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[2014] ZAWCHC 178
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D.B v M.B (10019/2014) [2014] ZAWCHC 178 (2 December 2014)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT
OF SOUTH AFRICA
(WESTERN CAPE
DIVISION, CAPE TOWN)
Case
no: 10019/2014
DATE:
02 DECEMBER 2014
In the matter
between:
D………]
[B……]
...............................................
Applicant
V
M……….]
[B…..]
..........................................
Respondent
Court: Justice J
Cloete
Heard: 28
October 2014
Delivered: 2
December 2014
JUDGMENT
CLOETE J:
Introduction
[1] This is an
opposed application in terms of rule 33(4) in pending divorce
proceedings for an order declaring that the parties
are married in
community of property.
[2] The relevant
common cause facts are as follows. The applicant is a Philippine
citizen and the respondent is a German citizen.
In 1996 the
respondent left Germany to travel the world on his yacht, leaving
behind his then wife, M……, in Austria.
In April 2001
the parties met in Singapore where the respondent employed the
applicant as an au pair for his daughter who was born
of a
relationship with another woman on his travels. Over time the parties
became romantically involved, and in 2002 they set sail
for South
Africa, arriving in Richards Bay, KwaZulu Natal, in about November
2002.
[3] The parties
thereafter travelled on their yacht to K……, arriving
there in late 2002 or early 2003. Since that
date they have lived in
South Africa in the Southern Cape area. Two sons were born of their
relationship, namely J……
on 16 July 2004 and M….
J…… on 26 November 2008. Shortly after the applicant
fell pregnant with J……,
the parties concluded a
notarial agreement at K….. on 28 January 2004 in which inter
alia they recorded that they had lived
together in a spousal
relationship since April 2001 and that it was their intention to
continue that relationship indefinitely
in the future. The respondent
further irrevocably contracted with the applicant to ensure her
financial security going forward.
[4] During 2005 the
respondent divorced M......... and on 6 February 2006 at O.......,
South Africa, the parties married without
an antenuptial contract.
They have never concluded a postnuptial contract. On 24 January 2014
the applicant instituted divorce
proceedings in the Eastern Circuit
Local Division in George (which has concurrent jurisdiction with this
court), in which she alleged
inter alia that the parties are married
in community of property (which is the default matrimonial property
regime in South Africa
where no antenuptial or postnuptial contract
has been concluded and the husband to the marriage was domiciled here
at the date
of marriage). The respondent in due course filed a plea
and counterclaim, in which he alleged that the parties are married
according
to German law because at the date of the marriage he was
not domiciled in South Africa but in Germany.
[5] The applicable
matrimonial property regime is of considerable importance to the
parties. If they are married in community of
property according to
South African law then, subject to any successful claim which the
respondent might advance in the divorce
action for a forfeiture of
benefits, either in whole or in part, his entire estate, which is
substantial on either version, will
be shared equally with the
applicant (as will her considerably more meagre estate be shared with
him). If however they are married
in accordance with German law, in
very basic terms, the respondent will retain the bulk of his estate
as his sole property, given
that it was built up by him prior to the
marriage, and only what the parties have accrued since the marriage
will be shared.
Applicable legal
principles
[6] It is trite that
under the common law the matrimonial property regime is determined
according to the law applicable in the husband’s
country of
domicile at the time of the marriage, the so-called lex domicilii
matrimonii: see inter alia Sperling v Sperling
1975 (3) SA 707
(A) at
716F-H.
[7] The Domicile Act
3 of 1992 (‘the Act’) came into effect on 1 August 1992
and it is common cause that this is the
legislation to be applied in
the present matter.
[8]Section 1(2) of
the Act provides as follows:
‘The domicile
of choice shall be acquired by a person when he is lawfully present
at a particular place and has the intention
to settle there for an
indefinite period.’
[emphasis supplied.]
[9] Section 3(1) of
the Act stipulates that:
‘No person
shall lose his domicile until he has acquired another domicile,
whether by choice or by operation of law.’
