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

Divorce and foreigners

From time to time I get consulted by someone from a different country who got married to another foreigner in South Africa. This situation can lead to various complications from a legal viewpoint.

My most recent was when an Australian man consulted me to institute a divorce action against his wife. His wife was Japanese. They had got married in Italy according to Italian law, and had then moved to South Africa.

The first question which sprung to my mind was which court would have jurisdiction. They had both been permanently domiciled in South Africa for over a year, and therefore a South African court would have jurisdiction to hear the case.

The next question was which law would apply. There was no Antenuptial Contract. The most obvious answer to this question would be to look at what the law of Italy says if there is no antenuptial contract. In this particular case the couple were young and had no major assets, such as a house, so there would be no major assets to divide between the parties.

The major point of dispute in this case related to the couple's two young children, aged four and fifteen months. My client was the only party who worked, and was the sole breadwinner. The parties were no longer living together and the children stayed with their mother.

The female in this case expressed a desire to start working. The problem however was that she could not get a work permit in South Africa, and was finding it difficult to secure suitable employment. She had no family support base in South Africa either, and all her family stayed in Japan. She wanted to move back to Japan to be closer to her family.

My client did not want his wife however to move back to Japan, as he had a good relationship with the children, and he knew that if his wife moved back to Japan, he would see less of the children. He had met somebody else and was paying good maintenance for his children as well as their and their mother's rental. He argued that he was more than prepared to carry on paying these costs just to keep them all in Cape Town.

Eventually we settled the matter outside court and settled on the basis that my client would continue paying the rent of his wife for eight months after the divorce, during which time his wife would try obtain a work permit and work in South Africa. We agreed further that if she fails to obtain the work permit and elects to relocate, my client would continue to pay the sum equivalent to the rental sum for a maximum period of one year thereafter.

The abovementioned case just shows how problematic it may be to settle a case where so-called “foreigners” are parties to the divorce. Jurisdiction problems, relating to which law should apply and problems relating to work permits can however always be successfully dealt with to ensure that a divorce between “foreigners” goes through smoothly in our South African courts.

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

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