Whilst the first steps in a divorce are uncomplicated procedurally; you may encounter difficulties if your spouse refuses to engage. Kai Whicker, a solicitor in our Family team explains how you can proceed with your divorce if this happens.
What are the first steps in divorce?
The first step in any divorce process is to file a Divorce Petition, which will usually be sent to your spouse in draft to consider in the first instance, then filed at Court, ideally once the contents have been agreed upon. Once issued by the Court, the Respondent will have 7 days to file an Acknowledgement of Service with the Court from the date of receipt. This is a self-explanatory document that asks the Respondent spouse, in essence, to confirm that they have received the Petition and whether they intend to defend it.
For the Petitioner, the importance of the Acknowledgement of Service lies in the principle that without some form of acknowledgement from your spouse following service, you cannot apply for Decree Nisi, the next step in your divorce process, unless under very strict conditions. It is only once Decree Nisi has been pronounced that a Court will consider any financial settlement between the parties.
This is all relatively uncomplicated procedurally; however, you may encounter difficulties if your spouse refuses to engage in the process.
Your options if spouse refuses to engage
If your spouse does not engage with the divorce, you have several options open to you:
Wait and hope:
This is not ideal as your spouse may choose to never address the divorce, leading to an impasse and wasting your time considerably.
Find evidence of an informal acknowledgement:
This could be via a message sent directly to you, or even (and perhaps increasingly) by a post on social media for example. Evidence that the Respondent has in fact received the Petition, but has chosen to ignore it, can be sent to the Court for consideration as to whether Decree Nisi can be pronounced without the formal acknowledgement from your spouse. This is known as Deemed Service.
Use a process server:
If you do not feel you can rely on your spouse to file a formal acknowledgement, or if you have a pressing time constraint, you may wish to engage the services of a process server to carry out Personal Service.
The process server will need the necessary documentation, to include the Petition, Notice of Issue, and the acknowledgement of service form, usually along with a covering letter. A description of your spouse, photograph, and information regarding his or her likely whereabouts will be used by the process server to identify them.
Arranging a Personal Service when your spouse refuses to engage
Arranging personal service of the papers on the Respondent is generally a straightforward process, provided their whereabouts can be ascertained. It is also a relatively cost-effective approach to take and in any event, if divorce costs are being sought, the cost of instructing a process server will be recovered in due course.
Process servers are usually able to act promptly and once they have successfully served the Respondent, they will provide an affidavit that can be sent to the Court with your Application for Decree Nisi, with no engagement in the process now necessary from your spouse.
What about financial matters?
It should however be noted, that whilst the above steps can be taken to ensure the divorce process progresses, different measures will need to be taken should your spouse refuse to cooperate in respect of financial matters.
How we can help if your spouse refuses to engage with your divorce
If you are encountering or expect to encounter any difficulties with a spouse who is unlikely to cooperate, the family team at Stephens Scown will be able to assist and advise regarding the most appropriate approaches to take.