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Divorcing a Missing Spouse in South Africa

Divorcing a missing spouse in South Africa can be a complex process, but it is possible under certain legal provisions. Here’s a clear, professional guide to help you understand the process:

1. Legal Framework

In South Africa, the Divorce Act, 1979 (Act No. 70 of 1979) governs the dissolution of marriages. When a spouse is missing, the process involves obtaining a court order to proceed with the divorce.

2. Steps to Divorce a Missing Spouse

  1. Determine the Grounds for Divorce:
    • Irretrievable Breakdown of Marriage: This is the most common ground for divorce in South Africa. You need to prove that the marriage has irretrievably broken down.
    • Desertion: If the missing spouse has deserted you for a continuous period of at least one year, this can also be grounds for divorce.
  2. Serve Notice:
    • You must serve a notice of intention to divorce on the missing spouse. This can be done through a process known as substituted service, where the notice is published in a newspaper or served on a family member or close associate of the missing spouse.
  3. Apply for a Court Order:
    • You will need to apply to the High Court for an order to proceed with the divorce. This involves filing an application with the court, providing evidence of the missing spouse’s whereabouts and efforts to locate them.
  4. Court Hearing:
    • The court will review your application and, if satisfied that all necessary steps have been taken, will grant an order allowing the divorce to proceed.
  5. Finalize the Divorce:
    • Once the court order is granted, you can proceed with the divorce as you would in any other divorce case. This includes addressing issues such as division of assets, maintenance, and custody of children.

3. Practical Implications

  • Costs: The process can be costly, especially if legal representation is required. It is advisable to consult with a family law attorney who can guide you through the process and represent you in court.
  • Time: The process can be time-consuming, as it involves multiple steps and court hearings.
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Dubai Dreams vs. Divorce Duties: GK v KK (2015-96997) [2024] ZAGPPHC 1015 (16 October 2024) – Unravels International Family Law Challenges in Separation Applications.

The case of GK v KK (2015-96997) [2024] ZAGPPHC 1015 (16 October 2024) highlights the intricate challenges that arise when divorce proceedings intersect with international relocation. In this matter, the applicant (GK) and respondent (KK) found themselves embroiled in a complex divorce, complicated by GK’s move to Dubai in February 2024.

The divorce proceedings encompassed various contentious issues, including the division of the couple’s financial assets, an existing maintenance order under Rule 43 of the Uniform Rules of Court, and matters concerning the care and contact of their 8-year-old child, O. However, GK’s life had taken a significant turn since the initiation of the divorce. He had not only relocated to Dubai but had also entered into a new relationship, fathering a one-year-old child, M, with his new partner.

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Domestic Violence Interdicts for Financial Abuse

Domestic violence interdicts in South Africa can include provisions for financial abuse. The Domestic Violence Amendment Act 2021 (DVAA 2021) broadens the scope of what constitutes domestic violence, including economic abuse.

What Constitutes Financial Abuse?

Financial abuse includes actions such as:

• Withholding financial resources, such as income or assets, to exert control.

• Preventing access to bank accounts or financial information.

• Refusing to contribute to household or child-related expenses.

• Squandering joint assets to prevent the other spouse from benefiting.

• Forcing a spouse to account for every expenditure or taking their income.

Under the DVAA 2021, a protection order can be issued to prevent the perpetrator from engaging in financial abuse. This can include prohibiting the perpetrator from controlling the victim’s finances, accessing their bank accounts, or interfering with their employment. The protection order aims to safeguard the victim’s financial independence and security.

Steps to Obtain a Protection Order for Financial Abuse

1. File a Complaint:

• Visit your nearest magistrate’s court and complete an affidavit detailing the financial abuse. Include any relevant evidence (bank statements, communications, etc.).

• You may file this separately or as part of ongoing divorce proceedings.

2. Interim Protection Order:

• The court may issue an interim protection order if the abuse poses immediate harm or undue hardship. This order can include specific financial directives.

3. Hearing:

• A hearing will be scheduled, where both parties can present evidence. The court will decide whether to make the interim order final.

4. Relief That Can Be Granted:

• Directing the respondent to provide financial support for the victim or children.

• Prohibiting the respondent from accessing joint accounts or assets.

• Restraining the respondent from interfering with the victim’s employment or income.

The South African Police Service (SAPS) is responsible for enforcing these protection orders and ensuring that victims are protected from all forms of abuse, including financial abuse. The DVAA 2021 places a responsibility on prosecutors to prosecute violations of protection orders, including those related to financial abuse.

In summary, domestic violence interdicts in South Africa can address financial abuse, and the DVAA 2021 provides mechanisms to protect victims from such abuse through the issuance of protection orders.