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Hi there, my husband (British citizen) and I (duel South African/British

 
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in South Africa Law

Customer Question

Hi there, my husband (British citizen) and I (duel South African/British citizenship) got married in Sout Africa in 1998; we lived in the UK until 2011, after which we moved to Australia, we separated last year at the end of July (2011). The split was amicable (although very sad), and we don't have children. He has a few properties, but I am only interested in half of the one we both together, I don't think he will have any problems with that. I need to start divorce proceedings, but don't know where to start. Please advice. Kind regards Stephanie

 



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Submitted: 346 days ago.
Category: South Africa Law
Value: AU$36
Status: CLOSED

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Expert:  dclabm replied346 days ago.


dclabm : Hi Stephanie
Customer :

Hi there

dclabm : Just for interest sake, your divorce would be finalised in terms of the laws where the marriage was concluded.
dclabm : In the UK there is not in comunity of property, as in south africa
Customer :

What does in community of property mean?

dclabm : A joint estate is formed, meaning that both spouse's estates are formed into one and both share equally in the joint estate irrespctive of contribution
dclabm : In short you are in fact half owner of all his properties and he of yours
Customer :

But I don't want anything else but a share of the house we bought together, does this make any difference, or its gets split in two and we can then deal with it afterwards? I have no intention of taking half of all his things

Customer :

The split is my fault, and he helped me out through my studies etc. so in truth it is the least I can do

dclabm : No problem that is the legal position, but you are entitled to settle the divorce without claiming half of his estate
dclabm : Is the property registered in both your names?
Customer :

That's great, what do I do next, I am not going to be in South Africa for at least a year. Yes, the property is both our names

dclabm : Good and the divorce on that basis would not be contested?
Customer :

No, it won't be contested

Customer :

Sorry, misread your question

dclabm : Cool then process is not complicated
dclabm : You can finalise the divorce in a court where you permanently reside
dclabm : If you live in australia and he as well then the courts here in sa do not have jurisdiction
Customer :

Permanently reside...he is in the UK, and I am in Australia for another 3 years

Customer :

If I visited home (SA), can I do it there?

dclabm : Ok then i would advise that you finalise the divorce either in the uk or australia
Customer :

Without him being present?

Customer :

Do both of us have to be in the country?

dclabm : Yes you can, but you will first have to serve summons personally on him, before a sa court will entertain the divorce
Customer :

How does the summons process work?

dclabm : No you both need not be present once you have served summons and got a settlement agreement only your presents would be required in sa
dclabm : The summons get served, he then have10days to defend it, contesting the divorce, after period of 10days of no defence you can enroll matter on unopposed divorce roll in the court in whos jurisdiction you reside, or have immoveable property
Customer :

How do I get a summons served?

dclabm : The matter is then finalised by you appearing personally in court, which is a simple procedure and last about 10minutes
dclabm : Once summons is drafted it is handed to sheriff for service, now in your situation you would have to ask for special way to serve summons, for example by email, as the sheriff would not serve in uk
Customer :

Who drafts the summons?

Customer :

Would I need to get a laywer in South Africa to do that?

dclabm : In your case i would advise that you ask an attorney, but u can draft it yourself as well.
dclabm : Yes rather get a lawyer to see to it that due process is followed and to avoid unnessecary delay due to non compliance with procedural rules
Customer :

In the UK you have to have been separated for at least 1 year when you apply for a divorce, does the fact that we got married in SA change that for our situation?

dclabm : In sa there is no such requirement, but if you are seperated for year or longer the court must grant divorce
Customer :

That's good. I will get a lawyer to draft up the summons, thank you very much for the advice. Have a good day

dclabm : My pleasure glad i could have been of assistance, please do not forget to rate my service

Expert TypeAdvocate
Category: South Africa Law
Pos. Feedback: 97.2 %
Accepts: 46
Answered: 7/8/2012

Experience: Advocate of the High Court of South Africa

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