Service of court documents on a missing Spouse
During divorce proceedings, the Party that initiates the divorce proceedings (i.e. the Plaintiff) would have to personally serve the divorce papers on the other spouse (i.e. the Defendant).
However, what happens if Defendant cannot be contacted or even located?
In the circumstances, this would mean that personal service would not be possible.
How then should the service of the divorce papers be affected?
Substituted Service
The first step is provided for under Rule 50 of the Family Justice Rules 2014 (“FJR”). The Plaintiff may apply to the Court for an order for substituted service, which would satisfy the Court’s requirement for giving Defendant notice of the divorce proceedings.
Prior to making such an application, the Family Justice Practice Directions states that the Plaintiff must show that he or she has made two reasonable attempts at personal service before an application for an order for substituted service is filed.
The plaintiff must also show that he or she was unsuccessful in attempting personal service and that he or she is of the belief that these attempts at personal service were reasonable.
the Plaintiff may state which method of substituted service he or she is seeking an order for. Such methods of serving the divorce papers include posting on the door, advertisement, WhatsApp, and/or even via Facebook messenger would be sufficient.
Once the Court is satisfied that all the requirements are met, it will make an Order for substituted service.
Dispensation of Service
What happens if Plaintiff has lost all contact with Defendant, and does not have mutual contact with Defendant?
In such situations, the Plaintiff can then apply to the Court for an order for the dispensation of service.
This is provided for in Rule 908 of the FJR which allows the Court to dispense with the service of the divorce documents on Defendant when the case is appropriate.
The process for applying for an order for the dispensation of service is similar to that of substituted service – the Plaintiff would have to make an application by way of Summons with a supporting affidavit that details the circumstances in which the application is founded.
The Court would have to be satisfied that all other available forms of service (including that of substituted service) would be ineffective.
Can I apply for Dispensation of Service without attempting Substituted Service?
This is indeed possible and would require Plaintiff to show that any attempts at substituted service be to no avail.
This must be addressed and explained in Plaintiff’s affidavit in support of dispensation of service.
Once the Court is satisfied, the Court will grant an Order for dispensation of service, and the Plaintiff would then have to proceed with the court proceedings in the Defendant’s absence.
In order to ensure that your attempts at applying for substituted service or dispensation of service will be successful, it is recommended that you engage in legal services.
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