British expat divorce in South Africa
A British expatriate can divorce in the South African courts if they or their spouse are domiciled in the area of jurisdiction of the court, or if either party is ordinarily resident in the area of jurisdiction of the court and has been ordinarily resident in South Africa for a year prior to the divorce action being instituted.
Domicile of South Africa can be acquired by an expat who is physically present or resident and who intends to remain settled there for an indefinite period of time. The expat must not intend to return to their previous domicile. There are a number of factors the South African courts will consider in determining whether a new domicile has been acquired. In essence, it is a factual enquiry. However, there is a presumption against change of domicile from one’s domicile of origin and the onus rests on the party alleging the change to prove it on a balance of probabilities.
Provided it can be established that the South African courts have jurisdiction, divorce proceedings can be issued, albeit the method will differ depending on whether the party to be served with the divorce proceedings is residing in South Africa or abroad.
There are two recognised causes of divorce in South Africa:
- Irretrievable breakdown of the marriage (which is the most common); and
- Mental illness or unconsciousness.
There is no minimum requirement in terms of the duration of the marriage, as there is in England, and the system is a no-fault one.
In terms of South African law as it presently stands (but this may be subject to constitutional challenge), the husband’s domicile at the date of marriage dictates which laws govern and determine the proprietary consequences of the marriage. For example, if the husband was domiciled in England at the date of marriage, English law will govern and determine the proprietary consequences of the marriage. The South African court process is followed, and maintenance issues are dealt with in terms of South African law, but if the matter proceeds to trial, expert evidence is presented as to what the English courts would do with regard to a division of assets, and the South African court would make a decision based on that. However, if the husband was domiciled in South Africa at the date of marriage (for example, where a British wife has a South African husband), South African law will govern and determine the proprietary consequences of the marriage. For a summary of the different matrimonial property systems in South Africa, please refer to the section on ‘Options for South African expats living abroad’ below.
Unlike in England, the divorce process is not a separate one. All claims – whether financial or children related – have to be dealt with in the divorce itself, albeit the South African courts will generally only have jurisdiction in respect of minor children (i.e. those under the age of 18) if they are resident in South Africa, unless an agreement is reached between the parties in respect of the children’s arrangements and the parties are simply asking the court for an order to reflect this.
The Children’s Act 38 of 2005 and supporting regulations govern all children arrangements (apart from maintenance), in terms of which, the best interests of the child are paramount. Married parents both automatically have full parental responsibilities and rights. A parent may be awarded primary or shared residence of any minor children, with specific contact rights. In addition to care and contact, any person with parental responsibilities and rights has a responsibility to contribute to the maintenance of the child.
It is important to note that both parents’ consent is required for the removal of any minor children from South Africa, whether for a holiday or permanent relocation. If one parent refuses to consent, an application must be made to the High Court for consent, even if it is only for a holiday. In the event a parent removes a child without the consent of the other parent or order of the High Court, this may constitute ‘child abduction’. South Africa is a signatory to the Hague Convention on child abduction. Therefore if an expat parent relocates with the child or children to another Hague signatory country (such as England, France, Germany, US), without the consent of the other parent or the court, the left behind parent may seek orders for the child’s immediate return to South Africa.
Options for South African expats living abroad
A South African expatriate can divorce in the South African courts if they or their spouse are domiciled in the area of jurisdiction of the court, or if either party is ordinarily resident in the area of jurisdiction of the court and has been ordinarily resident in South Africa for a year prior to the divorce action being instituted.
In terms of South African law, an adult retains the domicile he or she had immediately prior to the attainment of majority status (i.e. the age of 18), unless he or she abandons his or her previous domicile, by acquiring a new domicile of choice. Once domicile has been established, the continued presence of the person is not necessary for the retention of domicile. Accordingly, a South African expat retains their domicile of origin in South Africa provided they intend to return and ultimately remain in South Africa. Whereas, an intention on the part of a person to settle indefinitely in another country coupled with his or her physical presence there, will result in the acquisition of a domicile of choice and the abandonment of the previous domicile.
In South Africa, it is common for couples to enter into an ante-nuptial contract governing the proprietary consequences of the marriage. This enables them to choose under what matrimonial property system they wish to be married:
- In or out of community of property;
- Out of community of property with the accrual system;
- Out of community of property without the accrual system.
Where a couple marries without entering into an ante-nuptial contract, they are automatically married in community of property.
Generally speaking, under community of property, the couple has a single joint estate, so that they become joint owners of all the assets and liabilities, whether acquired before the marriage or during the marriage. Consequently, on divorce, there will be an equal division of the joint estate, unless a forfeiture of benefits is ordered under certain strict conditions, such as that the marriage has been a very short one. If parties are married in community of property, creditors will sue both of them for any debts, even if incurred by only one spouse.
Under the accrual system, each spouse has a separate estate and controls his or her own assets, and is responsible for his or her own debts during the marriage (so that they cannot be sued for each other’s debts). On divorce, the value of each’s spouses assets obtained during the marriage is calculated, and the spouse whose estate has grown less than the other’s estate during the marriage will get half the difference between the growths in their respective estates i.e. there is an equal sharing of the growth of the spouses’ estates during the marriage, but no sharing of what the other spouse brought into the marriage, unless specifically agreed.
In the event a couple do not wish to share each other’s assets and debts to any extent on divorce, they must specify in the ante-nuptial contract that they wish to be married out of community without the accrual system.
Aside from the proprietary consequences of the marriage, in certain circumstances a spouse can apply for spousal maintenance if they are divorcing in South Africa, and this will be determined in accordance with South African law, regardless of the husband’s domicile at the date of marriage. However, the South African courts rarely award generous or long term spousal maintenance and place emphasis on encouraging both parties to support themselves. Difficulties can also arise in relation to the enforcement of any maintenance orders abroad, depending on whether or not there are reciprocal enforcement agreements in place.
Whether you are a British expat residing in South Africa, or a South African expat residing abroad, careful consideration should be given as to where would be the best jurisdiction to commence divorce proceedings. Jurisdiction is complex, and the wrong advice can lead to costly disputes and unnecessary litigation. Getting jurisdiction right ensures the best possible financial outcome.
Contact us for confidential advice if you are a British expatriate residing in South Africa, or if you are a South African expatriate requiring assistance.
With thanks to Beverley Clark at Clark’s Attorneys in Johannesburg, South Africa for her assistance with the preparation of this article. Please contact Beverley at [email protected] or on +27 (0)11 783 1066 if you are an expatriate in South Africa requiring advice on South African family laws.