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What Happens If My Spouse Doesn’t Sign The Divorce Papers?

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    Spouse is ignoring the divorce papers

    If you think your spouse is ignoring divorce papers the first thing to do is check that they are aware of the notice of proceedings, because there could be a valid reason why they haven’t retuned the Acknowledgement of Service form.

    For example, it could be due to a change of address, or they could have been working away from home or even on holiday!

    Therefore, if the papers have not been returned simply get in touch as soon as possible to ask why not. If appropriate you can apply for the papers to be sent again allowing you to move on to the next stage of the divorce.

    However, occasionally there will be a stark refusal to engage in the divorce process, possibly as part of a strategy to delay the divorce.

    In this latter scenario, there are certain steps that may need to be taken, which we will consider below.

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    Ex won’t sign the divorce papers

    With the new No-fault Divorce, if the Respondent chooses not to respond to the papers then to progress matters the Applicant first needs to prove to the satisfaction of the court that their spouse has received the notice of proceedings papers and has had the chance to respond.

    If your ex won’t sign divorce papers or will not co-operate with you this can be difficult to prove.

    Whilst this situation is far from ideal, you will still be able to get divorced by demonstrating to the court that you have taken all reasonable steps to inform your spouse about the proceedings.

    Who pays the divorce fees in a divorce where your ex won’t sign the divorce papers? In most cases, you as the Applicant will be responsible for these fees.

    This can be done in many ways: –

    1. Personal Service – Court bailiffs

    Court bailiffs are employees of Her Majesty’s Courts & Tribunals Service and are responsible for enforcing orders of the County Court.

    • Court fee £45 (as of the 2nd of August 2020)
    • Divorce-Online fee to draft an application is £150

    Pros: Cheaper than a Process Server (see below) and if the bailiff says he has served the papers the Judge accepts the papers have been served.

    Cons: A Judge would need to approve the transfer of the papers for service to the County Court local to the Respondent so that a bailiff at that court could serve the papers. There is a considerable time issue in doing this and also a possibility that divorce papers could go missing between court transfers.

    If the bailiff returns the papers without serving them service must still be attempted in another way. All fees paid in association with requesting the bailiff service would also be lost.

    2. Personal Service – Use a process server to serve the divorce papers

    A ‘Process Server’ is someone who ‘serves’ or delivers legal documents to an individual or party named in an action (in this scenario the divorce application) and who also has access to databases that help them to locate a person.

    • Process server cost is usually between £150 and £250
    • Court fee for ‘Deemed Service’ application £58
    • Divorce-Online additional work fee £150

    Divorce-Online does not currently offer this service but can arrange with a company that we recommend who have proven to be both fast and effective.

    Pros: No need to transfer any papers from one court to another. It is in the interest of the process server to serve the papers as swiftly as he can so he will make attempts to serve the papers at any time.

    If you use the company we recommend then although you will be their client and they will deal directly with you; with your permission, they will also keep us informed of progress. We can also send the papers for service directly to them.

    In many cases, if the papers cannot reasonably be served then a sworn statement, called a ‘Certificate of Service’, can be provided which clearly explains the attempts made and the reason for non-service.

    This statement can then be used as the basis for an application to the court to dispense with the need for service of the papers upon your spouse.

    Cons: The service will be more expensive than using a court bailiff.

    If the Process Server cannot give the papers to the Respondent personally he will endeavour to confirm their address.

    He will then put the papers through the letter box. Although a sworn statement can be provided to explain what he has done the court will not accept this as ‘service’.

    This means that if the Respondent does not reply to the papers left a further application has to be made to the court costing £58 – The second application asks the Judge to allow service via the Respondents letter box (an application for ‘Deemed Service’).

    If the Judge makes an order that the papers can be ‘served’ in this way then the process server will return and post another set of divorce papers through the Respondents letter box.

    There is usually no further charge for this and the process servers further statement, together with the court order can be used to support the application for the conditional order.

    3. Deemed Service – Ask a friend or relative to serve the divorce papers

    If there is evidence that your spouse received the divorce papers in the post, an application can be made to the court to rule that the papers were correctly served; this is known as ‘Deemed Service’.

    Evidence may consist of an email or text message – pretty much anything which confirms that your spouse received the papers. Alternatively, you can ask a friend or relative to serve the divorce papers.

