Introduction
Commonly, as soon as a married couple decides that their marriage will no longer work, they will file for divorce. In some rare cases, however, a married person may choose to separate indefinitely or simply disappear. This results in a “missing spouse” situation. While the remaining spouse may still file for divorce under the grounds of either 2 years of separation or the dissertation of the missing spouse for at least 1 continuous year, the main hurdle is that the remaining spouse cannot locate the missing spouse, so cannot serve him/her with the divorce petition.
The importance of the service of the divorce petition
It is a statutory requirement for the spouse who files for divorce, known as the “Petitioner”, to appoint a representative to serve the petition personally on the non-filing spouse, known as the “Respondent”, in order to notify him/her of the intended divorce and to give him/her the opportunity to be heard in court.[1]
It is important to note that the Respondent must be properly served, otherwise even though the Petitioner may ultimately secure the divorce (by obtaining a Decree Absolute), the Respondent can still object on the basis that he/she was unaware of the matrimonial proceedings.[2]
How to serve the petition on the Respondent?
Generally, the Petitioner’s representative may serve the petition on the Respondent personally at his/her last known residential address, office address, parents’ address or even siblings’ address(es).[3]
In “missing spouse” cases, the Petitioner is required to use extra efforts and additional method(s) to notify the Respondent by way of ‘substituted service’.[4]
- This form of service aims to notify the Respondent by other means, usually by way of advertisement.
- In order for the court to allow this form of service, the Petitioner must demonstrate that he/she has exhausted all means to locate the Respondent but to no avail. It means more than just a few unresponsive WhatsApp messages.
- If the attempts in locating the Respondent are unsuccessful, then the Petitioner can make an application to the court for permission for substituted service.
How to make an application for substituted service?
To make such an application, the Petitioner has to execute an affidavit/affirmation stating the following:-
- the facts regarding what the Petitioner has done to try to locate the Respondent;
- the grounds for the application; and
- the form of substituted service/advertisement that the registrar may settle.
Once the Court issues an order for substituted service, it will give directions on how to bring notice of the petition to the Respondent.
Substituted service is usually by way of newspaper advertisement. The Petitioner may choose either an English or a Chinese local newspaper for the advertisement publication depending on the language that the Respondent understands.
Conclusion
Once the service of petition is completed, the matrimonial proceedings officially begins. Assuming that the Respondent does not respond within a particular timeframe and does not appear in any subsequent court hearings, the court may grant the divorce in accordance with all the terms which the Petitioner has requested.
The above is only a general illustration. Every divorce case is fact-sensitive with its complexity. Therefore, proper legal advice should be sought before commencing any matrimonial proceedings.
[1] Cap.179A Matrimonial Causes Rules Section 14(1)
[2] FHFK v NCM (unrep., CACV 182/2007, [2008] HKEC 1086)
[3] Cap.179A Matrimonial Causes Rules Section 14(3)
[4] Cap. 366H Rules of District Court o.65 r.4
