Beyond Borders: A Closer Look at International Divorce
Divorcing a spouse living in another country can feel like an uphill battle, but with expert legal guidance, international divorce doesn’t have to be as complicated as it seems. Thankfully, the law offers a clear framework for handling these divorces, ensuring you have legal recourse if you find yourself in this situation.
Criteria and Considerations for International Divorce
In South Africa, divorce is governed by the Divorce Act 70 of 1979, and it applies regardless of whether your spouse is in the same country or living abroad. The key factor is that South African courts must have jurisdiction over your divorce case. Fortunately, the law allows for this in several scenarios, as long as you meet specific criteria:
Jurisdiction: Where to File for Divorce
For South African courts to be able to process a divorce, applicants must satisfy the requirements for jurisdiction. According to the Divorce Act, courts will have jurisdiction if:
- You are domiciled in South Africa: This means South Africa is your permanent home.
- You are ordinarily resident in South Africa: This usually applies if you’ve lived in the country for at least 12 months before filing for divorce, though other criteria will also apply.
If either of these applies to you, a South African court can hear your case, even if your spouse is living abroad.
Application for an Edictal Citation
The law typically prohibits the service of legal documents outside the country unless special permission is granted by the court. This is outlined in Rule 5(1) of the Uniform Rules of Court and Rule 10(1)(a) of the Magistrate’s Court Rules, which state that no legal document initiating proceedings may be served beyond South Africa’s borders without the court’s authorisation.
An edictal citation is a formal request that allows you to bypass this restriction, enabling you to serve divorce papers on your spouse even if they are residing in another country. To obtain an edictal citation, you must make an application to the court, explaining why the divorce summons needs to be served outside the country and demonstrating that your spouse’s current location is known. An edictal citation ensures that both parties are properly informed of the proceedings, even if they are separated by international borders, allowing the divorce to move forward legally and fairly.
What If My Spouse Ignores the Divorce Papers?
Once jurisdiction is established, the next challenge in an international divorce is making sure your spouse is served with divorce papers. The law requires that the defendant (your spouse) be made aware of the legal proceedings, which means serving divorce papers abroad.
In some cases, your spouse may refuse to engage with the legal process after being served. If this does happen, you could seek a remedy by applying for a default judgment. This means that the divorce can proceed without your spouse’s participation. As long as you can prove that the papers were properly served and your spouse had adequate time to respond, the court could grant the divorce in their absence.
Seeking Legal Assistance
At Cawood Attorneys, we’ve developed efficient and creative solutions to streamline and simplify the international divorce process for our clients. Our forward-thinking approach minimises the delays commonly associated with obtaining an edictal citation, allowing you to finalise your divorce faster and at a significantly lower cost. By embracing modern strategies that adapt to the global nature of today’s world, we have found ways to reduce the complexity of international divorces significantly. With a proven track record of handling divorces where one party resides overseas, we are well-equipped to guide you through this challenging time. Contact us today for a free telephonic consultation and let our experienced team assist you in resolving your divorce quickly and affordably.