Divorce Application: What to do if your spouse cannot be found
It happens. You were young and you thought you had met your soulmate. You plan out your future together and when you turned 18, the both of you decide to get married. Unfortunately, your partner found love elsewhere and the both of you decide it would be best to separate and you never see him again. Five years have passed and you have forgotten about your partner. Fortunately for you, you meet someone new, and after hitting it off, they decide to propose to you. At that moment, you realize, you have never officially divorced your long-lost love. So what do you do next?
In a divorce proceeding, a writ of divorce will be issued by the Court. This writ has to be brought to the attention of your spouse, and this is usually executed through personal service. A personal service is where a copy of the writ is personally delivered to your spouse by an authorized person such as a process server of the Court, or by a solicitor or a solicitor’s clerk whose name and particulars have been notified to the Registrar.
However, what if there comes a situation where your spouse refuses to accept the personal service or that they can no longer be found at their last known place of residence? If you find yourself in this situation, you can apply for an order for substituted service from the Court.
What is an Order for Substituted Service
An order for substituted service is an order by a Judge of the Court to effect the writ of divorce, to be served through alternative means.
Before the application of an order for substituted service can be made, you must first make at least two reasonable attempts at personal service. A reasonable attempt at effecting a personal service, for example, can be visiting your spouse’s last known residential address. Once this has failed, an order for substituted service is passed if it appears to the Court that it is impracticable through personal service to serve the writ of divorce to your spouse. This will include any affidavits from you containing relevant information pertaining to the mode of substituted service.
Examples of Substituted Service
Substituted Service by Way of Prepaid AR Registered Post
If by chance you are able to source out the residential address of your spouse, be it through friends, relative or other means, or if the address is an overseas address, you can apply for a substituted service through prepaid AR registered post. You must also show to the Court why you would have a strong reason to believe that your spouse is the owner or residing in this location. To avoid any doubt, a substituted service via AR registered post will be deemed to have been effective when the postal service has delivered the document, or have attempted to deliver the document (in cases where no one is present or willing to accept the document).
Substituted Service by Way of Electronic Means
Electronic Means as defined in O 62 r 5(4) of the Rules of Court includes means such as ‘electronic mail or Internet transmission as the Court may specify.’
Justifying substituted service through ‘electronic mail’ is uncontroversial as it just needs to be shown that the electronic mail account which the writ of divorce will be sent to belongs to your spouse and that the account is still active. ‘Internet transmission’ on the other hand can encompass various Internet services such as Skype, Facebook, Whatsapp and internet message boards as seen in Storey, David Ian Andrew v Planet Arkadia Pte Ltd and others.
You must first prove that the electronic platform that you wish to use as a substituted service is either used by or recently used by your spouse. This can be done by,
(1) Proving that the Electronic Platform in Question is used by Your Spouse:
(i) For email, instant messaging, internet message boards, or smartphone messaging platforms, proof of a message whereby the user has explicitly self-identified or signed off as your spouse; or a message that shows, in the context of the dispute, that the user is your spouse
(ii) For social media platforms, the profile name and profile picture (or other posted pictures) should match your spouse’s, and if the parties have met the profile picture (or other posted pictures) should be attested to match.
(2) Proving that the Electronic Platform in Question was Recently Used by Your Spouse:
(i) For email, instant messaging, internet message boards, or smartphone messaging platforms, proof that a message has been sent within a reasonable timeframe from the date of service; or for instant messaging, internet message boards or smartphone messaging platforms, proof that the user was last seen online within a reasonable timeframe.
(ii) For social media platforms, proof that there has been active within a reasonable timeframe; this can entail the sharing of photos, the posting of publically-accessible messages, or the sending of private messages, and so on.
The main criticism against allowing substituted service through electronic means other than email is that there is a worry that such means may not be effective at bringing notice to the person to be served, in this case, your spouse. As such, if you are looking to apply for a substituted service through electronic means, the judge in question would in most cases, order the substituted service to be accompanied by either posting on the front door or through an AR registered post. This is done so as physical service remains the most certain way of bringing about a notice. These two methods should only be dispensed with if the address of your spouse is demonstrated to be unknown or if there is proof that your spouse no longer owns or is no longer resident at a known address.
Substituted Service by Way of Pasting on the Front Door of Your Spouse’s Last Known Address
If personal service was attempted and was unsuccessful, you can apply for a substituted service by pasting on the front door of your spouse’s last known address.
You must first show the Court proof that you had actively sought for your spouse’s residence. This can be done via relevant search results such as from the Housing & Development Board or the Accounting and Corporate Regulatory Authority. Getting into contact with your spouse’s relatives, friends, and employer(s) for your spouse’s residence is also an option.
You must then show to the Court how pasting the document on the front door of your spouse’s last known address will come to your spouse’s attention.
Substituted Service by Way of Advertisement
If you are unable to locate your spouse and identify their location of residence even after having contacted their friends, relatives and employer(s), you may apply for substituted service via advertisement.
You must show to the Court your spouse’s level of literacy in the language that the advertisement will feature in. Furthermore, if you wish to post the advertisement in an overseas newspaper, you must justify to the Court why you believe your spouse to be in that country.
Dispensation of Service
Regardless, you must first obtain leave to serve the writ and show that such personal service is impracticable before being allowed to apply for substituted services. Only when you have tried all possible methods of substituted service, the Court will allow for a dispensation of service if they are satisfied that all your attempts at substituted service had been ineffective. Dispensation of service would mean that you do not need to serve court documents on your spouse if the Court is satisfied that you have made all reasonable attempts to find your spouse. It will be taken that the divorce is uncontested and you can proceed to the second stage of divorce proceedings which involves ancillary matters.
How We Can Help
That being said, divorce procedures in Singapore may be technical and complex for you. Worry not, at I.R.B. Law, we have experienced lawyers who are well versed in Singapore Family Law proceedings. We will be able to guide you through and explain to you throughout each and every stage of your divorce or your annulment. We understand that going through such an event in your life is difficult and emotional.
So contact us to receive advice on how your divorce proceedings can be best handled so that you can focus on getting back up on your feet. Our first consultation is usually free as we wish to focus on you and not on your wallet. So don’t hesitate and reach us at [email protected] or call us at +65 6589 8913 and schedule an appointment with one of our experienced lawyers today.