It is indeed true that a Court can grant a divorce in the absence of another party to the divorce action.  

It is therefore important that one knows how the process works and be aware of the pitfalls.  

The process is best illustrated by discussing the types and/or kinds of divorces.  

There are two kinds and/or types of divorces, namely:  

(i)            Uncontested and/or unopposed;

(ii)          Contested and/or opposed.  

(I)           UNCONTESTED/UNOPPOSED DIVORCE:

There are two instances of uncontested and/or unopposed divorces.  

The first instance is where the divorce is granted where the other party did not oppose and/or contest the divorce after having been served with a summons.  

The second instance is where the divorce is contested and/or opposed, but both parties to the divorce have agreed to settle the issues which were in dispute and have entered into written agreement which they agree should be incorporated in the granting of their divorce.  

The similarity to both instances is that one of the parties to the divorce need not be present in Court and the Court grants a divorce by default, that is, in the absence of another party to the divorce action.  

The difference between the two is that in relation to the first instance the other party did not respond after having been served with a divorce summons.  

This arises from the fact that the Sheriff of the Court, who is entrusted with the service of the summons, has served the summons on the other spouse who is required within the time stipulated in the summons, failed to respond by noting his or her intention to defend the divorce action.  

The information that the divorce summons has been served on the other spouse is contained in the document of the Sheriff of the Court which is called a return of service.  

The Sheriff of the Court in his/her document specifically states the date and time he/she served the divorce summons on the other spouse and after the expiration of the time period indicated in the summons, the spouse instituting the divorce action can approach the Court by setting the divorce action down, thereby requesting the Court to grant the divorce which the Court will do in the absence of one of the parties to the divorce action.  

This is the rule of practice that when a party is served with a summons and does not respond thereto by noting his/her intention to defend the action the Court will proceed to grant the divorce and this is commonly known as granting a divorce by default, that is in the absence of one of the parties to the divorce action.  

(II)          CONTESTED / OPPOSED DIVORCE

A contested or opposed divorce involves spouses that cannot arrive at an agreement on one or more of the key issues to their divorce in order to conclusively terminate their marriage.  

The key issues may be that the parties and/or the spouses are unable to agree on the division of their assets and/or primary care and residence in respect of the minor child (children).  

Before the Court can grant a divorce order where the divorce is contested or opposed it has to be clear to the Court why the opposing and/or contesting party to the divorce is not present.  The Court need to be convinced that the opposing and/or contesting party has abandoned his/her opposition, otherwise without a reasonable explanation the Court will be reluctant to grant a divorce order, although the Court may express its dissatisfaction thereof relating to the non-attendance of the opposing and/or contesting party.  

It arises that the Court may place certain conditions to be complied with which will be applicable in the next hearing whereby it may proceed with the granting of a divorce order in the absence of the opposing and/or contesting party.  

I respectfully submit that the Court is not debarred from granting a divorce order in the absence of the opposing and/or contesting party after careful consideration of the facts and circumstances presented before it based on what is just, equitable and sound in law.