19 Feb My husband has not responded to my divorce petition what can I do?
You have applied for your divorce, the court has sent your husband the divorce petition and the acknowledgement of service form but they have not returned the completed form to the court, what can you do to move the divorce forward?
Your options to move the divorce forward will depend on whether you ticked the box in your divorce petition for behaviour; or adultery; or 2 years separation; or 5 years separation.
Whilst this article is written from the perspective of a wife, the same would apply if you are a husband applying for a divorce against your wife and your wife has not responded to your divorce petition.
Behaviour or 5 years separation
If you ticked the option of behaviour or 5 years separation in your divorce petition, the court will need evidence your husband has received the divorce petition (evidence of service).
Evidence is normally provided to the court by your husband returning the acknowledgement of service form to the court, which is confirmation they have been served with the divorce petition. If they have not done so you will need to obtain alternative evidence that they have received the divorce petition. This can be done via the following methods:
- Bailiff Service – You could apply to court for the court bailiff to serve the divorce papers on your husband. This involves you making an application to court and paying a court fee.If the bailiff is able to serve the papers on your husband they will provide a statement of service which you can send into court as evidence that your husband has received the divorce papers, you will then be able to progress with your divorce.
- Process Server – You could instruct a private process server to hand deliver the divorce papers to your husband. You will need to get a sealed copy of the divorce papers from the court and privately instruct a process server. Process server fees vary. However, the advantage of a process server over a court bailiff, is the process server will be quicker, they will go out to the addresses you provide for your husband, which could be a work address as well as home address and they have more flexibility to find your husband than a court bailiff. What the process server will do to try to serve your husband with the divorce papers will however depend on the instructions you provide.If the process server is able to serve the papers on your husband they will provide a statement of service which you can send into court as evidence that your husband has received the divorce papers, you will then be able to progress with your divorce.
- Deemed Service – a judge makes an order stating your husband has been served due to evidence produced to the court which the judge deems as sufficient enough to prove that your husband has had the divorce papers from the court. This involves an application to court, supported by a formal statement from you and the payment of a court fee.
- Dispensed Service – If the court is satisfied you have made all attempts possible to serve your husband but he is not responding, a judge may dispense with the need for you to serve him. This involves an application to court, supported by a formal statement from you and the payment of a court fee. You will have to show the court that you have tried all avenues possible to try to serve your husband, evidencing what you have done. It is then a matter for the judge to decide if the evidence is sufficient.
If you ticked the option of adultery in your divorce petition, it may sometimes be more cost effective to not pursue your adultery petition and instead apply for a divorce on the ground of behaviour instead. If you wish to continue with adultery as the reason the court will need 2 things before the divorce can progress.
1. Evidence your husband has received the divorce petition.
Please see 1 – 3 set out above under the heading “behaviour or 5 years separation”; and
2. Evidence of the adultery.
This can be proved by the following:
a) Confession of adultery by your husband.
A statement signed by your husband confirming he has committed adultery briefly setting out the dates and places the adultery occurred and whether the adultery is continuing.
b) Circumstantial evidence.
The court will require you to file a statement detailing evidence of your husband having an opportunity to commit adultery and an inclination to commit it. This, however, may still not be enough, if the court does not accept the evidence then if you wish to proceed with the divorce you will need to then apply for a divorce on the ground of your husband’s behaviour, instead of adultery.
c) Birth of a child.
Adultery can be established where your husband has fathered a child and this can be evidenced.
d) Findings in other proceedings where it has been established your husband has committed adultery.
This is a complex area, as you cannot just use evidence in other court proceedings, you may need the permission of the court to do so and/or the consent of the other parties involved in the other court proceedings to use the evidence.
2 years separation
If you ticked the option of 2 years separation then you will need the consent of your husband to enable you to have a divorce on the ground of 2 years separation so his co-operation will be needed. He will need to confirm receipt of the divorce papers to the court and to confirm that he consents to the divorce. If this cannot be obtained then you will need to apply for divorce on the ground of his behaviour or wait until 5 years have passed from the date of separation.
If you need help to move your divorce forward, please contact me Genette Gale, Family Solicitor on 01747 852377 or firstname.lastname@example.org