My husband and I have been married for more than 10 years. Our marriage has deteriorated over the last few years with my husband living abroad for more than two years now. I believe the time has come that we get divorced and continue with our lives separately, but I’m worried about how this will work with him not living in South Africa anymore?”

With the global village come challenges also for the legal profession, particularly regarding issues relating to the status and rights of individuals who are born, raised, marry, travel and live in different countries. So too has international divorce and the application of foreign law to divorces in South Africa, become increasingly prevalent, whether involving South African or non-South African citizens.

A spouse living abroad can institute divorce proceedings in South Africa where the spouses are, or either of the spouses is, domiciled in the jurisdiction of the South African courts on the date on which the action is instituted. Our courts also have jurisdiction to deal with divorce matters where both or either of the parties, even if not South African citizens, are ordinarily resident in the area of jurisdiction of the South African courts on the date on which the action is instituted or have been ordinarily resident in the Republic for a period of not less than one year immediately prior to that date. This means that you will be able to institute divorce proceedings in a South African court, although your husband is living abroad.

But with parties living internationally, or spouses not being South African citizens, the question then arises as to which law will govern a divorce and the proprietary consequences of that divorce?

Our law determines that South African courts are granted the same powers and functions as those a foreign court would have in terms of the relevant divorce laws of that foreign country. Our law further determines that the patrimonial consequences of a marriage is governed by the laws of the country where the husband was domiciled (ordinarily resident) at the time of the conclusion of the marriage, where there is no antenuptial contract. Thus, even if a husband changes his domicile after the marriage, his domicile at the date of marriage will govern the marriage and also its dissolution.

In light of the above, and assuming your husband’s domicile was in South Africa at the time of your marriage, it is clear that either you or your husband can institute divorce proceedings in South Africa, and that despite your husband living abroad, our courts will apply South African law in determining the consequences of your marriage. We would advise you to consult a divorce specialist for assistance with your divorce.

Written by Ilze Strydom, Director, Phatshoane Henney Attorneys