Divorce can be challenging, but when a former partner is uncooperative, it can cause difficulties and hold-ups that make the process far harder than it needs to be. However, the situation is not uncommon and family lawyers and the courts have ways of dealing with an uncooperative spouse in divorce, to ensure that matters are finalised, however problematic someone makes it.
We look at handling a divorce and dealing with accompanying matters such as obtaining a financial order and making arrangements for children, when a spouse is difficult.
Divorce Proceedings and Refusal to Cooperate
An uncooperative spouse cannot prevent you from obtaining a divorce. While it is possible to file a joint application for a divorce, most people still apply solely.
As well as obtaining a legal divorce, you will usually ask the court to make a financial order at the same time, setting out how your finances will be split. Without this, you could face a claim in the future, so it is an important step.
Refusal to Acknowledge Divorce Petition
When you file an application for a divorce, the court will send a notice of your application to your spouse. The spouse then has 14 days in which to send back an acknowledgment of service to the court.
If they fail to do this, we can ask a process server to serve the document on them. The process server will hand the paperwork to them, then provide a sworn affidavit or certificate of service for the court. Alternatively, we can ask the court to send a court bailiff to serve the papers.
Where your spouse has confirmed to you in writing that they have a copy of the divorce application, for example, by text message, we can use this to show the court that the papers have been received. This is known as “deemed service”.
If someone has disappeared and cannot be located, then the court can be asked to dispense with service. We would need to show that all reasonable action has been taken to locate them.
Where you incur additional costs because of your spouse’s refusal to cooperate, it is open to the court to order them to pay these.
Financial Matters
Unfortunately, an uncooperative spouse can delay matters, particularly when dealing with the financial aspects of divorce. However, they cannot prevent a divorce from happening, and they cannot prevent a financial order from being made.
There are powers available to the court to compel someone to comply with requirements, such as making full financial disclosure, and penalties will be imposed for failure to do so.
Non-Cooperation with Financial Disclosure
The first stage in dealing with the separation of finances on divorce is full disclosure of all assets, liabilities and obligations. This is generally dealt with by completion of Form E, a comprehensive form setting out all relevant issues, together with details, such as valuations and evidence to back up the figures, such as bank statements.
Where an individual fails to deal with this, the court can make a timetable requiring them to comply by a certain date. If necessary, the court can make an order requiring disclosure and requesting the answers to specific questions.
The court can also make third party disclosure notices requiring organisations and professionals, such as banks and financial advisers, to provide information.
Costs Orders and Penal Notices
If someone persistently fails to comply, the court can impose a fine and, in the worst cases, prison for contempt of court.
The court will also take non-compliance into account when looking at the issue of costs, and someone who has not complied with requirements or who has caused delays could be ordered to pay the other side’s costs as well as their own.
Spousal Maintenance & Interim Orders
Where one party has financial needs during the divorce process, the court can be asked to make an interim maintenance order. This requires one party to make regular payments to the other to meet their requirements. It is a short-term solution to support someone during the time it takes to divide finances, and usually ends automatically when a financial order is made or the divorce is finalised.
Asset Freezing and Financial Assumptions
Failure to disclose assets or attempts to move or hide them are taken very seriously by the courts.
If you believe that your spouse may attempt to put assets beyond reach, we can apply for an asset freezing injunction, which will prevent assets from being sold, transferred or hidden. We will put together a strong case showing the court that there is a real risk of asset dissipation.
Where assets have not been disclosed to the court, the court has the power to draw inferences as to the existence of those assets and take them into account when making a financial order. For example, if £1 million of assets has been disclosed but the court believes that a further £1 million has been hidden, then it can order the payment of £1 million to the innocent party.
The party believed to have hidden assets is also likely to be ordered to pay the other party’s legal costs.
Where assets are discovered after a final financial order has been made, the court can be asked to set this aside and make a different order, taking the hidden assets into account.
Children’s Arrangements
Making arrangements for children in divorce can be difficult, particularly when one parent is uncooperative. The courts always prefer that parents work together to find the right solution for their families, and often require mediation to be tried first. However, where this is not possible, the courts have the power to make and enforce a range of orders.
Court Involvement in Disagreements
Where parents cannot agree on arrangements for children, the first step is usually to consider mediation. In most cases, it is a legal requirement for both parents to attend an initial Mediation Information and Assessment Meeting (MIAM). Exceptions include cases where domestic abuse is a factor.
You will attend separately from your partner and the process of mediation is explained. If your child’s other parent refuses to take part or does not want to proceed with mediation, the mediator will provide a form confirming this and you will be able to apply to the court for a child arrangements order.
