This is the second part in a four part review of the Divorce Process entitled The Acknowledgement of Service.
- Part I: For details of how to Petition for a Divorce, see here
- Part III: Obtaining the Decree Nisi of Divorce
- Part IV: Obtaining the Decree Absolute of Divorce
Once a divorce petition has been filed at the court, it will normally be posted to the other spouse to the marriage. The spouse being divorced is referred to as the ‘Respondent’.
Along with the divorce petition, the court will also send the Respondent some other documents too called an Acknowledgement of Service Pack. One of those forms needs to be filled in by the Respondent, signed by them or their solicitor and returned to the court.
The Respondent must acknowledge to the court within 7 days of receiving the acknowledgement that they have received the divorce petition and they must also notify the court whether they consent to the divorce proceeding undefended or whether they do not.
At this stage in the proceedings the Respondent needs to consider their position very carefully because this may be the only opportunity the Respondent has to alter the direction of the divorce.
Considerations for the Respondent after receiving the Divorce Petition and Acknowledgement of Service Pack:
The Respondent should at this stage consider some of the following issues before returning the Acknowledgement of Service Form to the court:
1. Are you willing to agree to the divorce progressing on an undefended basis? In other words, do you contest the divorce as set out by the Petitioner or are you willing to agree to allow the Petition to proceed without you defending the suit?
Although it is unusual for Respondents to defend a divorce in England, the Respondent can nevertheless cross-petition and issue their own petition for a divorce in response to the existing petition and that way the Respondent can become the person seeking the divorce.
There are very strict timescales for doing this and in our experience most people get it wrong and miss the deadlines. They don’t realise that in doing this they can easily end up with a costs order being made against them, mainly for failure to get the procedure right.
A cross-petition is a fairly complex area of the divorce process and if it applied to you, then you are well advised to contact us. We specialise in complex and intricate divorces.
2. Are you prepared to accept the reasons for the divorce as they have been set out in the Petition by the Petitioner?
There will often be considerable disagreement between the parties as regards the grounds of the divorce and this may well be an area on which the Respondent may wish to seek legal advice from an independent Solicitor.
It is important at this stage in the proceedings not to allow emotions to cloud your judgement. If you agree with the main principal of the divorce petition, namely that the marriage has irretrievably broken down, then you may well be advised to take a conciliatory approach to some or all of the allegations set out in the petition by the Petitioner.
After all the objective here is to end the marriage, not to lock the parties into protracted and expensive litigation.
A divorce petition will normally be defended only where you have a very strong objection to the grounds put forward by the Petitioner or, where the petition is untrue in some material way.
3. If the Petitioner has included a Prayer in the divorce that you pay the costs of the divorce, are you prepared to pay this?
It is vital that you relay your position in this regard to the court at this stage on the Acknowledgement of Service form. The Respondent may not get another opportunity to contest paying the costs of the divorce later.
Although generally parties to a straightforward divorce are not required to attend the court, the most common situation where they are required to attend is when the issue of costs is hotly contested and the judge may want to hear from the Respondent and in some cases also the Petitioner about this.
The Respondent should bear in mind that the costs of the divorce are just that! They are the costs of the divorce only and not the costs of any other aspect of the separation such as the costs of dealing with disputes about the children or the costs of the financial settlement of the divorce.
Where the Respondent is prepared to pay the costs of the divorce, they should also consider limiting their agreement to a specific sum of money.
If the Petitioner is seeking more than this, be wary.In many cases where the divorce is amicable and agreed between the parties it is fair that the parties also split the costs of the divorce 50/50.
Respondent’s need to be aware that simply replying to the court saying ‘I can’t afford to pay for the divorce’ or similar reasons are not going to be successful. The court will want a properly argued case against payment of these costs.
4. Where the Respondent has also received a Statement of Arrangements form, filled out by the Petitioner, relating to the children of the marriage, the Respondent should read that form carefully and consider whether they agree with what has been set out.
This was a court form where the Petitioner would set out their proposals for how the children of the marriage would be supported after the marriage. The need for filing this form at court has been discontinued since 2014 and therefore it is no longer relevant or required.
If there are children of the marriage and if there are disputes between the parents about crucial issues of the child’s life or care, then this is a separate matter altogether from the divorce. Disputes or arrangements regarding children are covered by The Children Act 1989.
