Sharon married her husband in South Africa (“SA”) 10 years ago. Approximately 5 years ago she moved to Australia with her husband. However, in 2018 after separating from her husband, she moved back to SA and has finally decided that she wants to get divorced. The relationship between Sharon and her husband is strained, however they have both agreed that signing a settlement agreement will be the most cost-effective way to deal with the divorce. Sharon’s biggest question is: “Can I get divorced in SA, or must I go all the way to Australia for this?”
The simple answer is no. You do not have to go all the way to Australia to get divorced if you comply with our laws in SA. In SA, we need to look at some factors to determine whether you will be able to get divorced here. These will be discussed fully below (also see our page dealing specifically with international divorce).
WHETHER THE SOUTH AFRICAN LAWS ARE APPLICABLE TO THE MARRIAGE
To determine whether SA has the necessary jurisdiction to divorce Sharon, we need to look at the marriage, and where it was entered into. If the marriage was entered into between the parties in SA, then naturally SA will have the requisite jurisdiction to attend to the divorce between the parties. This would mean that the parties had to get married in terms of one of the marital regimes of SA ( more information on the different marital regimes)
To be able to proceed with issuing the divorce in SA, Sharon has to be domiciled in SA, ordinarily resident in SA, or where she has to have the intention to settle in SA for an indefinite period ( Divorce Act, 3 of 1992 ).
The Divorce Act further indicates that a person will not lose their domicile, unless they have acquired a new domicile. This means that because Sharon did not regard Australia as her permanent place of residence and has moved back to SA, that her domicile remains as SA.
Another factor that needs to be dealt with are the proprietary consequences. The proprietary consequences of the marriage are dealt with by the lex domicilii matrimonii, and that is the place where the husband was domiciled when the marriage was concluded (this was confirmed in Frankel’s Estate v The Master 1950(1) SA 220 (A) ).
EDICTAL CITATION & SUBSTITUTED SERVICE
A summons must be personally served on Sharon’s husband and because he is not living in SA. To do this the court will have to be approached to seek permission to serve the summons outside of the borders of SA. This is called an edictal citation application (see specifically Rule 4 of the uniform Rules of Court ).
This application is in some instances usually accompanied by a substituted service application. A substituted service application in Sharon’s instance will be a case of requesting the court to allow for service of the summons via e-mail, fax or any other form of service deemed sufficient. The substituted service application will usually be accompanied by confirmation from the husband that he is willing to accept service on such a basis.
In the event that the husband does not agree, Sharon can still make a substituted service application, although she must be able to provide the court with sufficient and good reason why the summons cannot be served personally on him, and why another form of service should be allowed. This will usually be the case where the husband cannot be found or is running away from personal service.
If you need more information on divorcing your spouse who is no longer living in SA, contact one of our experienced family law attorneys
We look forward to assisting you!