Not returning an Acknowledgement of Service is one of the most common issues in divorce proceedings. The Acknowledgement of Service is a document that the Respondent Spouse receives from the court with the divorce application and which they have to complete to tell the court, amongst other things, whether or not they intend to defend the case. Often used by the respondent Spouse (the person receiving the divorce petition) to delay matters, it is quite frankly, irritating, for the petitioner spouse (the person issuing the divorce), who usually ends up thinking that they’re never going to be able to rid themselves of their spouse.
However, to all the petitioner spouses out there, DO NOT DESPAIR! Because there are many ways you can still progress your divorce even when your spouse is trying to put a spanner in the works by not returning the Acknowledgement of Service.
The court must be sure that the respondent spouse has seen the divorce application or had every opportunity to consider the document and decide if they want to defend the divorce. That is why the court won’t allow you to proceed with your divorce without first seeing the Acknowledgement of Service.
The main ways you can progress your divorce even if your spouse hasn’t returned the Acknowledgement of Service are as follows: -
- To instruct a process server – this involves instructing a professional process server to serve your spouse with the divorce application and accompanying documents in person. You have to pay for this service. It usually comes to between £150 – £250 + VAT depending on how many attempts at service are made. They will provide you with an affidavit to confirm that they have served your spouse and you can then use this as proof they have seen the petition and move your divorce forward. It is very time effective because you can usually instruct one very quickly who can go out the next day to attempt service. There is no guarantee that the process server will be successful first time round but they will usually attempt service at least three times and if they can’t serve the documents, they will provide you with confirmation of this.
- To instruct the court bailiff – this involves making an application to the court to ask the court bailiff to serve the divorce papers on your spouse. It is cheaper than instructing a private process server and costs £110 but if you qualify for “Help with Fees” it could be free. The only downside is that this process could take 6 – 8 weeks or even longer and there is no guarantee the bailiff will be successful.
- Apply for deemed service – if you are in the situation where you are aware that your spouse has seen the divorce application, either because they have told you that they have seen it, you have seen it in their possession etc, then you can make an application to the court that the petition is “deemed to be served” upon the respondent. You will need to write a statement setting out what evidence you have to support this (attaching the evidence where appropriate) which a judge will consider and then decide if an order for deemed service should be granted.
- Apply for substituted service – if you have other contact details, i.e. another way in which the divorce application would come to their attention – either a place of work or an email address, then you can ask the court to grant you an order that service of the divorce application is substituted by alternative means.
There are some circumstances where alternative methods of service of the petition will not work, such as for divorce applications based on “two years separation and consent”. This is because you have to have the consent of your spouse for the divorce to be able to proceed. If you can’t establish consent, then you cannot proceed!
“Oh no!!!” I hear you cry, “I’m never going to get a divorce!!”. Don’t worry, there is also a solution to this too. You can make an application to the court to amend your divorce application to base your divorce on an alternative “fact” such as “unreasonable behaviour”. Of course, the fact will need to still apply in your circumstances, but the option is always there. There is an additional cost to doing this and currently, the court fee to issue this type of application at the moment is £95.00 and you’ll have to add this to whatever solicitors’ fees are involved too if you instruct one. If you are on a low income, you may benefit from using the “Help with Fees” form which could mean that you pay no fee at all or a proportion of the fee.
Given the above, it is so very important to select the right ground for divorce before you issue your application at court. Especially if you have any concern that your spouse won’t return the acknowledgement of service. So, if it’s a toss-up between issuing on the basis of “unreasonable behaviour” or “two years separation and consent” (because both of them apply) and you know that your spouse is very unlikely to respond to the application, you might prefer to issue on the basis of unreasonable behaviour because you will be able to progress you divorce without having the risk of having to issue the application to amend the petition.
Below is a flow chart to simplify the options available to you to progress your divorce. Remember, alternative methods of service are not available in ALL divorces so you should make sure you are able to use them before making the application. If you are unsure…checking with a solicitor should be your first course of action!
If you want any further assistance in relation to these types of matters or divorces in general, please feel free to contact me on firstname.lastname@example.org or on 0208 492 2290
Head of Private Family Law
Posted on Tuesday, 13th November 2018