Divorce and the spouse that cannot be found
It sometimes happens that a party who wishes to institute a divorce action against his/her spouse does not know where he/she is. The consequence of this is that the divorce summons will have to be served by means of “substituted service”. This is a lot more expensive than a normal divorce because the divorce summons must be served in the newspaper, where it currently costs some R1000 to advertise the summons.
This also involves more work from the attorney’s point of view, as the attorney must appear in court first to convince the court that the applicant has made a concerted effort to locate the spouse and is unable to do so, and then must appear in court again to move for a final divorce order.
The attorney will draft an affidavit to be signed by his client stating that they have made the necessary effort by contacting family and friends of the missing spouse, and if necessary also attach proof from the sheriff of the court that they have attempted to serve the summons but have failed to do so.
A divorce summons is different from other types of summonses, as in the normal course it must be served personally on the defendant, and cannot be served by means of it being affixed to the front door of a person’s home for example.
Before instituting action a plaintiff must make every effort to find out where his/her spouse is in order to save costs.
written by Peter Michael Baker, a Cape Town divorce lawyer.