By Danai Chirawu
Divorce by its very nature is not an easy process to undergo, aside from the fact that there are legal costs which need to be met for the procedure to be finalised, it is also an emotional burden for the parties involved.
Its consequences bear effect on the children, the finances and the proprietary rights of the people untying the knot.
For the process to be said to have commenced; the one starting the procedure, who is legally known as the plaintiff must give a summary of why they wish to divorce and how they wish the court should make a ruling in terms of actually granting the divorce itself, how the property must be shared and what happens to the children.
For this process to commence, the summons and declaration should be personally delivered by the Sheriff of the High court to the spouse whom they wish to divorce, legally known as the defendant.
The very fact that the Sheriff of the High Court has to personally deliver this document means that the precise location of the defendant must be given and known.
Personal service in itself is important in divorce matters because divorce entails a change of status from “married” to “divorced” on all legal documentation.
There are times where due to many different reasons, married couples go their separate ways without officially breaking their marriage through divorce.
After some time, one of the parties eventually decides to make the break legal but may not have communicated with their spouse in a long time and cannot locate their current home or work address.
There is a remedy at law which may aid the plaintiff to locate the defendant and failure to do so, still manage to get a decree of divorce from the court.
Substituted service is a legal procedure which allows a person to serve all court documentation to the other party whose location is unknown.
Normally, these documents must be served by the Sheriff of the High Court but in this special circumstance, the other party can be allowed to serve through publication in a newspaper circulating within the country of the defendant’s last known address for example if it is Zimbabwe, the publication may be made in The Herald or the Chronicle.
For the court to allow a person to do this there has to be an inquiry made by the presiding judge which validates that the location of the defendant is truly unknown.
Firstly, the plaintiff should prove that the Sheriff has tried to serve papers several times at the defendant’s last known address.
After failing to serve and having established that defendant cannot be found on the first location, the plaintiff must provide the Sheriff with an alternative address where the defendant is most likely to be found.
The address for service is not limited to the residential address but may include a work address among other locations.
Since this is primary evidence that attempts to locate the defendant have been made to no avail, a High court application can be made seeking that service be done by way of publication.
This application is not automatically granted to anybody without adequate proof, the court has to be satisfied that indeed there has been effort to find the defendant and that effort has been futile.
In addition to having the evidence from the Sheriff of the High Court that they failed to locate the defendant, this application must also state the reasons why the plaintiff wants a divorce.
Due to the fact that there have been instances of fraud where one party for example knew that their spouse has relocated to another country, makes an application for substituted service which the court will grant on the merits of the case.
It will only be after returning to Zimbabwe for one reason or the other that the defendant will discover that they are already divorced and quite possibly lost some rights to property and maybe even lost custody of the children.
As an attempt to curb this fraudulent behaviour which has come up in the courts more often than it should, some judges ask that in addition to all the other conditions which are stated above, the plaintiff must provide an alternative address which belongs to the defendant’s close relative so all relevant documents are also served to them.
When the court grants this application which allows you to publish in the newspaper, the first publication will be a shortened version of the summons which gives the defendant 10 days to respond.
There will be no need to continue publishing in the paper because their location will be revealed in their response. If, however, they fail to respond to this summons, the Plaintiff will have to publish what is known as a notice to plead and intention to bar which essentially means this is the final chance to answer to the claim before that right is bypassed by the courts.
Finally, a notice of set-down is published in the paper indicating the date at which the matter will be heard by the Court.
If the plaintiff abides by these conditions with precision, the court will likely be persuaded to grant the divorce albeit the fact that the location of the defendant is unknown.
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