I am often asked by my clients whether they, or their spouse, can get a divorce without the other’s consent. Similarly popular questions asked by the on-line community are “what happens if my ex refuses to sign the divorce papers?” and “do I have to sign divorce papers if I don’t want to?”.
The answer is that it depends on the nature of the divorce petition.
You can petition for a divorce in England and Wales after one year of marriage if you can show that your marriage has irretrievably broken down on the basis of one of the following five “facts”:
- Your spouse has committed adultery and you find it intolerable to live with them;
- Your spouse has behaved so unreasonably that you cannot reasonably be expected to live with them;
- Your spouse has deserted you for a continuous period of at least two years;
- You and your spouse have been living separately and apart for a period of at least two years and the other consents to the divorce;
- The two of you have been living separately and apart for at least five years.
The first step is for the petitioning spouse to send their petition to the court. The court will then send a copy to the other spouse (the respondent) with an acknowledgement form for them to sign.
In the case of an adultery petition, if the respondent does not sign the form admitting the adultery it will be very difficult for the petitioner to proceed as they must then prove the adultery and that can be both difficult and expensive.
In the case of an unreasonable behaviour petition, however, the petitioner needs only to prove that the respondent has received the petition, which a solicitor can help the petitioner to do by engaging a process server (someone who can verify that the documents have been delivered). Then the petitioner will be able to proceed with the divorce despite the respondent’s failure to engage. Thus you can get a divorce on the basis of the other’s unreasonable behaviour even if they refuse to sign anything (provided the court accepts that the behaviour alleged is unreasonable – your lawyer will be able to advise on this point).
The third fact – desertion – is rarely used as it is difficult to prove and the respondent’s whereabouts are often unknown making service impossible and so an additional application to the court will usually be required to get around this. Nevertheless, a divorce is possible on this basis without the respondent’s consent.
With regard to a two-year separation petition, the respondent’s consent is always required. Therefore, the respondent needs to complete the acknowledgment form for the divorce to go ahead.
As regards a five-year separation petition, the petitioner needs only to prove that the respondent has received the petition, so the divorce can go ahead without the respondent’s cooperation (the same as with unreasonable behaviour).
The conclusions to be drawn are:
- It is crucial to think carefully about the fact you choose to rely on when petitioning for divorce;
- You should consider petitioning on the basis of your spouse’s unreasonable behaviour if:
a) You have been separated for more than two years, but less than five, and you suspect that your spouse will not consent to a divorce; or
b) Your spouse has committed adultery but is not prepared to admit it.
- If you receive a divorce petition from the court, be aware that the divorce may still go ahead even if you do not sign anything.
Please note that if you ignore divorce papers you may also end up with a greater costs liability, so if you receive a petition from the court you should always seek immediate legal advice.
There are of course many other issues to consider before petitioning for divorce which are beyond the scope of this article, and early advice is always a good idea if you are considering a divorce or think it might be on the horizon, even if you have not yet separated.
At BLB we offer a face-to-face initial interview for a fixed fee of £60 for up to half an hour and £120 for up to one hour. These interviews allow us to find out about your situation, to give an overview of the law and the options available and the cost implications. If you go on to instruct us to act for you, we will deduct the cost of the initial interview from our subsequent fees.
Image (cropped) by Hierher under a creative commons licence