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Divorce if you have been abandoned by your spouse

View profile for Alexandra Kelly
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Husbands, wives and civil partners can find themselves abandoned through a variety of different situations. 

Sometimes the reason is obvious, such as a forced marriage, a scam marriage where one person was simply seeking a visa, an abusive marriage or because a spouse wanted to return home or decided to take up work opportunities abroad.  Sometimes a spouse may disappear without any warning, and you may be at a loss to understand why. 

Regardless of the background circumstances leading to the abandonment, you may be wondering what your options are in order to obtain a divorce and move on with your life. 

Alexandra Kelly, family law expert at Family Law Group has experience representing abandoned spouses and can guide you through the divorce process.

To be granted a divorce, it must be shown that your marriage has broken down irretrievably in one of five different ways.  One of the ways is known as desertion, which essentially means you have been abandoned. 

You will need to be able to show that your spouse has, without your consent or without good reason, abandoned you for at least two years before you can start a petition for divorce. 

The courts will consider whether your spouse might have had a good reason, for example:

  • you have agreed to trial a separation and are living apart, even if you do not know where your spouse is living;
  • your spouse has offered to return and you refused that offer; or
  • your spouse moved abroad for work but does not intend for the marriage to end.

It is important to note if you attempted a reconciliation, then it is still possible to proceed with a desertion divorce provided you have not lived together for more than six months in the past two and a half years.  If you lived together for more than six months, then any period of abandonment prior to that period of cohabitation will not count towards the two-year period needed.

If your spouse has accused you of abuse or adultery, then the court would also consider this to be a good reason and desertion would not be the first choice of grounds for divorce – your solicitor will be able to advise you depending on your circumstances.

Collecting evidence

The intention of your spouse is important.  The court needs to be satisfied that when leaving they intended to abandon the marriage. 

Any evidence you can gather to help show that will assist your case.  Text messages, e-mails or other such communications can be used to help show their intention.  If you have made attempts to contact your spouse which have been ignored, then that lack of response may well help convince a court of your spouse’s intention to abandon you.

While not conclusive proof, it will be helpful to show to the court that your spouse has lived apart from you for at least two years.  You may find it useful to keep a record of household bills in your sole name.  You could also provide bank statements to show that no financial commitments, such as transfers to your bank account or payment of rent or mortgage, were being met by your spouse. 

Contacting your absent spouse

As part of the divorce process, your spouse is normally sent the divorce petition in order to give them an opportunity of responding if they wish to do so.  This step ensures a court knows fair process has been followed. 

The petition is normally sent via post but it can also be sent in different ways, such as being delivered by hand.  If you do not know where your spouse is residing then there are some steps that can be taken in order to progress your divorce.

You should make enquiries with anyone you can think of that may be able to tell you your spouse’s current address.  This could be their friends, family or even co-workers. 

If you are able to get their last known address, even if you are unsure if they still live there, then the divorce petition can be posted there.  If it is not returned as undelivered then the court will likely accept it as having been properly sent to your spouse. 

If it is returned as undelivered then an alternative attempt will need to be made at sending the divorce petition to your spouse.  The regional divorce centre may be able to carry out searches with other government bodies to see if they can find an updated address for your spouse.  Or, it may be possible to send the divorce petition by e-mail or to your spouse’s work address. 

If all else fails or if your spouse is a foreign national and there are no other routes to trace them, then your solicitor can make an application to the court on your behalf.  They will explain to the court the difficulties you have encountered and the attempts you have made to contact your spouse and can ask the court to proceed without the divorce petition being sent to your spouse.  This process can take time, but will ensure your divorce is progressed as quickly as possible. 

Each case will turn on its own facts, and it is important that you obtain early legal advice in order that you can make an informed decision on how best to progress in your own circumstances. 

For further information, please contact Alexandra Kelly in the divorce team on 0115 945 4555 or email alexandra.kelly@familylawgroup.co.uk   

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