Borders are powerful constructs, powerful enough to determine the legal status of things, people, laws, cultures, religions and of course the course of history. Borders can take one from a warzone on one side, and to peace on the other, hunger to plenty, developed to less developed territories. Borders can place limitations on things. However, in this article, we will share insights on the principles that apply when Divorcing a spouse who is based abroad.
The Challenges of Divorce
Going through a divorce is often one of the most challenging experiences one can go through in life. The reason for this is that it is usually as a result of various negative reasons which range from all forms of abuse, infidelity or simply falling out of love. This then results in divorce proceedings turning out to be battlefields where parties trade barbs to walk away in ‘triumph.’ Often at times this sense of ‘triumph’ is pursued without careful consideration and cognisance of the critical issues at stake during divorce proceedings, such as maintenance and custody of the minor children.
The Importance of Legal Representation
This is why we advise spouses to seek the assistance of a legal practitioner before instituting or defending a divorce. The assistance of a legal practitioner will be critical with regards to determining jurisdiction, consequences of the matrimonial assets, custody, access rights, service of documents and so forth.
Legal Basis for Divorcing a Spouse Abroad
According to the Divorce Act 70 of 1979 (the Act), it is possible to divorce a spouse who is based abroad. This will come as a relief to some people who had been wondering whether this is possible at all, wary of the limitations placed by borders.
Jurisdiction in an International Divorce
The first step would be to determine whether a South African court has jurisdiction to handle the matter. The issue of jurisdiction becomes important in that it determines the legal status of the parties/spouses, and the applicable laws. A South African Court will have jurisdiction where either of the parties is domiciled or has been ordinarily resident within the republic for at least a year immediately prior to the institution of the divorce proceedings.
Domicile or ordinary residence are by no means the only factors that determine jurisdiction, but it can also be founded upon where the marriage was concluded or where the marital assets are located.
Seeking Professional Legal Assistance
We advise parties to seek professional legal assistance when confronted with a decision to either institute or defend a divorce, as the end result of the proceedings may turn out not in the best interests of either of the parties or the children. We assist with divorce matters as well as a wide array of other family law matters as outlined on our interactive website. Kindly make contact with us for comprehensive and professional assistance.
