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Divorce

My spouse won’t acknowledge the divorce papers – what can I do?

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James Harbottle
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My spouse won’t acknowledge the divorce papers – what can I do?

Lauren Preedy Partner and Solicitor and Head of Divorce and Relationships Team
Lauren Preedy – Partner and Solicitor and Head of Divorce and Relationships Team

It is a basic feature of any legal system that anyone against whom legal proceedings are brought must be notified of the proceedings. Divorce proceedings are no exception to this rule.

 

Service of papers

The notification procedure is called ‘service’, and so the person to be notified of the divorce proceedings (the ‘respondent’) is said to have been ‘served’ with the divorce papers. The divorce centre (i.e. the court) will require the person taking the divorce proceedings (the ‘petitioner’ or ‘applicant’) to prove that service has been effected, before allowing the divorce to proceed. Service is usually proved by the respondent acknowledging that they have received the papers.

In most legal proceedings service is required for two reasons: to inform the respondent of the proceedings, and to give them the opportunity to defend them. Both reasons exist in our current divorce system, but when the new no-fault system is brought in in April it will no longer be possible for the respondent to defend the divorce. However it will of course still be necessary to inform them of the proceedings.

So how is service effected, and what happens if the respondent does not acknowledge that they have received the papers?

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Service of divorce papers upon the respondent is usually very simple.

Let us say that the petitioner/applicant (the word ‘petitioner’ will be replaced by ‘applicant’ under the new no-fault system) believes that their spouse, the respondent, is living at 1600 Pennsylvania Avenue, Weston-super-Mare. They will give that address to the divorce centre, when completing the divorce application. The divorce centre will then issue the divorce proceedings, and send copies of the divorce papers to the respondent, at 1600 Pennsylvania Avenue, Weston-super-Mare.

The divorce centre will also send to the respondent an acknowledgement of service form. As that name suggests, its primary purpose is for the respondent to acknowledge that they have been served with the divorce papers. The respondent should complete the form, and return it to the divorce centre within 7 days (this can also be done online). If they do so then obviously the divorce centre will know that they have received the papers, and the divorce can therefore proceed.

But what if the respondent does not complete the acknowledgement and return it to the divorce centre? How does the petitioner/applicant then prove service?

Well, there are several options.

 

Other methods of service

First of all you can instruct a process server to personally serve the papers upon the respondent. If they are able to do so, they will complete a certificate of service, which is sent to the divorce centre, as proof that the respondent has been served.

Similarly, you can request a court bailiff to serve the papers. Again, if they are successful, they will complete a certificate of service.

If you know that the respondent has received the papers, for example because they have told you, or you have seen them with the papers in their possession, you can ask the divorce centre to make an order for deemed service – i.e. the divorce centre will deem that the respondent has received the papers.

But what if the respondent is not residing at 1600 Pennsylvania Avenue, Weston-super-Mare or can’t be found there? Here, there are three further options.

If you know the whereabouts of someone with whom the respondent will definitely have regular contact, such as an employer or close relative, you can ask the divorce centre to allow ‘substituted service’, upon that person.

And if you know of an alternative method by which the respondent can be served, for example by email, you can ask the divorce centre to allow service by that method.

Finally, if all else fails you can ask for service to be dispensed with. However, this will only be allowed if all other available methods of service have failed, and if you can prove that you have made all reasonable attempts and enquiries to find the respondent and serve the papers.

 

Ian Walker Family Law and Mediation Solicitors are Award-Winning Family Law and Divorce Solicitors based in Exeter, Taunton, Weston-super-Mare as well as many other locations across South West.

Please get in touch via our contact page and speak with one of our Specialist Solicitors today and see if we can help you with your situation.

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