A divorce throws up many different emotions and whilst this can result in some spouses seeking to address the legal position immediately on separation, for others the thought of legal proceedings of any kind can be overwhelming.
In this situation, issues can often arise with the progression of divorce proceedings and one of the most common problems that solicitors are asked to advise on is what to do when one spouse is failing to engage with the divorce process or their exact whereabouts are unknown.
The basics on How to Apply for Divorce when your Spouse won’t Sign
When a Petitioner spouse issues a divorce petition, the Court then sends a copy to the Respondent spouse together with a request to complete and return a form called the “acknowledgement of service” to the court within 7 days of receipt.
The purpose of the acknowledgement of service is for the Respondent to acknowledge receipt of the divorce petition and to indicate to the court whether he/she wished to defend the proceedings.
In order for the divorce to proceed, the court must be satisfied that the Respondent has received the necessary papers and has had the opportunity to respond to the petition if they wish to do so.
If the acknowledgement of service is not returned to the court then in order to progress the proceedings, the Petitioner spouse will need to consider what steps can be taken in order to satisfy the court that the Respondent has indeed received the documents and is simply choosing not to return the acknowledgement of service.
There are a number of options for the Petitioner spouse to consider:
Where the address of the Respondent Spouse is not known
Best efforts should be made to try and locate where the Respondent spouse is living but if the Petitioner spouse cannot find this information then they may wish to consider making an application for substituted service.
If the Petitioner has the details of the Respondent’s workplace or a close family member who they know to be in touch with the Respondent then an application can be made for permission to serve the papers at this third party address- this is known as “substituted service” and the application should be made at the outset of the application.
Where the address of the Respondent spouse is known
If the acknowledgment of service is not returned within the court’s timetable then a request can be made for personal service by the county court bailiff or a private process server. This independent third party will then attend the Respondent and personally serve them with a copy of the documents. The bailiff/process server will then prepare a statement of service that is filed with the court as proof that the Respondent spouse has received the documents.
Alternatively, if the Petitioner Spouse has good evidence that the Respondent has received the documents then he/she can use this evidence to support an application to the court for deemed service.
An example of the type of evidence that might be appropriate would be an email, text or note from the Respondent referring to the papers- a conversation or telephone call would probably not be enough as there is unlikely to be any independent evidence.
If the Court is satisfied that the documents have been received by the Respondent spouse then the Judge can make an order that service is deemed to have taken place and the divorce process can continue.
There will be an additional court fee for deemed service and so if the issue is the Respondent’s failure to engage then it may well be worth asking the court to make a costs order at the same time- although the practicalities of enforcing a costs order is a matter for another article..
It is always a good idea to get legal advice about any issues with service so that you use the correct method to ensure the timely progress of your petition.
Anne McAllister is a family solicitor and Mediator at Morrisons Solicitors LLP and deals with matrimonial, financial and children issues arising from separation. She is based in their Wimbledon office and together with her colleagues she assists clients across London and Surrey.