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 are 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.
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. In circumstances where the spouses were domiciled in different countries at the time of divorce, this issue can become somewhat complex.
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. However, once these formalities have been dealt with, the divorce will proceed in the same manner as a local divorce depending on whether or not it is contested.
Where the Defendant (the person against whom the divorce is instituted) lives in another country, the Plaintiff must first approach the court by way of what is known as an Edictal Citation application. 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. Edictal citation is therefore 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.
Service may also be effected 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 month to defend the action. In circumstances where no defence is filed, or where the parties are able to 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 disputed 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.
How can we help?
If either you or your spouse reside in South Africa, our trained and experienced professionals 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.
For direct answers to your specific personal questions, please contact us directly.