The biggest concern of a spouse filing for divorce is what will happen when their ex receives the divorce petition. Once the court has reviewed an application for divorce, they will issue the divorce petition to your spouse, along with an acknowledgement of service form to return. But what happens if your spouse won’t respond to the divorce petition? What can you do?
In this situation, the spouse trying to progress the divorce will find themselves unable to move forward. The court will not give their permission to allow you to divorce – the conditional order (previously known as the decree nisi) – without being sure that the other party is aware of and has received the divorce petition.
Are you divorcing under the old law or the new no-fault divorce law?
If you started your divorce before the 6th of April 2022, you are divorcing under the old law and should read the next section. If you started your divorce after the 6th of April 2022, you are divorcing under the no-fault divorce law, and you can skip the what grounds are you divorcing on section.
What grounds are you divorcing on?
The following section is only relevant if you started your divorce before 6th April 2022.
If you are divorcing due to unreasonable behaviour, five years of separation or desertion, it is possible to proceed with the divorce without your spouse returning the acknowledgement of service.
However, if you are divorcing using two years of separation, you need your spouse’s consent. In this case, you will need to amend your petition to unreasonable behaviour or desertion or wait until five years of separation.
If you are getting a divorce using adultery, it would be easier and more cost-effective to amend your divorce petition to unreasonable behaviour, even if you have evidence to prove the adultery.
Assuming that you petitioned your divorce based on unreasonable behaviour or five years of separation, you have three choices if your spouse doesn’t respond to the divorce petition.
My spouse is not responding to my no-fault divorce application
Thankfully the ability for an ex-husband or wife to defend against or point black refuse to divorce has been lost with the introduction of the no-fault divorce law. Under the no-fault divorce law, your spouse cannot defend against your divorce application. This means that any attempt to prevent a divorce from going ahead will ultimately fail.
Three methods to deal with a spouse who won’t respond to your divorce petition
You can choose one of the following methods to progress your divorce if your ex-husband or wife refuses to respond to the divorce papers. These methods cost money, but you can ask the court to make your spouse pay.
Before starting any method, I recommend that you speak to your spouse and tell them that they haven’t got any legal basis to prevent the divorce and that if they don’t sign, you will have to take action, which you’ll ask the courts to make them pay for. In most cases, this drives the message home that refusing to respond will be a costly waste of time which is enough to make a spouse respond.
1. Serve the petition using a court bailiff or a process server (personal service)
If your spouse doesn’t respond to the divorce petition by way of returning the acknowledgement of service to the court within 14 days of it being posted to them, you can ask the court bailiff to serve them personally.
The court does not usually agree to service by court bailiff if you have a legal representative and expect you to use a process server instead. A process server is more flexible and efficient and will usually make several attempts to serve the respondent to progress the divorce.
Once served, the court bailiff or process server will provide a certificate of service for the court to confirm that they have achieved service. If they have successfully served your spouse, you can apply for the conditional order (or decree nisi) without needing the acknowledgement of service to be returned.
2. Apply to the court for deemed service
If your spouse doesn’t respond to the divorce petition and you are sure they have received it, you can ask the court to ‘deem service’. Deemed service is where you ask the court to accept that your spouse has received the divorce papers, even though they haven’t acknowledged them.
To convince the court to deem service, you must provide evidence such as text messages or emails confirming that they have received the divorce petition. Although it is not necessary to also use personal service, it is advantageous as it satisfies the court that the respondent has received the petition. This is why we always recommend personal service rather than deemed service first.
3. Apply to the court to dispense with service.
If it is not possible to serve the petition on the respondent because you have not been able to locate them, you can apply to the court to dispense with service. However, be warned, this application is very arduous. You have to demonstrate to the court that you have tried all reasonable efforts to locate your spouse through social media, old family and friends, places of work and so on. The court will only dispense with service if it is satisfied that you have made complete enquiries to locate your spouse. If you don’t know where your spouse is, a much better approach is to initiate a trace to find them. Once found, you can serve the divorce petition at their address.
How can you avoid your spouse not responding to the divorce petition?
The short answer is communication. The quickest, easiest and most affordable way to divorce is an uncontested divorce – that is, both parties agree to divorce. This doesn’t have to mean you both like it, but rather you agree that the marriage is over and it’s time to move on. In most cases, when separating couples have this discussion, they find they can move more smoothly through their divorce and benefit from a practical, low-cost divorce solution like our fully managed divorce package for £249.
However, divorce is a highly emotive time, and decisions can change. To support our clients and give them the services they need, we provide add-ons for your particular circumstances. This means that if you find yourself in a tight spot, you can purchase personal service, apply for deemed service or even trace a missing spouse if you need it.
Compared to a high street solicitor who charges a price to deal with eventualities that may not happen, we can offer a tailored package that works out at a much lower cost to you.
If you are concerned that your spouse might not acknowledge the divorce petition or if you don’t know where they are, you can email us, call 02045308101 or book a free call with one of our friendly experts who can explain the best options for you.
Key Takeaway
Not responding to a divorce application is a pointless exercise that delays the time it takes to divorce and increases the cost. The best way to deal with a difficult ex who refuses to respond is to speak to them to explain that this will cost them more money.
Failing that, your next best option, in terms of speed, cost and success, is to serve the divorce papers on them using a process server because the court will allow your divorce to proceed even if your spouse continues to refuse to respond.
