30th September 2014
Divorce without consent
What to do when you want a divorce and your spouse doesn’t!
There is one basic ground for divorce in England and Wales and that is that the marriage has irretrievably broken down. This ground is supported by one of five facts upon which you can rely.
The five facts are:
• Unreasonable behaviour
• 2 years separation with consent
• 5 years separation without consent
Only one of these five facts formally requires the consent of your spouse and that is the two year separation fact. People are not advised to issue divorce proceedings on the basis that they have lived continuously apart from each other for a period in excess of two years unless they are certain that their spouse will consent to the divorce. Ideally before proceedings begin, written consent should be obtained from your spouse which in turn can then be attached to the divorce petition. If consent is not forthcoming then you are advised to use one of the other four facts in support of your divorce. It is not possible to progress a divorce issued on the two year separation fact if your spouse does not consent or complete the Acknowledgement of Service document confirming his consent. This will stop your divorce until such time as consent is given and potentially, if consent is never given cause the petition to have to be dismissed and reissued using a different fact which can prove costly in time and money.
With the exception of two years separation, the other facts do not need your spouses formal consent and therefore you can issue a divorce against your spouse without having to obtain their consent.
However problems can arise in divorce proceedings when the petition has been issued by the Court and the Respondent, your spouse, fails to complete and sign the Acknowledgement of Service. By not returning the Acknowledgement they are not indicating that they have either received the petition or that they agree with your stated fact in support of the divorce. In these situations the Court cannot progress your divorce as there is no proof for the Court that the petition has been received by your spouse. This can often be frustrating and causes unnecessary delays to the divorce process.
However, there are ways to prove that the petition has been served upon your spouse. Often when divorce papers are sent by the Court spouses will get in touch with the other and confirm by email or text that they have received the papers. This therefore creates documentary evidence that the divorce has been received by your spouse and if they do not complete and return the Acknowledgement within the prescribed time then you can submit the email/text evidence to the Court with your application for decree nisi to prove that the divorce papers have been received by them. The Court can then assess the evidence and decide whether the divorce can proceed.
Alternatively and the most popular way if your spouse does not contact you about the divorce papers is to engage the services of a process server, similar to a bailiff. The role of the process server is to hand deliver the divorce papers to your spouse without notice. When the process server has identified and confirmed your spouses identity usually by photographic evidence or asking your spouse to confirm their name, the papers will be handed to them. The Process Server will then provide a statement of service which is submitted to the Court with an application for decree nisi to prove that your spouse has received the papers. Your divorce can then proceed without further input or consent from your spouse.
How to make contact
If you would like to discuss the process and fees involved in starting divorce proceedings, please call us on freephone 0808 168 5550 or email email@example.com and we'll call you back.
Our team of Family solicitors are on hand to assist wherever you are based and can meet at a time and location to suit you. We also have offices in London, Birmingham, Bedford, Bolton, Derby, Leeds, Leicester, Luton, Manchester, Milton Keynes, Newcastle Gateshead, Northampton, Nottingham, Oxford, Sheffield, Reading and Wellingborough.