Initiating Divorce Action where the Defendant’s whereabouts are unknown to the Plaintiff

A marriage may be dissolved by a court by a decree of divorce on the grounds of an irretrievable break-down of the marriage, mental illness or unconscious consciousness, as provided for in section 3 of the Divorce Act, 70 of 1979 (“the Act”).[1] The grounds for divorce are further supplemented by the circumstances based on the merits of the case. An issue instituting divorce action arises when a defendant’s whereabouts are unknown, and the parties are no longer in communication. In this instance initiating divorce action will be problematic due to a lack of jurisdiction.

A court will have jurisdiction in a divorce matter provided that one or both of the spouses are domiciled in the area of jurisdiction of the court on the date on which the action is initiated or if one or both spouses are ordinarily resident in the area of jurisdiction of the court on the said date, for a period of not less than one year immediately prior to the date on which the action is initiated.[2] The Act further provides that the patrimonial consequences of a marriage are governed by the laws of the country where the husband was domiciled (ordinarily resident) at the time of the conclusion of the marriage, where there is no antenuptial contract. Therefore, even if a husband changes his domicile after the marriage, the patrimonial consequences of marriage will continue to be governed by the law applicable to the marriage as at the date of its conclusion and continue to be so governed at the date of its dissolution.[3]

The Jurisdiction of the Regional Courts Amendment Act 31 of 2008 (which came into operation on 9 August 2010) confers jurisdiction on Regional Magistrate’s Courts and any High Court to hear  and determine divorce matters based on same-sex marriages (civil unions),[4] and marriages concluded in terms of customary law, that being “the customs and uses traditionally observed amongst indigenous African peoples of South Africa which forms part of the culture of those people” (customary marriages).[5]

In order to initiate divorce proceedings, a summons must (this requirement is mandatory) be served personally on the defendant by a sheriff of the court.[6] The reasoning behind personal service is that matrimonial matters have an effect on one’s status and as a result, only if the defendant cannot be found after a diligent search, will an alternative form of service be authorized by the court in terms of a court order.[7] Alternative methods of service, includes service by way of substituted service and edictal citation. Substituted service may be sought where the defendant’s exact whereabouts are unknown but it is believed that the defendant is within the Republic of South Africa, whereas edictal citation is obligatory where the defendant is or is believed to be outside the Republic of South Africa.[8]

 

Substituted Service

Where service cannot be effected personally,[9] substituted service is permitted in the Magistrate’s Court where the defendant is believed to be within the Republic of South Africa.[10] The Uniform Rules of the High Court do not provide for service by way of substituted service. The plaintiff must show in an affidavit that every possible attempt has been made in order to ascertain the defendant’s whereabouts and request that an alternative method of service be authorised so that the summons be brought to the attention of the defendant.[11] The application should concisely set out inter alia:-

  1. “The nature and extent of the claim;
  2. The grounds upon which the claim is based;
  3. The grounds upon which the court has jurisdiction to entertain the claim; and
  4. The manner of service which the court is asked to authorize.”[12]

Paragraph 1 above requires the Applicant to apply to court to authorize the alternate method of service within the Republic of South Africa (despite the defendant’s whereabouts being unknown) and to set out the terms of the order of divorce sought. Paragraph 2 above requires the grounds for divorce (the facts of the matter) as well as the facts on which the order authorizing substituted service are sought to be set out. Paragraph 3 above requires that the plaintiff to inter alia plead that he or she still resides within the jurisdiction of the court and/or plead facts which support the plaintiff’s reasonable belief that the defendant is still within the Republic of South Africa, despite the fact that the defendant’s precise whereabouts are unknown to the plaintiff. Supporting evidence may include the fact that the defendant is believed to reside and/or is employed and/or holds immovable property within the area of the jurisdiction of the relevant court.

An order may be sought by the plaintiff authorising service of the summons to be served by way of publication in a newspaper which circulates nationally and/or in the area in which the defendant is believed to reside and/or is employed or hold immovable property.[13] The publication must follow the format as set out in the prescribed Form in the Magistrates Court Rules. The Form is required to set out the relief sought in terms of the divorce action and invites the defendant to enter a notice of intention to defend within 1 (one) calendar’s month after publication,[14] failing which the plaintiff’s attorneys will place the matter on the unopposed motion roll by filing a Notice of Set Down.

