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What can I do if my spouse doesn't respond to my divorce papers?
- AuthorLaura Cotton
When the Petitioner makes an application for a divorce, the spouse, known as the Respondent, is sent a copy of the application along with a form to complete called an Acknowledgement of Service (AOS). They are required to complete the AOS, which acknowledges that they have received the divorce application and confirms whether or not they wish to defend the divorce and whether or not they are happy to pay the Petitioners costs, if the relevant claim for costs has been made. They are required to return this form within 14 day of receipt, and once returned this allows the Petitioner to proceed with the divorce and apply for the Decree Nisi.
Petitioners, however, often find themselves in a situation where the Respondent refuses to return the AOS, which can bring a halt to proceedings, and cause unnecessary delay and cost. There are several options available to a Petitioner should this happen. The purpose of the AOS is to ensure that the court are satisfied that the Respondent has had sight of the petition and has been given sufficient opportunity to defend so if this form is not returned other methods to prove service must be taken.
Often a letter from a solicitor can encourage an unwilling Respondent to engage in proceedings and can result in them deciding to return the AOS to Court. If this is unsuccessful, the Petitioner has the option to instruct a process server, to personally serve the divorce papers on the Respondent. The process server would then complete a statement of service, confirming that the Respondent has been served with the divorce papers. This statement of service would be filed at Court alongside the Decree Nisi application, and letter to the court explaining that the Respondent has received the divorce papers, and therefore requesting for the proceedings to proceed to the Decree Nisi Stage, in the absence of the AOS.
If a process server is unsuccessful, another option available is to make an application to court for ‘Deemed Service’, which is effectively asking the court to accept that the Respondent has received the divorce papers, even though they have not returned the AOS. Different evidence would need to be filed alongside this application, which could range from written confirmation that the Respondent has received the papers, whether that be via text or email; obtaining a statement of attempted service from a process server confirming the papers were left at the known property; confirmation from a solicitor for the Respondent that the petition has been received. Provided a Petitioner can persuade the court that the Respondent has received the divorce application, it is likely that they will be willing to make an order for deemed service, which will then allow the Petitioner to apply for the Decree Nisi, and eventually the Decree Absolute, without any involvement from the Respondent.
If it is proving impossible to serve the Respondent at their last known address, the Petitioner can apply to the Court for ‘Alternative Service’. This is an application to either serve the Respondent by an alternative method or an alternative place. For example, the Petitioner may not be sure of the Respondents current address, but knows their work address. If this was the case and the Respondent wasn’t returning the AOS, the Petitioner could apply to serve the Respondent at their work address. The Petitioner also has the option to apply for service to take place by an alternative method, such as via email.
The final option available is to apply to the Court to dispense with service altogether. The Court may dispense with service of an application where it is impracticable to serve the application by any method mentioned above. This application must be supported by evidence that the Petitioner has exhausted all possible options to serve the Respondent and to locate the Respondent and has continued to be unsuccessful. The court may also require the Petitioner to attend court before making such decision.
The above options can often incur additional costs for the Petitioner, however if the Petitioner has made a claim for costs in the divorce application, these costs can be included within the claim and Order sought.
If you are currently in divorce proceedings and need assistance with service, or are considering a divorce and wish to discuss your options, please do not hesitate to contact us to arrange a Fixed Fee Initial Consultation at which you will be able to discuss your queries with one of the specialists in our Family Law Department.