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.

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.

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.

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.

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.