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To get a divorce England or Wales, one party (the ‘petitioner’) has to issue divorce proceedings and the other (the ‘respondent’) has to acknowledge these proceedings. This means that, if the respondent does not respond to the divorce petition, the party who issued the proceedings has to take some extra steps if they want the Court to grant the divorce.
When the respondent receives the divorce petition, it includes a document called the ‘acknowledgement of service’. It asks them to confirm that they have received the divorce papers and that they consent to the divorce. Your spouse has to sign and return this document to the Court.
If they don’t, you may have to take additional steps.
The grounds for divorce – and what requires your spouse’s consent
When you complete the divorce petition, you have to state the reason that your marriage has broken down irretrievably. There are five ‘facts’ or commonly referred to as grounds for divorce:
- Adultery – if your spouse admits to adultery and consents to the divorce, the Court is likely to accept it. If they do not admit, you will have to provide evidence of the adultery. You must also prove that it is intolerable to continue to live with your spouse.
- Unreasonable behaviour – this is where your spouse behaves in a way that you can no longer reasonably be expected to live with them. This behaviour can be very broad or very specific.
- Desertion – your spouse has left you to end your relationship at least two years ago
- Two years’ separation with consent – you have been separated from your spouse for at least two years and both parties consent to the divorce
- Five years’ separation – you have been separated from your spouse for at least five years (no consent is required).
The only two grounds that do not require consent from your spouse are ‘unreasonable behaviour’ and ‘five years’ separation without consent’. Other grounds need your partner to agree to the divorce.
Even if you have selected one of these two grounds, you still have to satisfy the Court that your spouse is aware of the divorce proceedings. If they do not return the ‘acknowledgement of service’ then the process can become more complicated.
Can I still get divorced if my spouse won’t agree?
The only way that the Court can continue the divorce proceedings is if they have evidence that the other party has seen the petition. So, if your partner is refusing to respond, there are some options.
If you have any evidence that your spouse has seen the divorce petition, you can file this at the Court and ask for an order of ‘deemed service’. This may be a text, email or a message via social media.
If granted, the Court will accept that the other party has seen the divorce papers.
Here, you pay an additional fee and ask for the Court Bailiff to re-serve the divorce petition on your spouse. Once the Bailiff has served the petition, you don’t then need your spouse to complete and return the acknowledgement of service.
This is similar to the above. However, the process server will typically go further to effect service therefore increasing your chances of success.
If none of the above methods have been successful, you can then apply to the Court for ‘dispensed service’.
If the Court agrees this, you will be allowed to proceed with your divorce without the acknowledgment of the other party. The Court will only award dispensed service once they are completely satisfied that you have made all possible efforts to serve the divorce petition on the other party.
In this instance, your spouse could be divorced without knowing it.
What if I don’t know where my spouse is?
As we have seen, the Court will only allow you to proceed with your divorce if you can evidence that you have taken all possible steps to serve the divorce papers on your spouse.
This can be a problem if you don’t have an address for your spouse, or they have moved away.
In this instance your options are:
- Head online and do some research. Use the electoral roll, or ask friends and family for details of where they are living
- Find an address for a close relative, as a divorce petition can sometimes be served on a relative if they are still in touch with your spouse
- Speak to a professional agency about obtaining a ‘location report’. Agencies have access to a range of databases and can often track down an individual.
If I am the respondent, what do I have to do?
When you receive the divorce petition, you have seven days to respond. You should do this by signing and returning the acknowledgement of service. When you do this, you can:
- Agree with the petition
- Agree to the divorce but disagree with the reasons your spouse has given. You can choose to not defend the divorce, but that you don’t agree with the contents of the petition. Here, the divorce will proceed without explicit reasons being given
- Do not agree to the divorce or the terms of it. You must notify the Court that this is what you intend to do, and you then have 28 days to return an ‘answer’ form
- Defend the divorce and ask the Court to cease the petition.
What if we have been married for less than a year?
You cannot get divorced if you have been married for less than one year – with or without your spouse’s consent.
In this instance you can get a separation agreement or legal separation, to agree the terms of how you might want to separate before you actually get a divorce.
A legal (or ‘judicial’) separation allows you to separate without getting divorced. You and your spouse can make formal decisions about finances and living arrangements, but you will remain married. This is an option if you have been married for less than one year.
Do you need help with your divorce?
Get in touch now with one of our panel of specialist local family solicitors.
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