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What to do when there are issues with serving a divorce petition

By July 10, 2020 No Comments

Divorce: issues with service of the petition

You have served a divorce petition and a sealed copy has been sent to your spouse with an acknowledgement of service form to return. Your spouse ignores the petition and fails to return the acknowledgement. What can you do about this issue?

Disclaimer: The information in this article is intended for general information only and reflects the position in the law at the date of publication. It does not constitute legal advice and should not be treated or relied upon as such. It is provided without any representations or warranties, express or implied.

If you have petitioned for divorce on the basis of unreasonable behaviour, five years’ separation (without consent) or desertion, you can still proceed with the divorce without the respondent needing to return the acknowledgement of service.

If you have petitioned on the basis of two years’ consent, you will need to amend your petition to rely on one of the above facts which does not require the respondent’s consent. If you have petitioned on the basis of adultery, it would also be sensible to amend the petition, unless you have evidence to prove the adultery.

Service by court bailiff or process server (personal service)

If the respondent has not returned the acknowledgement of service to the court within 14 days of it being posted to them, and you reasonably believe that they are still living at that address, you may be able to ask the court bailiff to serve them personally. There will be a fee for this (currently £110) and you will need to provide certain information regarding the attempt(s) to serve by post.

The court will not usually agree to service by court bailiff if you have a legal representative, as they would be expected to arrange a process server instead. A process server will usually make a number of attempts to serve the respondent and will often be more creative than the court bailiff.

Either a court bailiff or process server will then file a certificate of service with the court to confirm that they have achieved or attempted service. If they have successfully served your spouse, you can then apply for decree nisi without the need for the acknowledgement of service to be returned.

Service by alternative means

In some cases, the court will permit a petitioner to effect service of the divorce petition by alternative means, such as email or fax. An application has to be made to the court requesting permission to serve by alternative means with an explanation as to why this is necessary.

Application for deemed service

If the divorce petition has been served on the respondent by post and you are satisfied that they have received the petition, you can ask the court to ‘deem service’. This will enable you to apply for decree nisi, despite them failing to return a completed acknowledgement of service.

In support of an application for deemed service, you may rely on evidence such as a text message or email from the respondent confirming that they have received the petition. You should provide as much evidence as possible to support your application.

Application to dispense with service

If it is not possible to serve the petition on the respondent by any of the other methods, for example if you have simply not been able to locate them, you may apply to the court for service to be dispensed with. Within the application, you will need to set out all of the enquiries that you have made to identify their whereabouts. This might include speaking to their family and friends, making enquiries with their employers and so on. The court will only make an order dispensing with service if it is satisfied that you have made full enquiries in trying to locate the respondent. Care should therefore be taken to exhaust all options before making an application.

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The solicitors in our family law department are on hand 24/7 to provide specialist advice and guidance. Please contact us on +44 (0) 1273 696962. Alternatively, request a callback, or email info@arlingsworth.com. You can also follow us on FacebookTwitter and LinkedIn for any other important news and updates.

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