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Article by: Umhlanga divorce attorney - Fawzia Khan

If a married couple have separated and one of them chooses to go overseas, serving the divorce summons on the absent spouse can be tricky. According to the Divorce Act 1979, a divorce summons has to be served personally on the defendant by the Sheriff. The person instituting the divorce action must be domiciled in the area where the summons is issued and must have ordinarily been resident in the area for not less than one year, prior to the divorce proceedings commencing.

If the spouse, referred to as the defendant, is not in the country, then an application, called an edictal citation will need to be made to the High Court for the court to give permission to serve in the foreign country. If you know the address where the defendant lives or works, the court in South Africa will direct how the divorce summons is to be served by sheriff or ‘service processor’ in that foreign country. The defendant spouse receiving the summons will have one month to defend the action.

If a spouse is unaware of the defendant’s exact whereabouts, the court will allow for a substituted service to be effected. This is where a person can ask the court to direct that service via email or even through a social media platform like Facebook be regarded as proper service on the defendant spouse. Substituted service is also used when a spouse is in the country but cannot be located.

In this scenario, the person wanting to issue divorce summons will need to prove to the court all the steps he or she has taken to locate the other spouse, and that it yielded no success. Once the court is satisfied that there are grounds to bring the application for substituted service, the court will then give directions as to what method of service of the divorce summons will be considered acceptable. It will usually order that there be publication of the divorce summons in a newspaper in the area where the absent spouse was last seen or known to be residing or working in. Once again, as in the case of edictal citation applications, the court could also direct that the divorce summons be served on the absent spouse via email or any other method it deems appropriate.

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