M v M (A216/2014) [2015] ZAFSHC 36 (5 March 2015)

M v M (A216/2014) [2015] ZAFSHC 36 (5 March 2015)

The regional magistrate erred in concluding that the regional court lacked jurisdiction to dissolve a marriage entered into in Lesotho where both parties were domiciled and resident in Bloemfontein, South Africa. South African law recognises foreign marriages as valid if there were no legal impediments at the time of celebration. Section 28(1A) read with section 29(1B) of the Magistrates’ Courts Act and section 2(1) of the Divorce Act confer jurisdiction on the regional court where either party is domiciled or ordinarily resident in its area and has been ordinarily resident in South Africa for at least one year prior to the action. The absence of reasons for the magistrate’s decision was...

Citation
[2015] ZAFSHC 36
Parties
Appellant: F……. M……… M……; Respondent: F…… E….. M………
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
5 March 2015
Case Number
A216/2014
Procedural Posture
Civil Appeal / Appeal From Regional Court Decision on Jurisdiction in Divorce Action
Outcome
Appeal upheld. Regional court’s order set aside and substituted. Matter remitted for continuation and finalisation of the divorce trial.
Judges
Mocumie, Lekale
Legal Topics
Divorce Jurisdiction, Domicile and Residence, Magistrates Courts Act, Foreign Marriage Recognition
Family and Children Civil Procedure Divorce Jurisdiction Domicile and Residence Magistrates Courts Act Foreign Marriage Recognition

Case Brief

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Parties

F……. M……… M……

Appellant

F…… E….. M………

Respondent

Procedural Posture

Civil Appeal / Appeal From Regional Court Decision on Jurisdiction in Divorce Action

Legal Issues

  1. 1 Whether the regional court has jurisdiction to dissolve a marriage solemnised in Lesotho where both parties are domiciled and resident in Bloemfontein, South Africa.
  2. 2 Whether the regional magistrate erred in dismissing the divorce action on the basis of lack of jurisdiction.
  3. 3 Whether the absence of reasons for the regional magistrate's decision impedes the appeal process.

Ratio Decidendi

The regional magistrate erred in concluding that the regional court lacked jurisdiction to dissolve a marriage entered into in Lesotho where both parties were domiciled and resident in Bloemfontein, South Africa. South African law recognises foreign marriages as valid if there were no legal impediments at the time of celebration. Section 28(1A) read with section 29(1B) of the Magistrates’ Courts Act and section 2(1) of the Divorce Act confer jurisdiction on the regional court where either party is domiciled or ordinarily resident in its area and has been ordinarily resident in South Africa for at least one year prior to the action. The absence of reasons for the magistrate’s decision was...

Court Disposition

Appeal upheld. Regional court’s order set aside and substituted. Matter remitted for continuation and finalisation of the divorce trial.

Orders

  • The appeal is upheld.
  • The order of the regional court is set aside and substituted with a finding that the regional court has jurisdiction to hear the divorce action in terms of section 28(1A) read with 29(1B) of the Magistrates’ Courts Act 32 of 1944 as amended and section 2(1) of the Divorce Act 70 of 1979.