Receiving a divorce application can be daunting. In this guide, we explain some of the things to think about before responding.
The divorce application is the starting document for a divorce to take place. On its own, it does not mean that your marriage has been dissolved. It also does not mean that you must go ahead with the divorce. Even if you wish to divorce, it does not mean that you must have the divorce in England and Wales.
In this guide, we will set out your options for responding to a divorce application made to the Courts in England and Wales, and what to do next.
What should you do if you have received divorce papers?
If you do not wish to divorce, or if you wish to divorce in another country other than England and Wales, please skip to the next section.
If you agree to the divorce and are content to have your divorce in England and Wales, you must respond within 14 days of getting the notice of proceedings. How you respond to the divorce application will depend on how the divorce has been applied for and whether you have representation.
If the notice of proceedings contains an access code, you will be able to respond online via the online HMCTS divorce portal. You will need to create an account and complete the online acknowledgement of service form confirming you will let the divorce proceed. If you have legal representation, they will be able to do this on your behalf.
If your notice of proceedings does not contain an access code, you must respond by post and post back the acknowledgement of service form.
What are your options when responding to a divorce petition?
The law in England and Wales changed in 2022 to restrict the basis upon which a divorce application can be defended. If an application has been made, then the Court will invariably grant the divorce. The Court will no longer permit a spouse to hold up a divorce if the other spouse wants to get a divorce.
If you still wish to prevent the divorce from going ahead, we recommend that you speak with one of our specialist divorce lawyers.
If you have received a divorce application and you do not wish to get a divorce specifically in England and Wales, then other considerations apply:
- Do you and/or your spouse have sufficient connections to England and Wales? For a divorce to take place in England and Wales, one or both spouses must either be living here or must have sufficient historic connections to be considered domiciled here. If you think that there are not sufficient connections to England and Wales, the Court may not have jurisdiction. In those circumstances, you may be able to defend the divorce;
- Even if there are sufficient connections to England and Wales, you and your spouse may have stronger connections to another country. In which case you may be able to defend the divorce on so-called “forum” grounds, i.e. on the basis that the other country is better suited to dealing with your divorce;
- If those connections are to another state within the UK, such as Scotland, Northern Irelands, Isle of Man, Jersey or Guernsey, then specific rules apply to prioritise the most appropriate state.
If any of these issues arise, we recommend that you speak with one of our specialist family lawyers, who can advise you on cross-border divorce matters.
Do you have to respond to a divorce petition?
If you fail to respond to a divorce petition by the deadline this will not stop the divorce from progressing and you could be served the divorce papers personally. You could also be ordered to pay the costs associated with personal service.
Your spouse may apply for “deemed service,” which is an order from the Court determining that you have been served and authorising the divorce to go ahead even if you have not responded. This may create additional costs for your spouse which you may be required to reimburse.
What happens if your spouse doesn’t respond to the divorce?
Under the new law, your spouse cannot defend against your divorce petition and any attempts to prevent the divorce from progressing will fail.
If your spouse refuses to respond to the divorce application, there are several methods that can be used to progress the proceedings.
- Serve the divorce application using a court bailiff or process server
If your spouse refuses to respond to the divorce petition and you are legally represented, your solicitor can instruct a process server to serve the divorce papers on them personally. You can also ask the court bailiff to serve the documents. However, the court will not agree to this method if you are legally represented and would expect you to use a process server instead.
Once served, a certificate of service will be produced for the court to confirm your spouse has been successfully served the documents.
- Apply for deemed service
If you are confident that your spouse has received the divorce papers and is refusing to respond, you can ask the court to ‘deem service’. This means you are asking the court to accept that your spouse receives the divorce papers despite the fact they have not completed the acknowledgement of service. Evidence will need to be provided to the court in support. You can then continue to apply for Conditional Order.
- Apply to dispense with service
If you cannot serve the divorce application on your spouse, for example, if you are unable to locate them, you can apply to the court to ‘dispense with service’. You will need to provide evidence to the court that you have tried all reasonable efforts to find your spouse for your application to be successful.
What happens if you receive a divorce application and you are out of the country?
If you receive a divorce application and you are out of the country, you can still complete the acknowledgement of service through the online HMCTS divorce portal within 14 days of receiving the notice of proceedings. If you do not respond within 14 days, your spouse might still be able to continue with the divorce if the court decides that you have received the application.
Following the implementation of ‘No fault divorce’ many spouses are handling their own divorce without first obtaining legal advice. Divorce affects your marital status, and the choices you make in the divorce process can have a financial effect. We recommend that you speak to one of our specialist family lawyers on receipt of your divorce application to better understand the options available to you.
