In England and Wales it is possible to obtain a divorce even if a spouse is missing. A person would need to petition under the grounds of either unreasonable behaviour, 5 years separation or desertion. Before the Court will allow the divorce to proceed the Court will expect efforts to be made to find the former spouse first.
The other two grounds to petition under are adultery or two years separation with consent. It is not possible to proceed with divorce proceedings issued on these grounds where a spouse is missing because both of these grounds require a response from the missing spouse. An adultery petition requires the Respondent to admit the adultery and a two year separation petition requires the Respondent to consent to the divorce.
You are required to ensure that a spouse is served with a copy of the divorce petition or that you have taken all reasonable steps to find the spouse but have not been able to do so. This could mean instructing a private investigator to locate the missing spouse. In some cases, a person may have little or no information about their spouse. Further steps will need to be taken which could include contacting relatives and friends of the missing spouse and maybe their GP or bank to see whether they hold any up to date information regarding the spouses whereabouts. It may also be necessary to apply to the Court for an Order which specifies that the Inland Revenue and the Department for Work and Pensions disclose the missing spouse’s last known address.
Once all of the above steps have been exhausted, if the location of the missing spouse is still not known the Court has a discretion to grant the divorce or, perhaps, to stipulate what further steps may be required before they will grant a divorce, for example, placing an advert in the paper.
If you are considering filing for divorce and need further advice please do not hesitate to contact our Melbourne office on 01332 862113.Talk to our legal team
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