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

Foreign divorces and international law

The lady (Plaintiff) in this case had summonsed her husband (Defendant) for divorce.  There were three children born of the marriage.  The parties had got married in Australia.  The matter was heard in the Cape Provincial Division.

The lady in her papers also claimed that her husband owed her £1,337,386.  She averred that this had been in respect of money lent to the Defendant by her.

The Defendant denied that he owed her this sum of money.  He averred that this money was his own money and that the agreement referred to was a sham agreement.

The Defendant furthermore averred that the marriage concluded in Australia was invalid.  The Defendant had previously been married to a Marie Phelan.  Both Defendant and Marie Phelan were Irish citizens and domiciled in Ireland.

The Defendant had obtained a divorce in the Dominican Republic at a time when he was ordinarily resident in the Republic of Ireland.  His contention now was that since his divorce was not recognised in Australia, their marriage was invalid.  The Plaintiff had previously married a Paul Sweeney in Italy and later had divorced him in the Dominican Republic.

The Plaintiff however concluded that the Defendant’s divorce possibly fell to be recognised in Australia on grounds of hardship since Ireland did not recognise the institution of divorce at the time, and that it was therefore impossible for the Defendant to have legally done so in Ireland.

The law relating to married persons and their relationship to one another is set out in the Family Law Act, 1975 (“the Act”), a law of the Commonwealth of Australia, which applies in each of the Australian states.

The law relating to the recognition of what are in the act referred to as “overseas decrees” is set out in section 104 of the act.  Section 104(3) of the act records a number of factors which, if applicable, would permit a divorce granted in an overseas jurisdiction to be recognised in Australia.

The court found that under section 104(5) an overseas decree of divorce was recognised in Australia if it were not covered by any of the remaining provisions in section 104 and if it were valid in terms of the common law rules of private international law.  The court found that the present decrees were not covered by any of the remaining provisions of section 104.

The court found that the principles of “reciprocity” and “real and substantial connection” were embodied in the English Law and had been accepted as good law in Australia.  Each principle departed from the rule that domicile was the only basis for jurisdiction for a divorce.

The court found that residence of passage should not found jurisdiction for divorce and that residence had to be bona fide.  The marriage between Plaintiff and Defendant was not valid.

This is a very interesting decision involving principles of private international common law.  Cases like these should be coming up more often these days with people moving and immigrating from country to country more and more often.

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

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