Article by : Bertus Preller
Divorce when a spouse is missing or his/her whereabouts are unknown.
Substituted service Sometimes, married couples drift apart without ever getting a divorce, especially if they marry young or if the marriage was one of pure convenience. It often happens that neither spouse really bothers exactly where the other is until one of them starts thinking about marrying again and realises that there is some paperwork to be done. After all, to marry you have to be unmarried, otherwise you may be charged with bigamy. If you don’t know where your spouse is, and hence cannot serve a divorce summons on him/her in person, you may divorce through a process called substituted service. Substituted service is permitted when the defendant’s exact whereabouts are unknown. In this instance, an application is made to court for substituted service, usually before the divorce summons is issued. The plaintiff must show in an affidavit that every possible attempt has been made to locate the defendant, indicating the steps taken to ascertain their whereabouts, and that the alternate method of serving the summons is likely to come to the defendant’s attention. Before applying for substituted service you will have to at least:
* find the defendant’s last known address (you will have to tell the court how, when and from whom you obtained it);
* check at that address – if the people living there have no information about the defendant’s whereabouts, ask the neighbours;
* ask every relative, friend, former employer, and any other person you think might know where the defendant is (you will have to submit a written summary of your efforts in your affidavit to the court, listing the names, dates and results of your enquiries);
* search for the defendant online, using search engines such as Google and social networking sites such as Facebook and Twitter; and
* appoint a tracing agent, if all other avenues are exhausted.
You will use this information to show the court that you can’t serve the summons on the defendant personally and that you are therefore entitled to obtain leave for substituted service. If a proper case is made, the court may then order any manner of service it deems appropriate, such as publication in a newspaper, service on family members or friends, by fax or email, or even through a social network like Facebook. This method of alternative service will depend on the facts of the case. The court will also determine the time period within which notice of intention to defend must be given. Edictal citation If the defendant lives in another country, the plaintiff must first approach the court by way of an edictal citation application. If granted, this gives the plaintiff permission to serve the divorce summons on a spouse in a foreign country. The court must be satisfied that there is no other way to serve the summons and that service of the summons will be done properly by an official of the court (a sheriff, known in some countries as a ‘service processor’, or a solicitor) in the foreign country. If the application is successful, the Court will grant an order that the summons be served on the absent spouse at either their home or their place of work. After being served the summons in the foreign country, the defendant will have a month to defend the action. If he/she ignores the summons, or defends it, and after settling the financial terms, the divorce may be set down for hearing on a date that has been pre-arranged with the registrar of the court.