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On the face of it this may sound like an unusual question, but in fact in some cases, yes it is possible for you to be divorced without your knowledge.
The reason for this is because a divorce petition does not always require the other party to respond in order for the divorce to be granted by the Court. And in no-fault divorce this could become even more relevant.
Divorce pre-6th April 2022
If your divorce took place before April 2022, the law required the Petitioner (the person requesting the divorce) to prove that the relationship had broken down to a point where it could not be saved.
There were five accepted reasons for relationship breakdown that they would have had to quote when filing for divorce:
- Unreasonable behaviour
- Adultery
- Desertion
- 2 years’ separation (with the agreement of both parties)
- 5 years’ separation (without the agreement of both parties)
If your spouse wished to divorce you on the grounds of ‘desertion’, then you would not necessarily have had to consent to the divorce.
If the Petitioner could prove that you deserted them, and that they made reasonable attempts to contact you, the Court may have agreed to the divorce without you (the Respondent) having agreed to this.
The same is true if your spouse petitioned for a divorce on the basis of five years’ separation. If your spouse could not locate or contact you, it is possible for you to be divorced by your spouse without your knowledge.
In both the above cases, attempts would have been made to contact you and to notify you of the divorce proceedings. You may not have been able to respond if you moved away, but typically, thorough efforts will have been made to try and locate you before the divorce could proceed.
The other situation in which you could be divorced by your spouse without your knowledge is on the basis of ‘unreasonable behaviour’.
This is because a petition on the grounds of ‘unreasonable behaviour’ did not require you to complete and return the ‘acknowledgement of service’ from the Court. This is a form where you confirmed you had received the divorce petition. You or your solicitor could have responded to this.
It is possible, for example, that your refusal to reply to any correspondence that you received could be cited as a contributing factor to your unreasonable behaviour. Or it could have been in your spouse’s interests not to correspond with you if you behaved in a violent or aggressive manner.
If your spouse petitioned for divorce on the basis of adultery or two years’ separation, then you cannot be divorced without knowing about it. That is because, in these circumstances, you or your solicitor must have completed and returned the ‘acknowledgement of service’.
Your spouse could have only applied to the Court to finalise the divorce after you completed and returned these forms. Of course if you did not return the paperwork, your spouse could have divorced you on the grounds of unreasonable behaviour where your consent may not be required, as explained above.
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Divorce after 6th April 2022: ‘no fault’ divorce
From April 2022, divorce applications do not include a ‘fault’ attributed to either spouse for the relationship breaking down (such as adultery or unreasonable behaviour). Now, either spouse, or both jointly, can apply for divorce with no reason being given other than that they state that the marriage has broken down irretrievably. Theoretically at least, no fault divorces could lead to more people not being aware they are divorced. This is because, in most cases, the respondent (which is the spouse who hasn’t applied for the divorce) will be sent an email notification confirming that their spouse has made a divorce application. The divorce application will be attached to the email and they will have been given a date to respond by. If the email address is incorrect or no longer in use, or gets lost in the junk folder, for example, someone may not be aware that a divorce application has even been made.
Similarly, if a divorce application has been made on paper and posted to an address the respondent no longer lives at, this could also be a reason someone may not know they were divorced. This is because applicants can progress a divorce to final order without the engagement of the respondent providing they have followed the necessary steps.
Under current divorce law, the general rule is that the court will send the application to the respondent, which can either be by email or via post. Generally, if the applicant provides an email address for the respondent on the divorce application, it will be served on them by email, with a notice confirming this has been done, by post.
That said, there are some situations that may occur during service which means there is a possibility a respondent may not receive the divorce application:
- Where the email address for the respondent has not been given, or the applicant does not wish for the respondent to be sent the application by email, the Court will send (serve) the application by post.
- If the applicant does not have the postal address of the respondent but does have an email address, the applicant must apply for alternative service by email alone.
- If the applicant has been sent a notification of failure of service on the respondent by the Court, (e.g. an undeliverable notice from Royal Mail), the applicant can request the court serves the respondent at an alternative address. If this fails, the court will not attempt to serve (send) the application again.
- If the respondent lives outside the UK, methods of international service remain unchanged. The court will not serve an application outside of England and Wales so the applicant must complete the step required, depending on the method of service, within 28 days after the date the application was issued by the court.
Can I find out if I am divorced?
Yes. To find out whether you are divorced you should contact the individual County Court where you believe the divorce would have been heard.
If you don’t know which county the potential divorce is likely to have taken place in, you can ask the Central Family Court to search for a Decree Absolute or final order.
You need to complete a form (found on the government website) and pay an administration fee. The fee is charged ‘per ten-year period searched’.
Could I still be married when I thought I was divorced?
Whilst rare, this has happened before. In one example a Cardiff couple believed they were divorced but had in fact had unwittingly never applied for the decree absolute, and so were in fact still married. Years later, the husband died and the ex-spouse found out she was in fact a widow rather than a divorcee. This then led to various complications regarding what would happen to his estate; should it go to his estranged wife or his new partner and his family? It clearly pays to ensure that the divorce process is handled professionally and thoroughly.
Do you need help with your divorce?
Get in touch now with one of our panel of specialist local family solicitors.
The information on this website is to be considered a guide and is therefore not legal advice. You use this information with the understanding that Wiselaw does not accept liability for any direct or indirect losses as a result of anyone relying on or acting upon the information on this website. Whilst we endeavour to provide accurate information, Wiselaw does not accept liability for any errors or omissions on this website.
