It could conceivably be a shock when someone is served divorce papers. They might have been unaware that their spouse was planning to apply for divorce, although it's highly unlikely to be a total surprise. When you decide to end your marriage, what is the process for serving your spouse with the formal notification of your intentions? And must divorce papers always be served before you can proceed?
A Mutual Decision
Neither party needs to serve the other divorce papers when the decision is a mutual one. In this instance, you and your spouse would make a joint application for divorce, beginning the mediation process that will determine any applicable parenting order (custody and visitation of children, financial maintenance (if necessary), and the division of shared assets. But what about when your spouse is in disagreement about the need to divorce?
A Solo Application
You cannot be forced to remain married. It's as simple as that. Your spouse might urge you to reconsider, and perhaps to attend counselling to salvage your relationship. Whether or not you consent to this is entirely at your discretion. But if you wish to proceed with the divorce, and you opt to make a solo application, someone will need to serve divorce papers to your spouse. You might not want to do this yourself to avoid a potentially upsetting confrontation. A friend or family member can serve the papers, or you can apply to have a court representative do this on your behalf.
A Substituted Service
When your spouse does not want to divorce, they might essentially play hard to get. They could make an effort to keep a low profile, with the sole intention of making it difficult to be served the necessary documentation. In this case, you can enact a substituted service. This involves serving the papers to a designated third person (generally a family member or friend of your spouse), who will then deliver the papers to your spouse. With a substituted service, you can also post the papers to your spouse.
A Dispensation
In extreme circumstances, you can request a dispensation. This allows the divorce to proceed without your spouse being formally served with divorce papers. This is only permitted when you have made every effort to locate your spouse but cannot. This can be the case if your spouse travels out of the country.
Although serving divorce papers is a standard aspect of ending a marriage, it's not always necessary, and in some instances, it might not even be possible.
