Where a Defendant (the spouse against whom the Divorce is instituted) lives in another country, a Plaintiff must first approach the High Court or the Central Divorce Court by way of what is known in law as an Edictal Citation Application. This affords permission to a Plaintiff to serve the Divorce documents on a spouse in a foreign country.
A Summons in a Divorce must be served on the Defendant in person. The Court needs to be satisfied that service will be done properly by an official of the Court in a foreign country. Edictal Citation is therefore a procedure according to which a legal document such as a Divorce Summons is served by a Sheriff (in some countries known as a "service processor" or a solicitor) in a different country.
Nowadays, in our hi tech world, a couple can easily get married in one country, spend most of their married life in another country, and get divorced in a different country altogether. It’s nothing new for a couple to get married in South Africa, move to say, New York or London, discover things are not working out, and for one of them to return to South Africa.
Strange then that despite all the above, it still is not true – contrary to popular belief - that a Summons can be served via email or by registered post in Divorce proceedings.
Edictal Citation then is:
• If your spouse lives overseas, the Court will give an order that it is served on the absent spouse at either their home or their place of work.
• If your spouse lived overseas but has disappeared; the Court will give directions on a form of substituted service, e.g. by service upon a relative or, perhaps the Attorneys that acted for the absent spouse whilst they were in South Africa and elsewhere.
It is important to note that the Court will require that you, the Plaintiff:
• Are domiciled in the Court’s jurisdictional area on the date that your Divorce Proceedings commence;
• that you are usually resident in that area;
• that you have been living there for not less than a period of one year immediately prior to that date.
In the case of a spouse who has disappeared, you, by way of your Edictal Citation Application will have to satisfy the Court that everything possible has been done to trace the absent spouse. This is because personal service is clearly preferable and the least prejudicial form of service.
If you want to have a Divorce Summons served overseas you will first have to convince the Court by means of your Edictal Citation Application that there is no other way to have the Divorce Summons served, and in your Application you must supply full details of the Sheriff or the Service Processor to use to serve the Summons in the foreign country.
Edictal citation involves communicating and corresponding with people in a foreign country, and the posting of documents overseas. After serving of the Summons in a foreign country, a spouse will have a month to defend the action. If they ignore the Summons or, if they defend it, after reaching settlement of the financial terms the matter may be set down for hearing on a date that has been pre-arranged with the Registrar of the High Court or the Central Divorce Court.
Substituted Service is permitted where the Respondent is believed to be in the Republic of South Africa. If the whereabouts of the Respondent is unknown the Application for Edictal Citation is combined with that of Substituted Service
Usually the Application is made prior to the issue of the Summons of the institution of Divorce Proceedings.
If the whereabouts of the Respondent is unknown, the Applicant must show that all information about the whereabouts has been fully investigated, and must indicate the steps taken to ascertain the present whereabouts of the Respondent, and that the method of service is likely to come to the attention of the Respondent.
The Court may order any manner of service it deems appropriate for example publication in a newspaper, service on family members or friends, service by fax and even e-mail, if a proper care is made out. This list is however, not exhaustive and will depend on the facts of each case.
The Court must also determine the time period within which Notice of Intention to Defend or Notice of Opposition should be filed. This must be provided for in the Notice of Motion.