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Divorce when one spouse estranged or overseas
02 May 2019  | Marié Combrink

When one spouse is living in South Africa and the other overseas, he or she is able to institute divorce proceedings through the divorce courts in South Africa.

In terms of the South African Divorce Act, a South African court will have jurisdiction where the parties or either one of the parties are domiciled in the area of the court’s jurisdiction on the date on which the action is instituted (summons issued) or ordinarily resident in the area of jurisdiction of the court on the date on which the action is instituted or has been ordinarily resident in the Republic for a period of not less than one year immediately prior to that date.

After service of the summons has taken place, your spouse will have a month to defend the action. If he or she ignores the summons or, if he or she defends it and there-after the parties reach settlement of the financial terms, the attorney of the Plaintiff can set the matter down for a trial date that has been pre-arranged with the court and both parties.

The person instituting the divorce proceedings are called the Plaintiff. Where the parties reached a settlement, only the Plaintiff appears in Court. So, if a Plaintiff lives abroad he/she will have to appear once the matter is placed on the Court roll. The same applies if the Plaintiff resides in South Africa. In an uncontested divorce it is not necessary for the Defendant to appear in court.  The parties can however agree in the settlement agreement that the Defendant appear in court if it just logistically and financially makes more sense.

Where a Defendant (the person against whom the divorce is instituted) lives in another country, a Plaintiff must approach the court by way of what is known in law as an Edictal Citation application. The reason for this is that a Summons in divorce proceedings must be served on the Defendant personally and the Court needs to be satisfied that service will be done properly by an official of the court in that foreign country. Edictal citation is therefore a procedure according to which a legal document such as a divorce summons is served by a sheriff (in some countries known as a “service processor” or a solicitor) in a different country.

There is also another method to serve summons on the Defendant by serving the Summons on an address in South Africa which the Defendant had chosen in terms of a Power of Attorney.

If your spouse disappeared or you are estranged and have no information as to his or her whereabouts and address, the court will order that the divorce summons be served by way of substituted service (i.e. other than by way of personal service) so it may order, e.g., that it be served on a relative of your spouse or by way of publication in a newspaper that your spouse used to read on specific application made by the Plaintiff at court.  In recent matters the court has even granted an order for substituted service by way of Facebook or Whats app message if the applicant satisfied the court that the respondent is active on the specific social media.

For the court to grant substituted service, you will have to satisfy the court that you have done everything in your power to trace him or her as personal service is clearly preferable and the least prejudicial form of service and that personal service is not possible or an option.

Tags: Divorce