Asked by the Customer on 01-06-2015 15:31:37
Question posted in the Family Law category relating to KwaZulu-Natal
Question posted in the Family Law category relating to KwaZulu-Natal
Hi got married in October 2012 in South Africa with no prenup My wife and I are both South African citizens.I was at time of marriage and still am, domiciled in Austria (over 20 years) Want to divorce due to breakdown in marriage. (Austrian proprietary consequences state "out of community of property with accrual) . Is domocile not nationality a factor here in reference to the proprietary consequences of the marriage ? Plus what is the cut off date in reference to accrual or debt and liability ?
Thanking You
Thanking You
Further information relating to Question:
Question relates to a divorce in South Africa
Message from the Attorney
Posted by Att. Patrick on 01-06-2015 19:57:59
Hi there and thank you for your question,
In South Africa, the rule governing the proprietary consequences of marriage is the lex domicilii matrimonii which means the law of matrimonial domicile. This rule stems from our common law.
This rule was confirmed in the case of Frankel’s Estate & Another v The Master & Another [1950] 1 All SA 347 (A) wherein the Judge held that:
“The conclusion at which I arrive is that the matrimonial regime is governed by the law of the husband’s domicile at the time of the marriage and that it is not governed by the law of another domicile which he then intends to acquire immediately or within a reasonable time after his marriage.”
Courts have time and again held that "... where no ante-nuptial contract has been entered into, the choice of law rule is that the proprietary consequences of a marriage are to be determined by reference to the law of the domicile of the husband at the time of the marriage."
There have been various challenges to this rule, but none of them have been upheld as of yet. AJudge Van Rooyen in the case of Sadiku v Sadiku (26 January 2007) considered that “whether a categorical application of the lex domicilii of the husband is still acceptable within a gender equal society, such as ours. In the present matter the domicile of the parties did not differ and, accordingly, a possible inequality is irrelevant.” Thus, the judge never actually concluded if the rule should continue to be allowed under our Constitutional dispensation.
If you were domiciled in Austria at the time of your marriage, then even though you were married in South Africa, and even though both of you were South Africans at the time of your marriage, then proprietary consequences of your marriage are governed by Austrian law - as you've alluded to.
The commencement date for debt and accrual liability is the date of marrige, and the cut off date is the date of divorce.
This has the unfortunate consequences of one spouse going on a debt spree or spending spree immediately after receiving the divorce summons (but before the date of actual divorce) to affect the accrual calculation. In that instance you would need to ask the court to order that the date of the accrual calculation should be amended so as to exclude any "unusual" expenditures made or incurred.
If there is a part of the answer which you need more advice on, or clarity please continue in this same thread instead of opening a new question.
Att. Patrick
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In South Africa, the rule governing the proprietary consequences of marriage is the lex domicilii matrimonii which means the law of matrimonial domicile. This rule stems from our common law.
This rule was confirmed in the case of Frankel’s Estate & Another v The Master & Another [1950] 1 All SA 347 (A) wherein the Judge held that:
“The conclusion at which I arrive is that the matrimonial regime is governed by the law of the husband’s domicile at the time of the marriage and that it is not governed by the law of another domicile which he then intends to acquire immediately or within a reasonable time after his marriage.”
Courts have time and again held that "... where no ante-nuptial contract has been entered into, the choice of law rule is that the proprietary consequences of a marriage are to be determined by reference to the law of the domicile of the husband at the time of the marriage."
There have been various challenges to this rule, but none of them have been upheld as of yet. AJudge Van Rooyen in the case of Sadiku v Sadiku (26 January 2007) considered that “whether a categorical application of the lex domicilii of the husband is still acceptable within a gender equal society, such as ours. In the present matter the domicile of the parties did not differ and, accordingly, a possible inequality is irrelevant.” Thus, the judge never actually concluded if the rule should continue to be allowed under our Constitutional dispensation.
