My spouse has disappeared or will not co-operate, can I still get divorced ?
The ground for divorce is the fact that the marriage has “irretrievably broken down”. In order to petition for a divorce you must then rely on one of 5 factors:
Both 2 years separation and adultery require consent/ admittance. The other factors however do not.
Should you not know the whereabouts of your spouse or he/she is simply refusing to co-operate then all is not lost, you can still petition for a divorce. Once the petition has been issued at Court you then have the following options:
- Apply to the Court by way of an affidavit requesting that the Petition be deemed served. It would be necessary for you to swear an affidavit stating what evidence you have that the Petition was served. It can be served by the Court, who will simply post it to her/him or you can request to receive the papers yourself and you can hire a process server to personally hand the papers to your husband/wife. The process server will then provide you with an affidavit of proof of service.If the Court has sent the papers and you know s/he lives at the address to which they have been sent, and you have spoken to or heard from her/him and s/he mentioned that s/he has received them but just doesn’t want to respond the you can draft an affidavit setting out those details. Should it be that s/he is no longer at that address and you are unaware of her/his location, then this application will be of no benefit. It should be noted that such an application currently attracts a Court fee of £45.
- Apply to the Court for directions. This is usually done in cases where the other party has disappeared and you have tried to locate them. You would need to swear an affidavit stating what means you have used to try and locate her/him and what the results of that search were. Should the Court be happy that you have undertaken all reasonable means to try and locate her/him and have failed, then they may dispense with service and allow your Petition to proceed anyway. This application also currently attracts a Court fee of £45.
- Alternatively, you could apply to Court for substituted service, via email for example, if you know that s/he responds to this form of communication. This again attracts a £45 Court fee.
Once you have an order from the Court for either Deemed Service, an Order Dispensing with Service or an Order for Substituted Service then you can apply for your Decree Nisi exhibiting that Order and your divorce can continue down the usual route.
Alicia C Cenizo
The writer is a Solicitor, Partner and head of Family law at Darlingtons Solicitors, and a member of Resolution.
