An international divorce occurs when at least one spouse is a foreign national of another country. Given both the mobility of South Africans and the number of foreigners choosing to live in South Africa, international marriage is a very common occurrence. Some couples choose to marry abroad in popular wedding destinations such as Mauritius or Italy, however, provided the marriage was duly registered with Home Affairs, divorce for a couple who married abroad is not classed as a foreign divorce. Furthermore, if spouses were married in another country, but now both live in South Africa, or the spouse wanting to get a divorce lives here, the South African courts can come to their aid.
The South African Divorce Act allows action to be instituted in the area in which either spouse is domiciled/ordinarily resident. This is different to other civil claims where you must follow the area in which the Defendant lives. Consequently, if the spouse wanting to get a divorce lives in South Africa, but the other spouse lives overseas, you may still approach a court in South Africa to get a divorce. The court will assist with the divorce and if there are child/ren involved, the courts will apply the South African law.
Regardless of where you and your spouse were married, a South African court will have jurisdiction to hear your divorce if either you or your spouse resides in South Africa. This applies whether you and/or your spouse are South African citizens or not. In terms of the South African Divorce Act, a South African court will have jurisdiction where the parties or either of the parties is domiciled or ordinarily resident in the area of the court’s jurisdiction on the date on which the action is instituted or has been ordinarily resident in the Republic for a period of not less than one year immediately prior to that date. If you married a foreign national and they have now left South Africa, you can still institute divorce proceedings here. Furthermore, if you have left the country but your spouse is still resident here, you can also file for divorce through the South African courts. If one of the parties is domiciled in South Africa on the date the action is instituted, you can file for a divorce in South Africa.
The above also implies that foreigners (people who are not South African citizens) and who have been living in South Africa for more than a year, may divorce through the South African courts.
The question as to which law applies to the patrimonial consequences of your divorce, however, is determined by the law of the country where you and your spouse were domiciled at the time of the marriage.
The procedure for an international divorce is much the same as for that of a local divorce, except that the times allowed for service and the manner of service of the summons on the defendant differ somewhat. Where the Defendant (the person whom the divorce is instituted against) lives in another country, the Plaintiff must first approach the court by way of what is known as an Edictal Citation application (which is a procedure according to which a legal document such as a divorce summons is served by a sheriff or his equivalent in the foreign country). The reason for this is that in divorce proceedings the summons must be served on the Defendant personally and the Court needs to be satisfied that service will be done properly by an official of the court in the foreign country where service is to be effected. However, once these formalities have been dealt with, the divorce will proceed in the same manner as a local divorce depending on whether it is contested.
Service may also be carried out on a South African address in circumstances where the defendant has elected a service address in terms of a Power of Attorney. After service has been effected the defendant has a month to defend the action. In circumstances where no defence is filed, or where the parties can settle the disputes between them, the matter can proceed as an unopposed divorce.
Where the action is defended, the matter will proceed in the same manner as any contested divorce. The defendant will be required to provide a service address in South Africa and within the jurisdiction of the court out of which the action was instituted, in accordance with the rules.
After service has taken place, your spouse will have a month to defend. If he ignores the summons or, if he defends it, after reaching settlement of the financial terms, the attorney can set the matter down for a trial date that has been pre-arranged.
Antenuptial contracts can help an International divorce
Antenuptial contracts (ANCs) can be real lifesavers in more than one situation. They make a difference as to what happens where the divorce involves a foreign national, an ANC – or a postnuptial contract if there is one – can make the difference between acrimony and harmony. Whatever the laws of a foreign jurisdiction may be, the terms of the antenuptial contract will be applied to the divorce settlement.
An ANC will however not impact on child custody arrangements, which can be complex when the divorcing spouses live in separate countries. But an ANC will reduce or eliminate disputes over other matters that are clearly defined in the contract.
If for example the husband was domiciled in England at the time of the marriage and no Antenuptial contract was entered into in South Africa, the marriage will be in terms of English law. Should the parties later emigrate to SA, the marriage would remain out of community of property. Thus, in a contested divorce where the husband was domiciled in England at the time of the marriage, a South African court is obliged to apply English law in respect of the patrimonial consequences of the divorce, i.e., the division of the estate. Maintenance however and the aspects surrounding the children, like maintenance, care and contact will be dealt with in terms of South African law.
How can we help?
If either you or your spouse resides in South Africa, we at Rudolf Buys and Associates Attorneys can assist you to obtain a divorce through the South African courts, should you wish to do so. Whether contested or uncontested, we have the necessary expertise required to ensure the best possible solution is obtained. Professional advice is critical for an international divorce.