If you were domiciled in Austria at the time of your marriage, then even though you were married in South Africa, and even though both of you were South Africans at the time of your marriage, then proprietary consequences of your marriage are governed by Austrian law - as you've alluded to.
The commencement date for debt and accrual liability is the date of marrige, and the cut off date is the date of divorce.
This has the unfortunate consequences of one spouse going on a debt spree or spending spree immediately after receiving the divorce summons (but before the date of actual divorce) to affect the accrual calculation. In that instance you would need to ask the court to order that the date of the accrual calculation should be amended so as to exclude any "unusual" expenditures made or incurred.
If there is a part of the answer which you need more advice on, or clarity please continue in this same thread instead of opening a new question.
Att. Patrick
Please remember this is a dialog if you have follow up questions please use the REPLY button and ask. If I did not answer the question you thought you were asking, please respond with the specific question you wanted answered. I hope you found my answer helpful, and you have finished asking your questions, please click on the GREEN ACCEPT button in order to mark the question as closed.
Message from the Customer
Thank you for the quick response: Just for clarity you wrote "were South African" Me and my wife still "Are" South African does that have any bearing? Judge Van Rooyen comment would be referring to the equality idea that the first matrimonial domicile established after the marriage should be preferred is that correct?
"If you were domiciled in Austria at the time of your marriage, then even though you were married in South Africa, and even though both of you were South Africans at the time of your marriage, then proprietary consequences of your marriage are governed by Austrian law - as you've alluded to." Is that a 100% certain and immutable in my case ?
Thanking You
"If you were domiciled in Austria at the time of your marriage, then even though you were married in South Africa, and even though both of you were South Africans at the time of your marriage, then proprietary consequences of your marriage are governed by Austrian law - as you've alluded to." Is that a 100% certain and immutable in my case ?
Thanking You
Message from the Customer
"In South Africa, the rule governing the proprietary consequences of marriage is the lex domicilii matrimonii which means the law of matrimonial domicile. This rule stems from our common law".
Is there ambiguity on the definition, many adhere to the domicile of the husband not matrimonial domicile or is that in reference to the wife automatically acquiring the husbands domicile ?(anyway first address we where both registered at together was in Austria)
Thanking You
Is there ambiguity on the definition, many adhere to the domicile of the husband not matrimonial domicile or is that in reference to the wife automatically acquiring the husbands domicile ?(anyway first address we where both registered at together was in Austria)
Thanking You
Message from the Customer
A further question if I may, Ive just seen on the" marriage register" I put in my mothers residential address ie South African (as there was no real format to put in an overseas one) and by "residential address after marriage" her mothers one (where we stayed for 10 days) before I flew back to Austria for work. Could this be a sticking point used by the other party in determing the domicile ? I last lived at my mothers address in 1989 .And have stayed at her mothers while holidaying in SA however all that time have still been registered in Austria as my domicile of choice.
Thanking You
ps sorry for the many questions.
Thanking You
ps sorry for the many questions.
Message from the Attorney
Posted by Att. Patrick on 02-06-2015 12:48:33
Hi there,
"Were South African" would be the same as "are South African", since it was "were South African at the time of the marriage", past tense.
There is no ambiguity on the definition. At the end of the day it is the domicile of the husband which decides the matter.
Regarding the "residential address after marriage", no, it would not be a sticking point. The domicile is the place that you would return to after your wonderings. The fact that you are required to record a residential address after marriage as a South African address has no decisive bearing on the domicile enquiry.
If there is a part of the answer which you need more advice on, or clarity please continue in this same thread instead of opening a new question.
Att. Patrick
Please remember this is a dialog if you have follow up questions please use the REPLY button and ask. If I did not answer the question you thought you were asking, please respond with the specific question you wanted answered. I hope you found my answer helpful, and you have finished asking your questions, please click on the GREEN ACCEPT button in order to mark the question as closed.
"Were South African" would be the same as "are South African", since it was "were South African at the time of the marriage", past tense.
