“I want a divorce but I don’t know where my husband is!”
The reality is that sometimes people get married, grow apart and move in different directions without further contact. When one of the parties decide to get married again, a divorce from his/her first spouse is required by law. But how can you divorce a MISSING spouse?
This blog post will highlight the challenges and explain the process to be followed when you want to divorce your missing spouse.
Divorce Missing Spouse – The Challenges
A very important part of the South African divorce process is the personal service (delivery) of the divorce summons. The Sheriff must personally serve the documents on the Defendant. If the address of the Defendant is unknown, the Sheriff will not know where to arrive. What happens if personal service simply is not possible?
It is an important step of the 4-step uncontested divorce process that both parties sign the divorce papers. How can you ask a person to sign divorce papers if you are unable to reach that person?
Can I, then, divorce my missing spouse?
The answer is YES. Due to the challenges mentioned above, the process will usually take longer than other uncontested divorces, but it is definitely still possible.
Divorce Missing Spouse – The Process
Before the actual divorce process will commence, a separate application called “substituted service application” would be required. In this application all facts will be set out to convince the Judge/Magistrate to give an order that the divorce summons may be served in an alternative manner. (Examples: to publish the divorce summons in a local newspaper in the area in which the Defendant was last seen and/or to send the divorce summons via email to the Defendant’s last known email address.)
Once such an order has been granted, the divorce process will commence. The divorce papers will be served in the prescribed manner and the Defendant will have the opportunity to oppose the divorce and terms. If the Defendant opposes the divorce, the contested divorce process will be followed.
In most missing spouse divorce cases, however, the Defendant never appears. The Plaintiff (the person who started the divorce proceedings) may then ask for a default divorce. If the Judge/Magistrate is satisfied, the divorce will be granted without any input from the Defendant.
Divorce Missing Spouse – The Legal Costs
Our all-inclusive fee is R10,500. (R4,500 for the substitute service application and R6,000 for the default or uncontested divorce.) Should the Defendant oppose the divorce, our normal hourly rate shall apply.
How to start the divorce process?
Complete our online divorce application. Type “MISSING SPOUSE” in all the fields about your spouse’s address. Alternatively, send an email to firstname.lastname@example.org to request assistance.
PLEASE NOTE: Ilizna Esterhuyse Attorneys (iedivorce) only takes on missing spouse divorces where the Plaintiff, the party who wishes to institute divorce proceedings, reside in the Western Cape of South Africa.
Ilizna Esterhuyse, founder of iedivorce, is an admitted attorney of the High Court of South Africa, specializing in Divorce and Family Law matters. Her fields of expertise and interest include Divorce Law, Family Law, Domestic Violence Law and International Divorce Law. Her vision is to demystify Family Law processes, helping good people in plain language and with great technology, to achieve remarkable results.