# Getting Divorced SA or UK



## Neilexpat (Apr 15, 2011)

Hello Guys 

From the UK,

been living and working in South Africa for past 12+ months 

but unfortunately my (SA wife) and I have decided to separate , I have now moved back to UK

Can i initiate divorce proceedings in the UK ???(we got married in SA - have SA wedding certificate) she doesn't want to initiate the divorce

Or do i have to travel back to SA contact a solicitor and get divorced ???


Regards
Neil


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## Saartjie (Mar 1, 2010)

Neilexpat said:


> Hello Guys
> 
> From the UK,
> 
> ...


Hi Neil. When you got married, were you living in South Africa or in the UK? The reason for my question is as follows. If you were living in the UK at the time of your wedding then your marriage would be governed by the laws of England and Wales. This is due to the fact that SA law states that even if a marriage takes place in SA, if the persons who get married are domiciled somewhere else then their marriage is governed by the country where they are domiciled. To explain, my husband and I lived in the UK but went to SA to get married and then returned to the UK. Because my husband who is SA citizen was domiciled in the UK at the time, our marriage was and still is governed by the laws of England and Wales (so we were automatically married out of community in property). If you were still living in the UK then you can definitely instigate divorce proceedings with a solicitor in the UK. If not, then I would suggest that you contact a family lawyer here in SA for further advise. Divorce here in SA is much more complicated than in the UK, especially if you guys are married in '"community in property"'. Hope this helps but let me know if you have any more questions.


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## sonnypatel (May 27, 2012)

Neilexpat said:


> Hello Guys
> 
> From the UK,
> 
> ...


Hi Neil,

I am a specialist divorce and family law solicitor and I have extensive experience with international divorces. 

The first point is that as long as the marriage complied fully with SA law, it will be recognised in English law. 

The second point to note is that just because the marriage was in SA that does not mean that the divorce must be governed by SA law.

If you can satisfy jurisdiction requirements in UK you can issue your divorce here. 

One of the following criteria must be satisfied:

1. Both the Petitioner and the Respondent are habitually resident in England or Wales
2. The Respondent is habitually resident in England or Wales
3. The Petitioner and the Respondent were last habitually resident in England or Wales and one of them continues to reside there
4. The Petitioner is habitually resident in England or Wales and has been so residing for at least one year immediately before the petition is issued
5. The Petitioner is domiciled in England or Wales and has been residing there for at least six months immediately before the petition is issued
6. The Petitioner and the Respondent are both domiciled in England or Wales

Or if (but only if) no court of an EU contracting state has jurisdiction under Brussels II revised; 


7. The Petitioner or the Respondent is domiciled in England or Wales on the date when the petition is issued.


Para 7 is a useful catch-all if paras 1-6 do not yet apply but beware, there are pitfalls when relying on domicile. Here is an article I did on the concept of domicile that will give you some background details.

If you google "sonny patel people blog domicile" you will find my article on the subject. I will also copy and paste the text below. 

Please get in touch if you need any further advice.

Regards,

Sonny Patel - Seddons.


"International Divorce and the Concept of Domicile - A Case Study 

17th August 2011 by: Sonny Patel 


Margaret Kelly’s blog entry I married overseas can I divorce in the UK? discusses the circumstances in which the English courts have jurisdiction on the breakdown of a marriage celebrated abroad. Margaret sets out the criteria for a marriage to be legally recognized in English law and concludes that the key concepts to be aware of when considering whether the English courts have jurisdiction are ‘habitual residence’ and ‘domicile’.


If a client is unable to satisfy the habitual residence requirements to issue a divorce petition in England and Wales and no court of another EU State has jurisdiction, they may still be able to establish jurisdiction if either of the parties is domiciled in England and Wales on the date when the proceedings are begun.



What is domicile?



Everyone has a domicile and a person can only have one operative domicile at any one time. However a person’s domicile may alter as their circumstances change throughout their life.



