Divorce Legal Advice

Seek Legal Advice on How to Divorce a Missing Spouse

It is always recommended to seek legal advice before you commence with any steps to get divorced from your spouse. Although a divorce can be a relatively straightforward process in South Africa, when children are involved, there are issues such as parental rights and responsibilities, child maintenance, visiting rights, and more to consider. Each of the above can become a major dispute in the divorce. In addition, your spouse may be missing or living in another country, and you may be unable to serve the divorce summons. As such, getting legal advice before taking any form of action is recommended.

We briefly take a look at the legal procedure for divorcing a missing spouse in South Africa below. However, we highly recommend seeking legal advice regarding the matter, as the process can become complex and there are many legal pitfalls to avoid throughout the process.

Your spouse may live in another country or maybe you have drifted apart over the years, and now you want to get remarried, but first need to get a divorce. What are you to do? There are documents to be served. In the instance where you have no knowledge of your spouse’s location, you can get a divorce by means of the substituted service. We also recommend seeking divorce legal advice in this regard to understand the full process.

The substituted service is a legal service that is only allowed when you don’t have any knowledge of where your spouse is. For such, you will need to apply to court for the substituted service, and will need the assistance of divorce lawyers experienced in legal matters related to substituted service.

Keep in mind that only if you are able to show in a written and signed affidavit that you have made considerable effort in locating your spouse in order to serve a divorce summons will the court award the substituted service.
In order to apply for the substituted service, you must first locate the last known address of the defendant, and must be able to state how you got the address and from whom, as well as when you received it. You must also first check at the address and enquire from the people at the address whether they have any knowledge regarding the whereabouts of the defendant (your spouse). You will also have to ask the neighbours at the particular address if they know where to find the defendant.

You must ask any relative of the defendant, previous friends, or the defendant’s last known employer if they know where to locate him/her. Keep record of all the people you have spoken to in this regard, addresses, dates, contact details, and time, as well as their answers. You will need to submit a summary of the process you followed in the affidavit, which must be submitted to the court.

Before you can apply for the substituted service, you also need to try and locate the defendant through social media sites, such as Facebook, LinkedIn, and Twitter, and must conduct a search on Google by typing in the defendant’s name. If you still cannot find the defendant, also stipulate the process followed, dates, searches conducted, and the results thereof as part of the summary.

If all the above efforts bring no results, you may have to appoint a tracing agent to locate the defendant. We recommend seeking legal advice regarding such.

The above process is important because you must be able to prove that you have exhausted all reasonable avenues in trying to locate the defendant, and because the defendant cannot be located, you are unable to serve the divorce summons to the defendant.

Our legal team can handle the application for the substituted service on your behalf, and provide you with relevant legal advice on how to proceed. If it is awarded, the court may order an appropriate service, such as publishing of the notice in a newspaper, and emailing, faxing, or publishing the notice on Facebook. It is a notice of intension to divorce and the defendant will get an appropriate timeframe in which to respond with a notice to defend.

Should the defendant be a resident in another country, you will be able to ask for an edictal citation. If the court awards it, you can serve the divorce summons on the defendant in the country where he or she resides. The defendant in this instance will have 30 days to defend the divorce action. We also recommend seeking legal advice regarding how to proceed with the divorce, should your spouse live in another country.

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