Domicile in Divorce Cases
In South Africa the private legal status of a person is determined by the law of the country or place in which such a person is domiciled. This is known as the lex domicilii. As an example, a South African Court has jurisdiction to grant an order of divorce provided one party or both parties to a marriage are domiciled within the area of jurisdiction of such a Court on the date of the institution of the divorce proceedings. Quite evidently a person's domicile plays a major role in determining his or her capacities. It is of paramount importance to point out that it is not necessary that a party that institutes divorce proceedings should be physically present within the area of jurisdiction of a particular Court when he or she institutes such divorce proceedings. It is however crucial that he or she be domiciled in that country.
Section 6 of the Domicile Act 3 of 1992 which amended section 2 of the Divorce Act, provides that a Court shall have jurisdiction in a divorce action if the parties are or either of the parties is domiciled in the area of jurisdiction of the Court on the date on which the action is instituted.
A divorce action is deemed to be instituted on the date on which the combined summons is issued or the notice of motion is filed or the notice is delivered in terms of the rules of Court. In this country, a married woman can acquire and lose South African domicile as though she was an unmarried person. Section 1(1) of the Domicile Act provides that:
''Every person who is of or over the age of 18 years and every person under the age of 18 years who by law has the status of a major ... shall be competent to acquire a domicile of choice regardless of such a person 's sex or marital status."
Furthermore, no woman loses or acquires South African citizenship by reason merely of the marriage she has concluded.
What is then this domicile? According to Wilie's Principles of South African Law 9th Edition by Francois Du Bois at page 152:
''Every person has what is called "a domicile ''. That is a legal home or a home for legal purposes. No person can at any time be without a domicile. "
See in this regard Smith v Smith 1970(1) SA 146 (R) at page 147G where the court stated that:
"It has been frequently laid down that no person can be without a domicile because the law will attribute a domicile to him."
Domicile is the place where, for legal purposes, a person is by law presumed present to be present at all times. As domicile constitutes a status determining factor, it becomes as clear as crystal that everyone must have a domicile at all material times. Equally no person can have more than one domicile at the same time. Therefore, generally speaking a person is domiciled in a place that is considered to be his or her permanent home. See in this regard Gunn v Gunn 191O TPD 423 at 427; Webber v Webber 1915 A D 239 at 242 and Eilon v Eilon 1965 (1) SA 703 A at 721. Domicile is not necessarily the same as the place of actual residence or a place where one eats, drinks and sleeps.
In his book Conflict Of Laws, Private International Law, Seventh Edition, R H Graveson, quotes with approval the following definition of "domicile" by Lord Cranworth in Whicker v Hume [1858] EngR 991; (1858) 7 H.L.C. 124 160:
""By domicile" we mean home, the permanent home: and if you do not have a permanent home, I am afraid that no illustration drawn from foreign writers or from foreign languages will very much help you to it."
A place can therefore not be one's permanent home if the purpose of one's presence at such place is for work, no matter how long it is. Graveson himself had the following to write at page 185 that:
" ... domicile is a conception of law which, though founded on circumstances of fact, gives to those circumstances an interpretation frequently different from that which a layman would give to them. It is a conception of law employed for the purpose of establishing a connection for certain legal purposes between an individual and the legal system of the territory with which he either has the closest connection in fact or is considered by law to have because of his dependence on some other person. The American Law Institute has provided a useful definition of domicile as ''the place, generally the home, which the law assigns a person for certain legal purposes."
If a person was born in South Africa, South Africa will be the 'domicile of origin'. A 'domicile of origin' is attributed to every person at birth by the operation of the law but such domicile does not depend on the place where a person is born but on the domicile of the appropriate parent at the time of birth. See in this regard Smith supra at page 1470. 'Domicile of origin' is therefore acquired automatically at birth. The 'domicile of origin' persists until it is replaced by a new domicile, a 'domicile of choice'. This 'domicile of choice' is acquired by a person having the legal capacity who, on his or her own free volition, establishes his or her presence in that particular country on his or her choice. Domicile of choice is a conclusion or inference which the law derives from the fact of a man fixing voluntarily his sole or chief residence in a particular place with the intention of continuing to reside there for an unlimited time. It must be a residence not for limited period or particular purpose, but general and indefinite in its future contemplation.
