RULES ARE RULES! Common mistakes to avoid when applying for divorce

You may have seen recently in the news that fellow London based law-firm Vardags accidentally divorced the wrong couple by clicking the button on the court’s online portal system. The firm had mistakenly applied for a final order for one client whilst intending to make a new application for another client. They then applied to have the Final Order reversed; but the High Court upheld the order and the divorce stood. 

With the court’s online portal, applying for a divorce is now a more streamlined and easier process, however there are a few things to look out for when applying for divorce:

What happens if my spouse does not respond to my divorce petition?

A concern for many when initiating divorce proceedings is what to do if the other person is obstructive or uncooperative towards the divorce and refuses to acknowledge or is in denial that divorce has been initiated. It is very often the case, in our experience, that one person in the marriage is quite resistant to the divorce. Now that there is ‘no fault’ divorce, we have ‘divorce on demand’. The is a very limited basis upon which a divorce can be challenged; and that challenge is not available to most English divorces. The most power a spouse has is the ability to delay, but not for very long, as the 20 week cooling off period starts from the date of issue, regardless of the response, or lack thereof.

Once a divorce application has been issued the court will send confirmation by post and/or by email confirming that the application has been made. It is from this point the acknowledging spouse has 14 days to acknowledge the divorce petition. The email will contain a link to view the application electronically and within this email link they will have the chance to create an online account on the portal to acknowledge service of the divorce. Alternatively, they may choose their solicitor or themselves to acknowledge service by post. 

To overcome a spouse who is refusing to acknowledge you have started divorce proceedings or not responding at all, there are a few methods that can be utilized. The court can make your spouse incur the associated costs in relation to these.

Use personal service 

You can choose to instruct a professional process server who will make a number of attempts to serve your spouse; either at home, at work or in a public place, if that is allowed by the court. You will need to provide a photo, name, address of the spouse to the process server. The benefit of this is that the process server will produce a certificate to confirm service has been made which can be submitted to the court to satisfy that the divorce application has been served conclusively. 

Apply to the court for deemed service 

Deemed service is when the court accepts that the application has been received just not yet acknowledged. If you are satisfied that they have received the divorce application, you can ask the court to ‘deem service’ which enables you to apply for the conditional order regardless of a spouse failing to acknowledge the divorce application. The court will require evidence such as text messages or emails confirming they have indeed received the divorce application. 

Apply to the court for dispensed service 

If the previous two options are not suitable or fruitful, then you can make an application to the court for service to be dispensed and bypassed. It is rare that the court remove the need for service, however, if you can prove that all other reasonable efforts to serve have failed and produce evidence of the attempts that have been made to serve or locate your spouse, such as through family friends, work colleagues, social media and so on, then the court will decide if they are satisfied to dispense with service and allow you to continue to apply for a conditional order. 

What happens if me or my spouse do not apply for the conditional order?

You can apply for a conditional order (previously known as decree nisi) once 20 weeks have elapsed since you have applied for divorce. If the applicant does not apply for the conditional and final orders, then the divorce process will remain incomplete and you will still be married.

It is important to remember that it is the applicant (for the divorce) who must subsequently also apply for the conditional order. This could be you, your spouse or also the two of you in a joint divorce application. If the divorce is made by a sole applicant, i.e. just one person to the marriage; then it is up to this applicant to apply for the conditional order. The respondent cannot apply or progress the divorce at that stage. 

If the application is made by both parties (a joint divorce application) then either you or your spouse can both apply for a conditional order as it does not require both parties to apply, however you can both apply for a conditional order if you both wish to do so. 

If you are the sole divorce applicant who started the application, do not forget it is your responsibility to apply for a conditional order and final order otherwise the divorce process remains incomplete, ensuring you remain married. Alternatively, if you are the respondent and the sole applicant forgets or refuses to apply for these orders what can you do? The respondent can then make an application to dismiss the first divorce application and file their own divorce application with the court.  

What happens if you do not apply for a financial order? 

You cannot ask the court to approve a financial order until a conditional order is issued by the court, as the conditional order indicates that the court has agreed in principle for the divorce to proceed. However, after the conditional order has been granted there is no time limit by which an application for the financial order must be made. The existence of a final order does not prohibit you from applying for a financial order in the future; and there have been some frightening cases where an ex-spouse has applied for a financial order decades after the divorce. In some circumstances, they have succeeded.

Without formally agreeing a financial order through the courts, financial ties between the couple remain in place, which keeps the door open for future claims made by your spouse on your assets, pensions and income. A famous case of Wyatt v Vince in 2015 highlights this; whereby a husband did not amass his wealth for some 13 years until after divorcing his wife. However, the court determined “there is no time limit for seeking an order for financial provision or property adjustment for the benefit of a spouse following divorce” eventually awarding his ex-wife a £1.9 million payment 22 years after they had divorced. It is very important to obtain advice about your financial position at the time of your divorce, and to file order dismissing claims simultaneously with your divorce, to prevent your being open to future claims no matter how far in the future. 

For those parties that quickly re-marry before finalising a financial order in their previous marriage, they may lose some rights to claim from their former spouse.

As you can see the onset stages of a divorce are not always black and white, we are well poised to assist you at every stage and provide advice to ensure a smooth process from start to finish during your divorce or separation. 

If you are about to start a divorce and need assistance, or have already started but unsure as to what happens next, please do not hesitate to get in touch to speak with a member of our team.