Important divorce warning for South Africans

There is no such thing as legal separation in South Africa, and couples looking for an end to their vows will need to legally apply to end their marriage.

This is according to Isabel van den Ende, a senior associate at Barnard, who noted that even if two South Africans have been estranged for 20 years, they are still considered married if they never legally divorced.

This includes all the legal consequences that come with it.

“As family law attorneys, we often encounter misconceptions about separation and its legal effects,” said Van den Ende.

“Many people believe that if they have been apart from their spouse for a long time, their marriage will automatically end. However, this is not the case under South African law.”

South Africa does not recognise legal separation, unlike some other countries.

Even if spouses have been separated for years, they will remain legally married unless one of two things take place.

A marriage in South Africa can only be dissolved via divorce proceedings, where one or both spouses file through the courts.

This is the only way to legal way to end a marriage.

The other option sees one of the spouses passing away, which will see the marriage terminated by law.

Divorce can be necessary, as the legal consequences of a marriage remain until a divorce is finalised, even if the spouses no longer live together.

These consequences include:

• Property rights and division of assets;
• Spousal maintenance obligations;
• The impact on inheritance and estate planning.

Can’t find your estranged spouse

This can also be complicated if one cannot locate one’s spouse.

In South Africa, a formal notice to a spouse must be delivered to a spouse in person when filing for divorce. This can be done by the spouse or a sheriff of the court.

If they cannot be found, Van den Ende said that one will need a special court order allowing them to serve the summons through an alternative method.

“Many people assume that divorces can happen without their spouse knowing, as often seen in television dramas,” the expert added.

“However, in reality, South African law requires strict procedures to protect legal rights and ensure fairness.”

“A divorce cannot be granted without notifying the other spouse, as it directly impacts their legal status, including issues such as property division, spousal maintenance, and parental rights.”

If the one’s spouse’s whereabouts are unknown, they will need to convince the court that they have exhausted all reasonable efforts to locate them.

For this to be achieved, one must:

1. Appoint a tracer – A professional tracer will attempt to locate your spouse and provide a report.
2. Gather supporting evidence – This includes records of past residences, work history, and efforts made to contact family or friends.
3. Apply for a court order – This request is called substituted service if your spouse is in South Africa or edictal citation if they are overseas.

Substituted service allows service of the summons via publication in a newspaper, email or social media (in certain cases) and delivery to a known relative or last known address.

Edictal citation requires the summons to be served via international courier services, diplomatic channels and publication in foreign newspapers.

“In both cases, the court must be satisfied that all reasonable attempts to locate the missing spouse have been made,” said Van den Ende.