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Divorce when a spouse is missing or his whereabouts unknown


Substituted Service

Sometimes, married couples drift apart without ever getting a divorce, especially if they marry young or if the marriage was one of pure convenience. It often happens that neither spouse really bothers exactly where the other is until one of them starts thinking about marrying again and realises that there is some paperwork to be done. After all, to marry you have to be unmarried, otherwise you may be charged with bigamy. If you don’t know where your spouse is, and hence cannot serve a divorce summons on him/her in person, you may divorce through a process called substituted service.

The Process

Substituted service is permitted when the defendant’s exact whereabouts are unknown. In this instance, an application is made to court for substituted service, usually before the divorce summons is issued. The plaintiff must show in an affidavit that every possible attempt has been made to locate the defendant, indicating the steps taken to ascertain their whereabouts, and that the alternate method of serving the summons is likely to come to the defendant’s attention. Before applying for substituted service you will have to at least:

  • find the defendant’s last known address (you will have to tell the court how, when and from whom you obtained it);
  • check at that address – if the people living there have no information about the defendant’s whereabouts, ask the neighbours;
  • ask every relative, friend, former employer, and any other person you think might know where the defendant is (you will have to submit a written summary of your efforts in your affidavit to the court, listing the names, dates and results 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.

You will use this information to show the court that you can’t serve the summons on the defendant personally and that you are therefore entitled to obtain leave for substituted service. If a proper case is made, the court may then order any manner of service it deems appropriate, such as publication in a newspaper, service on family members or friends, by fax or email, or even through a social network like Facebook. This method of alternative service will depend on the facts of the case. The court will also determine the time period within which notice of intention to defend must be given.

Edictal citation

If the defendant lives in another country, the plaintiff must first approach the court by way of an edictal citation application. If granted, this gives the plaintiff permission to serve the divorce summons on a spouse in a foreign country.

The court must be 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 (a sheriff, known in some countries as a ‘service processor’, or a solicitor) in the foreign country. If the application is successful, the Court will grant an order that the summons be served on the absent spouse at either their home or their place of work.

After being served the summons in the foreign country, the defendant will have a month to defend the action. If he/she ignores the summons, or defends it, and after settling the financial terms, the divorce may be set down for hearing on a date that has been pre-arranged with the registrar of the court. 

DIVORCING A MISSING SPOUSE


An all-inclusive fee of R 18,000.00 (I.e R 10,000.00 for the substitute service application to court and R 8,000.00 for the uncontested divorce) shall apply. Should advertising in a newspaper be needed additional costs may apply.

​If the Defendant oppose the divorce, normal attorney hourly rates apply.
Start the process
Divorce a missing spouse.

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BERTUS PRELLER
​MAURICE PHILLIPS WISENBERG

20th Floor, 2 Long  Street, Cape Town, 8001, South Africa
Telephone: +27 21 419 7115


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Email: familylaw@mpw.co.za
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  • Home
  • Divorce
    • The Divorce Process in South Africa
    • Rule 41A Mediation
    • The Marital Property Regimes >
      • Marriage out of Community of Property, new case
      • Marriage in Community of Property
      • Marriage out of community without accrual
      • Marriage out of community with the inclusion of the accrual
      • Universal Partnerships
      • Register Antenuptial Contract Online
      • Changing your matrimonial regime.
    • Division of Assets at Divorce >
      • Forfeiture of Assets in a Divorce
    • Evicting your spouse divorce
    • Retirement Funds and Divorce
    • Living Annuities
    • Hiding Assets in a Divorce
    • Trusts and Divorce >
      • Can I hide assets in Trust?
    • Divorce a Missing Spouse
    • Adultery and Suing a Third Party
    • Domicile in Divorce Cases
    • International Divorces in South Africa
    • Expat South African Divorce
    • International Jurisdiction
    • Spousal Visas
    • International Divorce Law >
      • UK Divorce Laws
    • Choosing a Divorce Attorney
    • On-line Divorce
    • Lawyer Fees and Costs
    • Important Aspects of a Divorce
    • Dealing with Emotions During Divorce and Separation
    • Divorce Statistics
    • Divorce Therapy and Counselling >
      • Marriage and Relationship Therapists
    • Rebuilding Your Financial Life
    • Divorce Attorney Cape Town
    • Divorce Polls
    • Ingredients of a successful relationship
    • Uncontested Divorce
    • Uncontested Divorce - What Happens on the Court Day?
  • Maintenance
    • Maintenance Child COVID19
    • Spousal maintenance
    • How to calculate Child Maintenance?
    • Maintenance Defaulters
    • What Happens if you don't pay child maintenance
    • Child Maintenance Frequently Asked Questions
    • Rule 43 Interim Maintenance Pending Divorce >
      • Can I appeal a Rule 43 Order
      • Apply for Costs in Rule 43
      • Financial Disclosure Rule 43
      • Rule 43 Maintenance
    • The Maintenance Manual
    • Grand Parents and Maintenance
  • Children
    • Relocation and Child Abduction >
      • Frequently Asked Questions about Child Relocation
      • Child Relocation to New Zealand
      • International Child Custody Law South Africa
      • Tips on international child custody
    • Unmarried Parents and the Law
    • Parenting Plans >
      • Conflict and dispute-resolution mechanisms
    • The non-custodian parent and contact
    • Appointing a Guardian in a Will
    • Introducing a new partner to your child
    • Refusal of Contact
    • Vaccinating Children Covid-19
    • Suspending Parental Rights
    • Parental Alienation >
      • Alienating Children
      • Parental Alienation Imprisonment
    • Facilitation
    • Living Arrangements
    • Joint decisions about your child
    • Paternity Disputes
    • The Family Advocate
    • Parenting during separartion
    • Children's Act 38 of 2005
  • Abuse
    • Domestic Violence Amended Bill
    • Gender Based Violence in South Africa
    • Domestic Abuse Forms
    • Evicting a Spouse
    • Domestic Violence Corona Virus
    • Divorcing an Abusive Spouse
    • What is Coercive Control?
    • What is Emotional Abuse
    • What is Sexual Abuse
    • What is Financial Abuse >
      • Economic Abuse
    • What is Stalking
    • What is Verbal Abuse
    • What is Spiritual Abuse
    • What is Social Abuse
    • Revenge Porn
    • Interdict Intimate photos
    • Steps to obtain a Protection Order
    • Domestic Violence eBook
    • The Protection Order
    • Who Qualifies for a Protection Order
    • Breaching a Protection Order
    • Questions on Domestic Abuse
    • Signs of an Abusive Relationship
    • Domestic Violence Information
    • Harassment
  • Cohabitation
    • Maintenance and Cohabitation
    • Sample Cohabitation Agreement
    • Engagement and the law
    • Formalities for marriage in south africa
  • Same Sex
  • Family Law eBooks
  • Family Law Links
    • The South African Court System
    • Court Rolls
    • Family Law Legislation
    • Family Law Blog
    • New Family Law Cases
    • Family Law Matters
    • Register for the Online Family Law Course
    • Online Family Law Education
  • About the Author
  • Contact
  • Charities