A person acquires ‘domicile of origin’ at birth. In the case of a child whose parents are married, it is the father’s domicile. In the case of a child whose parents are not married, it is the mother’s domicile. It is therefore irrelevant where the child was born. A domicile of origin is never lost, even though it may not be operative for any period during which the person acquires a domicile of choice. If a person abandons a first domicile of choice with the intention of acquiring another domicile of choice, then their domicile of origin revives in the intervening period.



A person aged 16 or over may acquire a domicile of choice at any time. This requires residence in a country other than the domicile of origin and a demonstrable intention to remain there permanently or indefinitely.



A case study


The writer recently dealt with a case in which the question of whether the English courts had jurisdiction was contested.


The writer represented the wife who lived in Canada. Her husband was a British national who, at the time of the divorce, lived in Switzerland. He had not lived in the UK for 16 years. The matrimonial assets were divided between four jurisdictions. The wife sought advice from lawyers in each jurisdiction and concluded that it would be to her advantage to issue proceedings in England.


As neither party were ‘habitually resident’ in the UK the question of the husband’s domicile became a central issue in the case. 


The husband’s parents were married, resident and domiciled in England at the time of his birth, and therefore he acquired his father’s English domicile – his ‘domicile of origin’.



At a contested hearing, the husband was unable to demonstrate to the required standard that he had properly established a new domicile of choice. Accordingly, the wife secured jurisdiction in the UK and the husband was ordered to pay the wife’s costs of the application. The decision paved the way for the divorce and financial proceedings to be dealt with in this jurisdiction where the wife secured a more favourable financial settlement than if proceedings had been dealt with in the alternative jurisdictions. 



This case demonstrated that a person’s domicile of origin adheres unless displaced by convincing evidence of the acquisition of a domicile of choice. The strict burden of proof is on the person arguing that he has acquired a domicile of choice.



The case also demonstrated that there are costs implications in contesting jurisdiction. Therefore, when considering issues of forum and jurisdiction, specialist advice must be sought at the earliest opportunity.


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## Sunnygirl18 (Oct 1, 2012)

Hi Sonny,

I would like some help regarding my divorce.
I am a South-African living in the UK,but got married in SA. I have been living in the UK since 2003 and have the right to be in the uk,cause of my ancestral grand parents.My ex and I have property in south africa,however the divorce papers were patitioned by him in the Uk,but there was no mention of the property. It is now going to decree nisi in a weeks time. 
i would also like to know if u can help me with it all,and aslo if u can help can i then have ur contact details?
many thanks carmen


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## sonnypatel (May 27, 2012)

Hi Carmen,

I am familiar with this type of scenario. 

You should be aware that you and your soon to be ex-husband have financial claims against each other that must be dealt with separately but in parallel to the divorce itself. In English law the courts have a very wide discretion to redistribute assets from one party to the other regardless of the origin or legal ownership of those assets.

All worldwide assets must be taken into account when negotiating a financial settlement. as well as foreign properties, this includes pre-acquired assets, inheritances and pensions. There can be practical difficulties enforcing orders in different jurisdictions but there are a number of creative ways to approach the problem, but it all depends on the overall financial position of you both and the location of other assets. 

Also, don't forget that you may have claims for ongoing spousal maintenance.



Regards,

Sonny


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## TinyM (Oct 6, 2012)

Hi 

Wonder if anyone can help me?

I was married in South Africa in 1994,both South Africans,and we moved to England ten years ago.We didnt sell our house in South Africa,and we bought a house in derbyshire 8years ago.Unfortunately the marriage didnt last,and i filed for divorce two years ago.We were in the middle of mediation after my decree nisi,and he up and left for South Africa, moved back into the house that i still pay mortgage.He now refuse to commit to any financial discussion and or pay maintance.

I am still paying for both the houses,and cant afford this any longer.I also want to finalise the decree absolute,but dont know how i can proceed before he loads himself with debts which will ultimately affect me.This process this far has drained me financially and was wondering if there is anyway anyone can help with advice.