[10] Forsyth:
Private International Law 3rd Ed 1996 at 119 explains that in order
to acquire a domicile of choice in terms of the
Act:
‘The intention
(or animus) required is that of settling there “for an
indefinite period”; no question of settling
permanently is
required.’
[11] Once the
matrimonial domicile is established, it cannot be changed, as Forsyth
points out at 261:
‘Secondly, the
authorities also make plain that the matrimonial domicile determines
the law applicable to the proprietary
consequences of the marriage,
once and for all. In other words, the principle of immutability is
adopted, in terms of which the
proprietary regime is determined by
the matrimonial domicile, it cannot be changed during the subsistence
of the marriage. The
advantage of the immutability principle is that
it ensures that the husband cannot disadvantage his spouse, by
shifting his domicile
to a place where the wife’s proprietary
position is weaker.’
[see also Sperling
at 716H.]
[12] Forsyth at 131
also states that:
‘The
courts…have been prepared to recognize that a propositus (i.e.
an immigrant) can acquire a domicile of choice
even when his
residence within South Africa is dependent upon a temporary residence
permit revocable at the whim of a Minister
of State.’
[13] The parties are
ad idem that:
‘The onus of
proving that a domicile of choice has been acquired rests on the
party who asserts it and this onus is discharged
by a preponderance
of probabilities.’
[Eilon v Eilon
1965
(1) SA 703
(A) at 719H; s 5 of the Act.]
Relevant facts
relating to the respondent’s domicile at the date of marriage
[14] The facts which
are common cause, or appear from the objective documents, are as
follows:
14.1 In early 2004
(i.e. two years before the marriage) the respondent purchased the
farm D….. Near O……...
It has served as his
permanent home since that date and was also the matrimonial home
before the parties separated. After D………
was
purchased the respondent bought another five properties, three of
which also appear to have been purchased before the marriage;
14.2 According to
the respondent, the parties decided to raise their children in South
Africa, at least until they were much older.
J……. was
born in July 2004, 20 months before their marriage;
14.3 Although the
respondent owns properties which he rents out in Germany, he last had
a home in Germany long before the marriage;
14.4 On 12 August
2003 (some 2½ years before the marriage) the respondent’s
German tax advisor provided a certificate
of his income and assets
for presentation to the South African authorities for purposes of
immigration to this country;
14.5 In a letter to
the applicant dated 24 November 2013 (two months before the applicant
instituted divorce proceedings) the respondent
wrote that he had
never wanted to separate from her ‘which is why I never entered
into any agreement to protect myself…I
want you to do
everything possible so that we don’t lose our farm and
apartments through the divorce’. The apartments
to which the
respondent refers are all located outside of South Africa;
14.6 The respondent
did not return to Germany, even for a holiday, between the date of
his arrival in South Africa in late 2002
and the date of the marriage
in February 2006. He has subsequently travelled only twice to
Germany, once for a holiday of three
weeks in 2008 and on another
occasion for medical treatment for a month in 2010. In a rule 43
application in the current divorce
proceedings the respondent sought
leave to take the children on holiday to Germany during June 2014. In
his supporting affidavit
he alleged that he merely wished the
children to accompany him on what might be his last trip to Germany,
given his advanced age
and medical condition;
14.7 The respondent
suffers from a skin condition, which he had prior to the marriage,
and which, on his own version, contra-indicated
a return to the
colder climate of Germany on a permanent basis;
14.8 Since his
arrival in South Africa the respondent’s residence status has
been both valid and lawful, first under temporary
visitors visas and
thereafter under ‘business permits’ from at least March
2006, i.e. a month after the marriage. According
to the respondent,
the business visas were valid for two years at a time and were
renewed about five times before he decided to
apply for permanent
residency during 2010. Such permanent residency was granted to him
during 2013;
14.9 During 2013 the
respondent consulted an attorney, Mr Roux, and the latter recorded
his instructions (in a letter which the
respondent himself handed to
the applicant) that the parties are married in community of property
and that:
‘It appears
from the factual position and circumstantial evidence that it was the
intention of both parties to be bound by
the marriage in community of
property, governed by the South African legal system. You have
confirmed that it is not your intention
to move back to Germany.’
