How to apply for a divorce if your spouse has been missing?

How to apply for a divorce if your spouse has been missing?

If you found your spouse has been missing, you can still make a divorce petition unilaterally. According to s.11A of the Matrimonial Causes Ordinance, the petitioner has to prove that the marriage has broken down irretrievably that the respondent (your spouse) has committed adultery, behaved in a way intolerant to the petitioner, the parties have lived apart for at least 2 years, or the respondent has deserted the petitioner for a continuous period of at least 1 year.

Under typical situations, the petition will be served on the respondent through a third person or by post to provide the respondent with a chance to defend against it. The petitioner has to request the ‘substituted service’ order of the petition from the Court when the respondent has been absent from the stated address. According to O.65, r.4 of the Rules of the District Court, the Court will take special steps to bring the petition to the notice of the respondent if the Court spots the impracticability of the ordinary service. The Court would normally publish the petition on newspaper to notify the respondent.

To apply for this order, the petitioner has to show that it is impractical to serve the document through the ordinary service, or the respondent has been avoiding the service. He/she may indicate the failure to reach out to the respondent despite the experience of visiting or sending documents to the stated address. In Wong Kwok Chi & Anor [2006] HKCU 1755, the defendant had made six visits to the plaintiff’s address on different dates, but there was no one answering the door; he had also sent an appointment letter to the plaintiff who had not been returned by the post office, yet there was no one answer the door at the appointed time.

What’s more, if the respondent is not a Hong Kong resident or there is a high chance of him/her not in Hong Kong, the Court may consider not accepting the substituted service’s application due to the restrictive nature of the local newspaper publishing. (Deutsche Bank AG, HK Branch v Zhang Hong Li [2016] 4 HKC 266)

To conclude, if your spouse has been missing, you should first try to contact him/her by any ways possible and record the seeking processes. If you still cannot find out the absent spouse, you may apply for the substituted service order to continue petitioning procedures.

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