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
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so what your saying is that if we get a court baliff to go to his ex s house with the divorce papers.And she does not answer the door, ( which she wont to anyone she does nt know) then at least the judge can see at least we have tried to contact her & she is just being awkward holding things up..so then he should issue a degree nisi without her concent anyway.Is this correct.
How long should a court appointed baliff try to deliver these papers for the judge to be happy enough has been done.? An hour/2 maybe.?
Hi Heather
The court will need to be satisfied that she has the papers or that she is deliberately evading service. If the process server has a photograph and identifies her and then files a statement saying that she has deliberately evaded service, this is likely to be sufficient for the court. Process servers have been known to put the papers on the doorstep if the door is not opened providing that they are satisfied that the Respondent is in the house refusing to accept service Although most process servers prefer to wait until the Respondent has left the house and then hand them the papers. Court process servers may have limited time but privately instructed ones may spend more time on this. You need to ensure that the server you instruct has an up to date photograph, description and details of her day to day whereabouts so that he can choose where best to serve.
Best regards
Harjit
Yes we have upto date photos of her and description of her but as for her day to day activities.is a problem as she does nt leave the house alot as she is on her computer alot playing online games etc.. And she does nt work so there is no idea when she will leave the house and as i have said she wont answer the door to anyone she does nt know. So its going to cost us £85 to appoint the baliff.then £45 a hour for him to sit outside her house.its just like throwing money away when we know she wont answer.
Even if the baliff put the papers through her door knowing she is in.would that be satifctory.?
Thankyou harjit for your knowledge and help.
Hi Heather
I can’t give any guarantees because ultimately it’s up to the Judge reading the papers. My view is that if you have absolute evidence that she is in the house and she is the Respondent, posting the papers through the letterbox should suffice. However, there is no substitute for actual service so if she can be handed the papers with a positive identification, that is much better. Also, your Partner may wish to file an additional affidavit detailing the conversations with her admitting she has the papers and saying why she refuses to sign them. The more evidence that you give to the Judge, the easier it will be for him to make a fair decision.
The task for the court is to decide whether she is deliberately evading service / refusing to co operate in signing the papers. If the Judge is satisfied, an order will be made allowing your Partner to proceed to Decree nisi stage. Good luck.
Harjit
My partner does not speak to his ex at all everything is being dealt with through the solicitors..but she has told her solicitor that she wont sign anything until she gets what she wants..
thanks harjit ill let you know how things go on.
Heather
I had no idea solicitors were involved. If that is the case it should be easier. Give me a ring 07980 917882.
Harjit
Hi,
My Italian ex has been served with the divorce petition. Upon his solicitors advice, he won’t sign the documents as he has been advised that this will only result in me being legally divorced in the UK but that it won’t be recognised by the Italian authorities.
In order to overcome this, it was mentione to me that if I can convince my ex to sign, I can then send him another document, which Italy will recognise that he is divorced.
Does anyone know what this document is called and whether this information is true?
Thanks
Hi there
I haven’t heard of any document for him to sign. However, if you can prove that he has received the petition, you may apply to the court for an order of ‘Deemed Service’. This order will allow you to proceed with the divorce without any further input from your husband. The order will be granted if you can prove that he has the petition.
Best regards
Harjit Sarang
Hi, My ex has done exactly the same. It has been 2 years since we have separated, he has already been in prison for harassing me earlier this year.
As revenge, he took me to Court to seek possession of my 4 cats. During the hearing, he had admitted and it was accepted by the judge that he has received and been served the divorce petition. And when asked by the Judge why did he not answer, he plainly replied that he didn’t want to agree with the contents.
What should be my next plan of action?
Write to the Court seeking directions?
The Police also got a restraining order on my behalf before he was sent to prison.
Is this sufficient for the divorce to go ahead without his consent?
Hi there
Yes, you need to apply for a ‘Deemed Service’ order. You will need to remind the court that he admitted to receiving the petition at the last hearing.
Best regards
Harjit
Dear Harjit,
Thank you. I shall apply for the ‘Deemed Service’ order. In the meantime, when I was in court last the Judge hinted in a way that as my ex seeks to defend the divorce to vary the grounds from unreasonable behaviour to separation. How do I do this? He mentions an affidavit.
Thank you.
Hi
It will be a quicker exercise to go for deemed service if your husband has not acknowldged the petition. If he has acknowledged it and given formal written notice to defend then you may need to withdraw the previous petition and file a new one based on separation.
Best regards
Harjit
Harjit,
Originally he did not acknowledge service, however, when he was in Court, the judge directly asked him if he had or had not received the petition.. he finally admitted yes, the Judge took note.
My ex was meant to file his response in May 2011 but he still has not done so.
I doubt he would at all so would a Deemed Service Order still be appropriate? Or shall I just re-apply and vary the whole lot?
Deemed service would be the better option if he has admitted receving the petition. If it fails, you can petition based on separation.
Harjit,
What happens if someone has served a petition on you and they are falsifying things that you haven’t done. Should you ignore it and await them to re-issue the petition with the real facts ?
Hi Tony
If you want the divorce, you may deny the allegations but consent to the Divorce decree. You may state that the allegations are denied and that you reserve your right to challenge them if repeated in any other proceedings. You may also file an answer to the petition or defend. Defending is expensive. What is best depends on the particular facts of your case. Do get specific legal advice even if it’s a hour fixed fee session.
Please don’t ignore the petition because an order can be made in the absence of your reply if your wife can prove that you have received the petition.
Hope that helps.