Instigating divorce or dissolution proceedings can be an extremely difficult time in your life. This can be exacerbated when your partner refuses to engage in the process.
Following the legislation change in April 2022, there is only one ground for divorce or dissolution, which is that the marriage/partnership has “irretrievably broken down”. There is no need to explain why or apportion any blame for the break down. What this means is that your partner will only be able to dispute the divorce/dissolution in extremely limited circumstances, such as where there are questions surrounding jurisdictional challenges, validity of marriage, or whether the marriage has already legally ended.
For ease of reference, this article will discuss the procedure on the basis of a divorce application, however the same rules will apply to the dissolution of a civil partnership.
What do I do if my spouse ignores my application for divorce?
Under the old rules, your spouse would have needed to consent your divorce application, unless you had been separated for a period of five years.
Under the new rules, an application for divorce can now be made without your spouse’s consent. You are also able to make an application on a joint basis, i.e. both of you start the proceedings together, both as the “applicant”. If your spouse does not want to engage in the divorce, or if for any reason you wish to make the application yourself alone, you can make a sole application.
Once your application is submitted to the court and is processed, it will be sent by email and post to your spouse, inviting them to acknowledge receipt of the application and proceedings. Your spouse will have 14 days to acknowledge receipt of the application. If they ignore the application and do not respond to the court, then you will be required to evidence to the court that it has been received.
Alternative methods of service
There are four initial ways to effect service of your divorce application, and these are as follows:
- Personal service: i.e. leaving the documents personally with your spouse. This is usually undertaken by what is known as a “process server”. This can be someone instructed in a professional capacity by your solicitor to personally deliver the documents to your spouse.
- By first class post, or other service which provides for delivery on the next business day.
- Document exchange: i.e. whereby the documents are sent by DX using their DX number. This can be used when serving documents on your spouse’s solicitor.
- By email exchange: this involves emailing a copy to your spouse’s known email address, or their solicitors if they are formally instructed. Where an application is sent by email, a notice confirming this service must be sent to your spouse’s postal address by first class post or other service which provides for delivery on the next business day.
The court does have a wide discretion to permit service by alternative methods or at an alternative place where there is good reason to depart from the methods of service set out above. This application can be made “without notice” to your spouse, which permits applications where the whereabouts of your spouse cannot be ascertained. Where an application for alternative service is made, the application must be supported by evidence setting out the following provisions:
- The reason why you are seeking for that method of alternative service.
- What alternative service you are proposing, for example service by SMS; and
- Why you believe that the document is likely to reach your spouse using that alternative method or place.
If the application is accepted by the court, you will have permission to use the alternative method of service on your spouse.
Deemed Service
If you have evidence that your partner has received the application but will not respond, you can apply to the court for deemed service. You will need to provide evidence to prove that your partner has received the divorce application, and the court will then decide whether your application can progress without their response.
Dispensing with service
If it is not possible to locate your spouse or any means of contacting them to serve a copy of the application have not been met with a response, you can apply to the court to request that the court dispense with application of the service. This will mean that the requirement on you to evidence that your spouse has received your divorce application will be waived, allowing your divorce application to proceed. For the court to accept this application, you will need to evidence that you have made all reasonable efforts to serve the divorce application on your spouse – it is important to seek advice from your solicitor in this respect.
What about my finances?
If your spouse does not wish to engage in financial settlement discussions, you will need to make an application to the court to ensure that an appropriate financial order is made on your divorce. If you do not resolve your finances on divorce, the claims will remain open between you and your spouse. Our specialist family team can advise you further if this may apply to you.
If you require any advice regarding divorce or dissolution proceedings, please contact our Family team who will be happy to help.