I would like to divorce my husband so I can remarry but I don’t know where he is
Q: My husband and I separated three years ago. We do not have children together and have not kept in touch since we separated. I am in a new relationship, and we
The Ex-Files: How to get a divorce when you can’t locate your spouse
By Jeremy Sutton
NZ Herald·
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I want a divorce but I can't find my husband. Photo / 123rf
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Types of applications:
Joint application (when both spouses agree)
If you and your spouse agree to dissolve your marriage, you can make a joint application by:
- Filling out a joint application form for an order dissolving a marriage.
- Completing an affidavit (a written statement of evidence).
- Swearing or affirming your affidavit in front of a lawyer, Justice of the Peace, or court registrar.
- Submitting these documents to the Family Court.
- Paying the $233 filing fee.
The court will review your application and make a dissolution order if everything meets the legal requirements.
One party application (when your spouse does not agree or cannot be found)
If your spouse does not agree to dissolve your marriage or you cannot find your spouse, you can make a one party application by:
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- Filling out a one party application form for an order dissolving a marriage.
- Completing an affidavit (a written statement of evidence).
- Swearing or affirming your affidavit in front of a lawyer, Justice of the Peace, or court registrar.
- Submitting these documents to the Family Court.
- Paying the $233 filing fee.
The Family Court will process your application and give you the documents that must be served on your spouse.
Serving documents on your spouse
Documents for a one party application for an order dissolving a marriage must be personally served on your spouse unless the Family Court approves another method or waives this requirement.
You can use:
- A professional process server (recommended as they know the legal requirements); or
- Any person over 18 who is not involved in the case (it cannot be you).
The server must:
- Deliver the documents directly to your spouse.
- Properly identify your spouse.
- Complete and swear or affirm an affidavit of service.
If service is refused, the documents can be placed nearby, and the server must inform the person being served of the nature of the documents. If the person being served is personally known to the server, they must set out in an affidavit of service the circumstances that enable them to state their personal knowledge of the person to be served. If the person being served is not personally known to the server, they must get a written acknowledgment from the person being served or identify them by using a satisfactory photograph.
When you cannot find your spouse
If you do not know where your spouse lives or they are avoiding service, you still need to make all reasonable efforts to locate them and have them served. This will involve trying to:
- Contact their family, friends, or known associates.
- Check public directories.
- Investigate their last known addresses or workplaces.
- Consider hiring a process server to do this for you.
If, after making these efforts, you still cannot find your spouse, or you think they are avoiding service, you can ask the Family Court to change the way the documents are served. This is known as substituted service. You can do this by:
- Filling out an application for substituted service explaining why personal service is not possible.
- Completing an affidavit detailing all attempts made to find your spouse and showing you have made all reasonable efforts to locate them and serve them personally.
- Swearing or affirming your affidavit in front of a lawyer, Justice of the Peace, or court registrar.
If approved, the Family Court will allow alternative methods such as:
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- Serving documents on a family member or friend who will likely inform your spouse.
- Publishing a notice in a local newspaper.
- Using email or social media (if you can prove your spouse uses these accounts).
We have had clients successfully serve their former spouse on Facebook.
When service is impossible
In rare cases, if it is impossible to serve documents even by substituted service, the Family Court may dispense with service entirely. This happens only after exhaustive searches have failed.
After service
Once served, your spouse has:
- 21 days to file a defence if in New Zealand.
- 30 days if in Australia.
- 50 days if anywhere else in the world.
If no defence is filed within these timeframes, the court will make a dissolution order, finalising your divorce.
Summary
For most people, filing dissolution (divorce) is straightforward. You can generally file for dissolution without a lawyer. The process will normally take several months. If you cannot locate your spouse, you may need to engage a professional third party such as a process server or lawyer.
