It can often be a concern of clients that their spouse will not co-operate with the divorce process. If you find yourself in the situation where your divorce petition has been issued by the court but your spouse is refusing to respond then you would need to consider your legal options.
Once the court has issued a divorce petition then send a copy to the Respondent alongside a document called the Acknowledgment of Service for them to complete and return to the court. The respondent is given 7 days to complete and return the acknowledgment of service to the court. The acknowledgment of service confirms that the respondent has received the petition and whether they consent to the divorce. Once the acknowledgment of service has been returned and if the respondent does not intend to defend the divorce, then it allows you to continue to the next stage of the divorce.
If the Respondent does not return the acknowledgment of service then there are a few options depending on what fact you relied upon for the divorce.
If you have relied upon unreasonable behaviour, 5 year separation or desertion then you can proceed without your spouse returning the acknowledgment of service. If you have relied upon 2 years separation or adultery then you court will require the respondent’s express consent or admission by returning the acknowledgment of service.
The first step would be to contact your spouse directly if possible and remind them to complete and return the acknowledgment of service. If you cannot contact your spouse, or they choose to continue to ignore you then you may want to consider amending your petition if you have relied on 2 years separation or adultery to rely on one of the other facts that do not require your spouse’s express consent.
If you have relied on the fact of unreasonable behaviour, 5 years separation or desertion then you have the following options to proceed with the divorce.
Firstly, you can arrange for the petition to be served on the respondent by a process server or court bailiff. Once your spouse has been served then the process server or court bailiff will provide a certificate of service to confirm that the spouse has been successfully served. The court will then consider whether they are satisfied that your spouse has been served and is aware of the proceedings. If the court is satisfied then you can proceed to the next stage without your spouse returning the acknowledgment of service.
Another option is applying for ‘deemed service’. If you have any evidence that your spouse has received the petition from the court, such as correspondence or detailed account of any conversations then you can apply to the court for ‘deemed service’. Again, if the court are satisfied that your spouse has received the petition then you may be entitled to continue with the divorce without the acknowledgment of service being returned.
If the above two options are unsuccessful then you could consider an application for Alternative Service. You would need to ask the court for permission to notify your spouse of the divorce proceedings using a different method other than posting to their last known address. This could be via a relative, an employer or by email.
There are some unique situations where the court will allow you to dispense with service. This is only usually granted where it is not possible to serve the divorce petition at all. This can usually be where the whereabouts of the spouse is completely unknown. The court will need to be satisfied of your efforts to try and locate your spouse. This application is a last resort.
If you would like further advice on the divorce process then please get in contact with our family department 01243790532 or email email@example.com.