A spouse living in South Africa is able to institute divorce proceedings through the divorce courts in South Africa if a spouse lives overseas. The same applies when you are a South African citizen that lives overseas and one spouse resides in South Africa.
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 in the area of the court’s jurisdiction on the date on which the action is instituted or ordinarily resident in the area of jurisdiction of the court 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 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.
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.
The person instituting the divorce proceedings are called the Plaintiff. Where the parties reached a settlement, only the Plaintiff appears in Court. So, if a Plaintiff lives abroad he/she will have to appear once the matter is placed on the Court roll. The same applies if the Plaintiff resides in South Africa. In an uncontested divorce it is not necessary for the Defendant to appear in court.
- Where a Defendant (the person against whom the divorce is instituted) lives in another country, a Plaintiff must approach the court by way of what is known in law as an Edictal Citation application. The reason for this is that a Summons in divorce proceedings 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 that foreign country. Edictal citation is therefore a procedure according to which a legal document such as a divorce summons is served by a sheriff (in some countries known as a “service processor” or a solicitor) in a different country.
- There is also another method to serve summons on the Defendant by serving the Summons on an address in South Africa which the Defendant had chosen in terms of a Power of Attorney.
Where the divorce is uncontested, the process is relatively easy. But where the divorce is of a contested nature it is more problematic. After serving of the summons in a foreign country, a spouse will have a month to defend the action. If he or she ignores the summons or, if he or she defends it, after reaching settlement on the financial terms the matter may be setdown for a date that has been pre-arranged with the Registrar of the High Court.
If your spouse disappeared, the court will order that the divorce summons be served by way of substituted service (i.e. other than by way of personal service) so it may order, e.g., that it be served on a relative of your spouse or by way of publication in a newspaper that your spouse used to read.
Where your spouse has disappeared, you will have to satisfy the court that you have done everything in your power to trace him or her as personal service is clearly preferable and the least prejudicial form of service.
Abrahams and Gross Attorneys specialises in international divorce matters concerning South African citizens and has acted in matters for South Africans living in countries such as Australia, United Kingdom, USA, Indonesia, The United Emirates, Germany, New Zeeland, Spain, Namibia and Germany to mention but a few.