Preliminary steps before an action for divorce can be instituted

In our previous article, we discussed the grounds for the granting of a decree of divorce. We will now consider some preliminary aspects that must be considered before a divorce can be instituted.

The first consideration in any court action is that of jurisdiction. That being which court has the power to grant the divorce and enforce any order that it makes.

In accordance with the Divorce Act 70 of 1979 (“the Act”):-

A court will have jurisdiction in a divorce action if the parties are or either of the parties is-

 (a)   domiciled in the area of jurisdiction of the court on the date on which the action is instituted; or

 (b)   ordinarily resident in the area of jurisdiction of the court on the said date and have or has been ordinarily resident in the Republic for a period of not less than one year immediately prior to that date.

Furthermore, a court that has jurisdiction in terms of the section above in a case where the parties are or either of the parties is not domiciled in the Republic shall determine any issue in accordance with the law which would have been applicable had the parties been domiciled in the area of jurisdiction of the court concerned on the date on which the divorce action was instituted.

In the majority of cases, jurisdiction is a simple issue and is determined by the place of residence or employment of the Defendant. However, there are instances where this, the residence or place of employment, cannot be ascertained, for example, the parties have not been in contact for several years or one of the parties is preventing contact.

In this instance, the jurisdiction is decided by the residence of the Plaintiff (the person instituting the divorce proceedings). However, as this is a court action the Defendant must still be served with a copy of the pleadings (the divorce summons and particulars of claim) personally. How can this be done if the Defendant cannot be located?

The answer is somewhat simple. You can apply for what is known as substituted service. This is an application to the court for permission to serve the Defendant with the pleadings by means other than those prescribed by the Rules of Court. This can be done by several alternative means but the most common is having a copy of the pleadings printed in two newspapers circulating the last known address, by email, fax or even Facebook.

The Court must determine any manner of service as is likely to bring the proceedings concerned to the notice of the party to be served.

In CMC Woodworking Machinery (Pty) Ltd v Pieter Odendaal Kitchens, Steyn J gave leave to the Plaintiff to serve a notice on the Defendant by way of substituted service under Uniform Rule of Court 4(2) of a Facebook message addressed to the inbox of the Defendant's Facebook page.

Therefore if a reluctant party to a divorce proceeding is hindering service thereof substituted service will be of assistance.

A further consideration is found in Section 5A of the Act:-

If it appears to a court in divorce proceedings that despite the granting of a decree of divorce by the court the spouses or either one of them will, by reason of the prescripts of their religion or the religion of either one of them, not be free to remarry unless the marriage is also dissolved in accordance with such prescripts or unless a barrier to the remarriage of the spouse concerned is removed, the court may refuse to grant a decree of divorce unless the court is satisfied that the spouse within whose power it is to have the marriage so dissolved or the said barrier so removed, has taken all the necessary steps to have the marriage so dissolved or the barrier to the remarriage of the other spouse removed or the court may make any other order that it finds just.

In our next article, we will discuss what matrimonial property regimes there are and how this affects divorce proceedings.