Married to a national of another country or a foreign national married to a South African? The foreign divorce
Foreign or international divorce happens when at least one spouse is a foreign national of another country. Given both the mobility of South Africans and the number of foreigners choosing to live in South Africa, international marriage is a very common occurrence. Furthermore, some couples choose to marry abroad in popular wedding destinations such as Mauritius or Italy. However, provided the marriage was duly registered with Home Affairs, divorce for a couple who married abroad is not classed as a foreign or expat divorce.
Divorcing a foreigner in South Africa – an international divorce
If you married a foreign national and they have now left South Africa, you can still institute divorce proceedings here. Furthermore, if you have left the country but your spouse is still resident here, you can also file for divorce through the South African courts. As long as one of the parties is domiciled in South Africa on the date the action is instituted, you can file in South Africa. This is also the case even if both spouses are not South African but are ordinarily resident here on the date the action is filed or have been ordinarily resident for a period of one year. South African courts have jurisdiction to hear these cases.
A gendered law
Although clearly an archaic piece of legislation, SA law, in common with many other countries, states that the “patrimonial consequences” of a marriage – that is, the marital property regime and by extension what happens on divorce – are governed by the domicile of the husband at the time of the marriage. This is called “matrimonial domicile”. Should the man later change his domicile (which is not that easy to do, unlike residence), the status of his marital domicile remains unaltered. Therefore a man cannot wilfully change his domicile purely to create disadvantage for his wife in a forthcoming divorce action.
What this means is that, wherever a wandering husband might be right now, if the matrimonial domicile…that is, his domicile at the time of the marriage…is South Africa, the courts will apply South African law in dissolving the marriage. However, it also implies that if the husband is the foreigner, the laws of the country of his domicile will apply, even if the divorce is initiated in South Africa.
What is not yet known is what bearing this custom will have in the case of same-sex international marriages. Which partner will be deemed the “husband” when they are both husbands? To our knowledge this has not yet been tested in the courts. Perhaps a test case will pave the way for the entire misogynist practice to be abandoned.
Other factors to consider
If, in the course of the marriage, the couple has lived in numerous locations, there are other considerations. There may be jointly owned property in a foreign country. In dividing the assets of the marriage, an attorney will appraise the location of the assets and their liquidity. It will also be important to consider whether a divorce order sanctioned in South Africa will be enforceable in the country of the husband’s domicile or where the property is located.
Antenuptial contracts can help an international divorce
As we’ve said on numerous occasions, antenuptial contracts (ANCs) can be real lifesavers in more than one situation. They make a difference to what happens on death and in the event of divorce. Where the divorce involves a foreign national, an ANC – or a postnuptial contract if there is one – can make the difference between acrimony and harmony. Whatever the laws of a foreign jurisdiction, which may not be as progressive or as fair as the laws of South Africa, the terms of the antenuptial or postnuptial contract will be applied to the divorce settlement.
An ANC might not help with the division of a property that has been jointly purchased by the spouses and where the title and the bond are in both names. In this case decisions must still be made about the disposal of the asset – whether it is sold and the proceeds split or one party buys out the other. And of course it will not impact on child custody arrangements, which can be complex when the divorcing spouses live in separate countries. But an ANC will reduce or eliminate disputes over other matters that are clearly defined in the contract.
Professional advice is critical for an international divorce
Divorce is best handled by a skilled attorney in all circumstances, even if there is no antagonism between the spouses. International divorce is particularly challenging and requires a lawyer experienced not only in divorce but in the complexities of foreign marriage and divorce, especially where there are issues of abuse, or where a child is involved. Every situation is different. If you would like to have an exploratory conversation about your circumstances, contact Simon on 086 099 5146 or email firstname.lastname@example.org. One of our specialist divorce lawyers will call you back.
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