A lot of people have this misconception that they cannot obtain a divorce unless their wife/husband signs the paperwork. I strongly believe this misconception stems from TV shows as many a time I have seen a TV character spitefully tell their spouse ‘You can’t divorce me because I won’t sign the papers’. This could not be further from the truth. Of course your spouse could choose to defend the proceedings but that very rarely happens.
When somebody issues a divorce petition they do so on the basis that their marriage has “irretrievably broken down”. The person issuing the divorce is known as the Petitioner and they must prove to the Court that they satisfy one of the following:
1) Their spouse has committed adultery and they find it intolerable to live with them
2) Their spouse’s behaviour is so unreasonable that they cannot reasonably be expected to live with them
3) Their spouse has deserted them for a period of at least 2 years
4) They have been living apart for a continuous period of 2 years and their spouse consents to the divorce
5) They have been living apart for a continuous period of 5 years. No consent is required
Once a petition is prepared it must be served on their spouse and they known as the Respondent within the divorce. The Respondent will receive a form called the acknowledgment of service to complete and file with the court and it is this form that is threatened to be not completed.
A Petition based on 2 years’ separation and adultery are tricky when you have an unco-operative Respondent. The former requires some evidence of consent and the later an admission of adultery. Therefore if you know the Respondent will not co-operate, then to avoid struggling with the technical difficulties, it would be sensible to file a petition based on unreasonable behaviour.
In the meantime, if the Respondent refuses to sign and return the acknowledgment of service, then the Court will have to be satisfied that the respondent has knowledge that the divorce proceedings exist and it is a matter for the spouse whether they choose to participate within those proceedings. In order to satisfy the Court, there are the following options available:
1) Apply for a Court Bailiff (If no legal representation) or Process server (If you have representation) to personally serve the paperwork. Once they have been personally handed the paperwork, the bailiff or agent will provide a statement to the court confirming that they have identified the respondent and provided the paperwork to them. If the Judge is satisfied with this, he will allow the divorce to proceed.
2) Deemed Service – If an acknowledgment of service has not been returned, then you can demonstrate to the Court by various different means of evidence that the Court ought to be satisfied that the Respondent has received the divorce documentation. So you could file a statement with the Court if, for example, the Respondent has made comments on social media about having received the petition but failing to act upon it.
3) Alternative service – in some situations you can apply to the Court for an order that you have tried to serve the Respondent but have been unable to do so. In this situation the Court will provide an order for an service by an alternative method or place, so for example, by placing an advertisement in a local paper which is likely to be viewed by the Respondent or for you to send the divorce documentation to the following i.e. GP, Employer and Department for Work and Pensions. This was previously known as substituted service. If you have already made various attempts, you could ask the Court to consider the steps that you have already taken to be good service. If this request is approved then you can proceed with the divorce.
4) Dispensed Service – If all of the above options fail, then you can ask the Court to make an order that the requirement to serve the Respondent be dispensed with. Such an order will be made where the Court feels it is impractical to serve the Respondent. The Court will have to be satisfied that all reasonable steps have been taken to serve the Respondent. By making this order the Court will be balancing its need to be satisfied that the Respondent has knowledge of the divorce, with your need to progress with your case.
Therefore if your spouse says he/she will not sign the paperwork, this is not the end of the road and merely the beginning; and we can advise you on the various options available to you. If you are struggling to make progress on your divorce and would like expert help, then I would be happy to assist and you can email me Hardeep Dhillon at Hdhillon@thelawhouse.com or telephone me on 0208 899 6620.