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International Family Law – Divorces are not limited only to people living in the same country. Often, you will find that one spouse lives in South Africa and the other in a different country. They want to get divorced, but do not know how to go about it. The question now is, which country and which court should divorce them. Very often receive queries from people living in the Middle East.
The same problem arises in the case of parents living in different countries, but there are complications regarding contact and access. Let’s say, one parent lives in Cape Town and the other in Taiwan. How does the parent living in Taiwan enforce his contact rights? Does he or she approach the quote in Taiwan? Or should he or she approached the Court in South Africa?
And Lastly the issue regarding child maintenance. What happens in the case we want be it lives in Cape Town and the other in New York? how does maintenance work? can the parent live in Cape Town with the children obtain a maintenance order against appearance in New York? This article will deal with the above three topics, in and tries to simplify issues.
South African expatriates are found all over the word. These include, the following places:
Wherever the destination and/or location, the article would be a useful read. Especially if you find yourself in an international family law dispute.
We regularly receive enquires and requests for legal advice and/or assistance form people who have a legal connection to South Africa. This may include an intended divorce, where one of the spouses reside in South Africa, or a child contact issue, where a parent would like to have contact to his or her child living here. With the advances in technology, providing advise and assistance to clients abroad becomes very easy, and convenient. There is Skype, WhatsApp Video, FaceTime, to mention a few that can bridge the communication gap. But for now, let us deal with the legal issues involved and kick off with divorces.
I live in the United Kingdom, and want to divorce my spouse in Cape Town
Many people believe that because they got married in South Africa, any court in South Africa can divorce then. Or because they lived in Cape Town, that the High Court in Cape Town can divorce them, even though they live in London at present. That is not the case. You will see why not. The issue is that of the Jurisdiction of the Court.
Jurisdiction of the Divorce Court
Section 2(1) of the Divorce Act, states the following when it comes to the Court’s Jurisdiction:
“A court shall have jurisdiction in a divorce action if the parties are or either of the parties is-
(a) domiciled in the area of jurisdiction of the court on the date on which the action is instituted; or
(b) ordinarily resident in the area of jurisdiction of the court on the said date and have or has been ordinarily resident in the Republic for a period of not less than one year immediately prior to that date.”
So, as you can see, that you need to have fulfilled one those requirements. So, if you and you spouse moved the England, to settle there, you may not get divorced in Cape Town if the marriage broke down. This is so even though your marriage took place in Cape Town and own property there. If, however, the husband lives in England, and the wife in Cape Town, and she is resident there, then the divorce is possible in Cape Town. Now let us move on to other family law related matters. We will tackle the issue of child contact.
It often happens that parents would have a relationship and bring a child into this world. The relationship deteriorates, and one parent then move and relocates to another country. This is usually work related in our experience. Everything would seem to go well, until the relocating parent has problems exercising contact with his or her child in South Africa. The challenge for the parent that relocated is the distance. He is or she is not able pop into the child’s home should they not answer the phone or visit the children at school should he or she not be able to get hold of them.
Luckily, in this case, because the children are living in a specific province, for example the Western Cape, the parent who relocated can have his or her attorney approach the Court locally to enforce his or her rights. So, for example, let’s say in this case, the father relocated, he can enlist the services of an attorney in Cape Town to make an Urgent Application to the Western Cape High Court for an Order for immediate telephonic, or video contact. An application in the Children’s Court would be problematic as he would have to be present at the Court. This of course would not be an issue if he is willing to fly down for each of the Court hearings.
The Court would then hear the matter and decide what is best for the children involved. If it would be best for them to have telephonic and/or video contact with the father on a regular basis; The court would then make the appropriate order. The party can also consider incorporating clause that would entail the minor children traveling to him overseas.
International child maintenance is always a complicated issue. this is so as the parent who is supposed to pay maintenance is out of the country. for this very reason, appearance movie in South Africa will have to make use of international law. The parent will approach the maintenance court in South Africa who in turn will approach the code in the country with a parent who is supposed to pay maintenance lives. we will not go into detail in this article on how exactly the process works. however, it basically entails way amount in his order is made in Cape Town any registered in the foreign country. If this is applicable to you, we advise that you approach your local maintenance court as soon as possible.