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What To Do When A Spouse is Missing?

With the marriage rate down and divorce rate up, it is not surprising to see estranged couples in every corner of the married world. For whatever reason, some married couples separate but don’t actually divorce. When couples separate, one spouse may move away to disengage from a place filled with painful memories. In other instances, one of the spouses may run away and keep their whereabouts hidden. The scenarios are vast, but whatever the cause, it happens.

Additionally, one spouse may want to remarry, or decide for whatever reason that a finalised divorce is necessary. Typically both spouses need to be present in the process of divorce, however, when one spouse is missing a Substituted Service may apply.

When a spouse is missing, it is wise to consult a divorce attorney Johannesburg to find out what there is to be done. Since every divorce action starts with serving a summons in person, achieving this first step is difficult if the spouse cannot be located. As such, the substituted service can be the alternative, but a process must be thoroughly exhausted before one can apply for the service. It can be tricky, and so the option of involving a divorce attorney Johannesburg should not be neglected. Divorce attorneys Johannesburg have years of collected legal training and experience, and can assist on complicated divorce matters.

What is substituted service?

Substituted service is the process in which one spouse’s exact residence or whereabouts are unknown, and a divorce summons cannot be served to the spouse in person. When a spouse is missing, an application can be made to the court for substituted service. When the application for substituted service is made, the plaintiff must satisfy the court in an affidavit that every possible attempt was made to locate the defendant. The plaintiff’s efforts and steps must be stated in the affidavit. As such, there is a process and to satisfy the court in your efforts to locate the whereabouts of the defendant, the plaintiff will have to follow through on the following methods.

The plaintiff will have to get the last known address of the defendant, and indicate to the court how and from whom the address was obtained.

The defendant’s last known address will have to be checked, and if the new residents know nothing of the defendant, neighbours must be questioned.

Relatives, friends, former employers and co-workers must be asked, and the names dates, and findings stated in the affidavit.

Search for the defendant online using social media and search engines.

If all the above efforts fail, a tracing agent must be appointed.

This information will prove to the court that you cannot serve a summons on the defendant personally. As such, if the court is satisfied that every effort was made to locate the defendant, the court may order any means they think will reach the defendant. Details about the particular case will determine the method of the service; it may be done through Facebook, or published in the newspaper.

Your divorce attorney Johannesburg can provide guidance in this process. Since a divorce attorney Johannesburg works similar cases on a daily basis the divorce attorney Johannesburg will best know what actions will satisfy the court. this can be an invaluable step in the process.

Further, if the defendant is in another country, the plaintiff must first gain permission by the court by way of edictal citation. If granted, the plaintiff has permission to serve a summons on a spouse in a foreign country. However, the court must be satisfied that there is no other way to serve the summons, and that service of the summons will be done by an official of the court.

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