Divorce Article 2: Preliminary aspects that must be considered before a divorce can be instituted.

Divorce Article 2: Preliminary aspects that must be considered before a divorce can be instituted.

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Divorce Article 2: Preliminary aspects that must be considered before a divorce can be instituted.

The

first consideration in any court action is that of jurisdiction. That being

which court has the power to grant the divorce and enforce any order that it

makes.

accordance with the Divorce Act 70 of 1979 (“the Act”):-

court will have jurisdiction in a divorce action if the parties are or either

of the parties is-

(a)   domiciled in the area of

jurisdiction of the court on the date on which the action is instituted; or

(b)   ordinarily resident in the

area of jurisdiction of the court on the said date and have or has been

ordinarily resident in the Republic for a period of not less than one year

immediately prior to that date.

Furthermore, a court that has jurisdiction in terms of the section above in a case where

the parties are or either of the parties is not domiciled in the Republic shall

determine any issue in accordance with the law which would have been applicable

had the parties been domiciled in the area of jurisdiction of the court

concerned on the date on which the divorce action was instituted.

the majority of cases, jurisdiction is a simple issue and is determined by the

place of residence or employment of the Defendant. However, there are instances

where this, the residence or place of employment, cannot be ascertained, for

example, the parties have not been in contact for several years or one of the

parties is preventing contact.

this instance, the jurisdiction is decided by the residence of the Plaintiff

(the person instituting the divorce proceedings). However, as this is a court

action the Defendant must still be served with a copy of the pleadings (the

divorce summons and particulars of claim) personally. How can this be done if

the Defendant cannot be located?

The

answer is somewhat simple. You can apply for what is known as substituted

service. This is an application to court for permission to serve the Defendant

with the pleadings by means other than those prescribed by the Rules of Court. This

can be done by several alternative means but the most common is having a copy

of the pleadings printed in two newspapers circulating the last known address,

by email, fax, or even Facebook.

The

Court must determine any manner of service as is

likely to bring the proceedings concerned to the notice of the party to be

served.

In CMC

Woodworking Machinery (Pty) Ltd v Pieter Odendaal Kitchens,

Steyn J gave leave to the Plaintiff to serve a notice on the Defendant by way

of substituted service under Uniform Rule of Court 4(2) of a Facebook message

addressed to the inbox of the Defendant's Facebook page.

Therefore

if a reluctant party to a divorce proceeding is hindering service thereof

substituted service will be of assistance.

further consideration is found in Section 5A of the Act:-

it appears to a court in divorce proceedings that despite the granting of a

decree of divorce by the court the spouses or either one of them will, by

reason of the prescripts of their religion or the religion of either one of

them, not be free to remarry unless the marriage is also dissolved in

accordance with such prescripts or unless a barrier to the remarriage of the

spouse concerned is removed, the court may refuse to grant a decree of divorce

unless the court is satisfied that the spouse within whose power it is to have

the marriage so dissolved or the said barrier so removed, has taken all the

necessary steps to have the marriage so dissolved or the barrier to the

remarriage of the other spouse removed or the court may make any other order

that it finds just.

our next article, we will discuss what matrimonial property regimes there are

and how this affects divorce proceedings.

Related Practice Areas: Maintenance & Spousal Support | Father's Rights | Asset Division

If you have questions about your specific situation, contact Nick Elliot for a confidential consultation.