What to do if you and your spouse have different nationalities
Is your spouse a foreign national? Or are you a South African married abroad? Divorce can become complicated when it involves more than one country. Whether you’re a South African married to a foreign spouse or a couple living abroad, what are some of the jurisdictional and cultural challenges that impact divorce in a global context?
Jurisdiction
One of the first tasks is to determine which country has the authority to grant the divorce. An important term to understand is “domicile”. This legal term refers to a person’s permanent home or place of residence where they intend to reside indefinitely. In terms of the Divorce Act of 1979, a South African court can grant a divorce if either of the parties is:
- Domiciled in the area of jurisdiction on the date on which the action is instituted
- Ordinarily resident in the area of the jurisdiction of the court on the date of institution of divorce and has been ordinarily a resident of the republic of South Africa not less than one year prior to initiating the divorce
Non-South Africans can be divorced in South Africa if they meet the above requirements. In South Africa, divorce proceedings often follow the principle that the husband’s domicile during the marriage determines which set of laws will govern the divorce process.
Asset division
Asset distribution can be challenging when properties and financial interests are spread across different countries. All international assets and financial transactions should be documented. An attorney can appraise the assets and their liquidity, which may be affected by their location.
Assets located abroad are subject to the divorce settlement decreed by the South African courts. However, enforcing the division of these assets may require legal action in the country where the assets are located, subject to its laws.
Important considerations
International divorce adds a layer of complexity because there may be additional legislation to comply with. Some considerations include:
- International treaties: Some countries are signatories to international treaties that simplify the recognition and enforcement of asset division orders.
- Mirror orders: A court order issued in one country that replicates the terms of a custody or parenting order from another country to ensure enforceability across borders.
- Antenuptial agreements: The terms of an antenuptial or postnuptial contract prevail in divorce, regardless of foreign laws.
Child custody across borders
Child care and contact (custody) becomes even more sensitive and complicated when parents reside in different countries. The primary concern will always be the best interests of the child. Unfortunately, varying legal standards can make “the best interests” difficult to determine. Factors such as the child’s habitual residence and the laws of the country of the child’s nationality will also need to be considered.
Some frameworks for resolving these challenges include:
- The Hague Convention: South Africa is a signatory to the Hague Convention on the Civil Aspects of International Child Abduction, which helps in resolving international child custody disputes.
- Parenting plans: A detailed parenting plan that includes visitation schedules, communication methods, and travel arrangements can prevent or minimise disputes.
- Cross-border mediation: Mediation services that specialise in international custody disputes can help parents reach a mutually acceptable solution.
Seek appropriate support
International divorce can feel overwhelming. Understanding the key aspects and having the right support can make the journey a bit easier. At Simon Dippenaar & Associates, Inc., we offer experienced legal representation combined with practical and emotional support that will enable you to navigate the complexities of an international divorce. The expertise and guidance of our seasoned professionals will be invaluable in helping you achieve a fair and just outcome. Contact Simon on 086 099 5146 or email sdippenaar@sdlaw.co.za for a confidential discussion.