It sounds strange at first: you want to get a divorce, but you don’t know where your husband or wife is.
This situation, however, is not all that uncommon, particularly where there is a long gap between the separation and the move by one spouse to formalise this into a divorce.
There are plenty of reasons as to why a couple may not choose to divorce immediately following the breakdown of a marriage. Understandably, for many couples the first focus when they separate is on practical arrangements, such as how the family finances should be divided or how the children of the marriage are going to spend their time with both parents once they are living separately.
Where both parties are unrepresented, the divorce process itself and the need to formalise any financial agreements may be ignored or pushed down the list of priorities. Other couples may choose to delay for personal reasons, for example, to allow for one spouse more time to come to terms with the end of the marriage.
In some cases, months, years and even decades pass, before one spouse resolves to start the divorce process, perhaps precipitated by a new relationship, estate planning or simply just getting round to it.
By then their former partner could be living anywhere in the world and it may be that their location and contact details are unknown.
Particularly where the marriage broke down on acrimonious terms, lines of communication can be abruptly cut off and new lives begun elsewhere.
Not all spouses want to be found.
Steps to take when divorcing a missing spouse
So, what, then, can a person do when they want to divorce their spouse but have no knowledge of their whereabouts or contact details.
When applying for a divorce, Part 6 of the Family Procedure Rules lays out guidance for the applicant to ‘serve’ the divorce application on their spouse (‘the respondent’), meaning that one person is kick-starting the process by notifying the other.
In most cases, the applicant includes the postal address and email address of their spouse in their online application and the court will send the spouse a copy of the application by email and invite them to respond on the court’s portal. However, the applicant can also opt to serve the application on the respondent via several different methods:
- in person,
- by post or,
- now (following the introduction of the no-fault divorce and amendments to the procedure rules) by email.
How to divorce a spouse when contact details are unknown
If none of those steps can be taken because the applicant does not hold any personal contact details for the respondent whatsoever, the guidance is for the applicant to:
‘Take reasonable steps to ascertain the current postal and email address of the respondent’ – FPR 6.13 (3)
The struggle to identify what reasonable steps might constitute is a legal tale as old as time. However, form D13B (the form used to request that the court dispense with service in divorce or legal separation proceedings) gives some helpful pointers.
In this form, to request that service is dispensed with, the applicant is required to give information detailing their knowledge about the respondent, for example:
- Where the respondent lived following the couple’s separation i.e., the last known place of residence.
- The result when the applicant made enquiries at the last known place of residence and for this, the applicant should supply letters that have been returned to sender, any enquiries that have been made of the neighbours.
- Information about the respondent’s relatives or friends that are known to the applicant, including their names, addresses and relationship to the respondent and the result of the applicant’s enquiries with those individuals.
- If the respondent was in employment after the separation, what was the name of the employer, their address and the result of the applicant’s enquiry with the employer.
- Did the respondent have a bank or building society account and does the applicant know of any of those details.
- Was the respondent a member of a trade union organisation or club and if so, to give the details of that organisation or club.
- That further enquiries have been made of the respondent.
It’s safe to say that ‘reasonable steps’ in this case may actually require an extensive digging expedition. In many cases, a brief search on social media may be all it takes to get back in touch with the person to ask them for a postal or email address. If they are not willing to provide further information over a social media platform or worse still, fail to respond, the applicant can apply to the court for service by an alternative method using a form D11. It has been known for the court to approve an order allowing the applicant to serve the divorce application on Facebook no less!
Additional options to show ‘reasonable steps’ have been considered when searching for a missing spouse
There are further steps that an applicant can take if it has not been possible to locate their spouse using information known to them or that is easily retrievable, in order to show that they have taken ‘reasonable steps’ to find their location. They might consider:
- Instructing a tracing agent (in many cases this may be disproportionately expensive, though it would certainly save the applicant from having to do all the leg work); or
- Applying to the court for a disclosure order from one of HMRC, the Social Security Office or the Passport office, though this may not be a very attractive option where time is of the essence.
Once most or all of these options have been exhausted, an application can then be made to the court to dispense with service using form D13B.
It is no surprise that the court is reluctant to progress a divorce unless it is satisfied that both spouses are aware of it. In many cases, a deep dive into the spouse’s social media, their contact with extended family or workplaces, or even involving a tracing agent will lead to answers and the divorce application can be served.
However, in some extreme cases, this is simply not possible. In those cases, the onus will be on the applicant to be armed with plenty of supporting evidence to show that they have gone to great lengths to find out the location of their missing spouse.
Only in those rare circumstances will a court be willing to dispense with the requirement for service.
Our specialist divorce and separation solicitors are well versed in all areas of the law relating to marriage and separation and can advise on all financial and international aspects of separation.
If you would like to speak with a member of the team, you can contact our team (Holborn: 020 3826 7526, Putney: 020 3826 7520, or Kingston: 020 3826 7527) or complete our online enquiry form.