How to get a divorce if spouse refuses to sign divorce papers.
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Kelly Parks
Head of Family Law – Banner Jones
Kelly qualified as a solicitor in 2003 and has practised exclusively in Family Law since qualification. She specialises in all areas of Family law including:
- Complex Divorce and Separation
- Resolution of complex financial issues and pension sharing
- Civil partnership dissolution
- Children law issues and Contact Orders
- Cohabitation agreements
Can I get a divorce if my spouse refuses to sign?
The short answer is: yes you can! It is always better if your spouse will agree to sign the divorce papers, even if they do not entirely agree to the separation. If your spouse won’t sign, this may cause delay or require additional costs to be incurred. However, this will not prevent you from obtaining a divorce.
Conversely, if you are a respondent spouse who is unwilling to sign the divorce papers, it is important to remember that this will only delay the divorce proceedings it will not prevent the divorce from happening. Where one party to a marriage has decided that the relationship has broken down irretrievably, the relationship cannot continue. It is often better to focus on accessing the appropriate advice and support to help both parties move on from the separation.
Read more from Banner Jones about the length of time divorce proccedings take
Law Changes To No Fault Divorce
As of April 2022, the law changed to allow married couples to apply for a divorce on a ‘no-fault’ basis. This means that when making a Court application for divorce proceedings, neither spouse will have the opportunity to apportion blame or give reasons for the breakdown of the relationship.
Despite this change, some couples may be faced with a non-cooperative spouse who is reluctant to sign the divorce papers. The respondent spouse does not necessarily have to agree or provide consent to the divorce. However, in order for the applicant spouse to proceed with the divorce, they will need to evidence to the Court that the respondent spouse has received the divorce papers.
The easiest way to evidence this to the Court is for the respondent spouse to sign and return the acknowledgment of service form confirming that they have received the divorce application. If Acknowledgment of Service is completed correctly and returned to the Court, the applicant spouse will automatically become eligible to apply for the next stage of divorce, the conditional order, 20 weeks after the date that the divorce proceedings were issued (assigned a unique case reference number by the Court).
If the respondent spouse refuses to return the Acknowledgment of Service form to the Court, the applicant spouse will still be able to proceed with the divorce, but will have to take extra steps before they can apply for the conditional order, and will not automatically become eligible to apply for conditional order after the initial 20 week period has elapsed. Below is a summary of the options available to an applicant spouse where the respondent refuses to sign the divorce papers and return the acknowledgment of service:
Personal Service
In some cases it may be appropriate to instruct a process server or Court bailiff to personally hand the divorce papers to the Respondent spouse. The process server or bailiff will provide a statement of service detailing when, where and how the Respondent spouse was ‘served’ which can be filed with the Court as evidence.
There will be additional fees payable to the process server or Court bailiff, which may be recoverable from the Respondent spouse in some cases. However, under the new law, a separate application will need to be made if you wish to try and recover any costs associated with the divorce proceedings from the respondent, and this will need to be considered by the Court on a case by case basis.
Deemed Service
If the respondent spouse has confirmed that they have received the papers, but have refused to return the Acknowledgment of Service to the Court, then it may be possible for the Applicant spouse to make an application for deemed service. This is where the applicant is asking the Court to make an order that despite the respondent not having confirmed receipt of the divorce papers, it is clear from the evidence provided that they have received the papers and therefore the application for divorce is deemed to have been served on the Respondent by a specific date.
For example, the Respondent may have sent a text message, email or letter referring to the contents of the divorce papers, or in some extreme cases the applicant may have evidence that the respondent has destroyed the divorce papers to avoid having to return them to the Court! If sufficient evidence can be provided to the Court, then an application for deemed service may be the best way forward. Additional costs will be incurred as a separate Court application will need to be prepared with supporting evidence and statements.
Dispense with Service
This is certainly the rarest of the three options, however, in cases where the applicant is unable to locate the respondent and has made sufficient attempts to do so, the Court may decide that the applicant is permitted to proceed with the divorce without the respondent having been served with the divorce papers at all. The Court will expect to see strong evidence that sufficient attempts to locate and contact the respondent have been made, such as searches made through enquiry agents who specialise in tracing individuals. Additional costs and disbursements will be incurred both in attempting to locate the respondent and in making the Court application for deemed service.
If your spouse has not responded to the divorce application within 14 days, then it is advisable to seek legal advice as soon as possible regarding your options for progressing the divorce. Ideally, if the issue of service can be dealt with within the initial 20 week period, the divorce proceedings may be able to proceed without delay. One of our family law experts will be able to advise you as to the best course of action. The earlier you seek advice the better, as this will reduce the risk of delaying the divorce proceedings.
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