Can a South African court divorce South Africans living permanently abroad?

Q       I am married to a South African and want to get a divorce.  We were married in South Africa about 4 years ago and have been separated for 2½ years.  We now both live in New Zealand and have agreed on the terms and conditions of our divorce including the custody of our 4 year old daughter. Does one of us have to be present in South Africa to be able to complete the divorce process or can it be handled remotely by South African lawyer on our behalf?  Also what would be the costs for undefended proceedings?

A        In terms of South African law, only a High Court can divorce the parties.  The court has jurisdiction where the parties or either of the parties is –

a)       Domiciled in the area of the court’s jurisdiction on the date on which the action is instituted; or

b)       Ordinarily resident in the area of jurisdiction of the court on the date on which the action is instituted or has been ordinarily resident in the Republic for a period of not less than one year immediately prior to that date.

As both the parties appear to be permanently resident in New Zealand, a South African court would not have jurisdiction to hear the divorce action and you would have to institute action for divorce out of a New Zealand court.  That court would have to apply South African law.  If your solicitors require any input in that regard they should feel free to contact us.