It is not unusual for one party to delay a separation and ultimately commence divorce proceedings simply out of fear that their spouse will be uncooperative. This concern should not, however, deter a spouse wishing to end a marriage from doing so.

Divorce and separation can be emotionally tolling for both parties, often particularly where there are children involved. If one spouse though forms the view that the marriage has broken down irretrievably then it is an option for that spouse to issue divorce proceedings should they choose to do so, regardless of the wishes of the other.

It is, of course, always encouraged that parties try to resolve matters, both in relation to financial issues arising from the separation and to child arrangements, as sensibly and amicably as possible. Having an open line of communication is not only crucial for maintaining a co-parenting relationship for the benefit of the children but also significantly assists when trying to reach an agreement as to the division of matrimonial assets. Difficulties arise, however, often where emotions are heightened and, in the worst-case scenarios, the party struggling with the separation then decides to disengage entirely.

So, where does this leave the spouse hoping to separate if the other refuses to cooperate? Following the introduction of ‘no-fault’ divorce in early 2022, divorce is much more straight forward. Parties are no longer required to rely on blame or years of separation as per the previous legislation and can commence divorce proceedings solely on the ground that they believe the marriage to have broken down irretrievably. The application will be filed with the court and, once the application passes court checks, it will be issued and sent to the respondent spouse by the court direct together with an acknowledgement of service form. If the respondent refuses to acknowledge the divorce paperwork, steps will be taken to formally serve the documentation which, if successful, will then allow the divorce to proceed as usual. There are other methods of service that can also be considered if personal service is unsuccessful and a spouse hoping to divorce should absolutely not be deterred from commencing the proceedings solely out of worry that their spouse will not ‘allow’ the divorce as consent from the other party is not necessary.

Dealing with an uncooperative spouse upon separation

Financial matters can, however, be slightly more difficult with an uncooperative spouse. In ordinary cases, it would be hoped that a settlement could be reached ‘outside’ of court proceedings, whether this be between the parties direct, via mediation, or with the assistance of solicitors, as there are numerous benefits to reaching a settlement this way. If, however, one spouse has made it abundantly clear from the outset that they will not cooperate, financial remedy proceedings should be considered without hesitation. This will then afford the parties the benefit of a court-imposed timetable with potential cost sanctions for a disruptive spouse if necessary. Equally, there will also then be a guaranteed ‘finish line’ because if matters cannot be agreed at any point during the proceedings, the case will be listed for a final hearing where a court will determine the outcome. If one spouse refuses to negotiate openly and reasonably to this point, there are, again, costs sanctions that will be considered. This is a complex area with many factors to be taken into consideration but ultimately any final order made will be legally enforceable and steps can be taken to mitigate future potential issues arising. For example, if a jointly owned family home is to be sold, consideration can be given to one party having sole conduct of the sale with a view of avoiding any further issues later down the road when it comes to the home, in practice, being sold.

Overall, whilst an uncooperative spouse is unhelpful in a separation, it does not prevent divorce proceedings being issued or finances being resolved.

Dealing with an uncooperative spouse upon separation

How can we help?

For more information, please contact Tilly Bailey & Irvine’s Private Family law team on 01740 646000 or fill in an online enquiry form and someone will be in touch.

Call: 01740 646000