What To Do When A Spouse is Missing?
A spouse is considered missing in terms of divorce law when he/she cannot be located under usual channels. This may be on purpose, but it may also be circumstances. However, in today’s day and age, it is rare not to be able to track someone down due to difficult or uncommon circumstances. In these instances, a divorce lawyer Johannesburg should be appointed. Many methods of divorce allow for a married couple to get divorce without the assistance of a divorce lawyer Johannesburg, but where problematic divorce situations arise, the services of a divorce lawyer Johannesburg is always a wise choice.
It is important to understand that any divorce action starts with the plaintiff serving a divorce summons on the defendant. According to divorce law, this must be done in person by a sheriff of the court. However, if the defendant cannot be tracked down, the summons cannot be served on him/her in person. As such, a divorce lawyer Johannesburg will instruct the plaintiff on all the channels to be exhausted before the court will consider a method known as substituted service. Substituted service is when the court uses an alternative method to serve the summons. For example, use a method other than serving the summons in person by a sheriff of the court. The court will need to be satisfied that the defendant could not be reached or located through ordinary channels, and require the plaintiff to state his/her investigative methods and results in an affidavit. The criteria which the plaintiff must satisfy can be explained by a divorce lawyer Johannesburg
The plaintiff will have had to check at the defendant’s last known address, interview neighbours, friends, and family; check at the defendant’s last known place of work, interview colleagues and employers; attempted communication through social media, online search engines, and standard communication channels such as phoning and email. When no results come from any of the attempted methods to establish communication or determine a location, a private investigator should be considered. The plaintiff will need to state all his/her methods and findings in an affidavit and present it to the court. The court will then decide on a method in which they believe the divorce summons will find the defendant. This could be a publication in a newspaper in which the defendant is known to read, or posting on social media. This is known as substituted service.
The court, however, will only consider substituted service when the plaintiff has absolutely exhausted every possible means to either establish contact or determine the whereabouts of the defendant. This is a vital aspect of the process. The court will not allow substituted service unless all the criteria have been exhausted and can be confirmed in an affidavit. Therefore it is vital to use a divorce lawyer Johannesburg to assist in the entirety of the process.
By presenting your efforts in an affidavit, the plaintiff is advising the court under oath that he/she does not know the location of his/her spouse and that the whereabouts of the defendant could not be established with reasonable effort. Therefore, the plaintiff requests that the defendant be served via legal notice or publication. Once the designated time frame from when the service was published to the date the missing spouse was meant to respond, a default judgement is possible.
Fair consideration should be given to the idea of hiring a divorce lawyer Johannesburg. While the missing spouse is not available to contest the divorce, divorce laws are intricate and best handled at the hands of a legal professional.