This happens quite frequently. Fortunately, there is a way around this but it involves time and expense unless you are in receipt of public funding.
You have issued a divorce petition that has been posted to your spouse’s last known address by the court. 14-21 days have passed and you have not received a reply. You telephone the family section at court and you are told that they have not received anything.
Your spouse may not have to replied to the divorce petition for one of the following reasons; 1- Genuinely didn’t receive it 2- To make it harder for you to get divorced 3- Just cannot be bothered to reply 4- Doesn’t know how to complete the form 5- Cannot afford legal advice to complete the form.
If you know that he has the papers and the address for service is correct, your next step is to apply to the court for an order of Deemed Service by affidavit. This is an order confirming that your spouse has received the divorce papers. In order to get it, you must satisfy the District Judge that your spouse has indeed received the divorce papers. Postal service is usually insufficient.
Often a client will want to file an affidavit confirming that the spouse phoned them to say that he/she had received the divorce petition. This may be accepted by some District Judges. However, the best way forward is to hire an independent process server to personally serve the papers on your spouse and then file a statement to the court confirming so. If a reply is not received, the court will have independent evidence that your spouse is choosing not to respond. The reason for not responding is irrelevant. The District Judge will simply want to be satisfied that the papers have been successfully delivered.
Once satisfied of good service, the District Judge will grant an order of Deemed Service for you to proceed. You then apply for the first certificate of divorce, the Decree nisi. It does not require any co operation from your spouse.
If it is the case that you cannot find your spouse because you no longer have an address, you will need to apply for an order to dispense with service. The District Judge may grant this order if you have satisfied the court that you have made every effort to find your spouse. Normally this involves contacting previous employers, friends, family and even putting an advert in the local paper.
Once an order to dispense with service is granted, you may proceed to Decree nisi stage. Your spouse has no involvement after the order to dispense with service is made.
Six weeks after decree nisi pronouncement, you may apply for Decree absolute and the divorce is final. The risk of finalising a divorce without dealing with financial matters is beyond the scope of this blog.
Best regards, Harjit Sarang