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Nel Grimbleby, Consultant solicitor

How to deal with a spouse who is not to responding to a divorce petition

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on a gloomy April (or any other) day.

I am writing this article on a rainy April day the mood of which is captured  by Mathilde Blind  

In her poem April Rain:

“The April rain, the April rain,
Comes slanting down in fitful showers,”

Mathilde Blind (1841 – 1896 / Germany)

On this dreary day I am thoughtful of the few cases I have been working on lately where spouses for various reasons have not completed an acknowledgement of service to respond to my client’s divorce petition.

As members of Resolution, at BH&O we are committed to the constructive resolution of family disputes and we work in accordance with a code of practice. What that means for most clients is that the divorce process is relatively straightforward, that both parties share similar expectations and that few difficulties are experienced in progressing the divorce.

This article, deals with what to consider next where that is not the case and after you have issued a divorce petition and the court has sent the papers to your spouse but you do not receive a copy of your spouse’s acknowledgement of service from the court.

Divorce brings about a fundamental change in marital status. Therefore, the courts must ensure that a person cannot be divorced without their knowledge. In order to apply for decree nisi, the first of two official stages of divorce, if your spouse has not sent an acknowledgement of service to the court you must demonstrate that the divorce petition has been served on your spouse, the respondent. As service cannot be proven in the usual way with a signed acknowledgement of service, other options must be considered.

The Family Procedure Rules permit you to serve the divorce petition and notice of proceedings on the respondent by personal service, by post or by other service that provides for delivery on the next business day.

In the case of personal service, namely delivering the documents directly to the respondent you must not do this yourself but should instruct a third party, usually a process server or agent. The person who served the divorce petition must file with the court a certificate of service stating the date and time of personal service in Form FP6 which can be found online.

You may also serve the documents by first class post but posting alone may not be enough as the court must be satisfied that the respondent has received the documents.

The court can make two orders which can help:

1. Deemed Service – where service has been attempted personally or by post (or other service that provides for delivery on the next business day) if the court is satisfied the respondent has had notice of the divorce the court can determine that enough has been done and service is deemed effective. For example:

  • the respondent refuses to open the door to process servers who put the documents through the letter box
  • documents have been posted to home and there is other evidence of continued occupation of the address
  • solicitors have written to confirm they have been instructed/consulted by the respondent about the divorce petition which the court sent
  • communication from the respondent confirms or clearly implies receipt of the divorce petition the court sent such as emails or the divorce petition signed by the respondent

2. Further or Alternative Service – where the efforts to bring the divorce to the respondent’s attention are not by personal service, first class post (or other service that provides for delivery on the next business day) the court can make an order that service by other means such as voicemail, sms text, email, alternative postal service etc  is effective or that that service should be carried out by defined alternative means if it has not already happened. Examples where this might be appropriate are:

  • the respondent lives abroad and other postal service or email are to be used to serve documents
  • the respondent’s address is uncertain or unknown and reasonable steps to find out have not been successful so emails or text messages have been sent
  • the respondent has not given an address for service but a work address is known

To seek either order an application must be made to the court on from D11 and must be accompanied by a statement in support and the court fee.

Taking these extra steps will add time to the divorce process but should then allow your divorce to proceed like any other. So rather like the poem I referred to at the start, although it may be gloomy when the rain comes or there are unexpected difficulties, progress will follow.

 “The April rain, the April rain,
Comes slanting down in fitful showers,
Then from the furrow shoots the grain,
And banks are fledged with nestling flowers;
And in grey shaw and woodland bowers
The cuckoo through the April rain
Calls once again”.

Mathilde Blind (1841 – 1896 / Germany)

Nel Grimbleby,
Consultant solicitor

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