A person can choose where he wants to be domiciled. To acquire a domicile of choice, such a person must firstly, have taken up residence at the place concerned and secondly, must have formed the intention to reside permanently at that place. If a spouse in divorce proceedings contends that the the other spouse is not domiciled in South Africa but in another country, the duty lies on the spouse who disputes the domicile to prove the allegations that he/she makes and bears such an onus. In order to discharge the onus of proving such a change of domicile it must be proved that the other spouse has abandoned his/her former domicile animo ad factum or that such a spouse lost his/her South African domicile when he/she left South Africa with the intention never to return to it.
In Re Fuld (No. 3) (1968) page 679 at page 682 to 683 Scarman J stated as follows:
'Domicile cases require for their decision a detailed analysis and assessment of facts arising within that most subjective of all fields of legal enquiry - a man's mind. Each case takes its tone from the individual propositus whose intentions are being analysed,· Anglophobia, mental Inertia, extravagant habits, vacillation of will - to take four instances at a random - have been factors of great weight in the judicial assessment and determination of four leading cases. Naturally enough is so subjective a field different judicial minds concerned with different factual situations have chosen different languages to describe the law. For the law is not an abstraction,· it leaves only in Ifs application, and its concepts derive colour and shape from the facts of the particular case in which they are studied, and to which they are applied. Thus the relationship of law and fact is a two-way one: each affects the other. "
In Eilon's case the Court cited with approval the following passage from Cheshire Private International Law 5th Edition at page 164:
"A hundred years ago an intention to reside indefinitely in a place was regarded as an intention to reside there permanently, notwithstanding that it was contingent upon an uncertain event. Nowadays, an Intention of indefinite residence is not equivalent to an intention of permanent residence, if It is contingent upon an uncertain event Thus the English conception of domicil correspondence neither with what the ordinary man understands by his permanent home nor with the Continental criterion of habitual residence. This change of attitude lays the law open to criticism in several respects.”
At page 165 he continued as follows :
"Judges, however conscious that a literal application of this estigmatic doctrine must frequently run counter to the needs of justice and common sense .... have occasionally shown a welcome readiness to Interpret a man's Intention in a manner rather less strict.”
Therefore, a court can come to the conclusion that a spouse never formed a fixed and settled purpose of abandoning their South African domicile and setting finally in another country and if the parties had the expectation or hope of coming back to South Africa our courts will still have jurisdiction to entertain a divorce, although both parties live abroad.
Section 6 of the Domicile Act 3 of 1992 which amended section 2 of the Divorce Act, provides that a Court shall have jurisdiction in a divorce action if the parties are or either of the parties is domiciled in the area of jurisdiction of the Court on the date on which the action is instituted.
A divorce action is deemed to be instituted on the date on which the combined summons is issued or the notice of motion is filed or the notice is delivered in terms of the rules of Court. In this country, a married woman can acquire and lose South African domicile as though she was an unmarried person. Section 1(1) of the Domicile Act provides that:
''Every person who is of or over the age of 18 years and every person under the age of 18 years who by law has the status of a major ... shall be competent to acquire a domicile of choice regardless of such a person 's sex or marital status."
Furthermore, no woman loses or acquires South African citizenship by reason merely of the marriage she has concluded.
What is then this domicile? According to Wilie's Principles of South African Law 9th Edition by Francois Du Bois at page 152:
''Every person has what is called "a domicile ''. That is a legal home or a home for legal purposes. No person can at any time be without a domicile. "
See in this regard Smith v Smith 1970(1) SA 146 (R) at page 147G where the court stated that:
"It has been frequently laid down that no person can be without a domicile because the law will attribute a domicile to him."
Domicile is the place where, for legal purposes, a person is by law presumed present to be present at all times. As domicile constitutes a status determining factor, it becomes as clear as crystal that everyone must have a domicile at all material times. Equally no person can have more than one domicile at the same time. Therefore, generally speaking a person is domiciled in a place that is considered to be his or her permanent home. See in this regard Gunn v Gunn 191O TPD 423 at 427; Webber v Webber 1915 A D 239 at 242 and Eilon v Eilon 1965 (1) SA 703 A at 721. Domicile is not necessarily the same as the place of actual residence or a place where one eats, drinks and sleeps.
