My spouse is missing: Can I file for a divorce?
In a typical divorce proceeding, a spouse must be made aware of the divorce being filed by the other party (i.e. the plaintiff). This allows both parties to play a role in the court proceedings. However, in cases where one party has disappeared, the other party is still able to file for a divorce. In order to do this, the plaintiff must show that he/she has exhausted all reasonable ways of contacting the missing spouse.
The party seeking to divorce the missing spouse can do so by filing the following applications in court. Only then can an uncontested divorce take place.
Order for substituted service
When a spouse files for a divorce, the court issues a writ that must be brought to the attention of the other spouse. By default, this is done by way of personal service. Typically, this is performed by process servers who are authorised by the court. Lawyers are also able to effect personal service. However, if the defendant is missing, the plaintiff can apply for an order of substituted service as a way of summons through a supporting affidavit that lists the proposed methods through which the plaintiff believes will help bring the writ to the defendant.
Before making such an application, however, the plaintiff must make two attempts at personal service. For instance, the process server can visit the defendant’s last known residential address, workplace or parents’ home if he/she frequently visits them. In such cases, all details of the attempts, including the date, time and outcome, must be recorded.
The following are the modes of substituted service the plaintiff can opt for:
- AR registered post: The plaintiff must explain why he/she believes that the defendant resides at the local address. If the writ is to be mailed overseas, the plaintiff must explain why the defendant could possibly be residing in another country.
- Electronic mail (i.e. email): The plaintiff must prove that he/she will be sending the writ to an active email address that belongs to the defendant.
- Advertisement: The plaintiff can publish an advertisement in the newspapers after satisfying the court on the defendant’s literacy level in the respective language that he/she understands. If the plaintiff chooses to place the advertisement in a foreign publication, he/she must explain why the defendant could be residing in that country.
Dispensation of service
When all attempts at reaching the defendant through the substituted service have been exhausted and the plaintiff fails to reach the defendant, a dispensation of service will set in place. This means that the plaintiff does not need to serve any documents to the defendant and can begin proceedings for an uncontested divorce.
Read more: Benefits Of Uncontested Divorce