It is not uncommon for someone to approach this law office in order to seek assistance in serving a divorce application. Occasionally this happens after the client has filed a divorce application only to find that the Court has rejected it due lack of evidence that all reasonable attempts have been made to find the divorce applicant’s spouse. This usually results unfortunately in additional delays and sometimes extra costs. The requirements for serving your divorce application on your spouse are strict; the reason for this is that normally each party to a divorce must be notified of the pending divorce application and given the opportunity to respond to any errors in fact contained in the application. It should be noted that if you file a joint application with your spouse, then there is no requirement to serve the application on your spouse.
If you are required to serve your spouse with a divorce application and have made genuine efforts to do all you can to find your spouse and yet are are unable to locate that individual, there are options available:
- You can seek Court Order for Substituted Service. This allows you to serve court documents on a third person (including your spouse’s lawyer) who the Court is satisfied will bring the court documents to the attention of your spouse, or
- You can seek Court Order for Dispensation of Service.
Dispensation of Service and the need to prove you have taken all reasonable steps:
Dispensation of service is where you do not have to serve the documents on your spouse if the court is satisfied that you have taken all reasonable steps to locate your spouse and you have still had no success. This Order is granted only in exceptional circumstances and therefore requires careful preparation of an Affidavit to support the Order that will explain all details of what steps you have taken to locate your spouse and will detail the dates on which you took those steps.
If you have applied for Substituted Service or the Dispensation of Service, you should attend the court hearing. This is usually scheduled on the same day as the divorce hearing to save you time because you may be required to give more information to the Court. Applications for Substituted Service or Dispensation of Service will usually be listed on the same day and time as the divorce hearing.
Sometimes the Court may adjourn your case and direct you to take extra steps to find your spouse. Such actions, for examples, may include these: sending a letter to the respondent’s relatives or friends or to that person’s workplace; searching electoral rolls; or advertising in a local, national, or overseas newspaper. Therefore it is very important that before you seek either Order, you must provide evidence to the Court that you have taken every reasonable step to serve your spouse with the application.