In his book Conflict Of Laws, Private International Law, Seventh Edition, R H Graveson, quotes with approval the following definition of "domicile" by Lord Cranworth in Whicker v Hume [1858] EngR 991; (1858) 7 H.L.C. 124 160:
""By domicile" we mean home, the permanent home: and if you do not have a permanent home, I am afraid that no illustration drawn from foreign writers or from foreign languages will very much help you to it."
A place can therefore not be one's permanent home if the purpose of one's presence at such place is for work, no matter how long it is. Graveson himself had the following to write at page 185 that:
" ... domicile is a conception of law which, though founded on circumstances of fact, gives to those circumstances an interpretation frequently different from that which a layman would give to them. It is a conception of law employed for the purpose of establishing a connection for certain legal purposes between an individual and the legal system of the territory with which he either has the closest connection in fact or is considered by law to have because of his dependence on some other person. The American Law Institute has provided a useful definition of domicile as ''the place, generally the home, which the law assigns a person for certain legal purposes."
If a person was born in South Africa, South Africa will be the 'domicile of origin'. A 'domicile of origin' is attributed to every person at birth by the operation of the law but such domicile does not depend on the place where a person is born but on the domicile of the appropriate parent at the time of birth. See in this regard Smith supra at page 1470. 'Domicile of origin' is therefore acquired automatically at birth. The 'domicile of origin' persists until it is replaced by a new domicile, a 'domicile of choice'. This 'domicile of choice' is acquired by a person having the legal capacity who, on his or her own free volition, establishes his or her presence in that particular country on his or her choice. Domicile of choice is a conclusion or inference which the law derives from the fact of a man fixing voluntarily his sole or chief residence in a particular place with the intention of continuing to reside there for an unlimited time. It must be a residence not for limited period or particular purpose, but general and indefinite in its future contemplation.
A person can choose where he wants to be domiciled. To acquire a domicile of choice, such a person must firstly, have taken up residence at the place concerned and secondly, must have formed the intention to reside permanently at that place. If a spouse in divorce proceedings contends that the the other spouse is not domiciled in South Africa but in another country, the duty lies on the spouse who disputes the domicile to prove the allegations that he/she makes and bears such an onus. In order to discharge the onus of proving such a change of domicile it must be proved that the other spouse has abandoned his/her former domicile animo ad factum or that such a spouse lost his/her South African domicile when he/she left South Africa with the intention never to return to it.
In Re Fuld (No. 3) (1968) page 679 at page 682 to 683 Scarman J stated as follows:
'Domicile cases require for their decision a detailed analysis and assessment of facts arising within that most subjective of all fields of legal enquiry - a man's mind. Each case takes its tone from the individual propositus whose intentions are being analysed,· Anglophobia, mental Inertia, extravagant habits, vacillation of will - to take four instances at a random - have been factors of great weight in the judicial assessment and determination of four leading cases. Naturally enough is so subjective a field different judicial minds concerned with different factual situations have chosen different languages to describe the law. For the law is not an abstraction,· it leaves only in Ifs application, and its concepts derive colour and shape from the facts of the particular case in which they are studied, and to which they are applied. Thus the relationship of law and fact is a two-way one: each affects the other. "
In Eilon's case the Court cited with approval the following passage from Cheshire Private International Law 5th Edition at page 164:
"A hundred years ago an intention to reside indefinitely in a place was regarded as an intention to reside there permanently, notwithstanding that it was contingent upon an uncertain event. Nowadays, an Intention of indefinite residence is not equivalent to an intention of permanent residence, if It is contingent upon an uncertain event Thus the English conception of domicil correspondence neither with what the ordinary man understands by his permanent home nor with the Continental criterion of habitual residence. This change of attitude lays the law open to criticism in several respects.”
At page 165 he continued as follows :
"Judges, however conscious that a literal application of this estigmatic doctrine must frequently run counter to the needs of justice and common sense .... have occasionally shown a welcome readiness to Interpret a man's Intention in a manner rather less strict.”
Therefore, a court can come to the conclusion that a spouse never formed a fixed and settled purpose of abandoning their South African domicile and setting finally in another country and if the parties had the expectation or hope of coming back to South Africa our courts will still have jurisdiction to entertain a divorce, although both parties live abroad.
