What to do when a spouse is missing?
Divorce law South Africa states that a divorce action will start with a divorce summons served on a party of marriage in person by the sheriff of the court. A missing spouse is when the party wishing to get divorced cannot track down his/her spouse through all the usual channels.
This comes back to the fact that according to divorce law South Africa a divorce action must start with serving a summons on a party of marriage. If a spouse has disappeared, the court will direct that the divorce summons be delivered by way of substituted service. In other words, other than by personal service. In simpler words, divorce law South Africa allows for a summons to be served in a manner which they feel the defendant will receive the summons, if he/she cannot be reached in person. This could mean by publication in a newspaper, a post on Facebook, or even entrusting a relative or friend to hand over the summons.
According to divorce law South Africa, the court must be satisfied that the plaintiff has exhausted every means possible to track down his/her spouse in order to personally serve a summons by a sheriff of the court. There are several channels which the plaintiff must investigate and ultimately exhaust to satisfy the court that a spouse is missing and could not be found in order to serve a divorce summons in person. Divorce law South Africa is very complex, and the assistance of a divorce attorney can be sought to properly follow the process.
The plaintiff will be required to state in an affidavit that every attempt was made to locate the defendant. This means investigating the whereabouts of your spouse and stating in the affidavit your procedure and findings. The court has a basic procedure in place, which the plaintiff must satisfy before applying for substituted service.
The channels to be exhausted before substituted service can be applied for, and ultimately granted, are as follows:
- The plaintiff will have to get the last known address of the defendant, and indicate to the court how and from whom the address was obtained.
- The defendant’s last known address will have to be checked, and if the new residents know nothing of the defendant, neighbours must be questioned.
- Relatives, friends, former employers and co-workers must be asked, and the names dates, and findings stated in the affidavit.
- Search for the defendant online using social media and search engines.
- If all the above efforts fail, a tracing agent must be appointed.
Only when the above mentioned criterion has been satisfied will the court, under divorce law South Africa, grant substituted service. The court will decide on a method in which they believe the summons will reach the defendant. This could be done via publication in a newspaper the defendant is known to read, Facebook, or tasking a family member to deliver the summons to the defendant. The method will depend on the specific situation. Substituted service is legal under divorce law South Africa, but only when all options have been satisfied will substituted service be granted. According to divorce law South Africa the investigative criteria carried out by the plaintiff must be stated in an affidavit, as well as the findings. If the court is not convinced that the plaintiff is missing and that his/her whereabouts can be located, substituted service will be denied and further investigation will be instructed. If the defendant is in another country but his place of work or residence is known, the court will task a sheriff of a court in the defendant’s country of residence to serve the summons in person, by Edictal Citation. If the work place and residence is unknown, the court will proceed with substituted service.
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