How to find a divorce lawyer in Cape Town, South Africa

Divorce summons served via email

In one of my cases I acted for the woman, and her husband was working overseas. She resided within the Western Cape. There were two minor children born of the marriage. The husband had an employment contract to work in Dubai. She and her two children had been unable to join her husband as the employment contract stated that no spouses or children were allowed to live with their husbands in Dubai.

My client was unemployed and had been one hundred percent reliant on her husband's income. She discovered that her husband had been having an affair, as somebody had notified her of this. The problem in this case was that my client did not have a physical address for the summons to be served on her husband. He had appointed an attorney in Cape Town, but that attorney had not officially gone on record.

I contacted his attorney and asked her whether she had a physical address for her client overseas. She did not have any physical address. I asked whether we could serve the divorce summons as well as the application in terms of Rule 43 for interim financial relief on her offices. She said that she had no instructions in this regard.

My client had been communicating with her husband via email, and had his email address. I advised her that all that we could do would be to bring an application for "edictal citation" to have the divorce summons and the Rule 43 application served by way of electronic mail to her husband's email address. We accordingly launched this application in the High Court and were successful with her application.

The application for "edictal citation" and service by way of email basically consists of a notice of motion accompanied by an affidavit setting out the reasons why summons should be served by way of email. The notice of motion would state for example that the applicant be granted leave to institute an action against the Respondent by way of "edictal citation" within thirty days of the order being granted for a decree of divorce as per the annexed summons as well as maintenance pendente lite as per the annexed Rule 43 application.

In the notice of motion you would state the manner of service of the citation. You would state for example that service be effected by of electronic mail and you would stipulate the email address of the Defendant. You would also state that receipt of the citation be acknowledged by way of replying email. You would state that the notice of the Defendant's intention to oppose the actions, should he choose to do so, be given by the Defendant within thirty days after date of service via email.

The notice of motion and affidavit would have a copy of a draft "edictal citation" and "Intendit" Plaintiff intends to have issued against the Defendant. The Applicant in her affidavit would also however make the averment that the Defendant is a foreign peregrinus and is therefore not domiciled within the jurisdictional area of the Honourable Court.

I am very much in favour of summons being served by way of email. It happens so often that Defendants do not want to give their physical addresses in order to try and avoid service of the divorce summons. I see no reasons why in such a situation a summons cannot be served by way of email.

This article was written by Cape Town divorce specialist, Peter M Baker

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