Some people may wonder if it is possible to get a divorce if one spouse is out of the country at the time. You will be relieved to hear that, yes, it is possible. If you decide to apply for a divorce while your spouse is out of the country, you must follow a similar procedure to a typical divorce, although there are a few differences. So how do you go about getting a divorce if your spouse is out of the country?
Getting a divorce if spouse is out of country necessitates you ensure that the relevant South African Court has jurisdiction over your divorce. The plaintiff must approach the Court for an Edictal Citation if the defendant does not have a South African residence chosen in terms of Power of Attorney.
As with any divorce, there are specific procedures you will need to follow. Although, when it comes to filing for divorce when one of the spouses is out of the country, you will need to follow a slightly different approach. Before anything, you must ensure that the Court you approach has jurisdiction over your divorce, after which you can start the process of getting a summons served upon your spouse.
Divorce If Spouse Is Out Of Country: Court Jurisdiction
The South African courts will have jurisdiction over a divorce action if:
- You or your spouse live in the area of the Court’s jurisdiction on the date with which you institute the divorce action.
- You or your spouse are an ordinary resident in the area of the Court’s jurisdiction on the date with which you institute the divorce action.
- You or your spouse have or has been an ordinary resident in South Africa for not less than one year immediately before the date on which you institute the divorce action.
Even if you are not a South African citizen, you can still apply for a divorce through the South African court system. Although, you will need to have been a resident in the country for at least a year immediately prior to your application.
Divorce If Spouse Is Out Of Country: Summons Process
There are three ways to serve a summons upon your spouse when they are out of the country.
The first and easiest method would be for the out-of-country spouse to give Power of Attorney to a relative residing in South Africa. In this case, the summons can be served to a residential address in South Africa.
The second method requires the plaintiff (the person applying for the divorce) to approach the Court and apply for an Edictal Citation. An Edictal Citation is a procedure whereby a legal document, in this case, a divorce summons, is served to the defendant (the spouse) by an official of the Foreign Court, such as a sheriff, a service processor, or a solicitor.
Before granting this application, the Court must be convinced that there is no alternative method to serve the summons upon the defendant and that an official of the Court will carry out the service.
The third is by accompanying your request for an Edictal Citation with a request for the Court to authorize a Substituted Service. This Substituted Service allows the divorce summons to be served digitally via email, fax, or other digital means.
If the Court decides to grant the plaintiff’s Edictal Citation, the plaintiff has permission to serve the divorce summons upon their spouse in a foreign country.
Once the defendant has received the summons, they will have one month to defend the action. If they decide to accept the terms put forth in the summons or they ignore it, the divorce may be set down for hearing in the relevant South African Court.
In an uncontested divorce situation, only the plaintiff must be present in Court on the required date. If the plaintiff is the spouse currently residing out of the country, they must ensure they return to the country on time to be present in Court on the given day.
Divorce If Spouse Is Out Of Country: Domicile
Suppose you were married without setting up an antenuptial contract in South Africa. In that case, South African law states that the patrimonial consequences of your marriage will be based on the country where the husband was domiciled when the marriage was concluded.
For example, if your husband was domiciled in England at the time of your marriage and you did not enter into an antenuptial contract in South Africa, the marriage will be in terms of British Law. If your divorce is contested, the South African Courts must apply British Law regarding the patrimonial consequences of the divorce, for example, the estate division. Although, aspects surrounding decisions made about child maintenance, contact, care, etc. will be decided according to South African law.
Going through the motions of getting a divorce can be difficult and emotionally stressful, even in the best and most amicable situations and when the spouses live in the same country. Getting a divorce if one of the spouses is out of the country is a much more complicated endeavor. Our litigation team at Burnett Attorneys & Notaries is well versed in this field and would be happy to help you in any way we can. So if you are looking for an experienced divorce attorney to help you with your divorce procedures, please do not hesitate to contact us.