Can Foreigners Divorce In South Africa?

Can Foreigners Divorce In South Africa?

Yes, foreigners can divorce in South Africa, provided that they meet certain conditions regarding their residency status and where the marriage was registered.

Conditions for Foreigners to Divorce in South Africa

Residency Requirements: At least one spouse must be domiciled or ordinarily resident in South Africa at the time the divorce action is initiated. This means they must have been living in South Africa with the intention to make it their permanent home.

Jurisdiction over Foreign Marriages: South African courts have jurisdiction to hear divorce cases even if the marriage was solemnized outside of South Africa, as long as at least one of the spouses is domiciled in the country when the divorce proceedings start.

Important Considerations

Legal Representation: It’s advisable for foreigners to obtain legal representation familiar with South African family law to navigate the process effectively.

Impact on Visas and Residency: Divorce in South Africa may affect any visa or residency status that is dependent on the marital relationship.

Recognition of Foreign Divorce: If a foreigner obtains a divorce in South Africa, it’s important to ensure that the divorce will be recognized in their home country. This may involve additional legal steps.

Complexity in Asset Division: Divorcing in South Africa may complicate the division of assets, especially if they are located in different countries.

By understanding these conditions and considerations, foreigners can effectively manage their divorce proceedings within South Africa.

What the SA Law Says

Foreigners can divorce in South Africa, and the relevant laws are primarily found in the South African Divorce Act (Act 70 of 1979), as well as provisions in the Constitution and case law that govern civil proceedings and the jurisdiction of courts. Here are the key legal aspects that apply:

Divorce Act, 1979

• Jurisdiction: According to Section 2 of the Divorce Act, a South African court has jurisdiction in divorce cases if either spouse is domiciled in the area of the court’s jurisdiction on the date on which the action is instituted, or if either spouse has been ordinarily resident in the area of jurisdiction of the court for a period of not less than one year immediately prior to that date.
• Grounds for Divorce: The Act specifies that a divorce can be granted on the grounds of the irretrievable breakdown of the marriage, mental illness or continuous unconsciousness.

Constitution of the Republic of South Africa, 1996

• Equality and Non-discrimination: The Constitution guarantees equality before the law and prohibits discrimination on grounds of nationality or social origin, which ensures that foreigners have the same access to the courts as South African citizens.

Recognition of Foreign Marriages

• South African law recognizes marriages conducted abroad as long as they comply with the laws of the country where the marriage took place. This recognition extends to the ability to dissolve such marriages in South African courts, provided jurisdictional criteria are met.

Case Law

• Judicial interpretations and rulings in South Africa further define how these laws are applied, especially in cases involving complex issues of international law, residency, and domicile.

These laws ensure that foreigners can access the South African legal system for divorce proceedings, provided they meet certain residency or domicile conditions. Legal advice is highly recommended to navigate the specifics and ensure compliance with all local legal requirements.