Divorce by substituted service can be used when the defendant’s exact whereabouts are unknown. There are many requirements that need to be met for the court to grant a divorce by substituted service.
We have to show, in an affidavit, that every possible attempt has been made to locate the defendant, indicating the steps taken to ascertain their whereabouts. We must also demonstrate that the alternate method of serving the summons (the substituted service) is likely to reach the defendant. We have to prove:
- We found the defendant’s last known address, including how, when and from whom we obtained it
- We have asked neighbours, relatives, friends, former employer/s and any other person we think might know where the defendant is about their whereabouts
- We searched for the defendant online, using search engines such as Google and social networking sites such as Facebook and Twitter
- We appointed a tracing agent
A written summary of these efforts must be included in our affidavit to the court, listing the names, dates, and results of our enquiries. Once we have shown the court that we are unable to serve the summons on the defendant in person, the court may 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 social media.
The application for substituted service is brought separately from the divorce action. Once the summons has been served by substituted service, we still have to go through the divorce process, either on an unopposed or opposed basis.
Hopefully, the divorce can proceed unopposed. The process ordinarily takes between eight and 12 weeks and costs between R15,000 and R20,000 excluding VAT (and excluding the costs of the substituted service application). This only applies if we manage to locate the spouse or if the spouse approaches us after having received the summons by substituted service.
The matter will be unopposed if the summons is served via substituted service and we receive no notice of intention to defend from the defendant.
However, if the spouse contacts us and there is any aspect of the divorce (i.e. proprietary aspects) which they do not agree to, we will proceed on an opposed basis.
Simon Dippenaar
http://www.sdlaw.co.zaCape Town attorney Simon Dippenaar has a BBusSc LLB degree and Professional Diploma in Legal Practice from the University of Cape Town, and is an admitted attorney of the High Court of South Africa. He is the founder and director of private legal practice, Simon Dippenaar & Associates, with offices in Cape Town and Gauteng representing South African and international clients.
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