By Jolané van der Walt (LLB) (LLM)

What happens if you want to divorce your spouse, yet you and your spouse have been separated for a long period of time (possibly for months or even years) and you have not been living together? What happens if you are estranged and have not spoken to your spouse for years and it is impossible to find him/ her? Which address does one use for court proceedings, i.e. to divorce your husband or wife? 

SUBSTITUTED SERVICE

The divorce process is always started by way of issuing a divorce summons at court. A summons is a legal document that informs the other spouse that a divorce has been filed, describes the grounds for the divorce, what is being asked for, sets out any arrangements about custody of minor children, maintenance and property and informs the other spouse of rights and responsibilities concerning the case.

The summons then needs to be served (handed to) by the Sheriff of the Court, in person, on the other spouse. No person, other than the spouse, may receive the summons. It will therefore be impossible for the Sheriff to serve a divorce summons on a missing spouse and consequently the divorce process will come to a standstill.

There is a mechanism in our law that allows for a process called “substituted service” which applies to a situation where the spouse is missing and cannot be traced, but is believed to be resident in South Africa.

The process:

  1. An application needs to be made at court for substituted service, usually before the divorce summons is issued.
  2. The Plaintiff (you) must show in an affidavit that every possible attempt has been made to locate the missing spouse. You have to indicate all the steps you have taken to ascertain the missing spouse’s whereabouts and that substituted service is the only method available.

Before applying to court for substituted service, you will have to do the following:

  • find the last known address of the missing spouse (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 missing spouse’s whereabouts, ask the neighbours;
  • ask every relative, friend, former employer, and any other person you think might know where the spouse 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 spouse 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

The above information will then be used and set-out in an affidavit to prove to the court that you cannot serve the summons on the missing spouse personally, as required by law and that you are entitled to obtain permission from the court for substituted service. The court will then consider your application and if they find that a proper case has been made, the court may then order any manner of service it deems appropriate under the circumstances. Alternative methods of service may be the publication in a newspaper, service on family members or friends, fax, email or sometimes even through social networks. The court will also set a time period for the missing spouse to enter a notice of intention to defend.

It is therefore not impossible to proceed with a divorce if you and your spouse are estranged, however this mechanism is very costly and time consuming. 

Jolané van der Walt (LLB) (LLM) from Legal Hero

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