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## sonnypatel (May 27, 2012)

Hi TinyM,

If your ex is flatly refusing to engage in financial discussions then ultimately you will probably need to issue financial proceedings in England. You will need to be able to demonstrate that he has been properly served with notice of the proceedings. If he then refuses to engage in the process then orders can be made in his absence. With the assistance of a SA lawyer, English court orders can be enforced in SA.

With regards to maintenance, within the court process you can ask the court to make an order that he pays you "maintenance pending suit" until a final resolution is reached, but whether or not that application will be successful will depend on his ability to pay. 

If your ex takes on substantial debt post separation you should be able to argue and demonstrate why that is not 'matrimonial' and therefore that it should not be taken into account in any final settlement.


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## fun (Jun 27, 2013)

hi everyone,

i am an american and i lived in sa for the past 10 years. 1 year ago i went back to the usa to visit my parents. while i was overseas, my husband, who is south african, phoned with some news that lead to my wanting a divorce. we were married in court as well as in a mosque (both took place in sa). we are still married legally but he has dissolved our religious marriage and has married another woman in a mosque. understandably i want a legal divorce but the lawyers i've contacted in sa have not replied to my emails. 

a family member suggested i try to file for divorce here in the usa. does anyone know if this is possible? and if it is possible, is it an advantage or a disadvantage in terms of divorce laws to file in the usa?

many thanks...


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## Wanda Munday (Aug 17, 2015)

Hi, both my husband and myself are UK citizens from birth. We moved to SA in 1999. I returned in 2013.
He is asking for a divorce but not bothering to start the process.
We were married in the UK. there is a property in SA which he using most weekends as my son lives there.
The property is in my name only. 
I need to know where I stand in both divorce proceedings and property and any of his insurances etc....
Am I legible to receive spousal maintenance from him at any stage?
Many thanks
Wanda


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## Ruby44 (Apr 24, 2016)

Hi. I am in a same sex marriage. I hold dual citizenship. British and South African. Born in the UK , but spentt 33 years in S.A. I married my S.A. partner 4 years ago. We moved to the UK 15 months ago. My wife is on a spousal visa. We had a pre-nup. Where do we get divorced? Obviously, the easiest and quickest way. Thanks.


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## tabbykitty (Oct 4, 2018)

*Uk Undesirable in South Africa*

Hi there, I am a UK citizen, now back in the UK. 

I am married to an South African citizen for 17 years, but due to his abusive and controlling behaviour, I finally left. 

I now don't know how to go about divorcing him, as I have been declared undesirable by the SA immigration, as my husband did nothing to legalise my status whilst I was there, as he enjoyed the control that he had on me.

I cannot enter South Africa legally for the next 5 years, and my husband is being obstructive about contacting me or providing me with any financial support.

As I understand it, I am entitled to half of everything (which isn't much admittedly), but I am destitute here in the UK as I left all my belongings behind, just to get away from him. The story is much longer, but I won't bore you with the details.

Please could someone tell me how I can divorce him, and get all that I am entitled to from him?

Remember, that I can't enter South Africa, and I have no money of my own. Is there somewhere I can go to for help?

I want to divorce him as soon as possible. He is a monster and had physically, emotionally, and verbally abused me for years.

Please help


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## Sarahh22 (Oct 11, 2018)

Hello I really hope someone can help. I am in a mess. I got married in 2011 to my boyfriend in SA - he had recently moved back and was living there and the plan was for me to marry him there and then he would return and live here in uk with me. It all went very wrong after I returned to London, after a while we broke up. For literally the last 7 years I have been periodically begging him to just give me the marriage certificate so I could go about getting divorced. He just won’t - he says he will but never does and then goes through long periods where he doesn’t respond. He’s not a bad guy I think he’s bitter - but all I want is to be free of this. He has put me through hell and I’ve ignored it for as long as I could. I’ve had to push it to the back of my mind because it’s made me so anxious. I don’t have his number I try and communicate via Facebook. I don’t have any proof we are married and I don’t even know where it was we got married. 

Any advice would be massively appreciated please and thank you in advace.


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