Do not despair if you intend to divorce your missing spouse or spouse living abroad. The South African legislature has made specific provision for such divorce.
The Uniform Rules of Court specifically provides that a divorce summons must be personally served on your spouse, however, if your spouse is missing or living abroad service may be effected by other means as ordered by the court.
There are two distinct applications which can be launched in order to have the divorce summons duly served on your spouse which will be discussed below.
1. IF YOUR SPOUSE IS MISSING BUT NOT LIVING ABROAD (APPLICATION FOR SUBSTITUTED SERVICE)
An application for substituted served can be launched where your spouse’s exact whereabouts are unknown. The application is usually launched before the divorce summons is issued and is brought on an ex parte (no notice has to be given to your spouse) basis. It is of utmost importance to show in the application that every possible attempt has been made to locate your spouse and that the only alternative method of duly serving the divorce summons is by way of other means than personal service which will come under your spouse’s attention (examples hereof is service by publication in a newspaper, on family members or friends, fax, e-mail, Facebook Messenger, WhatsApp or SMS).
If a proper case is made, the court may then order any manner of service it deems appropriate. The manner in which the divorce summons must be served as ordered by the court, will depend on the facts and circumstances of the case. The court will also determine the time period within which your spouse can defend the divorce action, although it is usually determined that the time period is 30 days.
2. IF YOUR SPOUSE IS LIVING ABROAD (APPLICATION FOR EDICTAL CITATION)
If your spouse is residing in another country, the court will first have to be approached by launching an application for edictal citation. If the court grants the application, you will have the necessary permission to serve the divorce summons on your spouse in another country. The court must be satisfied that there is no other way to serve the divorce summons and that service of the summons will be done properly by an official of the court in the foreign country at your spouse’s home or work address.
After being served the summons in the foreign country, your spouse will have a month to defend the action. If he or she ignores the divorce summons or defends it, and after settling the financial terms, the divorce may be set down for hearing on a date arranged with the registrar of the court. Should your spouse’s exact whereabouts in a foreign country be unknown to you a combined application of substituted service and edictal citation can be launched and heard before court. If your spouse is missing or living abroad and you wish to institute divorce proceedings, we are there to assist you in divorcing your spouse.