A recent study found that in over 100,000 divorce cases that were reviewed in England and Wales, 14% were delayed due to the fact that one spouse refused to respond to the petition. In nearly half of these cases, decree nisi was never reached, leaving the petitioner ‘trapped’ in a marriage of which they no longer wish to be a part. This is especially concerning as this situation is often most prominent where issues of domestic abuse or coercive control are present within the marriage.
In situations where a spouse doesn’t respond to the petition, the current law does allow a petitioner to apply to the court for deemed service, or as a last resort, an application to dispense with service. However, when making these applications, the onus is on the petitioner to prove that they have made every effort to serve the petition upon the respondent, and this can be a high threshold to meet. Applications such as these can also significantly delay proceedings.
In a Ministry of Justice consultation paper drafted late last year, it has been proposed that couples could apply for a divorce by ‘giving notice’ that a marriage has irretrievably broken down. Should this proposal go ahead, it would help to address the issue of non-response because the notification of divorce could be made by either one or both parties. To read more about the proposed divorce reforms, please follow this link.
If you require advice surrounding the law on marriage, divorce, cohabitation, separation and/or children please contact Ellisons Family Team on 01206 764477 or 01255 851000.
