“I want a divorce but I don’t know where my husband/wife 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 husband or wife?
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 of the divorce summons on the Defendant. The Sheriff must personally serve the documents on the Defendant. The divorce summons cannot be taped to the door/gate or served on anyone else other than the Defendant him/herself. 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?
So can I divorce my missing spouse then?
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.
The Process to divorce your missing husband / wife
Since your spouse cannot be located, to be personally served with the divorce summons, a separate application called a “substituted service application” would need to be brought to court before the actual commencement of the standard divorce process. In this substituted service 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 other than personal service on the Defendant.
(Examples of other methods of service of the divorce summons: 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, to serve the summons via WhatsApp or Facebook, etc.)
Once the order has been granted to serve the divorce summons by means of the alternative method, the divorce process will commence as normal. The divorce papers will be served in the prescribed manner (the method that was authorised by the court in the substituted service order), and the Defendant will have the opportunity to oppose the divorce and terms. If the Defendant defends 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.
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Nazli Williams (BCom LLB), director of Patton Williams Attorneys is an admitted divorce 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.