17th February 2016

Worried your spouse won’t “sign the divorce papers”?

Article by admin | family, Legal Updates

I am often asked by my clients whether or not they can still divorce their spouse if he/she is refusing to “sign the papers”. It is not uncommon when a relationship breaks down for one party to feel that the other will cause significant difficulties when a Divorce Petition is issued.

Whether this will be a major problem depends to a large extent on the basis for the divorce. The only ground for any divorce is that the marriage has broken down irretrievably. However, in addition our rather outdated law requires you to prove that the marriage is at an end by citing one of five “facts”:

  • “2 years separation with consent” – as the name suggests, this does require the other party to agree, so you cannot proceed if they will not sign.
  • “5 years separation” – this does not require agreement
  • “2 years desertion” – rarely used, but does not require agreement
  • “Adultery” – though this “fact” does not require agreement, unless the other party admits to another relationship, it is very difficult to prove, so this effectively requires agreement.
  • “Unreasonable behaviour” – this does not require agreement and is probably the most frequently used.

Desertion and separation are matters of fact, so if you can prove them, they do not require agreement from the other party. However, both require long waiting periods and can be surprisingly difficult to prove, which is why “unreasonable behaviour” is so often used.

Often when one party is leaving another, it is because some form of behaviour has occurred which makes them feel they can no longer live with that person or be in a marriage. “Unreasonable behaviour” is subjective and therefore a very wide range of behaviour can be cited in the Petition. This makes it far easier to use, as opposed to having to prove desertion or separation.

If a Petition is pursued using one of the “facts” which does not require agreement and the other party refuses to engage in the process, there are several ways in which a court can still proceed with the divorce – effectively the court decides that the “obstructing” party does not object, and after this point the Court does not then need them to sign any papers for the Petition to proceed.

Whenever my clients therefore come in with a worry that their husband or wife will not deal properly with the proceedings, my first thought is always to discuss with them the behaviour or circumstances which led to the breakdown of their marriage, to ascertain the best facts to use. There is always an answer – nobody can be forced to remain married. Clients are often relieved to hear this as after all, if you have made the decision to leave your marriage, the thought of being unable to end it legally can be exasperating!

The same principles, with some technical amendments and exceptions, apply to judicial separation proceedings and dissolution of a civil partnership – there is always a way.

If you are considering taking steps to start divorce proceedings, our Family Team at MacDonald Oates LLP are experienced in dealing with all matters relating to divorce, separation and civil partnership dissolution. If you would like any advice, please do not hesitate to contact us on 01730 268211 or 01730 816711.

N.B. Please note that the above information is a guide only and does not constitute legal advice. We recommend seeking specialist legal advice on your own particular circumstances.