In such instances, spouses may still be able to divorce in South African Courts. We are able to provide solutions for spouses who are not resident in South Africa to facilitate their divorces, also in instances where only one spouse still resides in South Africa.
Yes, it’s often possible. South African courts have jurisdiction to hear a divorce case if either you or your spouse meets one of the following criteria at the time of filing for divorce:
Is domiciled in South Africa: This means South Africa is their permanent home, even if they are temporarily living elsewhere.
Has been ordinarily resident in South Africa for at least one year immediately before starting the divorce proceedings.
This means that even if you have moved abroad, if your spouse still lives in South Africa and meets the residency requirement, you can file for divorce here. Similarly, if you were married in South Africa and lived here for a significant period before relocating, you might still be able to establish jurisdiction.
When your spouse resides overseas, the South African court needs to grant permission to serve the divorce summons on them in that foreign country. This process is called “edictal citation.”
Your attorney will apply to the High Court for this permission. If granted, the court will specify how the divorce papers must be served. This could be through a formal process involving a court official in the other country (like a sheriff), or in some cases, the court may allow service via email or even social media if your spouse’s exact whereabouts are unknown. Once served, your spouse will have a set period, usually a month, to respond. If the divorce is uncontested, they may be able to sign the necessary documents abroad without needing to travel to South Africa.
South Africa has a “no-fault” divorce system. This means you don’t need to prove that one spouse was to blame for the marriage breakdown. The primary ground for divorce is the irretrievable breakdown of the marriage.
This is established by showing the court that:
The couple is no longer living together and there is no reasonable prospect of restoring a normal marital relationship.
The court may also grant a divorce based on the mental illness or continuous unconsciousness of one of the parties, though the irretrievable breakdown is the most common reason cited.
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