Missing Spouse Divorce

“I want to divorce my spouse but I don’t know where he/she is!”

Sometimes people get married, grow apart and go their separate ways, never to hear from one another again. Usually neither spouse will bother getting divorced until one of them decides to get married again, only to realise that in order to get married they must be unmarried.

In terms of South African law, a divorce summons must be served on a spouse personally. If the whereabouts of your spouse is unknown, summons cannot be served personally, and must therefore be served through a process called substituted service.

Before commencing with the divorce process, an application is made to court, called an application for “substituted service”. The application must contain sufficient facts so as to persuade a judge to allow the divorce summons to be served in a manner other than the “usual” way of personal service by the sheriff. For example, by publication of the divorce summons in a local newspaper in the area in which the Defendant was last known to reside and/or to send the divorce summons to the Defendant’s last known email address.

Once an order in terms of the application has been granted and the terms thereof complied with, the divorce process will commence and summons will be “served” in the prescribed manner.

In most “missing spouse” divorce cases, the Defendant doesn’t oppose the divorce action. The Plaintiff (the person who instituted the divorce proceedings) may then ask for a divorce by way of default judgment.