Can You Take Legal Action if Someone Moves Abroad

WHAT HAPPENS IF A PARTY LIVES OUTSIDE OF SOUTH AFRICA – CAN YOU STILL INSTITUTE LEGAL PROCEEDINGS?

In short: Yes, you can.

Many people believe that if a party, for example, their spouse, has moved overseas, or if they do not know the whereabouts of that party, they cannot proceed with legal action in South Africa, but the Courts have made a way for people to institute proceedings in these circumstances

Our courts recognise that it is not always possible to personally serve legal documents on someone who lives outside of the Republic of South Africa. For this reason, the Rules of Court provide special procedures that allow legal proceedings (including divorce proceedings) to be instituted against someone who resides abroad.

These procedures are known as Edictal Citation (where you know that the person resides outside of South Africa) and Substituted Service (where the person might still be in South Africa, but you don’t know their exact whereabouts for service).

These procedures are more fully set out in the Magistrates’ Court Rules (Rules 10 and 5) and the Uniform Rules of Court (High Court Rules 5 and 4(2)).

In simple terms, the process usually involves:

1. Preparing and drafting the Application. This requires a notice in terms of the Rules and an affidavit to support the notice. The affidavit must contain the following:

• Identity of the parties;
• Confirmation that the other party resides outside South Africa (and which country they reside in, if known), or confirmation that the other party cannot be located;
• The other party’s last known residential and/or employment address;
• The nature of the legal proceedings to be instituted (for example, divorce);
• Jurisdiction of the South African court (for example, that the party applying to the court resides within the area of the court’s jurisdiction);
• Details of the efforts made to locate or contact the other party (for example, contact attempts, family and friend enquiries, tracing searches, etc.);
• The other party’s known contact details (if any), such as email addresses, phone numbers, social media accounts;
• The proposed method of service, for example, service through foreign authorities, email, registered post, publication in a newspaper;
• Reasons why the proposed method of service is appropriate, for example, it is cost-effective and likely to bring the proceedings to the other party’s attention;
• Request for the court’s authorisation (i.e. Prayers), which is a request, at the end of the affidavit, asking the court to grant leave to institute the proceedings by edictal citation and/or substituted service.

1. Making the Application. The application is made ex parte, which means that there is no need to notify the other party of the application; you need only file the application with the court.

1. Attending the Application hearing. At the application hearing, you will need to explain to the court where the other party lives (if known) and what steps have been taken to try to contact or locate them, such as email validation and tracing. Then you will request the court’s approval for how the documents may be served. This could include:

• Service through the appropriate authority in the foreign country
• Service at a known address abroad
• Service via email or other electronic means
• Any other method the court considers appropriate in the circumstances

Many courts require the Applicant (the party making the application) to prepare and provide the court with a draft order, which the court can endorse.

Once the court grants the order, the papers can then be served in the manner authorised by the court.

Did you know?

• South African courts have, in appropriate circumstances, allowed service by email or other electronic means. However, this must first be authorised by a court order as part of the edictal citation or substituted service process.

• If you don’t know the whereabouts of the party, you can ask the court for permission to give notice to the other party by means of publication in Newspapers or on social media, or you can ask for permission to serve on the party’s friends or family, who may be in contact with the other party.

If you are considering instituting legal action and the other party lives abroad — or their whereabouts are unknown — it may still be possible to proceed through the courts.

It is important to obtain proper legal advice to ensure the correct procedure is followed.

If you need guidance on divorce or other legal proceedings, where the other party resides outside South Africa, feel free to contact our offices to assist you.