Written by Denisha Padachey
30 MARCH 2023

INTRODUCTION

Circumstances may arise where a divorce action becomes necessary, in a situation where one spouse resides in South Africa and the other spouse resides outside of the borders of South Africa. In situations like these, the divorce procedure differs slightly; however, it is still possible for a divorce action to be instituted within the borders of South Africa.

WHAT IS A DIVORCE ACTION?

Section 1(1) of the Divorce Act 70 of 1979, as amended (hereinafter “Divorce Act”) defines a divorce action as:

“an action by which a decree of divorce or other relief in connection therewith is applied for…”

*Read more for more information on the concept of divorce and the common questions pertaining thereto.

WHEN DOES A SOUTH AFRICAN COURT HAVE JURISDICTION TO ADJUDICATE A DIVORCE ACTION?

According to Section 2(1) of the Divorce Act, “a court shall have jurisdiction in a divorce action if the parties are or either of the parties is:

  • domiciled in the area of jurisdiction of the court on the date on which the action is instituted; or
  • ordinarily a resident in the area of jurisdiction of the court on the said date and has been ordinarily resident in the Republic for a period of not less than one year immediately prior to that date.”

In terms of the above provisions, couples where one spouse resides outside of the borders of South Africa are not precluded from obtaining a divorce within South Africa, and a divorce action can be instituted within South Africa by either party based on the fact that one party to the marriage resides within the court’s jurisdiction.

HOW CAN SERVICE BE EFFECTED ON THE SPOUSE WHO RESIDES OUTSIDE OF THE BORDERS OF SOUTH AFRICA DURING DIVORCE PROCEEDINGS?

When the spouse residing in South Africa institutes a divorce action against the spouse residing outside of the borders of South Africa, it will be necessary for the plaintiff, namely, in this example, the spouse residing in South Africa, to apply for edictal citation.

With an edictal citation application, the South African court must be satisfied that there is no other possible method for personal service of the summons on the defendant, namely, in this example, the spouse residing outside of the borders of South Africa, to occur. Once the court makes a determination and grants an order for edictal citation, the plaintiff is granted permission to serve the defendant with a divorce summons in a foreign country either by means of a local service or another way instead of by means of personal service.

CAN THE DIVORCE ACTION BE DEFENDED BY THE SPOUSE RESIDING OUTSIDE OF THE BORDERS OF SOUTH AFRICA?

A defendant residing outside of the borders of South Africa is afforded the same right to defend a divorce action as a defendant residing within the borders of South Africa. However, unlike a defendant residing in South Africa, who has a period of 10 court days in which they must defend the divorce action, a defendant residing outside of the borders of South Africa is afforded one month to defend the action. It must, however, be noted that if a defendant ignores the divorce action or elects not to defend the action, the matter can be set down in court and proceed on an unopposed basis.

CONCLUSION

This article confirms that it is possible to institute a divorce action in South Africa where one spouse resides outside of the borders of South Africa. Should you require assistance in instituting divorce proceedings or in applying for edictal citation, do not hesitate to contact one of our Burger Huyser Attorneys’ divorce specialists to schedule an appointment.

DISCLAIMER: Information provided in this article does not, and is not intended to constitute legal advice. READ MORE