Sometimes, married couples drift apart without ever getting a divorce. It occasionally happens that neither spouse takes any active steps to initiate the process and they simply lead separate lives 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.
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.
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.
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.
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Author – Jessica Gooding
