Going through a divorce can be stressful enough, even when you and your spouse are on the same page and agree to part ways amicably. Ideally, an uncontested divorce is the smoothest route—where all the terms, from assets to child custody, are already settled. However, things get complicated fast in a contested divorce, especially when you want to end the marriage but can’t find your spouse to officially serve them the divorce papers (Summons). You might think this stalls the whole process indefinitely, but thankfully, that’s not the case. The legal system has a way to help you move forward: it’s called Substituted Service, a court-authorised alternative that allows you to notify your missing spouse of the divorce, paving the way for you to finally get a resolution.
A divorce Summons must be personally served on the other spouse by the Sheriff of the Court. However, matters become rather complex when one party wants a divorce, but cannot locate the other spouse and has no idea where he/she may reside. This is not the end of the road; there is indeed an alternative available to you.
Substituted Service is a process where the Summons is served upon the Defendant in another manner, other than personal service, as authorised and directed by the Court. To meet the requirements for Substituted Service, you must make an application to the Court, by way of an Affidavit, in which you set out all the reasonable steps you have taken to attempt service of the Summons on your spouse, supported by a tracing report indicating that your spouse’s location cannot be found. You must, however, inform the Court of a reasonable method to affect service of the Summons on your spouse, which you believe will reasonably come to his/her attention.
Where the Applicant makes a proper case, based on the facts, the Court will approve the Application. The Court will direct how service is to be affected. Examples of how Substituted Service may be affected include, but are not limited to:
- by way of email;
- by serving the Summons on a close relative or friend of your spouse;
- by advertisement in a local and national newspaper in the area in which the spouse resides/resided;
- by way of Facebook; and/or
- by any other method directed by the Court.
Once Substituted Service has been affected in terms of the directives given by the Court, your matter may be set down for hearing and be presided upon as per usual, either on an opposed or an unopposed basis. The Presiding Officer may then decide in respect of the outcome of the divorce proceedings.
Should you be contemplating divorce, contact us at BBP Law Attorneys. We will gladly help you get what you deserve.
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