Legal proceedings are guided by a number of rules and regulations that direct their processes and procedures. Therefore, it is not only a matter of the substance of law but also of procedure. In this article, we will take a look at how divorce documents are served internationally, particularly when one of the spouses is based abroad.
Domestic vs. International Divorce Process
To put things into context, a divorce where both spouses are based in the Republic of South Africa and a divorce where one of the spouses is based abroad follow more or less the same process. However, in the latter case, there are slight added procedures which we will outline in this article.
Establishing Jurisdiction in International Divorce Cases
To institute a divorce in a court of law, the first step is usually to establish that the court is competent to hear the matter, issue a decision, and enforce the judgment effectively. This is what jurisdiction means by definition.
This principle is applicable to all adjudication forums, including:
- The CCMA
- Labour Courts
- Civil Courts
- Criminal Courts
- Lower Courts
- Superior Courts
- Specialised Courts
There are several factors that determine the jurisdiction of a particular forum, but this article will focus on jurisdiction in the context of international divorce.
The Process of Serving Divorce Documents Abroad
Once jurisdiction has been established, the party instituting the divorce must ensure that the divorce documents are issued from the court and delivered for service. Since the defendant is based abroad, a process known as edictal citation will be necessary to request the court’s permission to serve the documents internationally.
Edictal Citation: Requesting Court Approval for International Service
The request for edictal citation must convince the court that:
- It is the only reasonable and available means to serve the defendant.
- There is no viable alternative method for service.
The request for edictal citation may also be accompanied by a request for substituted service, which could include methods such as:
- Fax
- Other digital communication channels
Alternative Options for International Service
In some cases, the defendant may appoint a third-party representative—such as a relative or a legal practitioner in South Africa—to accept service on their behalf.
Alternatively, depending on the circumstances, the court may order that the divorce documents be served through the Embassy or Consulate of the country where the spouse abroad is based. Each case is assessed on its own merits.
Legal Assistance for International Divorce Cases
Navigating the complexities of serving divorce papers internationally requires legal expertise. We assist with divorce matters as well as a wide range of other family law matters.
For comprehensive and professional assistance, kindly contact us.