There is no ambiguity on the definition. At the end of the day it is the domicile of the husband which decides the matter.
Regarding the "residential address after marriage", no, it would not be a sticking point. The domicile is the place that you would return to after your wonderings. The fact that you are required to record a residential address after marriage as a South African address has no decisive bearing on the domicile enquiry.
If there is a part of the answer which you need more advice on, or clarity please continue in this same thread instead of opening a new question.
Att. Patrick
Please remember this is a dialog if you have follow up questions please use the REPLY button and ask. If I did not answer the question you thought you were asking, please respond with the specific question you wanted answered. I hope you found my answer helpful, and you have finished asking your questions, please click on the GREEN ACCEPT button in order to mark the question as closed.
Message from the Customer
Hi Patrick thanks for all this great service!
I take it that putting my mothers residential address as mine on the register also wont be a sticking point?
Thanking You
I take it that putting my mothers residential address as mine on the register also wont be a sticking point?
Thanking You
Message from the Customer
If I may: What are the chances of spousal maintenance being awarded She is back in South Africa unemployed at the moment, she did have work in Austria but since I asked for the divorce naturally doesn't want to return and as such informed the employer...From dialogue I gather she is trying to create a picture of desertion and that I told her not to come back hence taking away her livelihood ?( Sorry that is the final question)
Thanks so much for the service well impressed and will recommend
Thanks so much for the service well impressed and will recommend
Message from the Attorney
Posted by Att. Patrick on 03-06-2015 15:39:50
Hi there,
She can only claim spousal maintenance from you here in SA if you are currently living in SA. i.e. the South African courts will only grant maintenance against you if the order can be given effect to, with you being in SA.
Also, my understanding is that you're still married... so she wouldn't be able to claim maintenance unless she sued for divorce here in SA and then launch an interim application claiming maintnenace in the High Court.
Your Mother's residential address won't matter.
Att. Patrick
Please remember this is a dialog if you have follow up questions please use the REPLY button and ask. If I did not answer the question you thought you were asking, please respond with the specific question you wanted answered. I hope you found my answer helpful, and you have finished asking your questions, please click on the GREEN ACCEPT button in order to mark the question as closed.
She can only claim spousal maintenance from you here in SA if you are currently living in SA. i.e. the South African courts will only grant maintenance against you if the order can be given effect to, with you being in SA.
Also, my understanding is that you're still married... so she wouldn't be able to claim maintenance unless she sued for divorce here in SA and then launch an interim application claiming maintnenace in the High Court.
Your Mother's residential address won't matter.
Att. Patrick
Please remember this is a dialog if you have follow up questions please use the REPLY button and ask. If I did not answer the question you thought you were asking, please respond with the specific question you wanted answered. I hope you found my answer helpful, and you have finished asking your questions, please click on the GREEN ACCEPT button in order to mark the question as closed.
Message from the Customer
Hi Patrick your answers and advice really are excellent and very informative!
So am I correct in thinking that the SA courts wouldn't even think about awarding spousal maintenance because it falls out of their jurisdiction?
Yes I still am married.
"unless she sued for divorce" as in "filed for divorce" ie the plaintiff ?
"Interim application" as in Rule43 ? (But wouldn't that also fall out of their jurisdiction ?)
I have no assets or money in South Africa.
Thanks so much (willing to top up the money due to the additional questions couldn't see how to do it though ?)
So am I correct in thinking that the SA courts wouldn't even think about awarding spousal maintenance because it falls out of their jurisdiction?
Yes I still am married.
"unless she sued for divorce" as in "filed for divorce" ie the plaintiff ?
"Interim application" as in Rule43 ? (But wouldn't that also fall out of their jurisdiction ?)
I have no assets or money in South Africa.
Thanks so much (willing to top up the money due to the additional questions couldn't see how to do it though ?)
