How to Proceed with Divorce When Your Spouse Cannot Be Found

Rule 44(1) of the Uniform Rules of Court states that documents requesting a divorce or marriage annulment must be personally delivered to the person it concerns unless the court allows a different service. But what if the sheriff can’t deliver the documents because the person has disappeared or moved abroad? This article will explain alternative service methods the court might approve when personal service isn’t feasible.

Alternative methods of service:

Substituted service
If the person who needs to receive a divorce summons (the defendant) cannot be found, you can ask the court to allow the notice to be published in a newspaper instead. This process is called substituted service and is done by way of a Notice of Motion where the names and status of the parties are described in full, with the necessary averment that the defendant’s residential and work addresses are unknown to the plaintiff (applicant). The application must also set out the following:

(1). Why the court has jurisdiction.

(2). What the cause is (i.e. divorce due to irretrievable breakdown of marriage relationship).

(3). What attempts were made by the plaintiff to trace the defendant.

Further averment must also be made regarding which newspaper the defendant usually reads and that the summons will thus come to their attention as a result of the publication in the newspaper. A combined summons is issued before the substituted service order, of which a shortened version will be published in the newspaper.

Edictal citation

If a defendant is abroad an application must be brought to the High Cout by way of an ex parte application wherein:

– The parties are fully described.
– The cause is set out.
– An explanation of where the defendant is.
– A prayer that the court permits that the divorce summons may be served in another country by way of edictal citation, with a one-month period given to respond or defend.

After an order is granted, an ordinary summons is issued and served in terms of the stipulation of Rule 4(3) and (4) of the Uniform Rules of Court. Rule 4(3) states that service of any process in a foreign country shall be effected by any person who is, according to a certificate issued by the head of the South African Diplomatic or Counsellor Mission, authorised to serve such process. In terms of Rule 4(5) a sworn translation in the official language of the country where the summons is to be served must be made and has to be served with a certified copy of the summons, if the language of the summons differs from the language of the country of service.

It is clear from the above that if personal service of divorce summons is not possible, the court can still order that the summons be served either by way of substituted service or edictal citation.

Reference list:

1. Uniform Rules of Court
2. Matrimonial Matters and Divorce, Training Guide, L.E.A.D Law Society of South Africa
3. High Court Practice Training Guide, L.E.A.D Law Society of South Africa

While every reasonable effort is taken to ensure the accuracy and soundness of the contents of this publication, neither the writers of the articles nor the publisher will bear any responsibility for the consequences of any actions based on information or recommendations contained herein. Our material is for informational purposes.

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