Is it possible to institute divorce proceedings if the whereabouts of your spouse is unknown?

Published on September 29, 2022

In general, the rules of natural justice require that parties be informed of proceedings against them. When a party sues for a decree of divorce, the other party generally receives notice in the form of a Summons for the required legal aid. This is in order to enable the receiving party to consider its options in the proceedings.

However, from time to time a party who wishes to obtain a decree of divorce is unable to locate his/her spouse. Fortunately, our law provides for these circumstances. Rule 10 of the Magistrate's Court Rules provides that if service of process of document whereby proceedings are instituted cannot be affected by any manner prescribed in Rule 9 of the said Rules, then the person desiring to obtain leave to effect service in another way, may apply for such leave. An applicant will in its founding affidavit address the nature and extent of its claim, the basis for such claim and, the jurisdiction of the court and in particular the suggested manner of service required. The Applicant need to explain which steps he/she took to establish the whereabouts of the other party. Sometimes a tracer's report indicating that the missing party is untraceable, is obtained.

The court is usually requested to grant leave for the advertising of the intended proceedings in a newspaper circulating in the last known area where the “missing” party resided. The probability of success of the proposed manner of service will be considered. This process is known as substituted service.

In the matter of CMC WOODWORKING MACHINERY (PTY) LTD vs PIETER ODENDAAL KITCHENS the court granted leave to the applicant to service its papers via Facebook addressed to the inbox address of the other party.

In the papers, the “missing” party is afforded an opportunity to defend the action by means of Notice of Intention to Defend within a prescribed period. If such Notice is delivered, the normal litigation process will follow. If no such Notice is received, the plaintiff will proceed to enroll the matter for finalization on an uncontested basis.

MW Attorneys have dealt successfully with matters of substituted service and is able to assist clients in this regard.

G. CLOETE
Candidate Attorney