In some divorce matters, a spouse wishes to proceed with the divorce but does not know the other party’s whereabouts. This situation can be distressing and confusing for individuals in Port Elizabeth, particularly where the marriage has effectively ended years earlier.

At Van Heerdens Attorneys Incorporated, we assist clients who need to finalise a divorce where their spouse cannot be located, ensuring that the correct legal procedures are followed so that the divorce can proceed lawfully.

Can You Divorce a Spouse Who Cannot Be Found?

Yes. South African law makes provision for divorce proceedings to continue even where a spouse cannot be personally served with a divorce summons, provided that the court is satisfied that reasonable steps have been taken to locate the missing spouse.

In such cases, the court may permit the divorce summons to be served in an alternative manner through a process known as substituted service.

What Is Substituted Service?

Ordinarily, divorce summons must be served personally on the defendant spouse by the sheriff. Where this is not possible because the spouse’s whereabouts are unknown, an application must be made to court for substituted service.

The purpose of substituted service is to ensure that reasonable efforts are made to bring the divorce proceedings to the attention of the missing spouse, even where personal service is not possible.

The Application for Substituted Service

Before divorce proceedings can proceed, an application for substituted service must be brought. This application must set out the steps taken to locate the missing spouse and demonstrate that personal service is not possible.

Depending on the circumstances, the court may authorise service of the divorce summons by one or more alternative methods, including:

• Publication of the summons in a newspaper
• Service at the spouse’s last known residential or work address
• Service by electronic means, such as email, where appropriate

The method of service authorised by the court will depend on the facts of each case.

Once service has been authorised, the divorce proceedings may continue in accordance with the court’s directions.

Proceeding With the Divorce

Once an order authorising substituted service has been granted and the terms of that order have been complied with, the divorce action may proceed.

In many missing spouse divorce matters, the defendant does not oppose the divorce. In such cases, the plaintiff may apply for a divorce by default judgment once the procedural requirements have been satisfied.

If the matter is defended, it will proceed in the ordinary course of divorce litigation.

Issues to Consider in Missing Spouse Divorces

Even where a spouse cannot be located, issues such as the division of assets, care and contact of minor children, and maintenance must still be properly addressed. These matters require careful consideration to ensure that any court order granted is legally sound and enforceable.

Each missing spouse divorce matter must be assessed individually to determine the appropriate procedural and substantive approach.

Relationship to Other Divorce Matters

Divorcing a missing spouse may overlap with other specialised divorce issues, including international divorce matters or complex asset considerations. Where relevant, these aspects are addressed as part of an integrated divorce strategy.

Clients are guided toward the appropriate specialist assistance depending on the nature of their circumstances.