How to get divorced when your spouse is overseas

Yes, you can divorce a spouse who lives in another country. A South African court can hear your divorce if either you or your spouse is domiciled in the area of that court when the action starts, or is ordinarily resident in that area and has been ordinarily resident in South Africa for at least a year before that. Under the Divorce Act 70 of 1979 the ground is still irretrievable breakdown of the marriage.

This guide is part of our Divorce in South Africa: the complete guide, which links every guide on the topic.

Jurisdiction is rarely the problem. The problem is service. In a divorce, the summons has to be brought to your spouse's personal attention, and you cannot simply post it to an address abroad and hope for the best.

The easy route: a cooperative spouse

If you are on speaking terms, this is much simpler than people expect.

Your spouse can sign a document accepting service of the summons, or appoint an attorney in South Africa to accept service on their behalf. They can also sign a settlement agreement dealing with the assets, the children and maintenance, and a consent to the divorce being granted unopposed.

Signatures from abroad usually need to be properly attested. Depending on the document and the country, that can mean signing in front of a notary, or having the document authenticated or apostilled. Ask your attorney exactly what form is required before your spouse signs anything, because getting this wrong means doing it twice across time zones.

Handled this way, the divorce runs on roughly the same timeline as a normal uncontested divorce, with a few extra weeks for documents to travel.

The harder route: edictal citation

If your spouse will not cooperate, you need the court's permission to sue someone outside the country. That application is called edictal citation.

You bring an application supported by an affidavit setting out where your spouse is, how you know, what steps you have taken to find them, and how you propose to serve the papers. If the court grants it, the order also directs how service is to happen. That might be:

• through a process server or the equivalent of a sheriff in the foreign country
• through diplomatic channels, which is thorough and slow
• by a method the court considers appropriate in the circumstances

Edictal citation is a separate application with its own costs, and foreign service can take months. Build that into your expectations at the start.

If you have no idea where your spouse is

This happens more often than you would think, particularly where someone left years ago.

Where personal service is impossible, you can apply for substituted service, which is permission to serve in some other way that is reasonably likely to bring the papers to your spouse's attention. Courts have allowed service by email, by messaging application, on a close relative, on a last known employer, or by publication in a newspaper circulating where your spouse was last known to be.

You have to show the court that you genuinely tried. Keep a record of every attempt: messages sent, relatives contacted, tracing agents instructed, social media searched, employers phoned. A thin affidavit gets the application refused and you start again.

A worked example: three versions of the same divorce

This example is illustrative. Take Nadia, a made-up spouse living in Durban, whose husband Karim moved to Dubai four years ago. They have no children and a small joint estate. This is an illustration of how the route changes the timeline, not a prediction.

Version one. Karim agrees to the divorce. Nadia's attorney sends him the settlement agreement and an acceptance of service by email. He signs both before a notary in Dubai and has them authenticated, and couriers the originals back. The summons is issued, his acceptance of service is filed, the period for defending runs and the matter is set down unopposed. Nadia gives short evidence. Allowing for the courier and the notary, the whole thing takes a few months.

Version two. Karim ignores every message but Nadia knows his address and employer. Her attorney applies for edictal citation with an affidavit setting out how she knows where he is. The court grants leave to serve through a process server in Dubai. Service takes some weeks, the papers come back with proof, the period for defending runs, and the divorce is set down. The extra application and foreign service add months and a separate set of fees.

Version three. Karim has vanished. Nadia has tried his last email, his brother, his old employer and two social media accounts, and has kept screenshots of every attempt. Her attorney applies for substituted service, proposing service by email to his last address and publication in a newspaper where he was last known to live. The court grants it. Once the publication has run and the period has passed with no response, the divorce proceeds unopposed. Slower and more expensive again, but it gets there, and the affidavit of attempts is what carries it.

What this costs and how long it takes

Expect more than a straightforward local divorce on both counts. On top of the ordinary fees you may pay for the edictal citation or substituted service application, a foreign process server, translation of documents where the local language is not English, courier costs, notarisation or apostille fees, and possibly advice from a lawyer in the other country.

The timeline is driven by things outside your control. Foreign service, diplomatic channels and publication all run on their own schedules. A cooperative spouse who signs a consent can cut months off the process, which is worth remembering before relations break down completely. See how much a divorce costs for what drives the underlying fees.

Documents to gather

• your marriage certificate, with a sworn translation if it is not in English
• your antenuptial contract, if there is one
• both identity documents or passports, or copies
• the children's birth certificates
• your spouse's last known physical address, email address, phone numbers and employer
• proof of every attempt you have made to contact or trace them, with dates
• proof of your own residence in South Africa for the past year, such as a lease, municipal account or payslips
• bank statements and a list of assets and debts, including anything held abroad

Common mistakes

Assuming a foreign address is enough. Knowing where your spouse lives does not let you post the summons there. You still need the court's leave to serve abroad.

Getting the signature wrong. A consent signed abroad without the required notarisation or authentication may be rejected, and then it has to be done again. Confirm the exact requirements for that country before your spouse signs.

A thin tracing affidavit. "I could not find him" is not enough. List every attempt, with dates and screenshots. Courts refuse substituted service where the applicant has plainly not tried.

Waiting on the divorce before dealing with the children's money. The Maintenance Court can make an order now, at no cost, whatever the state of the divorce.

Ignoring foreign assets. A South African order dividing a bank account in another country may need separate steps to enforce there. Raise it early so the settlement agreement is drafted with that in mind.

The children, and maintenance across borders

Where there are minor children, the Children's Act 38 of 2005 and the best interests of the child still apply, and the Office of the Family Advocate can still become involved at no cost.

Two international issues come up often.

Relocation. If your spouse wants the children to live with them abroad, or you do, that is a relocation application and it is decided on the child's best interests. It is a serious, evidence heavy application and you should not attempt it without advice.

A child taken abroad without consent. South Africa is a party to the Hague Convention on the Civil Aspects of International Child Abduction, which provides a mechanism for the return of a child wrongfully removed to or retained in another member country. Act immediately if this happens. Contact the police, an attorney and the office dealing with Hague applications on the same day.

Maintenance. A South African maintenance order can be enforced in certain designated countries under the legislation dealing with the reciprocal enforcement of maintenance orders, and the Maintenance Court can help you start the process. Whether it works in practice depends on which country your spouse is in, so ask the maintenance officer early.

Practical points

Do not let your spouse's absence stop you from dealing with the immediate things. Maintenance can be applied for at the Maintenance Court while the divorce is still running, and that costs nothing.

Gather documents now. Your marriage certificate, your antenuptial contract, identity documents, your spouse's last known addresses and employers, and any correspondence showing where they are. Every one of these makes the service application easier.

What to do this week

1. Write down everything you know about where your spouse is, and when you last had confirmed contact.
2. Send one clear, polite message asking whether they will cooperate with an unopposed divorce, and keep a copy.
3. Start a tracing file: every message, call, relative and employer you have tried, with dates and screenshots.
4. Find your marriage certificate and check whether an antenuptial contract is registered.
5. If there are children and money is short, go to the Maintenance Court now.

If cost is a barrier, phone Legal Aid South Africa on 0800 110 110 and ask whether you qualify, and check whether a university law clinic near you takes family matters.