DOMICILE DILEMMA: NAVIGATING DIVORCE JURISDICTION

Our modern legal system consists of building-blocks of concepts and pieces of knowledge that have been passed down, developed and amended throughout the ages. It is common consensus in the legal sphere that certain terms or legal requirements are central to any dispute between parties. Parties to a dispute are not allowed to simply approach the court on a whim or approach any court. Rather, the parties are required to approach the correct court that is able to hear the matter, and in the right capacity based on the enforcement of a certain legal right or a cause of action. Parties are also required to prepare and present the necessary evidence in support of their claims. The term “jurisdiction”, for example, is a historically legal term that is central to any matter, but it is also often a misunderstood or underestimated concept, especially by those unfamiliar with legalese. 

What is jurisdiction?  

 “Jurisdiction” is defined as the power, competence or authority of a court to determine a dispute between parties or, alternatively, the territorial area over which the court has legal authority. Whether a court has the requisite jurisdiction depends on, for example, whether the parties reside or work within the geographical territory of the court. This can also be determined by the type of case at hand and its subject matter, for example in cases where the set of facts of your case arose within the court’s jurisdictional reach.  

On 26 March 2025, in the matter of H.G.W v M.W (nee B[…]) (RCC/MOS:84/23; A207/2024) [2025] ZAWCHC 140, a significant judgment was delivered in the high court, as an appeal from the regional court, regarding this notion of jurisdiction. 

Read the case here:  

https://www.saflii.org/za/cases/ZAWCHC/2025/140.html  

The judgment starts with the statement: “Jurisdiction is fundamental”. The judgment is premised by the mention that, where courts lack jurisdiction, any order granted or handed down by that court is invalid and void. Jurisdiction must be pleaded by the person approaching a court and, once jurisdiction is established, it is retained by the court until the conclusion of the proceedings. 

 Emigrating before abdicating their nuptials 

The matter concerns a divorce between two parties who recently emigrated from Australia to South Africa. The parties emigrated with the intention of settling either in South Africa or Namibia. Upon the couple’s arrival in South Africa, the wife, who is the respondent in this matter, instituted the divorce action in the regional court in July 2024. In a divorce action, jurisdiction can only be pleaded on two grounds. The Divorce Act 70 of 1979, in section 2(1), provides that parties may approach the court in a divorce action where they are either domiciled (your permanent home) in the jurisdictional area of the court on the date on which the action is instituted, or, on the other hand, where they are ordinarily resident within the jurisdictional area of the court on or at least one year immediately prior to the date on which the divorce is instituted. 

The particulars of claim, setting out the grounds for divorce, alleges that the court has jurisdiction because the parties are “currently residing within the area of jurisdiction of this Honourable Court”. The pleadings that introduce the matter to the court must lay a foundation for how the matter might proceed throughout the litigation process, including which technical obstacles might have to be overcome before getting into the merits of the matter. It is the responsibility of the person instituting a matter, to allege and prove the facts that are necessary for the court to establish jurisdiction. Instead of achieving certainty in this matter, the wife made no further allegations in regard to the court’s jurisdiction or why she regards Mossel Bay as her permanent home. It is insufficient to merely allege a legal conclusion without the presentation of any form of evidence in support thereof. This caused the appellant in the matter, the husband, to raise a special plea while the divorce action was pending. Special pleas are generally raised as an objection, preventing the case from proceeding and before the court considers the outcome of a case. The husband’s special plea, as amended, alleged that neither of the parties were domiciled nor were they ordinarily resident within the area of jurisdiction of the court, as was required by the Divorce Act, and that the court therefore lacks jurisdiction to hear their divorce.  

Central to the regional court’s decision was whether, besides their allegations on the papers, there was any evidence presented by the parties at the hearing of the special plea. The regional court accordingly dismissed the special plea, concluding that they did have the requisite jurisdiction to hear the divorce action, because neither parties’ furnished any additional evidence to the contrary and therefore jurisdiction based on domicilium “can be inferred” from the pleadings filed by the husband and wife.  

The appeal to further interrogate the parties’ fate   

The husband appealed to the high court against the regional court’s conclusion that they had jurisdiction to hear the divorce action, alleging that jurisdiction based on domicilium cannot be inferred where it had not been pleaded in the first place. No averments, evidence or factual findings had been made or presented regarding the wife’s domicile. The high court subsequently held that the regional court therefore erred in considering factors that were not given in evidence or presented to the court on the papers.  

The wife argued that, despite her relocation from Australia shortly before she instituted the divorce action, she retained her domicile of choice as South Africa, since it was her domicile of origin, thus alleging that she never gave it up in the first place. The Domicile Act 3 of 1992, section 1, defines domicile of choice as a domicile acquired by a person when they are lawfully present at a specific place with the intention to settle there indefinitely. Despite her regarding South Africa as her permanent residence and domicile of choice, she failed to sufficiently indicate as much in her pleadings, especially in light of the fact that the parties had been resident in Australia for more than 5 years prior to their relocation. The wife presented no supporting evidence on this point, for example mentioning that she was never issued with Australian citizenship.  

Your permanent place of residence is a question of fact  

Despite the wife’s efforts to argue in favour of a flexible approach, the high court pointed out that a person’s domicilium is an objective question of fact. The court concluded that, in the absence of evidence presented to them, the allegations of jurisdiction to the divorce action were in and of themselves insufficient. The court stressed the fact that judges make decisions based on the information that is made available to them. Therefore, where information is not presented in the pleadings or as further evidence, a legal conclusion cannot be drawn merely based on assumptions that whatever is alleged by the parties is, out of necessity, true and indisputable.  

The high court considered referring the matter back to the regional court in order to hear evidence and decide on the matter afresh. However, this possibility was not available to the court because it is inadmissible to bring evidence on a point that has not been raised on the pleadings. The wife failed to initially plead that she was domiciled within the court’s jurisdiction, which prevents her from bringing evidence in that regard later on. Remittance was deemed unnecessary, and the court upheld the husband’s special plea.  

Conclusion 

The high court, as the court of appeal, weighed the scales in the husband’s favour, declaring the regional court finding to be incorrect in accepting jurisdiction based on the wife’s domicile. The wife’s failure to establish jurisdiction sufficiently was a direct result of the absence of evidence presented to the court.  

In the end, the wife approached the wrong court, and it cost both parties dearly. The parties separated, with the wife moving to South Africa, and the husband to Namibia, and launching divorce proceedings became a far more costly affair that either of them contemplated.  

This matter presents us with an understanding of the importance of this notion of jurisdiction and, ultimately, how essential it is to approach the correct court to adjudicate a certain matter. The financial and time implications of litigation are always factors to take into consideration when approaching the courts. Special pleas might additionally serve to delay or frustrate proceedings. Litigating is already a task that takes on a life of its own. It is essential, therefore, in any potential dispute, that all the necessary facts are presented to the court in support of your claim. It is imperative that litigating parties understand the necessity in not overburdening the already overloaded justice system with technicalities that may present to be giant obstacles in the future. The reasons presented above are all grounds that form the basis as to why legal practitioners often insist that clients should seek legal advice from an attorney before approaching the court, so that their legal situation can be properly interrogated.