Can I divorce my spouse if he or she lives overseas or has disappeared?

The fact that your spouse may live outside South Africa or has disappeared is not a problem in that the court can be approached for direction as to how the summons should be served.

 

Legal position

 

 

The court will require that you are domiciled in its area of jurisdiction on the date that divorce proceedings commence or that you are ordinarily resident in such area and have been so for not less than one year immediately prior to that date.

 

If your spouse has disappeared, the court will direct that the divorce summons be served by way of substituted service (i.e. other than by way of personal service) so it may direct, e.g., that it be served on a relative of your spouse or by way of publication in a newspaper that your spouse used to read, or even via a post on Facebook.

 

If your spouse lives overseas, the court will give an order that it is served on him or her personally at her place of residence or work. This is called service by edictal citation. Of course, it may be that your spouse lived overseas but has since disappeared, so the court will give directions as to a form of substituted service, e.g.by service upon a relative or, perhaps the attorneys that used to act for him or her in South Africa and elsewhere, or in any other manner.

 

Of course, where your spouse has disappeared, you will have to satisfy the court that you have done everything possible to trace him or her as personal service is clearly preferable and the least prejudicial form of service.

 

You’ll need to supply your attorney with the following information:

 

  1. Your current place of residence;
  2. Your job description;
  3. Date and place of marriage;
  4. Details of any kids born of the marriage;
  5. Details of why the marriage ended, who left whom and when, how long you’ve been apart, etc;
  6. Your ID number and, if available, your spouses ID Number or passport number or other form of identification;
  7. Your spouse’s job description, place of residence (if known), work details (if known).

 

Likely costs

 

If your spouse lives outside South Africa or has disappeared, your attorney will have to approach the court, firstly for relief to sue by way of substituted service or edictal citation. The divorce summons is then dispatched for service. Depending on how service has to be effected, the costs of advertisement (if necessary), the sheriff or other process server, the total costs could be in the region of R10,000 plus disbursements. Typically, solicitors charge around US$2,000 to effect service.

 

The costs of the divorce itself, will be a similar amount.

 

After service, your spouse will have a month to defend. If he or she ignores the summons or, if he or she defends it, after reaching settlement of the financial terms, your attorney will set the matter down for a date that has been pre-arranged. At that time your attorney will need your original marriage certificate. You’ll have to attend court personally in the court where you reside.

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