Foreign divorce order 

Enforcing a foreign divorce order against assets in South Africa

With increasing global travel and work opportunities, many couples find themselves in cross-border marriages. Unfortunately, if the marriage breaks down, this can also mean a divorce in a foreign jurisdiction. The divorce proceedings may be finalised abroad – in the United Kingdom, Europe or elsewhere – while key assets such as pension interest or immovable property are situated in South Africa. A pressing question then arises: how can a foreign divorce order be enforced against South African assets? What is the legal framework and practical process for enforcing foreign divorce orders in South Africa when it comes to pension funds and immovable property?

Recognition of foreign divorce orders

A foreign divorce order does not automatically carry legal force in South Africa. Its recognition depends on the outcome sought. Where the order relates only to status (the dissolution of the marriage), South African law may recognise it without further steps. However, where the order relates to the division of South African assets, South African courts must intervene to ensure the order is effective locally. Without this intervention, pension funds, deeds offices and other asset-holding institutions in South Africa cannot act on a foreign decree.

Jurisdiction of South African courts

Jurisdiction is grounded in the fact that assets such as pension interest and immovable property are subject to South African law. Pension funds are governed by the Pension Funds Act 24 of 1956. Immovable property is regulated under the Deeds Registries Act 47 of 1937, and any transfer or endorsement must be authorised by a South African court order lodged with the deeds office. All divisions of the High Court of South Africa enjoy concurrent jurisdiction. For practical reasons, matters are usually brought in the division where the attorneys or administrators of the asset are based (e.g., Western Cape High Court for pension division).

When an ex parte application is appropriate

Where the foreign divorce order specifically provides for the division of South African assets (for example, a pension split or transfer of property), and the parties are in agreement, the appropriate procedure is an ex parte application to the High Court. This application:

• Is brought in the names of both parties as co-applicants
• Includes a Notice of Motion, Founding Affidavit, the signed consent paper or settlement agreement, and a confirmatory affidavit from the other party
• Requests the South African court to enforce the foreign order in relation to the specified South African asset

If the parties are not in agreement, or the foreign order does not include the South African assets, then a fresh application or action may need to be undertaken locally, invoking South African matrimonial property law.

Some practical examples are given below.

Pension interest

If a couple divorces in the UK, and the settlement provides that one spouse is entitled to 50% of the other’s South African pension interest, the UK decree cannot be acted upon directly by the South African pension fund. The spouses must bring an ex parte application before the High Court, attaching their consent paper. Once granted, the court order is served on the fund, which then implements the split under the Pension Funds Act.

The date of divorce is a critical reference point for pension interest under the Pension Funds Act. The South African application can only be launched after the foreign divorce has finalised. However, the consent paper dealing with the South African assets can be signed in advance. This avoids delays once the foreign decree is issued.

Immovable property

If there is a holiday home registered in the husband’s name and a divorce order made overseas awards the wife 50% of the property, the parties must approach the High Court with an application supported by their foreign settlement agreement for the property to be transferred or endorsed in South Africa. Once the South African order is granted, it can be lodged with the deeds office, which will then register the transfer in accordance with local law.

Enforcing a foreign divorce order against South African assets requires careful coordination between both jurisdictions. Foreign orders do not directly impact South African assets. Where there is agreement and the foreign order expressly calls for division of assets held in South Africa, the parties may proceed with an ex parte High Court application to enforce the foreign decree locally. Both pension interest and immovable property are prime examples  of the need for such an application, as they cannot be divided or transferred without a South African court order.

Get the paperwork right

By following the correct procedure – drafting a compliant consent paper, finalising the foreign divorce, and bringing the matter before the High Court – parties can ensure their international settlements are recognised and executed seamlessly in South Africa.

Cape Town family lawyer can help

SD Law & Associates, based in Cape Town, Johannesburg and Durban, are experts in divorce and family law and have particular expertise in international divorce. If you have questions about a foreign divorce order or need to bring an ex parte application before the courts, contact Simon on +27 86 099 5146 or email sdippenaar@sdlaw.co.za 

Further reading:

• Dividing luxury items in divorce
• Protecting high-value assets during divorce
• Investment division in divorce

SD Law – Simon Dippenaar & Associates Inc.

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