By Simon Dippenaar — Cape Town family lawyer | International divorce, cross-border custody & relocation.
Summary
- Jurisdiction: You can usually file in SA if either spouse is domiciled here, or you’ve been ordinarily resident in SA for 12 months. Intention matters.
- Property: Without an ANC, lex domicilii matrimonii may point to foreign law for marital property consequences.
- Relocation: Consent is key; courts assess bona fides and best interests (F v F) and will order solutions, not slogans.
- Forum: SA courts may accept custody jurisdiction on forum principles where ties are strong or foreign litigation is unjust.
- Hague: Applies only between signatories; act urgently via the Central Authority.
When Answers Matter More Than Sleep
It’s late. You’re scrolling for the truth about international divorce, custody, and what happens if someone leaves the country… with your child. Here are the five questions I’m asked most—and the answers you deserve.
I’m Simon Dippenaar, a Cape Town family lawyer. I’ve protected parents from unlawful relocations, and negotiated lawful moves that preserve connection. When the pressure is real and the stakes are personal- clarity wins.
Yes. Under South African law, SA courts generally have jurisdiction if either spouse is domiciled in SA, or if you’ve been ordinarily resident here for at least one year before issuing summons. But domicile is more than location—it’s intention to remain indefinitely. Courts test intention through conduct: your centre of life, not your Instagram bio.
Action: Gather proof early—lease/title, employment, tax, school registrations, medical providers, community ties. Lay the jurisdictional foundation before you file.
Possibly. Without a valid antenuptial contract, private-international-law rules often point to the husband’s domicile at the time of marriage (lex domicilii matrimonii) to determine the property consequences. That can route you into foreign law, even if you live in Cape Town today.
Action: Identify domiciles at marriage, inventory on/offshore assets (pensions, trusts, beneficial ownership), and secure enforceability (e.g., mirror orders abroad) so an SA outcome bites internationally.
Yes—and act quickly. Relocation doesn’t happen because someone “requests it.” Our courts weigh whether the plan is bona fide and, crucially, in the best interests of the child (think F v F principles). If you don’t agree, your ex must seek a court order (joint decision under s18(5) is the rule, not the exception).
Judges examine the real life: schooling, stability, travel logistics, costs, and the quality of contact with the staying parent. Offer solutions (structured holidays, virtual contact protocols, cost-sharing). Courts reward good-faith plans.
Sometimes, yes. Where a child retains significant ties to SA or where foreign litigation would be unjust or impractical, SA courts may accept jurisdiction on forum principles – especially in urgent or high-conflict matters. The point isn’t home-turf advantage—it’s the child’s best interests and a forum that can act justly and efficiently.
The Hague Convention applies only if both countries are signatories. It aims to return children wrongfully removed/retained to the state of habitual residence for decisions there. It’s not automatic- move urgently via the Central Authority, ideally within one year. After that, courts may prioritise stability.
Core Insight
At the centre of each answer: intention (for domicile, forum, and planning) and the child’s best interests -always.
Practical Checklist
- Confirm jurisdiction (domicile/residence evidence).
- Map property regime (ANC? husband’s domicile at marriage?).
- Inventory assets (on/offshore), pensions, trusts; plan enforcement.
- If relocation arises: request full plan, set out your consent stance, propose workable alternatives.
- For Hague issues: file immediately via the Central Authority; document habitual residence.
- Keep communications civil and written; brief specialists early.
See our child relocation resources.
Discretion. Strategy. Dignity.
Unsure how this applies to your facts? Book a confidential consultation. We’ll build the jurisdictional foundation, protect your bond with your child, and structure outcomes that last.
SD Law – Simon Dippenaar & Associates Inc.
The information on this website is provided to assist the reader with a general understanding of the law. While we believe the information to be factually accurate, and have taken care in our preparation of these pages, these articles cannot and do not take individual circumstances into account and are not a substitute for personal legal advice. If you have a legal matter that concerns you, please consult a qualified attorney. Simon Dippenaar & Associates takes no responsibility for any action you may take as a result of reading the information contained herein (or the consequences thereof), in the absence of professional legal advice.