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Category: South Africa Law
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Hi, I have a question, I am an EU citizen living in the UK

Customer Question

Hi, I have a question, I am an EU citizen living in the UK for 10 years. I married a South African woman abroad and we have a one year old son born in the UK. Last year she decided to return to South Africa and I followed hoping to make a life for our family out there.
However, it now turns out that she intended to divorce me and get custody of the child in South Africa. I will contest the divorce, as I don't want to be separated from my child. If I had known this at the time I would never have given consent to have him taken out of the country. Currently I am in South Africa, but I understand that a divorce would fall under UK jurisdiction - she returned in October '11 and I followed in December '11. However, should I leave them at this stage to return to the UK, she could say that I abandoned them which would strengthen her case. I really don't know what my options are.
Please advise??
Submitted: 5 years ago.
Category: South Africa Law
Expert:  UKfamsol replied 5 years ago.

Your situation is complex. For the position with regard to South African family and divorce law, you need to consult someone with specialist knowledge of that. My expertise is in relation to UK family law.


Firstly - whether or not the divorce has to be issued in the UK.


You can issue the divorce petition in the UK if

  • both of you are habitually resident in the UK (which means that you have both lived in the UK for at least the12 months before the date of the petition here; - that does not apply in your case - or
  • both of you were habitually resident in the UK and one of you still lives there; - that does not apply in your case - or
  • the respondent (ie your wife if you start the divorce) is habitually resident in the UK; - that does not apply in your case - or
  • the person who starts the divorce is "domiciled" (which means that the UK is your country of origin) in the UK, and is habitually resident in the UK and has lived in the UK for at least six months immediately before starting the divorce application; - that does not apply in your case either.

    From the above, I do not think that either of you could start the divorce in the UK.


    Next the issue of custody and access as a result of your separation and eventual divorce.


    In the UK, issues concerning children are treated quite separately from issues concerning divorce. eg you might divorce your wife on any grounds - adultery or behaviour etc - and that will have no bearing on the decision of the court concerning the children. It will also make no difference whether the divorce is contested or not.


    In the UK, I always advise my clients not to contest the divorce, because if one person says the marriage is over, then it's over. It is not worth wasting time and money over contesting a divorce. But it IS imprtant that the court knows that you do not accept any allegations made against you within the divorce petition, even if you are not defending the divorce.


    In the UK, the respondent is asked in the acknowledgement of service form which is sent to them with the divorce petition, if they intend to defend the divorce. I advise my clients, if they are not happy about allegations against them in the petition to reply as follows: "I do not intend to defend the divorce, but I strenuously deny the allegations made within the petition, and I reserve the right to defend myself against them, if raised in any other proceedings".


    This is especially important if your wife makes any allegations against you in connection with your child.


    In the UK, if there is a dispute between parents concerning which of them a child should live with (in the UK this is called "residence", but used to be called "custody") or how much the parent that the child does not live with should see the child (in the UK this is called "contact", but used to be called "access"), then either parent can make an application to the family court to ask the court to decide the issue. This is an application quite separate from the divorce petition, and in the UK there is no need to wait until a divorce petition has been issued, or the divorce finalised. As soon as parents are no longer living together, either one of them can make an application to courtr in relation to their children.


    I cannot advise you on how a South African court would decide what should happen concerning your son - but I would advise you to get legal advice as soon as ever possible. In my view, it must be a South African court that should deal with this, as that is where your son is now living.


    In the UK, the court will look at who the child's main carer has usually been before the parents separated. If it was your wife, then in the UK, she would normally be awarded a residence order by the court (unless she was a very bad mother).


    In the UK, the courts are very keen for fathers to stay in touch with children after separation, so in the UK, it is highly likely that you would be awarded a contact order (unless contact with you would be bad for the child). The type of contact, the frequency, the venue, whether or not supervised would all depend on the particular circumstances of the case.


    In your case. you have to consider the practicalities. If you return to live in the UK, then practically it will be difficult for you to see your son very often - perhaps only infrequently eg once every few months, depending on how often you can afford to visit South Africa. But if you stay in South Africa, depending on other factors eg how close your relationship with your son is, you may be able to see him every week. (I have made the assumption that your wife has been your son's main carer).


    I hope this helps - I do feel you need to get face-to-face legal advice from a fmaily law solicitor in South Africa as soon as possible.


    Please click on ACCEPT so that I can be credited for my time, and any positive feedback you feel like adding would be much appreciated - thanks!

    Category: South Africa Law
    Satisfied Customers: 560
    UKfamsol and other South Africa Law Specialists are ready to help you
    Customer: replied 5 years ago.

    Very thorough and useful answer.

    Expert:  UKfamsol replied 5 years ago.
    Thank you so much!
    Expert:  Mike Otis replied 5 years ago.
    Welcome, and thank you for your question.

    Would you like some assistance regarding the divorce and custody of the child from a SA point of view in light of the fact that proceedings are likely to be instituted here?

    Yours faithfully,