A person living in South Africa may institute divorce proceedings against their spouse living in a foreign country via the South African divorce courts. Conversely, a South African citizen living abroad may institute divorce proceedings against their spouse living in South Africa via the South African divorce courts.
In terms of South African law, a South African court will have jurisdiction to preside over a divorce if the parties, or either of them, are domiciled in the area of the court’s jurisdiction on the date on which the divorce action is instituted, or the parties, or either of them are ordinarily resident in the area of jurisdiction of the court on the date on which the divorce 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 the defendant lives in another country, the Plaintiff must first approach the court by way of an edictal citation application. If the court grants the application, the Plaintiff may serve the divorce summons on their spouse in the foreign country in the manner prescribed by the court. For example, by way of sheriff in the foreign country, or by way of what some countries call a “service processor”.
After receiving the summons in the foreign country, the Defendant will have one month to defend the action. If the Defendant ignores the summons and decides not to defend the action, the matter may be set down for hearing and judgement may be obtained by default. If the summons is defended, the divorce will then run its course and either be set down for hearing once the parties reach a settlement, or where the parties are unable to settle, the matter will be set down for trial.
What are some of the unique challenges of an international divorce?
Because of the differing laws from one country to the next, international divorces have some very unique challenges. These often include:
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