Can you Divorce your Spouse if you Can Not Locate them?

When we talk about divorce, we normally think about two people coming to the conclusion (either peacefully or after a lot of arguing) that their relationship is no longer salvageable and that it’s time to give up the ghost. Sadly, this isn’t always the case, sometimes people just get up and leave and it’s up to the other party to handle the legal matters alone. But is this possible? Can you Divorce your Spouse if you Can Not Locate them?

Yes, you can still get a divorce even if you can’t locate your husband/wife. Unfortunately this process isn’t what we’d consider quick and easy.

Essentially what you’ll need to do is have a procedure called Substituted Service authorized by the court, but before we get into all that, it’s best to first familiarise ourselves with the general divorce protocol.

Can you Divorce your Spouse if you Can Not Locate them?
Can you Divorce your Spouse if you Can Not Locate them?

The Divorce Process – How do you Divorce your Spouse if you Can Not Locate them?

There are many legal intricacies within the divorce process that can be made easier by hiring a skilled lawyer, however, if we had to boil the process down to its most fundamental parts it would look something like this – 

How do you Divorce your Spouse if you Can Not Locate them?

Once again, this is an extremely simplistic version of the process and can be further understood like this –

  • Step 1 – Your spouse must be made aware of the proceedings. While you don’t need to get their permission to file for divorce, they do need to be given the opportunity to make their case heard.
  • Step 2(a) – Your spouse appears in court on the given date and proceedings continue.
  • Step 3(a) – You and your spouse more or less agree to the details of the case and the divorce is eventually finalized (Uncontested) or there is disagreement and the case usually becomes more drawn out (Contested).

  • Step 2(b) – Your spouse does not arrive in court at the given date and does not provide reasons why the case should be postponed.
  • Step 3(b) – As you are the only spouse present the case proceeds and is usually formalized quite quickly and easily (Default).

You may have noticed that there isn’t an option for not properly issuing a summons. That’s where the Substituted Service comes in.

What is a Substituted Service? – Can you Divorce your Spouse if you Can Not Locate them?

We’ve established that your spouse needs to be made aware of the divorce proceedings, but what if you honestly can’t find them? In such a case you can ask the court to initialize a Substituted Service.

Can you Divorce your Spouse if you Can Not Locate them?
Can you Divorce your Spouse if you Can Not Locate them?

What this essentially means is that you can’t find your spouse yourself and you are asking the court to use whatever means they believe will be effective to do so. The methods used by the court will vary depending on the case in question but will usually include mediums such as newspapers and social networks in a last-ditch effort to contact your spouse.

This avenue can only be pursued once you have exhausted every possible means of locating your spouse. To apply for a substituted service you will need to provide an affidavit highlighting the different methods by which you have attempted to find them.

Before applying for substituted service, ensure that you have tried to find them by using the following means –

  • Look for your spouse at any known address. If they can’t be found, ask neighbours if they know their current whereabouts.
  • Talk to friends, family members, and employers who may know something
  • Attempt to find them on social media

It’s important to note that the divorce summons is served by the sheriff of the court, as such, this process does not mean that you will have to find your spouse and serve the summons, you simply need to verify their location.

Can you Divorce your Spouse if you Can Not Locate them?
Can you Divorce your Spouse if you Can Not Locate them?

If the court determines that you have done everything within your power to locate your spouse, they will agree to your request for substituted service.

The court will also give a certain time frame in which your spouse must respond to the summons, though this is usually set at 1 month. If your spouse does not respond during this time, the proceedings usually turn into a default divorce case.

What Happens if My Spouse is Not in the Country?

In certain cases, you may have reason to believe that your spouse is no longer in the country. In such cases, it is extremely important that you first petition the court for an Edictal Citation as nobody may serve legal documents such as summons outside the country without express permission from the court.

If your spouse is in another country but their location is known, the court may request that an official of a court in the foreign country serves the summons to your spouse’s workplace or address.

Can you Divorce your Spouse if you Can Not Locate them?
Can you Divorce your Spouse if you Can Not Locate them?

If you do not know where in the foreign country your spouse is residing, the court may once again employ methods such as newspaper articles and social media to bring the matter to their attention.

Once again, your spouse will usually have 1 month to respond to these summonses.

Can a Court Summons be Served via Social Media in South Africa?

As the world becomes more and more digitally connected, it may make sense to serve summons online via social media rather than by post or in person. While this practice has been legalized in various countries around the world, it hasn’t been entirely formalized in South Africa.

In a recent case  – CMC Woodworking Machinery (Pty) Ltd v Pieter Odendaal Kitchens (KZD) – a substitute service was allowed to take place using Facebook, although the standard practice of using newspapers was also used. While this case didn’t directly deal with an initial court summons, it does pave the way for such a change to occur in the future. As such, some substitute services may use social media currently but most summonses is still expected to be served using more conventional means.

Can Divorce Summons be Withdrawn in South Africa?

Yes, in particularly wonderful cases, spouses may reconcile and choose not to proceed with a divorce. This change of heart may occur after a summons has already been served. If this happens, the plaintiff may formally withdraw the summons and terminate the process.

Can Divorce Summons be Withdrawn in South Africa?
Can Divorce Summons be Withdrawn in South Africa?

It is vital that the process is formally withdrawn and the court is consulted so that proceedings do not continue unabated.

Can Divorce Summons Expire in South Africa?

Yes, they can, if the summons has not been served within 12 months of being issued they are no longer valid. 

In Conclusion – How do you Divorce your Spouse if you Can Not Find Them?

Under normal circumstances, your spouse must be served with a summons by an appointed sheriff before divorce proceedings can begin. If however, you cannot find your spouse and you have no idea where they are, you can apply for a Substitute Service from the court. This procedure is only viable if all other reasonable means of finding them have been exhausted.

Can you Divorce your Spouse if you Can Not Locate them?
Can you Divorce your Spouse if you Can Not Locate them?

If you provide an affidavit to the court showing that you have done everything in your power to locate your spouse, the court will usually instigate a substitute service. In such a scenario the court will attempt to contact your spouse and make them aware of the summons via other means, this is usually done by putting the information in a newspaper or online.

If your spouse still does not respond within 1 month, the divorce will normally proceed without them.

If you believe that your spouse is not still in the country, an Edictal Citation can be issued which either requests a sheriff in the relevant country to deliver the summons or seeks out other means of notification within the said country, such as through the use of a local newspaper. 

A Substitute Service may use social media to deliver the summons to your spouse but more conventional means of notification such as personal contact are usually preferred, especially at first.

Summons can be formally withdrawn if you change your mind and attempt reconciliation, additionally, the summons will expire if they are not delivered within 12 months.

Disclaimer LAW101: All of our posts are for research purposes only. Law 101 aims to assist its readers with useful information on the laws of our country that can guide you to make decisions in line with the South African Governmental Laws currently in place. Although in many instances, our posts cite the constitution, they are intended to assist readers who are looking to expand their knowledge of the law. Should you require specific legal advice we advise you to get in touch with a qualified legal expert.

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