SUBSTITUTED SERVICE – DIVORCING A MISSING SPOUSE

The process of trying to divorce a missing spouse can be exceptionally stressful and frustrating especially when one wants to remarry. If you don’t know where your spouse is, a Summons for divorce cannot be served on him/her in person. In his instance a process known as substituted service comes into force and effect.

Substituted service is permitted when the Defendant’s exact whereabouts are unknown. One can only approach the court for direction on how to proceed with divorcing a missing spouse if it can be proven that you have exhausted every possible resource in order to find your spouse.

This possible list of resources would include:

• Checking the last known address of your spouse;
• Contacting and questioning neighbours at the last known address as well as new residents;
• Contacting your spouse’s last known place of work, which would include questioning his/her colleagues and employers;
• Contacting and interviewing friends and family;
• Sending a registered letter via post to any previous addresses at which your spouse has resided;
• Attempting to contact your spouse via telephone;
• Online communications via social media platforms such as Facebook, Twitter, and Instagram
• Attempting to make contact via search engines such as LinkedIn;
• Instructing a tracing agent or a private investigator

If all the above attempts in trying to contact your spouse have been exhausted, and the whereabouts of your spouse is still unknown, then one may approach the Court. It is important that all attempts at trying to contact your spouse are documented and kept as evidence.

One will use this information and documentation 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. In this instance, an application is made to the Court for substituted service, usually before the summons for divorce 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.

If one’s case is accepted by the Court an Order will then be made confirming that 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 media network such as Facebook. The Court will also make an Order as to the time period within which a notice of intention to defend must be filed.

For direct answers to your specific personal questions, please contact us directly.

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Author – Kate Bailey – Hill