Are you Eligible for Substituted Service Divorce?

If a person wishes to initiate divorce proceedings against their spouse in South Africa, the court requires that the divorce summons be served to the defendant in person by a sheriff of the court. Since matrimonial matters affect an individual’s status, the court seeks to ensure that the defendant is aware of any legal action against them. This grants a defendant the opportunity to dispute the terms of the divorce, and under normal circumstances, the sheriff will deliver the summons to the defendant personally. If however, the whereabouts of the defendant is unknown, the plaintiff will have to apply for a substituted service divorce.

When Can You Apply For Substituted Service?
 
Substituted service divorce is only possible if the defendant is believed to be in South Africa, and the plaintiff is simply unable to locate the defendant. In order to apply for substituted service, the plaintiff will have to provide an affidavit that clearly shows that they have exhausted all means of locating their spouse. If the plaintiff is unsuccessful at locating their spouse in their personal capacity, they might have to employ a tracing agent to aid in the search. Tracing agents specialise in the location of missing persons, and if the agent is unable to locate the defendant they will provide the plaintiff with a no-trace report. This report will then be used as evidence in the substituted service application, to substantiate the claim that the defendant cannot be located.  

Serving the Summons

If the court approves the application for substituted service it will make a ruling that authorises the service of the summons via alternative methods. The order might stipulate that the summons be served by way of publication in a newspaper or magazine that is distributed nationally, or specifically in the area where the defendant is believed to reside. More recently, the courts have issued orders that allow plaintiffs to serve a divorce summons on their spouse via social media applications, such as WhatsApp and Facebook. 

Each case will be interpreted on its own merit, and the court will make a ruling as to which mode of service is allowed in each instance. After the summons has been published, the defendant will have one calendar month to respond with a notice of intention to defend the action. If the defendant does not respond in any way, the plaintiff’s legal representative will move to have the matter placed on the unopposed motion roll. After this, the plaintiff’s attorneys will seek a divorce order by default in the matter. 

An application for substituted service can be a time-consuming and complicated undertaking. At Cawood Attorneys, we seek to simplify the process for our clients. Contact us today if you would like to speak directly to one of our experienced divorce attorneys, or browse our website for more info.