Message from the Attorney
Posted by Att. Patrick on 04-06-2015 14:51:26
Hi,
So am I correct in thinking that the SA courts wouldn't even think about awarding spousal maintenance because it falls out of their jurisdiction? --> Yes.
Yes, interim application for maintenance in terms of rule 43, but she would first need to file for disvorce against you here, and the SA courts will first need to agree that you would fall under their jurisdiction, which you don't currently. A Judge wouldn't hear a matter where you lived outside of SA.
If you have no money or assets in SA, then she wouldn't be able to even attach assets to "found" jurisdiction here.
There is presently no way to top up the money, but what you can do is to ask another "essentially empty" question, and then select a value for the "top up" and make another payment with your credit card. It'll be allocated to this question then!
Thanks so much.
So am I correct in thinking that the SA courts wouldn't even think about awarding spousal maintenance because it falls out of their jurisdiction? --> Yes.
Yes, interim application for maintenance in terms of rule 43, but she would first need to file for disvorce against you here, and the SA courts will first need to agree that you would fall under their jurisdiction, which you don't currently. A Judge wouldn't hear a matter where you lived outside of SA.
If you have no money or assets in SA, then she wouldn't be able to even attach assets to "found" jurisdiction here.
There is presently no way to top up the money, but what you can do is to ask another "essentially empty" question, and then select a value for the "top up" and make another payment with your credit card. It'll be allocated to this question then!
Thanks so much.
Message from the Customer
Hi Patrick
Thanks , I need to decide where to file the divorce.
1: Is a Austrian divorce valid in SA and if so how would you register it once issued in Austria ?
2:In a South African divorce is there anyway getting around the plaintiff having to appear in court for the divorce?
Thanks so much for all your valid advice
Thanks , I need to decide where to file the divorce.
1: Is a Austrian divorce valid in SA and if so how would you register it once issued in Austria ?
2:In a South African divorce is there anyway getting around the plaintiff having to appear in court for the divorce?
Thanks so much for all your valid advice
Message from the Attorney
Posted by Att. Patrick on 08-06-2015 10:19:43
Hi there,
You should file for divorce in the country in which you reside. If that happens to be Austria, then so be it. The Austrian Courts will need to be happy with how you serve the divorce proceedings on your wife, and they may provide you with instructions on how this is to be done. e.g. serve on her by attorney, or by sheriff, or by courier, etc.
Is a Austrian divorce valid in SA and if so how would you register it once issued in Austria? --> Yes, it is valid. Once you've been divorced in one country, you are divorced in all countries. You would simply provide a copy of the Austrian divorce order to the South African banks, etc and they would accept it.
In a South African divorce is there anyway getting around the plaintiff having to appear in court for the divorce? --> Yes, the plaintiff would not need to appear in court if the divorce was settled between the parties. i.e. you entered into a settlement agreement / consent paper. Otherwise, both the plaintiff and the defendant would need to appear in court to give evidence as to why the court should grant the divorce order.
Att. Patrick
Please remember this is a dialog if you have follow up questions please use the REPLY button and ask. If I did not answer the question you thought you were asking, please respond with the specific question you wanted answered. I hope you found my answer helpful, and you have finished asking your questions, please click on the GREEN ACCEPT button in order to mark the question as closed.
You should file for divorce in the country in which you reside. If that happens to be Austria, then so be it. The Austrian Courts will need to be happy with how you serve the divorce proceedings on your wife, and they may provide you with instructions on how this is to be done. e.g. serve on her by attorney, or by sheriff, or by courier, etc.
Is a Austrian divorce valid in SA and if so how would you register it once issued in Austria? --> Yes, it is valid. Once you've been divorced in one country, you are divorced in all countries. You would simply provide a copy of the Austrian divorce order to the South African banks, etc and they would accept it.
In a South African divorce is there anyway getting around the plaintiff having to appear in court for the divorce? --> Yes, the plaintiff would not need to appear in court if the divorce was settled between the parties. i.e. you entered into a settlement agreement / consent paper. Otherwise, both the plaintiff and the defendant would need to appear in court to give evidence as to why the court should grant the divorce order.
