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Can I get divorced if I can't locate my husband or wife?

Can I get divorced if I cannot locate my husband or wife?

It is not unusual following separation for people to let a long period of time go by before they seek to formalise their divorce.

The shortest time from separation before your allowed to apply for a divorce is 1 year.  A lot of things can change in the time following separation and we see many cases where one party has disappeared and/or left the state or country.

When they have left the state we can often assist a client to locate their spouse to carry out the divorce.  In cases where they have gone overseas this can be much more difficult.

We sometimes get contacted by clients who want to get a divorce but have been unable to locate their spouse.

Ordinarily there is a requirement that an application for divorce is served on the other spouse and that an affidavit of service is filed in the court proving that the other spouse has been served. Usually a court will not grant a divorce unless service can be proved. 

However, under Rule 7.18 of the Family Law Rules 2004, there is a procedure known as "dispensing with service", which means that the court can order that service of the application for divorce is not required for a particular reason.  This can apply when the other spouse cannot be located.

Alternatively under Rule 7.18 of the Family Law Rules 2004, service of the application for divorce may be ordered by the court to be "substituted service" meaning that the application can be served on a third party that is related to or connected to the other spouse. This is usually a close family member or a friend who is still in contact with them.

In these cases we need to file an affidavit in the court setting out the factual history and the circumstances under which the other party has disappeared. We also need to explain and set out how all attempts possible to contact the other spouse have been made; for example their old address, telephone number, Facebook or other social media accounts, families or friends.

If the court is satisfied that all reasonable attempts have been made to contact the other spouse, the court is likely to grant such an order.

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Get in touch with today's blog writer:
Ryan Thomas

Partner in Family Law

Please note, this Blog is posted in Adelaide, South Australia by Andersons Solicitors. It relates to Australian Federal legislation. Andersons Solicitors is a medium sized law firm servicing metropolitan Adelaide and regional South Australia across all areas of law for individuals and businesses.

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