Did You Know?
In South Africa, you must give formal notice to your spouse when filing for divorce. This notice is delivered in person by the sheriff of the court. But what happens when your spouse cannot be found? You will need a special court order allowing you to serve the summons through an alternative method.
Understanding the Legal Process
Many people assume that divorces can happen without their spouse knowing, as often seen in television dramas. However, in reality, South African law requires strict procedures to protect legal rights and ensure fairness.
A divorce cannot be granted without notifying the other spouse, as it directly impacts their legal status, including issues such as property division, spousal maintenance, and parental rights.
Standard Divorce Summons Procedure
- The summons must be served personally on the other spouse by the sheriff.
- If personal service is not possible because your spouse cannot be found, you need to apply for alternative service methods.
What Happens If Your Spouse Is Missing?
If your spouse's whereabouts are unknown, you will need to convince the court that you have exhausted all reasonable efforts to locate them. To do this, you must:
- Appoint a tracer – A professional tracer will attempt to locate your spouse and provide a report.
- Gather supporting evidence – This includes records of past residences, work history, and efforts made to contact family or friends.
- Apply for a court order – This request is called substituted service (if your spouse is in South Africa) or edictal citation (if they are overseas).
What Is Substituted Service?
If the court believes your spouse is still in South Africa but cannot be personally served, you can apply for substituted service. This allows service of the summons through:
- Publication in a newspaper
- Email or social media (in certain cases)
- Delivery to a known relative or last known address
What Is Edictal Citation?
If your spouse is outside South Africa, an application for edictal citation is required. This allows the summons to be served via:
- International courier services
- Diplomatic channels
- Publication in foreign newspapers
In both cases, the court must be satisfied that all reasonable attempts to locate the missing spouse have been made.
What Should You Do Next?
If you are unable to locate your spouse and want to proceed with a divorce, it's essential to follow the correct legal process. Seeking legal guidance will ensure your application is properly handled and increases the likelihood of court approval.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
