A very common question family solicitors get asked is whether a spouse can divorce their partner without their consent. The answer is yes, but for many ‘defending’ the divorce, this can come as a shock.
Do both parties have to agree to a divorce in the UK?
No, in the UK both parties do not have to agree to a divorce and you can apply for a divorce without the consent of your partner.
Thanks to the introduction of the No Fault Divorce law, one party can apply for a divorce and they only need to make a statement that the marriage has irretrievably broken down. This replaces the old process in which the applicant would have to establish one of the five grounds for divorce.
Can I contest a divorce?
Since the new law was introduced in April 2022, it is no longer possible to contest a divorce.
Under the No Fault law, you can only contest the divorce in exceptional legal circumstances, including:
- Jurisdiction – If you believe that an English court does not have jurisdiction to deal with the divorce e.g because one party lives abroad and has already started divorce proceedings in another country.
- If you can prove the marriage was never legal – An example of this is if the marriage was not conducted in accordance with laws of the country in which you were married.
- If the marriage has already legally ended – For example, if you’ve already gone through divorce proceedings in another country.
We highly recommend seeking legal advice before you respond to or try to contest a divorce.
Why was the law changed?
In short, the divorce law was changed to be a more realistic reflection of how relationships come to an end.
The law change improved the process for the vast majority of divorcing couples since it removed the need to place responsibility for the breakdown of the marriage on one party. The change also helped to reduce the number of people trapped in marriages because they could not ‘prove’ their marriage had irretrievably broken down and assisted people to divorce more amicably.
Can my ex spouse divorce me without my consent?
Yes, your ex-spouse can apply for a divorce without your consent since the new law allows for both joint and sole applications.
When your ex partner applies for a divorce, you will be sent an Acknowledgement of Service form. It is your responsibility as the respondent to return the form, stating whether or not you agree to the divorce. You have eight days to respond.
If you do not return the Acknowledgement of Service, then your ex partner will look at other ways to progress the divorce such as personally serving you with the divorce documents or applying for an order that the divorce application be deemed to have been served upon you.
If the Court is satisfied that you are aware of the divorce and have received the divorce application, then the divorce will be able to proceed even if the Acknowledgement of Service has not been returned.
What happens if a divorce is not agreed upon?
If either you or your partner do not agree to the divorce, there are different ways that can be used to ensure the divorce process still goes ahead.
These methods include:
- Deemed service – If you have proof your partner is aware of the divorce and has received the divorce application but is refusing to return the Acknowledgement, then you can submit the evidence to court and seek an order that the divorce be deemed to have been served.
- Instruct a process server – If you are applying for a divorce and don’t have the grounds for deemed service, you can instruct a process server. This is someone who personally serves the divorce papers on your ex-spouse so a description of your ex spouse and their whereabouts will be required.
Once they have been served, you will be provided with a statement that you can present to the court as evidence of service. - Substituted service- If your partner is avoiding service, you can apply for a substituted service through the court. This involves a third party who is connected to the respondent being served with the divorce papers. This is very rare and can only be used if you can prove all other avenues have been exhausted.
- Apply to dispense with service – This is the very last resort and it involves the divorce process taking place without proof that your ex-partner has been served with the divorce. This will only be granted if the court is satisfied that you have genuinely done everything you can to serve the divorce papers on the respondent.
If you are the respondent and are not acknowledging any of the papers being served on you, you should be aware that the divorce can go ahead anyway without you filing an acknowledgement.
If you’re wishing to start a divorce, or your partner is starting a divorce, we always recommend seeking legal advice as soon as ever possible to establish your rights. Get in touch with our specialist family law solicitors to see how we can help you. and reach an outcome that is best for them. If you would like to go down the route of working with solicitors, get in touch with our team today to see how we can help you.