[15] The
respondent’s protestations and attempts to explain away this
overwhelming evidence in the applicant’s favour
ring hollow. He
claims that he has a limited understanding of the English language
and that he has not understood many of the objective
documents
provided by the applicant, some of which he also claims to have been
entirely unaware. This is not the pattern of a man
who, on his own
version, has built up a substantial estate comprising a number of
immovable properties both locally and abroad;
who has travelled
extensively throughout the world; who has a son in Germany who
collects and forwards to him all relevant mail
received; and who has
had no difficulty in deposing to a number of affidavits in English
during the course of the litigation between
the parties. He has also
now lived in South Africa for 12 years.
[16] Further, on his
own version, although remaining permanently in South Africa might not
have been agreed upon in terms, remaining
in South Africa for an
indefinite period, and at least until the children (one of whom had
already been born at the time of the
marriage) were much older, was
indeed agreed. This is borne out by the events subsequent to the
marriage which the respondent is
unable to meaningfully refute. He
relies on the fact that he retained his yacht, berthed in K…...
for a period after his
arrival in South Africa. However, if as he
alleges, he intended to only remain in South Africa for a short
period and then sail
on to Brazil, there would have been no point in
him having purchased a berthing slot for his yacht for R70 000 even
before the
applicant fell pregnant with J......, or to execute a
notarial contract under South African law to cater for the financial
consequences
of his ‘spousal relationship’ with the
applicant in January 2004, i.e. two years before the marriage. The
yacht itself
was sold in 2009.
[17] In addition,
the best which the respondent could proffer regarding the letter from
attorney Roux is a denial that he furnished
any such instructions to
him; and that ‘properly read it contains the legal opinion of
attorney Roux and his advice to me
in contemplation of divorce and
ancillary litigation’. The respondent claimed that he did not
know which ‘factual position
and circumstantial evidence’
attorney Roux took into consideration when he formed his opinion. In
a separate affidavit attorney
Roux maintains that the advice
furnished to the respondent was on the assumption that the parties
are married in community of property,
and that he did not have any
specific instructions to that effect. This is not what is to be
expected of an attorney furnishing
advice to his or her client. In
addition, the letter itself bears only two handwritten amendments in
the respondent’s handwriting.
The one records the date of the
marriage and the other corrects attorney Roux’s recordal of his
instruction that the parties
had been married for more than 14 years.
The respondent deleted ‘14’ and replaced it with ‘7’.
There is
not even a suggestion on the letter itself that attorney
Roux had misunderstood his instructions or had in any way furnished
incorrect
advice. The respondent had obviously read the letter (which
was written in English) carefully; the handwritten amendment relating
to the length of the marriage appears towards the end of the letter.
There is also no suggestion that the respondent sought clarity
from
attorney Roux about any of its contents after he had received it.
[18] Having regard
to the aforegoing and applying the now trite Plascon-Evans rule
(Plascon-Evan Paints Ltd v Van Riebeeck Paints
(Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA
623
(AD) at 634E-635C), I am persuaded that the applicant has shown,
on a balance of probabilities, that at the date of the parties’
marriage, the respondent intended to remain, at least indefinitely,
in South Africa. Accordingly, the applicant has shown that
the
respondent was domiciled in South Africa at the time and that the
parties are thus married in community of property.
Costs
[19] The parties
have agreed that each shall pay their own costs in respect of the
postponement on 2 September 2014. As far as the
remaining costs are
concerned, there is no reason why they should not follow the result.
Conclusion
[20] Accordingly the
following order is made:
1. It is declared
that the marriage between the parties is governed by South African
law, that such marriage is in community of
property, and that the
patrimonial consequences of a marriage in community of property will
follow upon the divorce of the parties,
subject to the right of the
respondent/defendant to contend and claim, during the hearing of the
divorce proceedings, that the
applicant/plaintiff should forfeit the
benefits of the marriage in community of property;
2. 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.
J I CLOETE