Ordinarily, when a couple decides to divorce, there is a dialogue between them as to this and matters surrounding the divorce. However, it can sometimes be the case that a spouse cannot be found. If they have moved out of the matrimonial home, they may have not left a forwarding address, or may not wish to be found. It may also be the case that a spouse chooses not to respond to the divorce petition.
Usually, the divorce procedure includes the Court serving the divorce petition (posting it) to the responding spouse. This immediately causes difficulties when the address is not known. The first step therefore is to include on the petition the last known address. If it is then returned unopened, the Court will inform you. There are then several steps that can be taken:
- You can ask the Court bailiff or a private process server to serve the documents on the responding spouse. They will provide a statement confirming that the petition has been served.
- If this does not work, you must take all reasonable steps to find the responding spouse. This can include searches of the electoral register, contacting family and friends, contacting their employer, contacting any banks or building societies with whom they may hold accounts and contacting HM Revenue and Customs. You may also contact a private investigator to locate your spouse (Use a reputable private investigator though, and keep in mind that the Court may not look favourably on information found covertly).
- If you really cannot locate your spouse, you may be able to apply for dispensation of service. This is a severe step to take, and the Court will consider the application and supporting evidence obtained in your enquiries.
- You may also consider applying for deemed service, asking the Court to determine whether the respondent has seen the petition (perhaps through previously instructed solicitors), and again, supporting evidence will be required.
- All of these steps unfortunately mean that the process is much longer and can be more expensive than in a straightforward divorce. It is possible to obtain a costs order in this process, however, even when this is made, enforcing payment can be an issue.
You should seek legal advice from a lawyer specialising in family law should you have any questions regarding the above.
For more information on any of the aspects outlined please contact Rachel Giles or another member of the Family team.
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