disclosure order for the respondent if they lasted lived in the UK. If the court finds an address, they can send the divorce papers there and proceed even if there is no response.
If the respondent is presumed dead and there is evidence of this, then the surviving spouse can apply for presumption of death as opposed to starting divorce proceedings.
The information on this website is intended as a guide and does not constitute legal advice. Vardags do not accept liability for any errors in the information on this website, nor any losses stemming from reliance upon the statements made herein. All articles and pages aim to reflect the legal position at time they were published, and may have been rendered obsolete by subsequent developments in the law. Should you require specialist advice, tailored to your situation, please see how Vardags can help you.