Who can get divorced in South Africa?

jurisdiction
10 Jun 2022

Non-South African citizens living in South Africa, South African citizens living overseas, and South African citizens living in South Africa who were married outside of South Africa all may be able to get divorced in South Africa.

In terms of South African law, jurisdiction over your divorce is not determined by your or your spouse’s nationality or by the country in which 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 ordinarily resident at the time of instituting the divorce.

Domicilium (or domicile) and residency are legal concepts that can be tricky to define and to distinguish from one another, but it is necessary to do so in determining whether South African courts have jurisdiction over your divorce.

Domicile

In simple terms, your domicile is the place where either you and/or your spouse consider to be your permanent home. It is defined as the place where a person is lawfully present and at which they have the intention to settle for an indefinite period.

Residence

Establishing jurisdiction on the basis of residence, however, requires that you and/or your spouse are physically present in South Africa for a period of not less than one year immediately prior to the institution of the divorce action.

For example…

Sam was born in South Africa and has a home and family in South Africa. He decides to move to the Netherlands for two years on a fixed term employment contract whereafter he intends to return to South Africa.

Sam therefore would be domiciled in South Africa and ordinarily resident in the Netherlands.

Divorce proceedings may therefore be instituted in South Africa in the following scenarios:

  1. You and your spouse are domiciled in South Africa;
  2. You are domiciled in South Africa and your spouse is situate in another country, you may institute divorce proceedings in South Africa;
  3. You are situate in another country and your spouse is domiciled in South Africa, your spouse may institute divorce proceedings in South Africa;
  4. You and your spouse are ordinarily resident in South Africa and have been for a period of not less than one year immediately prior to the institution of the divorce action;
  5. You are ordinarily resident in South Africa and have been for a period of not less than one year immediately prior to the institution of the divorce action and your spouse is resident in another country, you may institute divorce proceedings in South Africa; and
  6. You are resident in another country and your spouse is ordinarily resident in South Africa and has been for a period of not less than one year immediately prior to the institution of the divorce action, your spouse may institute divorce proceedings in South Africa.

Please contact us with any questions you may have regarding divorce in South Africa.

See also:

(This article is provided for informational purposes only and not for the purpose of providing legal advice. For more information on the topic, please contact the author/s or the relevant provider.)
Rebecca Davis

Rebecca Davis is a senior associate in the litigation department at the Melrose Arch office in Johannesburg. She graduated from the University of Pretoria with a BA Law degree in... Read more about Rebecca Davis

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