The short answer is yes. Both spouses do not have to be in South Africa in order to get divorced and the same procedures are followed as if both spouses were present within the Republic.
First, a summons is drafted, then it is issued by the Clerk of the Court and thereafter the Sheriff serves the summons on the opposition. However, in order for the summons to be served on a spouse abroad, an Edictal Citation Application must be brought in the High Court.
What is an Edictal Citation Application?
This is the process whereby the High Court grants consent to serve a legal document, such as a divorce summons, by a Sheriff or Service Processor in a foreign country.
If your spouse is abroad, the Court will make an order that summons is served on that spouse at either his or her home or place of work. Where the spouse abroad has disappeared, the Court will give directions for a substituted service whereby a relative can be served or even directions for service via email. The Court has the discretion to order that summons be served in the manner it deems most appropriate; however, the Court must be satisfied that everything has been done to trace the missing spouse.
Must be domiciled in the court’s jurisdiction in order to commence
As the party instituting the action, it is important that you are domiciled in the Court’s jurisdiction on the date that your divorce proceedings commence or that you are ordinarily resident in the area for not less than one year immediately prior to the date of instituting the action.
Spouse has one month to defend the action
After service of the summons abroad, the spouse will have one month to defend the action. If the summons is ignored, or if a settlement has been reached, the divorce may be set down for hearing in the High Court.
If you are considering divorcing under these circumstances, or any other, please do not hesitate to contact one of our expert Family Law, Divorce and Matrimonial attorneys.
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