How to find a divorce lawyer in Cape Town, South Africa

UK divorce order in South Africa

I had a client recently who got divorced in the United Kingdom. Her husband had moved back to South Africa and she wanted to claim maintenance from him in respect of the minor child. She had issued a financial application at the family court in London.

Whilst the parties had been married, my client’s husband had not been earning much money. However, after he had moved back to South Africa, he had found good employment and had bought property too.

My client wanted to know whether instead of asking for maintenance, she could try getting a capital lump sum payment out of her ex-husband. This had not been the terms of the divorce order however.

According to our legal system in order for a foreign judgment to be recognised and enforced, the foreign court in which the order was made must be competent to decide the case and the judgment in that court must be final and conclusive.

Our law also says that the recognition and enforcement of that judgment must not be against public policy, meaning that it must not be obtained fraudulently or involve the enforcement of a foreign revenue law.

However, in terms of our Exchange Controls rules of the South African Reserve Bank, authorised dealers may permit transfers to non-residents for alimony against production of a court order. The rules also state that if your client’s former husband wishes to pay in excess of the amount stipulated in the court order, authorised dealers can transfer up to an amount of R9000 per month over and above the amount ordered by the court.

Thus in the above case our client’s husband argued that if he was ordered to pay a lump sum by an English Court this would be difficult to enforce in South Africa. He indicated that due to the exchange controls in place in South Africa he would be prevented from transferring a lump sum of any sizeable amount to the United Kingdom in any event.

I advised my client that unfortunately due to the Exchange Controls rules, the lump sum route would not be the best in this specific case. The best remedy for my client in this case would be to obtain a maintenance order so that a set amount be deductable from her ex-husband’s salary on a monthly basis.

My client was in a very unfortunate position in the above case, as her ex-husband did not have much money or property when they got divorced, but post-divorce had done well financially. The fact that he had moved to a different country also made it a bit more difficult for her to get maintenance than is normally the case had they still been residing in the same country.

This article was written by Cape Town divorce lawyer, Peter M Baker

Related articles

Divorce when children and wife are overseas

What happens to adopted children upon divorce?

Joint decisions for minor children

Annexure A affidavit

You want to divorce when pregnant

The impact of getting married offshore


HOMEPAGE

married overseas annulmentreasons for divorce