    • Cost: (whatever the server asks for as payment)
    • Divorce-Online drafting fee £150
    • The court fee for ‘Deemed Service’ application £58

    The server (friend or relative) hands the divorce papers to your spouse recording the following Information: –

    1. How they know it was the Respondent they gave the papers to
    2. What time of day they served the papers
    3. The address the papers were served at
    4. The response of the Respondent

    We will then draft a Statement of Truth for the friend to sign and you then apply to the court for a ‘Deemed Service Order’ which asks the Judge to agree that the papers are ‘deemed to have been served’.

    Pros – The cheaper option

    Cons – friends do not always want to get involved with marital disputes and sometimes fail to collect the information needed for the Statement of Truth.

    Once either of the above has been completed, the bailiff or server will file a ‘Certificate of Service’ with the court to confirm that they have achieved service successfully – it is then possible for you to apply for the Conditional Order (previously called decree nisi) without the need for the ‘Acknowledgment of Service’ form to be returned.

    Applying for a Dispensed Service

    If none of the above methods work and your spouse cannot be reached, for example, they may have left the country, it may be possible to ask the court to dispense with the requirement for service altogether.

    However, this is generally only granted by the court in exceptional circumstances, and to be successful in your application it will be necessary to prove to the court that all reasonable efforts have been made to ascertain the contact details of your spouse and serve them with the petition.

    Therefore, you will need detailed records of all attempts you have made to trace your spouse, such as contacting their friends and family and by using email or social media etc.

    Questions people commonly ask…

    What is the process of instructing a court bailiff?

    In order to request a court bailiff it is necessary to fill in Form D89: Request for personal service by a court bailiff. The fields which need to be completed include:

    • Names of petitioner and respondent
    • Contact details and description of the respondent – a photograph should be included if available
    • Details of any vehicle owned by the respondent
    • Various information about any potential danger posed by the respondent – do they hold a firearms licence and if they have any dangerous animals at their property

    The court bailiff will use the information to locate the respondent and physically serve the divorce papers. It can sometimes be faster to use a process server than a court bailiff, but timings can vary for both types of Personal Service.

    Once the respondent has been served, the bailiff or process server files a ‘Certificate of Service’ with the court confirming that service on the respondent has taken place.

    The benefits of a Process Server vs a Court Bailiff?

    Many legal documents, including divorce papers, are required by law to be personally served, rather than posted.

    A process server is a specialist who serves (delivers) legal documents giving notice of court actions while also making sure the delivery of the documents is effectively recorded.

    Therefore, the role of a process server is broadly similar to that of a county court bailiff, however, there are many advantages to hiring a professional process server to deliver your papers, rather than using court bailiffs.

    1. Control – Hiring a process server gives you control over their actions but when using court bailiffs, the process is mostly out of your hands. With a bailiff, you will still be informed once the documents have been served, but this may not be immediate, and you won’t have the same level of contact you would get with a process server.
    2. Speed & Flexibility – A process server generally will be quicker. They are not tied to specific areas on specific days and can go to several addresses you provide, which could be a work address as well as a home address. They also work outside of office hours so have more flexibility to find your spouse than court bailiffs who only visit during office hours.
    3. Not Regulated – Process servers do not engage in debt collection and as such they are not considered a regulated activity, meaning there are fewer legal processes for delivering documents via a process server than there would be for bailiffs and this likely makes the process much quicker.
    4. Tracking – Sometimes the person being served can be evasive, deliberately or otherwise. If the recipient is being elusive in order to stall proceedings, then failing to find the respondent can cause a process to be massively delayed. A professional process server will be experienced in tracing elusive people and the various legal measures and strategies involved.

    What is a D89 form?

    Form D89 is the form that is used to request a personal service by a court bailiff.

    You can use this form if you need the court’s help to deliver papers about your application for a divorce, dissolution of a civil partnership or a judicial separation.

    You can ask a court bailiff to hand-deliver papers to the respondent in divorce proceedings on your behalf if your spouse is ignoring the divorce papers.

    Together with completing the form you would provide either a photo or a description from which the bailiff would be able to identify your spouse and he would then attempt service.

    Only use this form if the court issued your application on or after 6 April 2022

    How long does it take for a bailiff to serve divorce papers?

    Typically, the time it takes for a county court bailiff to serve divorce papers is usually between four and seven weeks if successful, but each case is different.

    A court bailiff is normally allocated his own specific region and that region is broken down into smaller areas. The court bailiff may only be in the area where the respondent lives once or twice a month and then only during office hours.

    The bailiff will make a number of attempts to serve the papers but given the fact that he will not be in the area on a daily or even a weekly basis, then if he cannot serve the papers it may be a month or more before the papers are returned to the original court with his report.

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