T.M.S.M v P.T.M (35304/2015) [2018] ZAGPPHC 538 (25 January 2018)

T.M.S.M v P.T.M (35304/2015) [2018] ZAGPPHC 538 (25 January 2018)

The court found that the plaintiff failed to prove on a balance of probabilities that she had acquired a domicile of choice in Pretoria at the time of instituting the divorce action. Objective evidence from the Department of Home Affairs showed that the plaintiff's presence in South Africa was brief and intermittent, limited to short visits on a visitor's permit. The court held that such use of a visitor's permit did not satisfy the requirement of physical presence necessary to establish domicile of choice. The plaintiff's evidence regarding her intention to settle in Pretoria was unsupported by objective facts, such as applications for study or work permits, and her financial activities...

Citation
[2018] ZAGPPHC 538
Parties
Plaintiff: T M S M; Defendant: P T M
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
25 January 2018
Case Number
35304/2015
Procedural Posture
Civil Trial / Jurisdictional Determination in Divorce Action
Outcome
Plaintiff's action dismissed with costs, including costs of two counsel.
Judges
Tlhapi
Legal Topics
Divorce Jurisdiction, Domicile of Choice, Divorce Act Section 2, Domicile Act Section 6a
Family and Children Civil Procedure Divorce Jurisdiction Domicile of Choice Divorce Act Section 2 Domicile Act Section 6a

Case Brief

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Parties

T M S M

Plaintiff

P T M

Defendant

Procedural Posture

Civil Trial / Jurisdictional Determination in Divorce Action

Legal Issues

  1. 1 Whether the plaintiff was domiciled within the jurisdiction of the North Gauteng High Court at the time of instituting the divorce action.
  2. 2 Whether the requirements for domicile of choice under the Domicile Act 3 of 1992 were satisfied.
  3. 3 Whether the plaintiff's physical presence and intention to settle in Pretoria were proven on a balance of probabilities.

Ratio Decidendi

The court found that the plaintiff failed to prove on a balance of probabilities that she had acquired a domicile of choice in Pretoria at the time of instituting the divorce action. Objective evidence from the Department of Home Affairs showed that the plaintiff's presence in South Africa was brief and intermittent, limited to short visits on a visitor's permit. The court held that such use of a visitor's permit did not satisfy the requirement of physical presence necessary to establish domicile of choice. The plaintiff's evidence regarding her intention to settle in Pretoria was unsupported by objective facts, such as applications for study or work permits, and her financial activities...

Court Disposition

Plaintiff's action dismissed with costs, including costs of two counsel.

Orders

  • The plaintiff was not domiciled within the jurisdiction of this court when the divorce action was instituted.
  • The action is dismissed with costs, including the costs of two counsel.