The decision to separate from your spouse and initiate divorce proceedings can undoubtedly be an emotionally distressing time. These feelings can be further exacerbated if your partner refuses to engage with the divorce process, which can result in significant delays and can, critically, delay in letting you heal emotionally and move on with your life.
We explain what you can do if your spouse refuses to file the Acknowledgment of Service following a sole divorce application.
Since April 2022, it has been possible to apply for a no-fault divorce: that is, if one party wishes to file for divorce, the other party would be hard-pressed to obstruct this.
Once the application is served on the other party, they are required to file an Acknowledgement of Service within 14 days, which in turn triggers a 20-week period following which the Court will make a conditional order for divorce.
Therefore, in practice, sole applications can be “obstructed” by the other party simply failing to engage (i.e. failing to file the Acknowledgement of Service required to trigger the 20-week period).
In these situations, you have several options available to ensure that the divorce can still proceed.
1. Writing to your spouse
Here at Notta Taj law, we will always consider looking at the less litigious option first. The first and most proportionate option would be a simple letter to your spouse asking them to complete their Acknowledgment of Service within a reasonable timeframe. In our experience, sometimes the spouse in receipt of the divorce application needs time to secure representation and a gentle letter from us can assist them with this.
2. Process Server
Should they fail to respond to the letter, we would then instruct a process server to personally serve your spouse. The process server will provide a Certificate of Service if they successfully serve the papers, which can then be submitted to the Court to proceed with your divorce.
3. Deemed Service
If personal service by a process server fails but there is evidence that your spouse has received the divorce papers, for instance an email or text message confirming receipt, an application for deemed service can be made to the Court. This application asks the Court to accept that the papers have been served based on the evidence provided. If the Court approves, the divorce can proceed without the Acknowledgment of Service.
4. Alternative Service
If deemed service is not an option, an application for alternative service can be made to the Court. This method involves notifying your spouse of the divorce proceedings through alternative means, such as serving notice on a relative, their employer, or even placing an advertisement in a newspaper they are known to read. This method requires court approval and evidence that all reasonable attempts to serve the papers have been made.
5. Dispensed Service
As a last resort, if all other methods fail and you cannot locate your spouse, you can apply to the Court for dispensed service. This application asks the Court to waive the requirement for service altogether, allowing the divorce to proceed without your spouse’s acknowledgement. To succeed, you must demonstrate that you have made exhaustive efforts to locate and serve your spouse.
