Divorce without consent

In Divorce Breakup advice

Applying for a divorce can be a difficult decision to make, especially if you’re not sure your partner will sign your petition. Crucially though, you do not need your partner’s consent to get a divorce. Although it may be a long process if your partner doesn’t comply, they will not be able to stop you indefinitely.

Grounds for divorce

To get divorced in the UK, you need to prove that your marriage has broken down ‘irretrievably’. You’ll also need to have been married for at least a year. You can apply for divorce on the grounds of five reasons - you only need to use one of them::

Adultery and Unreasonable Behaviour are the most commonly used reasons. This is because the reasons need larger specifics, or you must wait at least 2 years for them. Unreasonable behaviour is also popular because it is subjective. There is a lot of scope for what counts as ‘unreasonable behaviour’ and it is more open to interpretation.

People are not advised to petition for divorce based on separation of more than 2 years. This is because it is also the only one out of the five that requires the consent of your spouse. Unless you are certain your spouse will consent to this point, it is advisable you choose one of the other reasons.

Petitioning for Divorce

To start the process of divorce, one partner will need to apply to the court for one. This partner is known as the ‘petitioner’. The court, in turn, will issue the other partner with the petition of divorce. The court will give you a ‘Notice of Petition’ to tell you the petition has been sent to your partner.

The partner receiving the petition is known as the ‘respondent’. When the respondent has received the petition, they will need to sign an ‘Acknowledgement of Service’ form. This indicates that they have received the petition. The partner then has a few options based on whether they accept the petition’s terms or not. It is worth remembering though that sometimes the process is not as smooth as this.

Difficulties with this process

What can make divorce difficult is if the respondent doesn’t receive the petition and doesn’t sign the Acknowledgement of Service. This can sometimes be because they genuinely did not receive it. However, in most cases, it is because they are refusing to acknowledge they have received it.

The only way a court can continue divorce proceedings is if they have evidence that the respondent has seen the petition. There are a few options if your spouse is refusing to respond:

Deemed Service

There may be evidence that your spouse has seen the divorce petition, even if they haven't signed the Acknowledgement of Service. This could be a text or email to you or even a Facebook message. You can file this evidence at court and ask the court for an order of 'deemed service'. This means the court will have judged your spouse to have seen the petition. If successful, the court will be able to move on to looking to grant a Decree Nisi. The evidence has to be strong for a judge to be sure your partner has seen the petition.

Personal Service

A Court Bailiff can serve the divorce paperwork to your spouse for you. This creates physical proof that the partner has received the papers. They will then provide the court with a Certificate of Service.

The more popular way to reach the spouse is by a process server, who you can hire privately. They will hand-deliver divorce papers to your partner. This will provide physical proof that the partner has received the papers. Again, they will file a Certificate of Service with the court if they are successful. You will need to give the process server a new copy of the divorce petition, and any accompanying papers. These might include a Notice of Proceedings provided by the court or a Statement of Arrangements for any children in the marriage.

Application for service by an alternative method or at an alternative place

You may feel your spouse is more likely to receive the petition at another place other than their home. Applying through the courts, you can get the petition served at an address your partner may be at. This could be their parents’ house or their new partner's house.

Application to dispense with service

If all other attempts at service have failed, you can apply to the courts to continue with divorce proceedings. This is rare – it can happen if a spouse is missing or permanently abroad in an unknown location.

If I’m the respondent, what do I do when I receive a Petition for Divorce?

It is often suggested you hire a solicitor to help advise you once you have received the petition. When you have received it, you have 7 days to respond by way of the Acknowledgement of Service. If you don’t, the petitioner can go to court and apply for a decree nisi. But if you respond within the 7 days, you have a number of options.

You can simply agree with the petition’s explanations of divorce when you return the Acknowledgement of Service. The judge will then be able to continue and grant a Decree Nisi if neither party has a problem with the petition.

Alternatively, you may agree to the divorce but don’t like the reasons your partner has put forward. In this case, you can say you do not want to defend the divorce, but you don’t agree with the allegations. This means the divorce can go through without the reasons being explicit, or on your ex-spouse’s terms.

If you don’t agree with the divorce or the terms of it, you have 28 days to return an ‘Answer’ form. You will need to notify that you are doing this to the court.

You can also defend the petition and ask for it to be struck down. This would mean not going through with the divorce. This can be expensive though, and you will need a solicitor to advise you.

What about finances and children?

In England and Wales, the process for divorce is separate from financial matters and child arrangements. These can both be agreed upon after divorce, however, you may want to reach a financial settlement and make childcare arrangements before you divorce. This is often the best way forward if both parties desire a ‘clean break’ from their ex after divorce.

Divorce can be a sensitive topic, and a difficult one. Here at The Law Superstore, we hope to make the whole process smoother for you. We do this by providing you with quotes from leading local solicitors, to help you find the perfect choice for you.

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