Navigating the complexities of international divorce

What to do if you and your soon-to-be-ex are different nationalities

Is your spouse a foreign national? Or are you a South African married abroad? Divorce is a challenging process, and it becomes even more complicated when it involves more than one country. Whether you’re a South African married to a foreign spouse or a couple living abroad, understanding the complexities of international divorce is crucial if you have decided to end your marriage. What are some of the jurisdictional and cultural challenges that impact divorce in a global context?   

Jurisdiction

One of the first tasks in an international divorce is the determination of which country has the authority to grant the divorce. An important term to understand is “domicile”. This legal term refers to a person’s permanent home or place of residence where they intend to reside indefinitely. In terms of the Divorce Act of 1979, a South African court can grant a divorce if either of the parties is: 

• Domiciled in the area of jurisdiction on the date on which the action is instituted
• Ordinarily resident in the area of the jurisdiction of the court on the date of institution of divorce and has been ordinarily a resident of the republic of South Africa not less than one year prior to initiating the divorce  

Non-South Africans can be divorced in South Africa if they meet the above requirements.  

In South Africa, divorce proceedings often follow the principle that the husband’s domicile during the marriage determines which set of laws will govern the divorce process.  

Asset division

Asset distribution in an international divorce can be particularly challenging when properties and financial interests are spread across different countries. A couple may have lived in multiple locations and have properties or bank accounts abroad. To facilitate a fair and manageable asset division in the divorce, accurate records are essential. All international assets and financial transactions should be documented. Advice from legal and financial experts experienced in international divorce will ensure equitable distribution. An attorney can appraise the assets and their liquidity, which may be affected by their location.

Assets located abroad are subject to the divorce settlement decreed by the South African courts. However, enforcing the division of these assets may require legal action in the country where the assets are located, subject to its laws. 

Important considerations

South African matrimonial law is complex enough, with a sophisticated regime of “in community of property”, “out of community of property”, the accrual system, prenups and postnups, etc. International divorce adds a layer of complexity because there may be additional legislation to comply with. Some considerations include:

• International treaties: Some countries are signatories to international treaties that simplify the recognition and enforcement of asset division orders. 
• Mirror Orders: ? 
• Antenuptial agreements: They provide clear guidelines on asset division, reducing the potential for disputes during divorce proceedings. The terms of an antenuptial or postnuptial contract prevail in divorce, regardless of foreign laws. 

Child custody across borders  

Child custody is often a thorny issue in divorce. It becomes even more sensitive and complicated when parents reside in different countries. The primary concern will always be the best interests of the child. Unfortunately, varying legal standards can make “the best interests” difficult to determine.  Factors such as the child’s habitual residence and the laws of the country of the child’s nationality will also need to be considered.  

Some frameworks for resolving these challenges include:  

• The Hague Convention: South Africa is a signatory to the Hague Convention on the Civil Aspects of International Child Abduction, which helps in resolving international child custody disputes.  
• Parenting plans: A detailed parenting plan that includes visitation schedules, communication methods, and travel arrangements can prevent or minimise disputes.  
• Cross-border mediation: Mediation services that specialise in international custody disputes can help parents reach a mutually acceptable solution.  

Cultural considerations

Cultural differences can significantly impact divorce proceedings and child custody arrangements. Values, traditions, and societal norms vary widely, and these differences must be respected and considered. Bear in mind these considerations:

1. Diverse perspectives: Cultural differences can significantly impact the perception of marriage, family roles, and divorce. Understanding and respecting this diversity is crucial for effective communication and conflict resolution. 
2. Legal interpretations: Different cultures may interpret divorce grounds, custody arrangements, and spousal support differently. Awareness of these nuances is essential to navigate legal proceedings successfully. 
3. Language and communication: Language barriers complicate divorce negotiations and legal documentation. Multilingual attorneys or translators can facilitate clear communication and prevent misunderstandings.
4. Social stigma: In some cultures, divorce carries social stigma or religious implications. Sensitivity to cultural dynamics is vital for addressing emotional and social challenges during divorce proceedings. 

Solutions in international divorce must respect and integrate the cultural values of both spouses.  

Seek appropriate support

Any divorce is emotionally challenging, and international divorce can feel overwhelming. Understanding the key aspects and having the right support can make the journey a bit easier. From jurisdictional challenges and asset division to child custody and cultural considerations, each element requires careful attention and strategic planning.  

Experienced legal representation combined with practical and emotional support will enable you to navigate the complexities of an international divorce. The expertise and guidance of seasoned professionals will be invaluable in helping you achieve a fair and just outcome.  

We can help

At, Simon Dippenaar & Associates Inc., we are passionate about the law. Simon and his team are experts in divorce, both domestic and foreign. With international correspondents in all major jurisdictions and access to online systems the world over, the team at Simon Dippenaar & Associates Inc. will ensure your international divorce is handled efficiently and sensitively. Contact Simon on 086 099 5146 or email sdippenaar@sdlaw.co.za for a confidential discussion.

Further reading:

• Contested international child relocation
• UK: International Divorce – Preventing The Risks Of Parental Child Abduction
• International South African divorce – What you need to know

Divorce Attorney Cape Town

http://divorceattorneycapetown.co.za/

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