Can I divorce my husband or wife without their consent?
Yes, you can divorce your husband or wife without their consent. Whilst it is always preferable that they cooperate, all is not lost if they don’t. You have to go through the same procedure in terms of the petition itself, but you can progress even if they will not engage with the process
The five grounds for divorce
There are five grounds for divorce petitions that are available to start your divorce process.
To submit a petition on the grounds of adultery, one of the parties must admit his/her adultery in the form. Failure to do this will see the divorce petition fail. Unless you have an indication of cooperation to admit adultery at the outset then this petition should be avoided.
This is the most commonly used ground for divorce and it is possible to proceed without the cooperation of your spouse. The court will send the divorce petition to them and if they fail to sign and return the Acknowledgement of Service form to the court to enable it to progress to the next stage, there are steps that can be taken to get around the non-cooperation stance.
What is ‘personal service’ and when would you use it?
If you find yourself in this position, the next stage is to obtain duplicate copies of the divorce papers from the court and then arrange personal service upon your spouse. Once you can provide evidence that they have been personally handed the paperwork to the court then the court will allow you to progress to the next stage and ultimately dissolve your marriage.
What is the 2-year separation divorce?
This is a ground for divorce which requires the consent and cooperation of both parties. The statute states that the petition is based on a 2-years separation with consent.
The respondent (person receiving the divorce petition) must sign and return the Acknowledgment of Service form to the court confirming you have been separated for two years and above to enable this to progress.
If they fail to do this then the petition will fail., At the outset of the proceedings, it is usually advantageous to ask your spouse to confirm in writing how long you have been separated and give their consent which could potentially be used as evidence.
What is the 5-year separation divorce?
The five-year separation rule ( and desertion for two years or more )are two grounds for divorce which are very rarely used.
What are the difficulties with this process?
By their nature, people may not know where their ex-spouse is residing and therefore it is difficult to put an address for them so that the court can send the papers to them.
What do I do if I don’t have an address for my spouse?
When these petitions are used there is an option of applying for an order to allow you to effect what is called substituted service.
This service means in the absence of an address for the respondent, the papers are sent somewhere else, for example to a family member or a friend or in rare circumstances to a place of work.
This means that the papers have been properly served (once sent to the new address) and your petition can progress to the next stage. The application for substituted service is effective however it does add a layer of costs to the process.
What should I do if my ex-partner won’t cooperate at all?
If there is no cooperation at all then you can issue an unreasonable behaviour petition and get them personally served (as mentioned above). Once personally served, you can proceed whether they cooperate or not.
How long do you have to be separated to be ‘automatically’ divorced?
There is no automatic divorce. To get divorced you need to go through the legal process regardless of how long you have been separated.
Find additional information on how long you have to be sperated before divorce here.
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If you would like any advice on if you can get a divorce without consent or other family law issues please do contact our Client Care Team to speak to one of our specialist divorce lawyers here.