Divorce for Expatriates in South Africa
For time immemorial, people have been emigrating from one country to another for various reasons. Sometimes it is because of climate preferences, study, economic opportunities, political push factors, and so forth.
South Africa, like any other country, has experienced people of other nationalities emigrating into the republic to settle for various reasons. Some of them end up concluding marriages and settling permanently, whilst others come to South Africa with their spouses already. However, life is unpredictable, and sometimes life, personal, and marriage challenges take a toll on the marriage leading to its collapse.
Divorce Principles for Expatriates
This article will focus on the principles applicable to a divorce where expatriates are involved. For the purposes of this article, we will assume that the marriage was concluded outside South Africa, i.e., in the home country of the expatriates.
Establishing the Validity of Marriage
The first thing that must be established is that the spouses are legally married. This is done by producing the marriage certificate from the home country of the expatriates, and it may be required that the document be notarized and/or apostilled.
Determining South African Court Jurisdiction
The second step is to establish that the South African court has jurisdiction. One way of founding jurisdiction would be if either of the spouses is domiciled or has been ordinarily resident in the republic for at least a year immediately prior to the divorce. This aspect is also applicable had the spouses been South African nationals.
Proceeding with the Divorce Process
Once jurisdiction is confirmed, the normal divorce process can proceed as usual.
Lex Domicilii Matrimonii and Matrimonial Property Consequences
It is important at this stage to note that the principle of lex domicilii matrimonii will be applicable in this case. This principle provides that the domicile of the husband at the time the marriage was concluded will be the most informative when determining the consequences of the matrimonial assets.
For example, if a man based in England visits South Africa on holiday and meets and marries a South African woman, it is the English laws that will be used to determine the matrimonial property consequences.
Seeking 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 not be in the best interests of either party 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 contact us for comprehensive and professional assistance.
