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What happens to?
The most commonly asked questions from couples separating or divorcing
Monday, October 11, 2021
A common problem within divorce proceedings is that one party simply refuses to cooperate and ignores the divorce petition.
If you anticipate that your spouse will hold up the divorce proceedings or refuse to cooperate, it would be unwise to base your divorce petition on 2 years separation or adultery – which both require your spouse’s active involvement to progress the divorce.
Rather the divorce should rely on the fact of your spouse’s “unreasonable behaviour” or 5 years separation (if appropriate) which does not require their active involvement to progress the divorce.
What happens when my spouse ignores the divorce petition?
You cannot progress your divorce until the court is satisfied that your spouse has received a copy the petition.
Your spouse will receive, by post, a copy of divorce petition from the court. They are asked to compete and return an “acknowledgment of service” confirming they have received the Petition. If they do this the divorce can then proceed without any further involvement from your spouse.
What happens when my spouse does not return the acknowledgment of service ?
You need to be able to prove to the court that your spouse has received the petition. There are various ways that you can do this;
Deemed Service
If you have evidence from your spouse that they have received the Divorce Petition, such as a letter, text or an email, you can make an application to the court for “deemed service”. You need to provide a copy of the letter, text or email with your application. If the court is satisfied that your spouse has received the Petition the divorce can proceed without any further involvement from your spouse.
Court Bailiff
You can pay an additional fee to the court for the court bailiff to personally re-serve the Petition on your Spouse. Once the bailiff has served the Petition, there is no need for your spouse to return the acknowledgment of service to the court. The divorce can then proceed without any further involvement from your spouse.
Process Server
The most effective way to serve the Petition on your Spouse is to instruct a process server. The advantage of a process server, over a Court Bailiff, is they will go to greater lengths to effect service, including visiting their home or workplace numerous times until they manage to serve it.
Once the Process Server has personally served the Petition, there is no need for your spouse to return the acknowledgment of service to the court. The divorce can then proceed without any further involvement from your spouse.
Dispensed Service
In exceptional circumstances, the Court will allow a petition to proceed knowing your spouse has not received it. For instance, if you do not know where your spouse lives. It is necessary to demonstrate to the court the extensive efforts to try and locate your spouse.
Can my spouse refuse to divorce me ?
In a nutshell, no, your spouse cannot prevent a divorce proceeding. If they refuse to cooperate, it will be necessary for you take some additional steps, such as using a court bailiff or a process server.
Your spouse may be ordered to pay any additional costs you have incurred as a consequence of their failure to partake in the process, such as the cost of the process server.
If you would like any advice on what to do when your spouse ignores the divorce petition please do not hesitate to contact our specialist and friendly Family Law team on 0191 2328451 or if you prefer, via email familydepartment@samuelphillips.co.uk
Written by Sarah Ward, Partner – Divorce and Family
Sarah “Best divorce lawyer in the North” and “Wonder Woman of the Divorce World”, joined Samuel Phillips Law in 2019.
