Divorcing your husband or wife can be extremely emotionally draining, and it can be heightened if your partner refuses or “defends” the divorce.
However, it is possible to get a divorce in England and Wales even if your partner refuses the divorce.
What happens if one partner doesn’t want a divorce?
The end of a marriage can be extremely difficult, and it can be made even worse if your partner doesn’t want a divorce. However, the good news is that you can still apply for a divorce even if your partner doesn’t agree with you thanks to the no-fault divorce law.
The no-fault divorce law means that one party can apply for a divorce and they only need to make a statement that the marriage has irretrievably broken down, which is all the court requires, rather than having to establish one of the previous five grounds for divorce.
Was the option to contest a divorce removed?
Yes, under the no-fault divorce law, a divorce or dissolution can only be contested in extremely limited circumstances in which the court feels compelled to further investigate.
For example, a person may contest a divorce proceeding if they argue that the country in which the divorce is taking place does not have jurisdiction to deal with the divorce or that the marriage is not a valid marriage.
How to get divorced without your spouse’s consent or co-operation
When you file for a divorce on your own, it is known as a sole divorce and you are the applicant. Your spouse is known as the respondent in this situation.
When you first file for a divorce, your partner will be sent an Acknowledgement of Service form. It is the respondents role to return the form, stating whether or not they agree to the divorce. They have eight days to respond.
Although your spouse should, they may end up not responding to the Acknowledgement of Service form. This can be frustrating, and it may feel like you are wasting your time and money. However, there are steps you can take to make the divorce happen and these are detailed below:
Apply for deemed service
Applying for deemed service is one way to get a divorce in the UK if your partner does not consent and co-operate with the divorce. You will have to submit an application to the court to ask for the divorce to proceed without the completed Acknowledgment of Service form.
Deemed service will only be granted if you can prove that your spouse received the Divorce Application and Acknowledgement of Service form, but has just not submitted it. If they have texted you about the forms, you can use this as evidence that they have indeed received the divorce documents.
The decision to approve a deemed service application is made at the judges discretion, so even though you apply for it, it does not necessarily mean you will be granted it. It should be granted if you have evidence of the service, such as text messages or a conversation between a solicitor and a respondent in which they confirm that they received the divorce documents.
Instruct a process server
If you do not have grounds to apply for deemed service, you can instruct a process server to physically hand the divorce documents to the respondent.
A process server is someone who physically serves the divorce papers at your spouses home or other known address. Once they have delivered them, you will be provided with a statement which you must present to the court as evidence of the service. The court will then decide whether you can apply for the conditional order previously known as the decree nisi.
Apply for substituted service
If neither deemed service or a process server are possible ways forward to progress the divorce, you are unfortunately expected to continue to try all avenues to get in contact with your spouse in order to get a response from them.
If they are refusing to cooperate, you can apply to the court and detail all the efforts you have made to serve the respondent and ask the court to substitute some other form of service, such as via a third party, but all avenues must have first been exhausted.
Apply to dispense with service
This application is a last resort as it is very difficult to obtain as there would usually be a way to trace and serve a respondent, and so these applications are very rare.
Dispensed service means to proceed with a divorce without your spouse’s acknowledgement of service and without any evidence that the respondent has been effectively served. This will only be granted if the court is satisfied that you’ve genuinely done everything you can to find your spouse and serve them with the divorce papers.
If you are wishing to start a divorce without the consent of your partner, or your partner is starting a divorce against you that you don’t agree with, contact VM Family Law today to see how our expert family law specialists can help you.
We know how emotionally draining divorce can be, which is why we take the time to understand your specific circumstances and provide you with all the expert advice and assistance you need.