Hillard v Hillard (1464/2007) [2008] ZAFSHC 135 (4 December 2008)

Hillard v Hillard (1464/2007) [2008] ZAFSHC 135 (4 December 2008)

The court found that the defendant did not abandon his South African domicile for a new domicile in Lesotho. His continued ownership and investment in property in South Africa, maintenance of bank accounts, and regular return to his Ladybrand residence demonstrated a lack of intention to settle indefinitely in Lesotho. The defendant's conduct and way of life indicated that his primary and permanent home remained in South Africa. Consequently, at the time of the marriage, the defendant was domiciled in South Africa, and South African matrimonial property law, including the accrual system, applies to the divorce proceedings.

Citation
[2008] ZAFSHC 135
Parties
Plaintiff: Lydia Mphoko Hillard; Defendant: Julian Alexander Hillard
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
4 December 2008
Case Number
1464/2007
Procedural Posture
Civil Trial / Separation of Issues
Outcome
The court found that at the time of the marriage, the defendant was domiciled in South Africa and that South African matrimonial property law applies to the divorce action.
Judges
Cillié
Legal Topics
Matrimonial Property Regime, Domicile of Choice, Accrual System, Ante Nuptial Contract
Family and Children Civil Procedure Matrimonial Property Regime Domicile of Choice Accrual System Ante Nuptial Contract

Case Brief

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Parties

Lydia Mphoko Hillard

Plaintiff

Julian Alexander Hillard

Defendant

Procedural Posture

Civil Trial / Separation of Issues

Legal Issues

  1. 1 Where was the defendant domiciled at the date of the marriage of the parties?
  2. 2 Do the matrimonial property laws of South Africa, Lesotho, or the United Kingdom govern the patrimonial consequences of the marriage, particularly upon dissolution by divorce?

Ratio Decidendi

The court found that the defendant did not abandon his South African domicile for a new domicile in Lesotho. His continued ownership and investment in property in South Africa, maintenance of bank accounts, and regular return to his Ladybrand residence demonstrated a lack of intention to settle indefinitely in Lesotho. The defendant's conduct and way of life indicated that his primary and permanent home remained in South Africa. Consequently, at the time of the marriage, the defendant was domiciled in South Africa, and South African matrimonial property law, including the accrual system, applies to the divorce proceedings.

Court Disposition

The court found that at the time of the marriage, the defendant was domiciled in South Africa and that South African matrimonial property law applies to the divorce action.

Orders

  • It is declared that the defendant's domicile at the time of the marriage was Ladybrand, South Africa.
  • It is declared that the Matrimonial Property Laws of South Africa are applicable in the divorce action between the parties.