Divorce when a spouse is missing or his whereabouts are unknown or overseas
What does the “missing spouse divorce” entail?
In the unfortunate case of a missing/absent spouse, an additional application will be required before regular divorce processes will commence. In this application, the applicant must show evidence of the search for the missing spouse and use this to convince the Judge/Magistrate to issue an order for the divorce summons to be served in an alternative manner. This is called substituted service.
Before applying for substituted service at Court you will have to at least do the following:
- Find the spouse’s last known address (take note of when and from whom you obtained it) and then check at that address – if the people living there have no information about the defendant’s whereabouts, ask the neighbours;
- Ask every known relative, friend, former employer, and any other person you think might know where the spouse is (keep notes of your efforts in your affidavit to the court, listing the names, dates and outcome of your enquiries);
- Search for the defendant online, using search engines such as Google and social networking sites such as Facebook and Twitter; and
- Appoint a tracing agent, if all other avenues are exhausted. When such an order has been granted, the divorce process will begin. The divorce papers will be served in the manner the court may decide, such as publication in a newspaper, service on family members or friends, by fax or email, or even through a social network like Facebook and the Defendant will have the opportunity to defend the divorce. If the Defendant defends the divorce, the contested divorce process will be followed. If the Defendant never appears or gives notice to defend, a default divorce will be granted.
What if my spouse is living overseas?
An international divorce in the South African context is a divorce where only one party is domiciled (permanently residing) in South Africa and the other spouse is living abroad. For obvious reasons this might cause some problems as documents needs to be signed. The biggest problem however is when the whereabouts of the spouse living abroad are vague or not sure – then one needs to approach the court by way of an “edictal citation” application. This gives the plaintiff permission to serve the divorce summons on a spouse in a foreign country, but only after the court is satisfied that there is no other way to serve the summons and that service of the summons will be done properly by an official of the court in the foreign country. If you and your spouse are still on speaking terms and could come to an agreement or settlement, you could have a settlement drafted and signed by the spouse abroad and have the original documents sent to you via courier – the matter can then proceed as if uncontested or unopposed.
How long does an international divorce take to finalize?
Uncontested international divorces usually take about 6 – 12 months as one need to bear in mind the speed of the courier services, the Sheriff’s workload and the Court’s recess schedule. Contested international divorces can take many months, even years, to finalize.
What is a default divorce?
A default divorce is a type of uncontested or undefended divorce. When a spouse/party simply ignores the divorce summons and fails to file any notice of intention to defend, that party will be “in default”. The Judge or Magistrate will then grant a default divorce if you serve a divorce summons on your spouse and he/she does not respond.