DE JAGER v DE JAGER 1998 (2) ZLR 419 (H)

Flynote

Family law — husband and wife — divorce — jurisdiction — domicile — husband an alien residing by virtue of temporary residence permit — not domiciled in Zimbabwe — marriage celebrated in Zimbabwe and wife having resided continuously for two years before commencement of action — court having jurisdiction to determine matter

Headnote

The defendant husband in a divorce action was a New Zealander who resided in Zimbabwe by virtue of a temporary residence permit. The parties were married in Zimbabwe in 1993, lived outside Zimbabwe until June 1996, then resided in Zimbabwe. In his affidavit, the husband stated that he was not domiciled in Zimbabwe. The court mero motu raised the question of whether it had jurisdiction to hear the matter.

Held, that domicile is a question of fact, and the facts giving rise to domicile must be placed before the court. A person is domiciled in the place which he regards as his permanent home, which is not necessarily where he resides. The husband was not domiciled in Zimbabwe.

Held, further, that the wife was ordinarily resident in Zimbabwe and had been so for more than two years before the commencement of the action. By virtue of s 3(1)(b) of the Matrimonial Causes Act, the court in this situation had jurisdiction, even though the husband was not domiciled here.