“I haven’t spoken to my husband since the day he left the family home.  That was five years ago.  I’ve recently met someone and we’d like to get married.  Problem is, I’m still married to my first husband . . .  and I think he left the country.  Can I still get a divorce even if I can’t locate him?”

Following a separation, the shortest time before couples can apply for a divorce is one year.  Sometimes after separation, life moves on and neither party bothers to complete the paperwork finalising the divorce.  Often, immediately after such a tumultuous life change one is not emotionally up to the task and the busyness of life intervenes.  Occasionally, the application for divorce is neglected as an act of total apathy towards the relationship.  Perhaps both parties feel that through the process of separation they are already divorced (although not in any legal sense).  Whatever the reasons, at some point, occasionally many years down the track, at least one party may wish to move forward with the paperwork (in an effort to cut all ties and perhaps remarry).

In most cases, in spite of the length time since a separation, individuals remain aware of the location of their ex-spouse.  In these situations it is simply a matter of completing the relevant paperwork, serving these documents to the other spouse and moving forward with that.  However, occasionally a spouse may disappear completely.  Where the person concerned has moved interstate, or even disappeared within South Australia, a solicitor can be of great assistance to locate the person and have the documents served.  In the situation where the individual has left the country altogether, things may become more complicated.  In the day and age of the internet and social media, this is becoming less likely, although I can certainly recall of situations where people have disappeared to far-flung exotic places and were never heard of again.  In these situations, and where service of documents is not possible, Rule 7.18 of the Family Law Rules 2004, may apply.  Under this ruling, divorce documents can be served to a third party, a person who is related to the other spouse in the form of a family member or friend (who is still in contact with the person).  Of course, in addition to this, an affidavit, detailing the circumstances of the person’s disappearance and outlining the efforts undertaken to locate the person, is filed in a court setting.  Once the Court is satisfied that all efforts to locate the person have been undertaken (a minimum time spent of 1 month and 1 day) they will normally grant such an order.  Furthermore, where a spouse cannot be found AND there is no other person available to serve the documents on, you can seek to have this removed (a dispensation of services), although this will require additional documentation.

While obtaining a divorce when one party is missing in action is certainly achievable, it does require more paperwork and more legal hoops to jump through.  In light of the complexity of the situation it makes sense to have a skilled Family Lawyer on side.  After all, timely resolution of this matter is often all that is required to ensure that you can move forward with your life safe in the knowledge that your past is well and truly where it belongs.