When considering what order to make, the court will always prioritise a child’s best interests and take into account the factors set out at Section 1 of the Children Act 1989, known as the welfare checklist. These are as follows:
- The child’s ascertainable wishes and feelings, in the light of their age and understanding
- The child’s physical, emotional and educational needs
- The likely effect on the child of any change in circumstances
- The child’s age, sex, background and any other relevant characteristic
- Any harm the child has suffered or is at risk of suffering
- How capable each parent and any other relevant individual is of meeting the child’s needs
Before making its decision, the court will ask an officer from the Children and Family Court Advisory and Support Service (Cafcass) to meet each parent and child and prepare a report. The court will use this information to guide it when making an order.
Specific Issue Orders and Prohibited Steps Orders
The court can also deal with issues that arise after a child arrangements order has been made.
A specific issue order allows the court to make a ruling on a disagreement between parents such as where to send a child to school or what medical treatment they will receive.
A prohibited steps order prevents a parent from taking certain action, such as removing a child from school, relocating with a child or changing a child’s surname.
Where necessary, these orders can be applied for on an emergency basis.
Penal Notices and Committal Orders
If a parent fails to comply with a child arrangements order, the court will generally refer parents to mediation. Should this not resolve matters, the court has the power to order a non-compliant parent to carry out community service. They can also order them to make financial compensation to the other parent if financial losses have been sustained.
In the worst or most persistent cases, the court can order committal to prison.
Dealing with Abuse or Threatening Behaviour
If you are facing abuse or threatening behaviour, your solicitor can take steps to protect you. If you ask us to represent you, we can obtain a court order where necessary.
Non-Molestation and Occupation Orders
A non-molestation order is an order of the court preventing someone from using or threatening violence, harassing or pestering you, or communicating with you, including by text, phone or via social media.
They can be stopped from coming near your home, place of work or children’s school.
Breach of a non-molestation order is a criminal offence, and the police can arrest someone for doing so. The courts can impose a fine, a community order and/or a prison sentence.
An occupation order can set out how your home is occupied. Someone can be required to leave or restricted from being in certain parts of the property. It can also detail who pays the rent or mortgage.
Breach of an occupation order is contempt of court, which is an offence, and the court has the authority to penalise someone where necessary.
Court Orders Available for Non-Cooperation
Barring Orders
Where an uncooperative or vindictive spouse attempts to make repeated or vexatious applications to the court in child arrangements cases, family courts can use a Section 91(14) barring order. This means that the named party will need permission before an application can proceed, and the court will consider whether there has been a material change in circumstances.
A barring order is available where repeated court applications risk causing harm to a child or parent, and this includes emotional distress and anxiety as a result of filings which are without merit.
Civil Restraint Orders
Where other types of proceedings are used in an abusive or oppressive way, such as financial applications, the court can issue a civil restraint order. Again, the named party will need the court’s permission before making further applications. If meritless applications are made persistently, the courts have the power to ban new claims or applications for up to two years, known as an extended civil restraint order, while a general civil restraint order can cover all proceedings in that court. Either order can be extended.
Legal Services Payment Orders
Where a spouse in a weaker financial position is unable to pay their legal fees, the court can order the other spouse to do so, using a legal services payment order.
This requires fees such as solicitors’ fees, barristers’ fees, court fees and expert witness fees to be paid, ensuring the individual has the representation they need.
This type of order may be available in financial proceedings, where a party cannot reasonably obtain a loan or offer a charge over assets to pay for legal help, the other spouse can afford to pay, and without an order the party in the weaker financial position could not reasonably obtain the legal services they need.
Contact Our Solicitors
If you have questions about dealing with an uncooperative spouse in divorce, our divorce solicitors will be able to advise you.
You can ring us on 0300 303 2071, email us at info@witansolicitors.co.uk or fill in our contact form.
We will talk through your situation with you and discuss how we can assist.
FAQs
What should I do if my spouse will not cooperate with divorce proceedings?
It can be stressful and upsetting if a spouse will not cooperate with divorce proceedings. Family law solicitors are used to dealing with difficult cases and can guide you through the required steps to obtain the necessary court orders.
You should keep records of anything relevant, such as movement of assets or any threats or abuse.
Can I divorce if my spouse doesn’t want to?
Yes. Once you have been married for a year, you can obtain a divorce even if your spouse does not want one.
What should I do if my spouse will not accept divorce?
If your spouse is being difficult during the divorce process, the court can still make the necessary orders, although the process may take longer.
You can speak to an experienced divorce solicitor who can apply for a financial order, a child arrangements order and a divorce order, and take any required steps to achieve these, even if your spouse fails to cooperate.
