Divorce papers must, if possible, be served upon the respondent. The papers to be served comprise a copy of the divorce petition, a copy of the statement of arrangements for children form and an acknowledgement of service form and notice of proceedings, which will be provided by the court. In the first instance, the papers will be sent to the respondent by the court by post (at the address you gave for the respondent in the petition), unless specified otherwise.
It will be necessary to prove to the satisfaction of the court that the respondent has received the divorce papers. Obviously, this will not be a problem if the respondent completes the acknowledgement of service form and returns it to the court (see below), but what if the respondent fails to do this? The next step depends upon the circumstances.
If you know that your spouse has received the divorce papers, because they have told you so, or because you have seen them in their possession, you could use that as evidence that they have received them. You can then apply for an order that service of the petition be presumed to have taken place, known as ‘deemed service’. The application involves drafting a short affidavit setting out why you maintain that your spouse has received the papers, and filing it with the court, together with a £40 court fee. If the court is satisfied that your spouse has received the papers, it will make an order for deemed service, and you can then apply for the divorce to proceed – see below. An example affidavit in support of an application for deemed service can be found in Appendix 1.
personally. You could arrange for a professional ‘process server’ to give your spouse the papers in person. However, this will involve extra costs. You may get these costs back if you succeed in your claim that your spouse should meet your costs of the divorce and those costs are paid. If the process server is successful, then they will swear an affidavit of service, which you may use as proof of service. Alternatively, you may request that the court bailiff serve the papers. This involves filling in a request form (available from the court) and paying a fee of £30, but court bailiffs are generally far less strenuous than process servers in their efforts to effect service, which could be a problem if the respondent tries to evade service. If the bailiff does effect service, then they will invite the respondent to sign an indorsement of service, which is used as proof of service. Lastly, you may know of someone who could serve the papers for you, which would keep the costs down. You cannot hand the papers to your spouse yourself.
As a last resort, it is sometimes possible to get an order from the court that service should take place by the papers being sent to someone other than your spouse, such as a member of their family (known as ‘substituted service’). However, the courts generally need to be persuaded that it is impossible to carry out service in any other way, and it will still be necessary to prove that that person has received the papers.
What if you simply do not know the whereabouts of the respondent or of any way to effect service of the divorce papers upon them? In this case, you can apply to the court for an order dispensing with service of the papers upon them. However, the court will only make such an order if it is satisfied that you have made every reasonable effort to trace the respondent. You will need to swear an affidavit detailing those efforts, which include making
enquiries of the respondent’s friends, relatives, former employers and bank. A form of affidavit is available from the court office and a £40 fee is payable on the application. An example affidavit is not included in the appendix as it is in a simple question and answer format and should be quite straightforward to complete. (These applications are often made simultaneously with the filing of the divorce petition, rather than afterwards.)
Note that if you need the respondent to admit adultery or to consent to the divorce in their acknowledgement, then there is of course no point in going to the expense of proving service as you will still not be able to proceed with the divorce – this is why it is essential that these matters are dealt with before the divorce proceedings are issued.