By far this is the most common problem experienced by someone who has petitioned for a divorce. Lack of co-operation by the other party can add significant delay and extra costs for the Petitioner. In fact once the petition is issued, it is a legal requirement for the Petitioner to prove that the papers have been served on their spouse so that s/he is aware of the proceedings and given an opportunity to reply. So what can a Petitioner do if their spouse refuses to sign the papers or in fact has gone awol?
In the first instance, remember that the requirement is to bring the proceedings to the attention of your spouse. It does not matter whether s/he agrees or disagrees with it (except in a petition which is based on your 2 years separation and your spouse consents to it in which that consent must be forthcoming) and once the time limit for them to respond has expired, you can consider alternative methods to effect or prove service. These can include:
Service through a bailiff/process server
This is the most effective and surest way to ensure that the papers reach your spouse in the correct manner. An instructed bailiff will take the relevant divorce papers, locate your spouse and personally hand deliver it to him/her. They will then file a statement of service with the court to say they have done so. In the event that the bailiff is unable to find your spouse, they can leave the papers where s/he is known to work, with family or friends or just through the letterbox.
Each method will need follow up work with the court although a bailiff’s statement of personal service is the best method to employ in the first instance.
Service through you, your solicitor or any other person
Similar to bailiff service, anyone else can also serve the papers on your spouse and follow this up with a statement to the court.
Substituted Service
This could involve serving the papers through electronic means such as WhatsApp, email or social media or posting the papers at a place of work or a family member. Permission of the court is required first.
Before you consider filing a petition, consideration should be given to whether your spouse will or wont respond and pre-emptive action should be taken to ensure that this is resolved in advance.
If you would like to start a divorce, or just want advice, please visit our divorce page.