Att. Patrick
Please remember this is a dialog if you have follow up questions please use the REPLY button and ask. If I did not answer the question you thought you were asking, please respond with the specific question you wanted answered. I hope you found my answer helpful, and you have finished asking your questions, please click on the GREEN ACCEPT button in order to mark the question as closed.
Message from the Customer
Hi Patrick.
No offence intended but in relation to question 2 your answer is contrary to what Ive read ie:
The best option, if you can make it happen, is to do your divorce in an uncontested manner. An uncontested divorce is one in which you and your spouse work together to agree on the terms of your divorce. You will both consult with the same attorney, who will be unbiased and impartial. There is no formal trial, and only the plaintiff appears in court.
. The plaintiff will appear personally in court before a judge or magistrate to conclude the divorce on the date set down
This is from Bertus Prellers divorce website and I thought that was pretty much a fixed rule, but your answer states otherwise could you please elaborate how it could be possible for a divorce in SA. without me having to come out. in the likely case that my wife wants the divorce to be finalised in SA ?
Thanx
Brett
No offence intended but in relation to question 2 your answer is contrary to what Ive read ie:
The best option, if you can make it happen, is to do your divorce in an uncontested manner. An uncontested divorce is one in which you and your spouse work together to agree on the terms of your divorce. You will both consult with the same attorney, who will be unbiased and impartial. There is no formal trial, and only the plaintiff appears in court.
. The plaintiff will appear personally in court before a judge or magistrate to conclude the divorce on the date set down
This is from Bertus Prellers divorce website and I thought that was pretty much a fixed rule, but your answer states otherwise could you please elaborate how it could be possible for a divorce in SA. without me having to come out. in the likely case that my wife wants the divorce to be finalised in SA ?
Thanx
Brett
Message from the Attorney
Posted by Att. Patrick on 09-06-2015 21:03:10
Hi again,
Sorry, you are correct. I got the plaintiff and defendant switched around.
What you should then do (assuming that you can convince your wife to proceed with the divorce in an uncontested manner) is to make her the plaintiff. She will then be the one to appear in Court. You (as the defendant) won't need to.
There won't be a formal trial, that's correct. The divorce will proceed in an uncontested manner and the Judge will (after hearing from the plaintiff) grant the divorce in terms of the consent paper / settlement agreement.
Att. Patrick
Please remember this is a dialog if you have follow up questions please use the REPLY button and ask. If I did not answer the question you thought you were asking, please respond with the specific question you wanted answered. I hope you found my answer helpful, and you have finished asking your questions, please click on the GREEN ACCEPT button in order to mark the question as closed.
Sorry, you are correct. I got the plaintiff and defendant switched around.
What you should then do (assuming that you can convince your wife to proceed with the divorce in an uncontested manner) is to make her the plaintiff. She will then be the one to appear in Court. You (as the defendant) won't need to.
There won't be a formal trial, that's correct. The divorce will proceed in an uncontested manner and the Judge will (after hearing from the plaintiff) grant the divorce in terms of the consent paper / settlement agreement.
Att. Patrick
Please remember this is a dialog if you have follow up questions please use the REPLY button and ask. If I did not answer the question you thought you were asking, please respond with the specific question you wanted answered. I hope you found my answer helpful, and you have finished asking your questions, please click on the GREEN ACCEPT button in order to mark the question as closed.
Message from the Customer
Hi Patrick
No probs , on the question of " reciprocal duty of support" am I correct in thinking this is criteria based and does not include her children ?
Thank you
No probs , on the question of " reciprocal duty of support" am I correct in thinking this is criteria based and does not include her children ?
Thank you
Message from the Attorney
Posted by Att. Patrick on 18-06-2015 11:56:52
Yes. Correct.
Answer Accepted
This answer was accepted on 18-06-2015 17:46:29
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