Process
The respondent has 7 days from the date of receipt of the divorce Petition and the Acknowledgement of Service Pack to file the acknowledgement of service form. Where a Respondent intends to defend the divorce they then also have a further 14 days in which to file an ‘Answer‘ to the divorce petition.
Once the acknowledgement of service form has been filed at the court by the Respondent, a copy will be sent to the Petitioner by the court and the Petitioner is then required to swear an statement of truth in support of the divorce petition. More about this in our next article on the divorce process.
Rarely, a difficult Respondent will choose not to file the acknowledgement of service form with the court. This causes delay. We specialise in divorce work so if this has happened to you contact us and we can handle your divorce for you.
In these circumstances the petitioner must either prove to the court that service of the divorce petition has been effective. This usually requires Personal service by a court bailiff or a process server.
One of the complications that can occur for a Petitioner seeking a divorce is locating the whereabouts of the Respondent. We often are consulted by Petitioners who don’t have their spouses current contact details. This is crucial because a divorce petition must be served on your spouse. If it cannot be served, then the court needs to be informed of all the steps that have been taken to try and serve the Respondent and only then ‘might’ the court allow the matter to proceed.
If you are a petitioner and you don’t know where your spouse lives now, you will probably need a specialist family law solicitor to assist you, as this is a complication.
Frequently Asked Questions
I don’t agree with the ‘unreasonable behaviour’ grounds set out by the Petitioner, What can I do?
Unreasonable behaviour grounds will always set out a series of events that will in themselves be upsetting. In situations where you accept that the marriage has irretrievably broken down, then you may consider simply allowing the petition to proceed undefended so as to end the marriage sooner rather than later.
That may also be a cost effective option. However, if the unreasonable behaviour allegations are completely unacceptable to you, you could negotiate with your spouse to amend the petition to something that is more acceptable to you or, in extreme situations where you feel strongly about the matter, you may even cross-petition for a divorce based on your own unreasonable behaviour grounds.
Bear in mind though that this will complicate matters and will cost more in legal and court fees.
The Petition is based on two years separation and requires my consent, but we have been living together at the same address since we married. I don’t want to lie to the court, what can I do?
The ‘fact’ of two years separation with consent does not require that you have been living at different addresses from your spouse.
You can live at the same address but have had no ‘common life’ together for at least the past 2 years. This ground is still effective if you have been sharing the same address but most other aspects of your life have been separate.
For example if you sleep in separate rooms, do not share a common life, socialise separately, eat and shop separately and generally have little joint interaction together then this ground can still be used for what is often called a ‘no fault’ divorce.
It will be for the Petitioner to satisfy the court that although you live at the same address, there has been no common life together for at least two years.
A Petition for divorce based on this ground requires the Respondent to consent to the divorce. If the Respondent does not consent, then this petition will not progress any further through the courts and the Petitioner will need to amend the grounds of divorce to one of the other options available in law.
In the Statement of Arrangement for Children the Petitioner has stated matters that I do not agree with, what can I do?
As mentioned above, the Statement of Arrangements for Children form has been discontinued since 2014 and is no longer relevant to divorces in England & Wales.
If there are disputes between parents about the arrangements after divorce for children, then that is a separate matter from the divorce itself. See our page on Children
The Petitioner has included a Prayer in the Petition seeking an Order relating to the finances of the marriage. What does this mean and what will happen next?
It is usual practice for this to be included in the divorce Petition. However; these matters will not be dealt with by the court independently. It is up to the parties to the marriage to apply to the court separately within the divorce proceedings, asking the court to address the issue of the finances of the divorce.
The procedure for dealing with the finances of the divorce is called Ancillary Relief proceedings, also referred to as Financial Remedy proceedings. See also Applying for Ancillary Relief blog post.
It is commenced by filing at court a form called Form A. Once filed this starts off a new court process dealing with the finances and is effectively separate from the divorce matter in most respects. See our separate articles about Ancillary Relief for more details of this procedure.
If the Petitioner & Respondent have already agreed how they intend to split the matrimonial assets after the divorce, then they will require a Consent Order. Divorcing couples should be aware that NO agreement between them splitting their assets after a divorce is valid except a court order or a Consent Order.
Should you have any queries about your own personal circumstances contact us on 020 8401 7352.
Divorce is a potentially complex legal process and you should always ensure that you receive independent legal advice specific to your particular circumstances from a qualified adviser.