Alongside the emotional aspects of ending a marriage, there are also legal procedures that must be followed before the divorce can progress. One of the most important of these is ensuring that the divorce application is properly served on the other spouse.
Many people are understandably anxious about this stage and worry about how their husband or wife will react, whether they have to deliver the paperwork themselves, or what happens if their spouse refuses to cooperate. Others are concerned because their spouse has moved abroad, cannot be located, or has deliberately cut off contact. Here, we look at the issues.
What does ‘service’ mean in divorce proceedings?
Service refers to the formal process of providing court documents to the other party. In a divorce, this means ensuring that your spouse receives the divorce application and is made aware that proceedings have begun.
Service is an important part of the legal process because it supports the principle of fairness. Before the court can make decisions affecting both parties, each spouse should have notice of the proceedings and the opportunity to participate if they wish.
It is important to understand that service is largely a procedural requirement and is not intended to give a spouse the opportunity to stop a divorce because they do not agree with it. Instead, service ensures that both parties are aware of the proceedings and have the opportunity to deal with any related issues, such as finances or arrangements for children.
How is a divorce application normally served?
The method of service often depends on how the application has been submitted and whether it is a sole application or a joint application.
Where one spouse makes a sole application, the court will usually arrange for the application to be served on the respondent. This is often done by email if suitable details have been provided, or by post.
The documents generally include the divorce application together with information explaining what the respondent needs to do next.
Most divorces proceed with no problems, and the respondent simply acknowledges receipt of the documents.
What happens after your spouse receives the divorce papers?
Once served, the respondent is normally expected to complete an Acknowledgment of Service. This document does not require them to agree with the divorce, but confirms that they have received the application and are aware that proceedings have started.
The respondent can also indicate whether they dispute the court’s jurisdiction, although in practice this can only be done in limited circumstances. Disputes over jurisdiction are relatively uncommon and generally involve international elements or questions about where divorce proceedings should properly take place.
For the vast majority of couples, returning the acknowledgment allows the divorce to move forward smoothly.
Can your spouse refuse to accept the divorce?
One of the most common misconceptions is that a husband or wife can prevent a divorce by refusing to engage with the process. In reality, this is rarely possible as the move to no-fault divorce means that one spouse cannot stop it merely because they wish to remain married. The court is primarily concerned with ensuring that the respondent has been notified of the proceedings rather than obtaining their agreement.
Ignoring the paperwork, refusing to sign documents, or declining to respond will not normally bring the proceedings to an end. Instead, the court has various powers that enable the divorce to continue once appropriate steps have been taken to establish that service has occurred or that reasonable efforts have been made.
What if a spouse deliberately avoids service?
Unfortunately, there are occasions when a respondent deliberately attempts to frustrate proceedings. They may ignore letters, refuse to answer the door, decline to collect recorded delivery, or simply avoid all communication. Where there is evidence that a spouse is intentionally avoiding service, additional options are available.
One common solution is personal service. Here, a professional process server attends the respondent’s address and personally delivers the documents. They then prepare evidence confirming precisely when and how service took place.
Professional process servers are experienced in dealing with reluctant respondents and can often achieve service even where previous attempts have failed. The court may rely upon the evidence provided by the process server when deciding whether the respondent has been properly served.
What happens if you cannot find your spouse?
Some divorces become more complicated because the applicant genuinely has no idea where their spouse is living. This situation is more common than many people realise, especially where couples separated years earlier, one party has moved overseas, or contact has simply been lost.
Nevertheless, the court expects reasonable efforts to be made to locate the respondent before alternative arrangements are considered.
Depending on the circumstances, this could involve making enquiries with relatives or mutual friends, checking previous addresses, searching publicly available records, or using professional tracing agents. If these efforts are unsuccessful, the court has powers to consider alternative approaches.
Where conventional service methods are impractical, an application can be made asking the court to permit an alternative. This might include serving documents through:
- A solicitor already acting for the respondent
- A known email address
- Social media or other electronic communication in appropriate cases
- Another method that is likely to bring the proceedings to the respondent’s attention
The court’s focus is whether the proposed method is likely to inform the respondent about the divorce. As technology has evolved, courts have become increasingly willing to consider modern methods of communication where they are satisfied that they are reliable and appropriate.
Can the court dispense with service?
In particularly difficult cases, the court may decide that service should be dispensed with altogether. This is generally reserved for situations where every reasonable effort has been made to locate or serve the respondent, but those attempts have failed.
An application must usually be supported by evidence showing the steps taken to trace the spouse and why further attempts are unlikely to succeed. If satisfied, the court may allow the divorce to proceed without formal service. This ensures that a missing spouse cannot indefinitely prevent legal proceedings from reaching a conclusion.
Serving divorce papers on a spouse who lives abroad
International marriages are increasingly common, and many separating couples find themselves living in different countries. Serving divorce papers overseas can sometimes be more complicated than domestic service, but it is by no means unusual.
The precise procedure often depends upon:
- The country where the respondent lives
- Whether international agreements apply
- The local rules governing service of legal documents
Some countries permit service by post or email, while others require formal procedures through local courts or designated authorities. Additional translations may also be required where documents are being served in a country whose official language is not English.
Although international service can take longer than service within England and Wales, it does not necessarily create major problems, provided the correct procedures are followed from the outset.
If you would like advice on serving a divorce application, dealing with an uncooperative spouse, international divorce proceedings or any other family law issue, please contact our team today to discuss your circumstances.
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