D.B v M.B (10019/2014) [2014] ZAWCHC 178 (2 December 2014)

D.B v M.B (10019/2014) [2014] ZAWCHC 178 (2 December 2014)

The court found, on a balance of probabilities and applying the Plascon-Evans rule, that the respondent intended to remain in South Africa for an indefinite period at the time of marriage. The respondent's acquisition of property, establishment of a permanent home, intention to raise children in South Africa, and conduct evidenced a settled intention to reside indefinitely. The respondent's explanations for his ties to Germany and lack of understanding of documents were unconvincing. The court held that the respondent was domiciled in South Africa at the date of marriage, and thus the marriage is governed by South African law and is in community of property.

Citation
[2014] ZAWCHC 178
Parties
Applicant: D.B; Respondent: M.B
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
2 December 2014
Case Number
10019/2014
Procedural Posture
Civil Application / Rule 33(4) Application in Pending Divorce Proceedings
Outcome
Application granted. The marriage is declared to be in community of property under South African law.
Judges
J Cloete
Legal Topics
Matrimonial Property Regime, Domicile of Choice, Community of Property, Divorce Proceedings
Family and Children Matrimonial Property Regime Domicile of Choice Community of Property Divorce Proceedings

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Parties

D.B

Applicant

M.B

Respondent

Procedural Posture

Civil Application / Rule 33(4) Application in Pending Divorce Proceedings

Legal Issues

  1. 1 Whether the parties are married in community of property under South African law.
  2. 2 Whether the respondent was domiciled in South Africa at the time of the marriage.
  3. 3 Which matrimonial property regime applies to the divorce proceedings.

Ratio Decidendi

The court found, on a balance of probabilities and applying the Plascon-Evans rule, that the respondent intended to remain in South Africa for an indefinite period at the time of marriage. The respondent's acquisition of property, establishment of a permanent home, intention to raise children in South Africa, and conduct evidenced a settled intention to reside indefinitely. The respondent's explanations for his ties to Germany and lack of understanding of documents were unconvincing. The court held that the respondent was domiciled in South Africa at the date of marriage, and thus the marriage is governed by South African law and is in community of property.

Court Disposition

Application granted. The marriage is declared to be in community of property under South African law.

Orders

  • It is declared that the marriage between the parties is governed by South African law, is in community of property, and the patrimonial consequences of such marriage will follow upon divorce, subject to the respondent's right to claim forfeiture of benefits during divorce proceedings.
  • Save for the wasted costs of the postponement on 2 September 2014, in respect of which each party shall pay their own costs, the respondent shall bear the costs of this application on the scale as between party and party from his one-half share of the joint estate.