Trying to divorce a missing spouse has to be an extremely frustrating situation to be in, but it is not so uncommon. In some cases it may seem easier to stay married to someone, that is, until one wants to re-marry.
After all, one must be unmarried to be married again. And unless you are married by Antenuptial Contract without accrual, you could find that finally getting divorced can be a rather expensive business.
It is therefore almost always better to get divorced from a missing spouse sooner rather than later.
There are legal options that can facilitate the divorce of a spouse who is missing. You just have to follow the correct procedure, below is an outline of the steps you need to follow on 'how to divorce a missing spouse'.
You 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 channel in order to find your spouse.
This would include:
When every last option has failed, and the whereabouts of your spouse is still unknown, then it is an appropriate time to contact the courts for direction on the next step. It is important to keep evidence of one’s attempts to contact the spouse for later use.
If the channels fail to produce any results on the whereabouts of the spouse, then an investigator should also be considered.
Divorce law is stringent, therefore to avoid error and to satisfy the court in terms of the correct and thorough procedure being carried out, it is imperative to get the correct information.
The stated evidence of each attempt and the results should be presented to the court in an affidavit to show that it is near impossible for the plaintiff to serve the divorce summons personally.
The reason for this type of procedure in because a divorce action starts when a summons is served to the defendant (the spouse whom one wishes to divorce), in person, by a sheriff of the court.
Therefore if the summons cannot be served in person by a sheriff of the court, the court must be satisfied that every attempt has been made to make contact with or locate the defendant and has failed.
When the court is satisfied, one may consider a method of service known as substituted service.
This service is used when the court permits an alternative method to be used when serving a summons, which they believe will be more effective in reaching the defendant. An application must be made to court for a substituted service.
Alternative methods are known to be useful in reaching defendants who are both unknowingly unreachable and are being purposefully pervasive. Examples of such an alternative summons which is ordered by the court could be:
The method of alternative service and the time period within which notice of intention to defend must be given will depend on the facts of the case and the decision of the court.
One of our divorce attorneys from Van Deventer and Van Deventer Incorporation would be more than willing to assist and guide you, where necessary, through this process. Contact us.
If a complicated divorce situation arises, Van Deventer and Van Deventer attorneys can also be utilised for your legal needs.
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This is the second and final part of our “preparing for divorce checklist” series which looks at all the financial considerations when getting divorced in South Africa.
Read More ...Posted by Cor van Deventer on Friday, May 8, 2020 Views: 232