Divorcing an absent spouse

Trying to divorce a missing spouse is an extremely frustrating situation to be in, but it is not so uncommon. Sometimes a spouse just disappears. So how do you divorce an absent spouse? Are you condemned to remain married until you can locate them? No, you are not. In this article we cover how you can initiate a divorce action when your spouse’s whereabouts are unknown.

Grounds for divorce

In South Africa, The Divorce Act 70 of 1979 regulates the process of getting a divorce. A court may grant a divorce because of an irretrievable breakdown in the marriage, or if the defendant suffers from mental illness or is in a continuous unconsciousness state. The grounds for divorce are further influenced by the circumstances of the case. When a spouse’s whereabouts are unknown and there is no communication between the partners, initiating the divorce action is trickier, but not impossible.

Establishing jurisdiction

A court has jurisdiction in a divorce matter when one or both spouses are domiciled in the area on the date the action is initiated, or if one or both spouses have been ordinarily resident within the jurisdiction of the court on that date for at least a year previously. The Act further provides that the patrimonial consequences of a marriage are governed by the laws of the country where the husband was domiciled (ordinarily resident) at the time of the marriage. This means that if the husband is domiciled in a country where the presumption is that all marriages are concluded out of community of property, unless otherwise agreed, then the South African presumption of marriage in community of property (unless there is an antenuptial contract in place) will not apply. Even if a husband changes his domicile after the marriage, the patrimonial consequences of marriage will continue to be governed by the law that applied to the marriage when it took place.

Initiating proceedings to divorce an absent spouse

To initiate divorce proceedings, a summons must be served personally on the defendant by a sheriff of the court. If the defendant cannot be found after a diligent search, then an alternative form of service can be authorized by court order. Alternative methods of service include service by way of substituted service and edictal citation.

Substituted Service

Divorce proceedings can be instituted through a process called “substituted service” in terms of the Uniform Rules of Court: Rules Regulating the Conduct of the Proceedings of the Several Provincial and Local Divisions of the High Court of South Africa. This mechanism applies when your missing spouse cannot be traced but is believed to be in South Africa. 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 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 neighbors;

  • 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.

This information can be used to show the court that you cannot 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 period within which notice of intention to defend must be given.

Technology and the law

As communication technologies evolve, so do the courts, and the digital age is transforming the face of law. Substituted notice can now be served on a missing spouse via email or social media sites such as Facebook and LinkedIn, where personal service is not possible.

You are required to show that you have a prima facie case, that the court has jurisdiction if your missing spouse is a foreign peregrine (a foreigner who neither resides nor is domiciled in the jurisdiction of the court); and you must disclose the spouse’s whereabouts or, if this is not possible, a last known address, location of close family members and the steps taken to obtain this information.

When every option has failed, and the whereabouts of your spouse is still unknown, then it is an appropriate time to contact the courts for direction on the next step. It is important to keep evidence of one’s attempts to contact the spouse for later use.

How to serve the summons by substituted service

The plaintiff may seek an order authorizing service of the summons to be served by publication in a newspaper that circulates nationally and/or in the area where the defendant is believed to reside, be employed, or hold immovable property. The publication must follow the format determined by the prescribed form in the Magistrate’s Court Rules. This form must set out the relief sought in terms of the divorce action and invite the defendant to enter a notice of intention to defend within one calendar month after publication. Failing this, the plaintiff’s attorneys will place the matter on the unopposed motion roll by filing a Notice of Set Down. Substituted notice can also be served on a missing spouse via email or social media sites such as Facebook and LinkedIn, as newspapers are becoming less and less relevant with the widespread use of electronic platforms for news consumption and social contact.

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.

We can help

Rudolf Buys and Associates Attorneys are experts in divorce law and can help if you want to divorce an absent spouse. We will protect your legal interests, while helping you through this challenging time with sensitivity and empathy.

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