By Sanette Viljoen
All non-South African citizens who live in South Africa, South African citizens who live abroad, and South African citizens who live in South Africa but were married outside South Africa could possibly apply for a divorce in South Africa.
In terms of South African legislation jurisdiction over your divorce is not determined by your or your spouse’s nationality or by the country where you were married or even the country in which you and/or your spouse are currently living. Jurisdiction is based on where you and/or your spouse are domiciled or normally live at the time of filing for divorce.
Domicile and residence are legal concepts that can be difficult to define and separate from each other, but it is necessary to do this in order to determine whether South African courts have jurisdiction over your divorce.
In plain terms, your domicile is the place that either you and/or your spouse regard as your permanent home. It is the place where a person is legally present and where he intends to settle for an indefinite time.
To found jurisdiction on the basis of residence you and/or your spouse are required to have been present in South Africa for a period of at least one year immediately prior to filing for the divorce.
Domocile and residence can be in two different places, e.g.:
Dirk was born in South Africa and has a house and family in South Africa. He decides to move to the Netherlands on a fixed-term service contract, after which he intends to return to South Africa. Dirk is therefore domiciled in South Africa but resident in the Netherlands.
In South Africa divorce can be filed for in the following cases:
- If you and your spouse are domiciled in South Africa
- If you are domiciled in South Africa and your spouse is in another country, you can institute a divorce case in South Africa.
- If you live in another country and your spouse is domiciled in South Africa, your spouse can institute divorce proceedings in South Africa.
- You and your spouse normally live in South Africa and also lived here for a period of at least one year immediately prior to the institution of the divorce proceedings.
- You were living in South Africa for a period of one year immediately prior to the institution of the divorce proceedings and your spouse is living in another country.
- You are living in South Africa and your spouse normally lives in South Africa and also lived here for a period of at least one year immediately prior to the institution of the divorce proceedings.