How to Divorce a Spouse Who Cannot Be Found

What if you cannot find your spouse?

Normally, the divorce petition (the papers that start the case) must be handed to your spouse personally. This is called service. It tells them about the case and gives them a chance to reply.

If your spouse has gone missing, moved overseas or simply cannot be traced, that is not possible. But the law does not keep you married just because they have disappeared.

The court can allow substituted service, so the case can go ahead. It can then hear the petition even if your spouse never appears.

How substituted service works

First, you must show the court that you really tried to find your spouse. For example, you checked their last known address and contacted their family.

If the court agrees that personal service is not practical, it will order substituted service and choose the method. Common methods include:

• a notice in a newspaper
• posting the papers at your spouse’s last known address
• delivering the papers through a family member

The aim is to give your spouse fair notice even though you cannot hand them the papers. The court then sets a deadline for them to respond.

What proof you need

You will file an affidavit (a sworn written statement) setting out how you searched. Include visits to their last address, enquiries with their employer, contact through relatives and any other steps.

Say when you last had contact and what you know about where they might be. The more thorough your search, the more likely the court is to agree.

Keep a record of every attempt:

• text messages and emails
• letters returned undelivered
• photos of an empty house or flat you visited

After the papers are served

The court gives your spouse a set time to respond. If they do not, you can ask for the case to go ahead without them.

At the hearing, you must still prove that the marriage has broken down under Section 53 of the Act, using one of the facts in Section 54. Your spouse’s absence does not remove that burden.

If the court is satisfied, it grants a decree nisi (a first-stage divorce order). This can be made final, called decree absolute, once three months have passed. The court can also make orders on matters such as custody and maintenance.

How long it takes

It usually takes longer than a normal divorce. Trying personal service, applying for substituted service, carrying it out and waiting for the response period all add time.

The hearing itself may be short if your spouse does not appear, but you still depend on the court’s calendar. How fast you finish your search, and how complex the other issues are, also matter.

Looking to engage a divorce lawyer? If you are unsure whether your search so far is enough for the court, request independent lawyer contact via WhatsApp: Request Lawyer Contact. For general information, use our guides and tools.