MANDLBAUR v MANDLBAUR 1983 (1) ZLR 26 (H)

Flynote

Husband and wife — Matrimonial Causes Act [Chapter 39] — section 12(1)(c) — wife a citizen of and "ordinarily resident" in Zimbabwe — meaning of — "commencement of the action" — meaning of — High Court (General Division) Rules 1971 — Order 3 Rule 9(1).

Headnote

The plaintiff wife sought a divorce from her defendant husband on various grounds. While not opposing the divorce as such, he averred that the Court had no jurisdiction in the matter, in that she had left Zimbabwe for South Africa in September 1980 and became a resident of that country. She in turn asserted that the Court had jurisdiction in terms of section 12(1)(c) of the Matrimonial Causes Act [Chapter 39] in that, at the time of commencement of the action, she was a citizen of Zimbabwe and immediately preceding the commencement of the action had been ordinarily resident in Zimbabwe for a period of not less than four years and was still residing there.

Right at the beginning of the proceedings Mr Grossman, for the plaintiff, indicated the plaintiff had committed adultery and applied for condonation of that adultery. In her evidence she alleged that the defendant was living with another woman who had approached her and had indicated that she

She had been registered as a citizen of Zimbabwe in December 1981. A summons had been issued in April 1980 but was only served on the defendant, who was resident in South Africa, in January 1982.

The parties had been married in Johannesburg in 1965 and moved to Rhodesia in 1967, where they bought a house. In 1978 the defendant, in order to avoid being called up for military service during the war then taking place in Rhodesia (now Zimbabwe), decided to live in South Africa. He went there but they remained in Salisbury (now Harare) until April 1979. The whole family then went to Durban for a holiday and after that stayed in Johannesburg. In December 1979 the Plaintiff returned to Salisbury with the children and while in Rhodesia heard of the death of her father in Europe, where she went, returning in April 1980. Since that time she had lived in Salisbury with the two younger children of the marriage.

Held, that where, as here, the Plaintiff had left her domicile of choice without any intention of settling in another country permanently, she could not be said tohave abandoned that domicile.

Held, further, that since the service of the summons commencing the action had to be effected in South Africa, the action commenced only when the process was served, by virtue of Order 3 Rule 9(1) of the High Court (General Division) Rules, 1971. Accordingly,

the Plaintiff was a citizen of Zimbabwe at the time of commencement of the action. Held, further, that apart from the facts already mentioned, the Plaintiff, by applying for citizenship, had formed the intention necessary for acquiring a domicile of choice which excluded all contemplation of any event on the occurrence of which her residence inZimbabwe would cease.