 

Edictal citation

Edictal citation in terms of the Uniform Rules of Court 5(1) and Magistrates Court Rule 10(1)(a) provides that “Save by leave of the court no process or document whereby proceedings are instituted shall be served outside the Republic”. This means that any process, document or summons may be served outside the Republic of South Africa after a person desiring to obtain leave from the court has applied to the High Court or Magistrate’s Court for such relief. Service of the aforesaid documents in a foreign country shall be effected by any person who is, according to a certificate, the head of any South African Diplomatic or Consular Mission.[15] Alternatively, service may be effected by any person in the foreign country who is authorized to serve processes, documents and summons’ of the court.[16]

If edictal citation is ordered, “the practice is to issue a citation (the equivalent of a summons) and to follow this up with an intendit (the equivalent of a declaration) which may or may not be served simultaneously with the citation.”[17] In the event that the defendant’s whereabouts are unknown to the plaintiff, the court may grant an order that a notice is to be published in a newspaper in the foreign country. The content of such notice is identical to the Form as set out in the paragraph dealing with substituted service above. It should also be noted that the contents of the Form are identical in both the Magistrate’s Court and the High Court.[18] Insofar as the whereabouts of the defendant are confirmed and pursuant to the plaintiff obtaining a court order for edictal citation, the plaintiff’s attorneys may arrange for an officer of the court who is authorized to serve processes, documents or summons’ of the court, to serve the summons personally on the defendant. An application for edictal citation will be based on similar grounds to those which would have to be alleged for substituted service in the Magistrate’s Court, save that the court will be requested to grant an order authorising service outside the Republic of South Africa.[19]

It is clear from the above that substituted service and edictal citation are two distinct forms of service. Substituted service is required where the defendant’s exact whereabouts are unknown, but it is believed that the defendant is still within the Republic of South Africa, whereas edictal citation is obligatory where the defendant is or is believed to be outside the Republic of South Africa. A plaintiff attempting to institute divorce proceedings against a defendant whose whereabouts are unknown (as opposed to the defendant whose whereabouts are known) must apply to court setting out the various attempts made and steps taken in order to ascertain the defendant’s present whereabouts and requesting that service be effected by substituted service or edictal citation as the case may be.  Only after the court has made an order as it deems fit, may the plaintiff proceed to have the divorce summons served by the mode of service as ordered by the court.

 

Megan Woodhouse

Candidate Attorney

Lanham-Love Attorneys

[1] Section 3 of the Divorce Act 70 of 1979.

[2] Section 2(1) of the Divorce Act 70 of 1979.

[3] Section 7(9) of the Divorce Act 70 of 1979.

[4] Civil Union Act, 17 of 2006.

[5] Section 1 of the Recognition of Customary Marriages Act 120 of 1998.

[6] Rule 44 of the Superior Courts Act 10 of 2003 and Rule 4(1)(a)(i) of the Uniform Rules of the High Court.

[7] The Law of South Africa (LAWSA) 5 (3rd edition) par 172.

[8] The Law of South Africa (LAWSA) 5 (3rd edition) par 171.

[9] Magistrate Court Rule 9.

[10] Harms “Civil Procedure in the Superior Courts” B4.30.

[11] HCR 5(2) and MCR 10(3).

[12] Uniform Rules of Court 5(2).

[13] Magistrate’s Court Rule 10(2)(c) “Where service by publication is ordered, it may be in a form similar to Form 4 of Annexure 1, approved and signed by the registrar of clerk of the court.”

[14] Section 24 of the Superior Courts Act 10 of 2013 “One month is the summons is to be served at a place more than 150km from the court out of which it was issued.”

[15] Uniform Rule of Court 4(3)(a)(i)

[16] Uniform Rule of Court 4(4).

[17] Erasmus “Superior Court Practice” volume 2 D1 43.

[18] MCR Form 4 of Annexure 1 and HCR Form 1 of the First Schedule.

[19] Joffe, Neukircher, Fourie and Haupt “High Court Motion Procedure: A Practical Guide” 7.