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Can I get divorced if my spouse doesn’t want to?

A question our family team get asked a lot is: can I still get divorced if my husband/wife doesn’t want to? And the answer, which surprises many, is yes.

When beginning the divorce process, the party instigating the divorce (known as the petitioner) will be required to state the reason for the breakdown of the marriage. There are five options available:

  • Adultery
  • Unreasonable behaviour
  • Desertion
  • Two years’ separation, with consent
  • Five years’ separation.

If your spouse (the respondent) will not agree to the divorce, you will not be able to rely on two years’ separation with consent. However, all other reasons do not require explicit consent from your spouse.

Once the petition has been submitted to the court, the court will send the respondent a document called the acknowledgement of service. The respondent is required to sign and return this document before the court can proceed to the next stage in the divorce, Decree Nisi.

What can I do if my husband/wife ignores the divorce papers?

If the respondent ignores the acknowledgment of service, you have a few options to progress the divorce without the respondent’s engagement:

  1. Deemed service: if the respondent has confirmed to the petitioner in writing, such as in a text message or email, that they have received the divorce petition then the petitioner can ask the court to process the divorce without the signed acknowledgement of service.
  2. Instruct a process server to hand deliver the divorce papers to the respondent. Once the process server has served the respondent with the papers, they will provide a certificate that is sent to the court. If the court is satisfied that the respondent has been served with the papers the divorce will proceed on that basis.
  3. Alternative service: this can include asking the court to serve the respondent with the petition by way of email or through a family member, for example.
  4. Dispense service: if the above methods are unsuccessful, for example if you have made every effort to locate your spouse without success, the final option would be to apply to the court to dispense service. If the court is satisfied all reasonable steps have been taken, the court will grant permission for the divorce to proceed without the respondent’s acknowledgment.

Once one of the above has been satisfied, the court will continue to progress and finalise your divorce as it would had the respondent returned the acknowledgement of service.

The divorce process is set to change in 2021, with the introduction of ‘no fault divorces’. If you have any questions about this, or if you’re considering starting divorce proceedings, get in touch with the family team at Linder Myers Solicitors today.

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