A married couple may decide to separate for various reasons, opting to live in different houses and essentially lead separate lives. Whether it be because they intend to restore the relationship or simply because they are unwilling to go through the divorce process, separated couples often continue on with their lives as if they were unmarried. In South Africa, there is no legal separation and a couple will remain married in the eyes of the law until their divorce has been finalised by the court. In some cases, couples can be separated for such a long time that they lose track of one another. This can complicate matters when one of the spouses eventually wishes to initiate divorce proceedings. Getting a divorce when your spouse’s whereabouts are unknown is possible, but it will require a fair amount of effort as a substituted service might be required to serve the divorce summons. 

What is a Substituted Service?

In order to initiate divorce proceedings a summons has to be served to the defendant in person notifying them of the plaintiff's intentions to proceed with legal action against them. If however, the plaintiff is unable to get in contact with their spouse and cannot ascertain their whereabouts it becomes a bit more complicated. A plaintiff will need to follow a process known as substituted service which enables them to deliver the summons through alternative methods. According to the Electronic Communications and Transactions Act (ECTA), the service of court documents on litigants can be done by way of e-mail or telefax under certain circumstances. The court can also approve the service of the summons through a publication in a newspaper, service on family members or friends, and more recently, through a social network platform like Facebook. 

A substituted service will only be permitted if the defendant is believed to still reside within South Africa. The plaintiff should be able to show that they have done everything they can to locate their spouse without success. This includes visiting their last known address, enquiring from neighbours and friends about where the defendant could be located, speaking to relatives and former employers and searching for them online and on social media platforms. The results of these enquiries will be included in an affidavit and if all these efforts are in vain the plaintiff will have to employ a tracing agent to try and locate their spouse. 

All of this information will then be used to try and prove to the court that the summons cannot be served on the defendant personally and that the plaintiff should be granted leave for substituted service. If the court is satisfied that a sound case has been made it may order any manner of service it deems suitable depending on the circumstances of the case.  The court will also make a determination as to the amount of time the defendant has to reply with a notice of intention to defend. 

Book a consultation with Cawood Attorneys to find out everything you need to know about applying for a substituted service in South Africa. We will be with you every step of the way to ensure that the process is completed as quickly as possible.

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