M.S.S v R.A (2025/0539959) [2025] ZAWCHC 517 (10 November 2025)

Case Note

M[...] S[...] S[...] v R[...] A[...]
Case no: 2025-0539959
High Court of South Africa, Western Cape Division, Cape Town
Heard: 17, 18, 29 and 30 September 2025
Delivered: 10 November 2025

Reportability

This case is reportable due to its significant implications for family law and the determination of domicile in divorce proceedings. It highlights the legal principles surrounding jurisdiction based on domicile and the interpretation of intentions regarding residency in a foreign country. The judgment provides clarity on how domicile is established, particularly in contexts where parties' intentions about permanence versus temporariness are at odds, thereby enriching case law in South Africa on the complexities of familial relationships within a globalized context.

Cases Cited

1. Eilon v Eilon 1965 (1) SA 703 (A)
2. Chinatex Oriental Trading Co v Erskine 1998 (4) SA 1087 (C)
3. OB v LBDS 2021 (6) SA 215 (WCC)
4. Smith v Smith 1952 (4) SA 750 (O)
5. Holland v Holland 1973 (1) SA 897 (T)
6. Webber v Webber 1915 AD 239
7. Ricketts v Ricketts 1929 EDL 221
8. Quayle v Quayle 1949 SR 203

Legislation Cited

1. Divorce Act, 70 of 1979
2. Domicile Act, 3 of 1992

Rules of Court Cited

1. Rule 33(4) of the Rules of Court

HEADNOTE

Summary

The case revolves around divorce proceedings initiated by the plaintiff against the defendant, focusing on whether the High Court had jurisdiction based on the domicile of the plaintiff. The key legal question was whether the plaintiff had acquired a domicile of choice in the Netherlands at the time of the proceedings, as the defendant argued that the parties had become domiciled there. The court analyzed the intentions of the parties, relationship dynamics, and applicable legal principles to determine the plaintiff's domicile status.

Key Issues

The court addressed several legal issues: first, the determination of jurisdiction based on domicile under the Divorce Act; second, whether the plaintiff had established a domicile of choice in the Netherlands; and third, the impact of the parties' mutual intentions regarding emigration following the birth of their child.

Held

The court found that the defendant had not established that the plaintiff acquired a domicile of choice in the Netherlands. The court held that the plaintiff retained her domicile of origin in the Western Cape, thereby affirming the High Court's jurisdiction over the divorce proceedings.

THE FACTS

The plaintiff and defendant began living together in March 2017, subsequently moving into a home together in Constantia, Cape Town. They married in April 2022 and had a daughter in May 2023. In January 2025, the couple moved to the Netherlands due to the defendant's job. However, the plaintiff moved out after a short period due to escalating marital conflicts and sought to return to South Africa with the child, leading to the filing of divorce proceedings in the High Court.

The defendant raised a special plea claiming that both he and the plaintiff were domiciled in the Netherlands and thus, the court lacked jurisdiction. The essential consideration was whether the plaintiff had acquired a domicile of choice in the Netherlands, which is defined by both physical presence and intent to settle indefinitely.

THE ISSUES

The court had to determine whether the plaintiff had acquired a domicile of choice in the Netherlands at the time of the divorce proceedings. This involved analyzing the evidence surrounding the parties' intentions about their residency in the Netherlands versus their ties to their previous domicile in South Africa. Other sub-issues included the interpretation of “domicile” as it pertains to the Divorce Act and the Domicile Act.

ANALYSIS

The court reviewed the testimonies of both parties, noting the lack of cross-examination on key aspects of the defendant's evidence. The plaintiff argued that her move to the Netherlands was on a trial basis to address marital issues, while the defendant contended that their discussions indicated a mutual agreement to emigrate permanently. The court underscored the importance of the plaintiff's relationships, ongoing ties to South Africa, and lack of evidence that she had settled in the Netherlands with the intention to remain there indefinitely.

The court highlighted legal precedents that emphasize the need for a person intending to change their domicile to do so without contemplation of returning, suggesting that the plaintiff's intentions were marked by uncertainty regarding permanence.

REMEDY

The court dismissed the defendant's special plea, ruled that the plaintiff retained her domicile of origin in South Africa, and confirmed the jurisdiction of the High Court to hear the divorce proceedings. The matter of parental responsibilities regarding the couple's child was referred to the Office of the Family Advocate, requiring cooperation from both parties.

LEGAL PRINCIPLES

Key legal principles established in this case include:

1. Domicile of choice cannot be acquired if a person intends to leave that domicile upon the occurrence of a predictable event.
2. Jurisdiction in divorce proceedings is dependent on the domicile of the parties, as prescribed by the Divorce Act.
3. When assessing domicile, evidential weight is given to both subjective intentions and objective circumstances surrounding the parties' living arrangements and relationship dynamics.