Yes, it is. Whether the plaintiff- the spouse who institutes the divorce- is living in South Africa, or is a South African citizen living in a foreign country, or if the marriage took place in South Africa, it is possible to institute divorce proceedings through the South African Courts.
Even foreigners who have lived in South Africa for over a period of one year may approach the South African court to place divorce proceedings into action.
South African courts have jurisdiction if either of the parties are:
When both parties reach a settlement, only the plaintiff will appear in court. Therefore if the plaintiff lives overseas, they will have to appear in South African court once the matter is placed on the court roll.
The same applies if the plaintiff resides in the country of South Africa. However if the divorce is uncontested and the parties reach an agreeable settlement, then it will not be necessary for the defendant to appear in court.
When the defendant lives in another country, the plaintiff must approach the South African court by way of an edictal citation application.
The court must first be convinced and satisfied that there is no other possible method to serve the summons, and that the service will be conducted by an official of the court.
If the edictal citation is granted, then the plaintiff is granted permission to serve the spouse a divorce summons in a foreign country via a local service.
After the summons has been served in the foreign country, the defendant will have one month in which they can defend the action.
If the defendant chooses to ignore or defend the summons, then after the financial terms are settled, an attorney can set the matter of the divorce down for a hearing on a date which will be pre-arranged with the registrar of the court.
South African law states that South African courts are granted the same power and functions as those a foreign court would have in terms of the relevant divorce laws of the foreign country.
South African law further states that the patrimonial consequences of a marriage is governed by the laws of the country where the husband was domiciled at the time of the conclusion of the marriage when there is no ante-nuptial contract.
A domicile is the country that one chooses as their permanent home, it is a matter of choice, and although one may work overseas, a South African court would still keep jurisdiction to entertain the matter.
Even if a husband chooses to change domiciles after the marriage, the domicile at the date of marriage will govern the marriage and it’s dissolution.
Choose Van Deventer & Van Deventer Incorporated to help you find the appropriate channels in order to correctly order a divorce and serve it to a spouse living overseas.
Contact us today for more information.
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This is the second and final part of our “preparing for divorce checklist” series which looks at all the financial considerations when getting divorced in South Africa.
Read More ...Posted by Cor van Deventer on Friday, May 8, 2020 Views: 227