Frequently Asked Questions

Usually, yes. Section 2 of the Divorce Act gives a South African court jurisdiction if, when the divorce starts, either spouse is domiciled within that court's area, or is ordinarily resident there and has been ordinarily resident in South Africa for at least one year immediately beforehand. The country where the marriage took place is not, by itself, decisive.

A Hague Convention return application may be available if the removal or retention was wrongful and the Convention operates between the countries concerned. Membership alone does not guarantee return. Act promptly. If the Convention does not apply, urgent South African or foreign-law remedies may still be available.

A separate High Court application is not required in every case. Section 13 of the Divorce Act recognises qualifying foreign divorce orders, but recognition of marital status and enforcement of financial terms are different questions. Authenticated documents, a Home Affairs process or South African court proceedings may be needed, depending on what the order must achieve.

Filing first does not automatically decide which country should hear the divorce. A South African court must first have jurisdiction. Parallel proceedings, the connection of the parties and children to each country, procedural fairness and whether an eventual order will be effective may then affect the appropriate route.

Yes. The duty of support applies regardless of marital status.

It’s rare but possible, usually in long marriages where one spouse cannot become self-supporting.

You can approach the Maintenance Court to enforce the order — including salary deductions or even criminal charges.

Yes, if the child’s needs or financial circumstances change

It depends on the asset and the court's jurisdiction over the spouses. A South African court may make personal orders requiring a spouse to deal with a foreign asset, but it generally cannot directly control a foreign land register or transfer property situated in another country. Foreign recognition or enforcement may be required.

Relevant assets and financial information must be disclosed in divorce proceedings. Discovery, subpoenas, court orders and forensic assistance may help trace offshore interests, but tracing and recovery are fact-specific and are not guaranteed. Preserve account, company, trust and transaction records as early as possible.

A qualifying foreign divorce may be recognised in South Africa, but it does not automatically override a South African order or proceeding. Recognition of marital status, competing proceedings and enforcement of financial or child-related terms are separate questions that require advice on the particular orders and countries involved.

Only genuine trusts. Sham or alter ego trusts can be pierced.

Depends on forum advantages. Always seek strategic legal advice before filing.

In SA we use care (who provides day-to-day parenting) and contact (time/communication). We’ll frame your case in the language courts expect.

No. A court must authorise relocation if the other parent withholds consent. Courts look for a reasonable, bona fide reason and a plan that safeguards the child’s relationship with the other parent.

If both countries are Hague members, we act urgently for return (or defend one) within strict timelines. Speed matters.

Often, yes—with the right process. We use recognition procedures and mirror orders to make it enforceable.

Yes. We bring urgent applications for non-removal orders, passport controls, and interim care/contact.

No. If consent is withheld, you need a court order authorising relocation.

A detailed plan: housing, schooling, healthcare, support network, costs, immigration status, and a workable contact plan with the left-behind parent.

If both countries are Hague Convention members, bring/defend an urgent return application. Speed is critical.

Often—through recognition and, where appropriate, a mirror order.

Yes: urgent non-removal orders, passport controls, and interim care/contact.

South African family law does not explicitly govern international child custody/care matters. However, the Children’s Act states that if one parent intends to leave the country with the child and relocate, the consent of both parents is required.

The best interests of the child(ren) are the uppermost concern. In certain instances, the move might be in the child’s best interest if it, for example, results in the enhancement of the child’s quality of life or education.

International child custody is dealt with on a case-by-case basis, taking all considerations into account, especially the best interest of the child(ren).

It is critical to follow the correct procedure and give due consideration to the law. Taking a child overseas without the consent of the other parent amounts to child abduction and can have very serious consequences.

In family law we call it wrongful removal or retention. Criminal processes may exist, but Hague Convention return is a civil mechanism.

Act promptly. Article 11 requires authorities to act expeditiously, and delay can affect evidence and the Article 12 enquiry after one year. The correct first step may be a Central Authority application, urgent court relief or coordinated foreign advice, depending on where the child is and whether the countries are Convention partners.

Article 13(b) may apply where return would expose the child to a grave risk of physical or psychological harm or otherwise place the child in an intolerable situation. The enquiry is fact-specific and evidence-driven. Courts may also consider whether practical protective measures can address the identified risk.

Not automatically. A foreign parenting order may be relevant to rights of custody and the evidence, but Article 17 says that a custody decision alone is not a ground for refusing return. Recognition or enforcement in South Africa depends on the order, jurisdiction, public policy and the relief sought.

Potentially. Section 278(2) of the Children's Act permits interim protective relief for the child, applicant or defendant before a return order. Depending on the facts, a court may consider non-removal relief, passport or travel arrangements, and interim care or contact. No particular order is automatic.