Your marriage is on the rocks and you’ve finally decided to call it a day. The only thing is, you don’t know where your spouse is. What now?
By Simon David Dippenaar BBusSc LLB PDLP (UCT), Founder & Managing Partner Simon Dippenaar & Associates
Divorce and the missing spouse
Whatever the reason for the break-up, divorce is one of life’s most stressful experiences, second only to the death of a spouse, and it triggers a range of emotions and feelings of loss. This can be even more difficult when you do not know the whereabouts of your spouse.
The case of the disappearing spouse
In South Africa, The Divorce Act 70 of 1979 regulates the process of getting a divorce. A court may grant a divorce as a result of an irretrievable breakdown in the marriage, if the defendant suffers from mental illness or is in a continuous unconsciousness state.
It is important to point out that the Act governs only registered marriages or civil unions; if the union is not registered, the Divorce Act does not apply.
The law further states that summons for divorce must be issued on the defendant in person. But what if you have no idea where your spouse is? Don’t worry, the legislation has taken this into consideration.
You can institute divorce proceedings through a process called “substituted service” in terms of the ‘Uniform Rules of Court: Rules Regulating the Conduct of the Proceedings of the Several Provincial and Local Divisions of the High Court of South Africa 4(2)’.
This mechanism applies when your spouse cannot be traced but is believed to be in South Africa.
It is important to point out that the Act governs only registered marriages or civil unions; if the union is not registered, the Divorce Act does not apply
First things first
The first step is to apply to the court for substituted service. As the plaintiff, you are required to produce an affidavit proving that you have done everything in your power to locate your spouse (the defendant), including trying to find the defendant’s last known address, checking with neighbours, relatives, former employers and friends, as well as searching on social media sites such as Facebook and Twitter.
The court must be satisfied that there is no alternative but to issue summons via substituted service, and will decide on an appropriate method, such as advertising in a newspaper published in the area where the defendant is thought to live or serving notice on a family member.
Technology and the law
As communication technologies evolve, however, so do the courts, and the digital age is transforming the face of the law. Substituted notice can now be served via email or social media sites such as Facebook and LinkedIn, where personal service is not possible.
In 2012, the Durban High Court made history in South Africa when it allowed notice to be served via Facebook in the case of CMC Woodworking Machinery v Pieter Odendaal Kitchens. This development is thanks in part to Section 6(10) of The Companies Act, 3 of 2011 which states that: “… it is sufficient if the notice is transmitted electronically directly to that person in a manner and form such that the notice can conveniently be printed by the recipient within a reasonable time and at a reasonable cost.”
Although this case does not pertain to divorce, it opened the doors to serving notice via online media.
In 2012, the Durban High Court made history in South Africa when it allowed notice to be served via Facebook
When your spouse lives abroad
If your spouse resides outside of South Africa, you must apply to the court for divorce papers to be served by an official of the court in their country of residence. This process is known as an “edictal citation” and is governed by the ‘Uniform Rules of Court: Rules Regulating the Conduct of the Proceedings of the Several Provincial and Local Divisions of the High Court of South Africa’.
Notice will be served on your spouse in person, at their home or work premises, with 30 calendar days to defend the action, after which the divorce will be set down for hearing.
You are required to show that you have a prima facie case, that the court has jurisdiction if your spouse is a foreign peregrinus (a foreigner who neither resides nor is domiciled in the jurisdiction of the court); and you must disclose the spouse’s whereabouts or, if this is not possible, a last known address, location of close family members and the steps taken to obtain this information.
We can help
At SD Law & Associates we are experts in divorce law. We’ll fight for you and protect your legal interests, while helping you get through this difficult time with sensitivity and empathy. If you’re considering divorce and need advice call Simon on 086 099 5146 or email [email protected]