KUNG v KUNG 2008 (2) ZLR 170 (S)

Flynote

Family law — husband and wife — divorce — jurisdiction — domicile — domicile of choice of husband — requirements for acquisition of domicile of choice — intention to acquire domicile of choice — no basis for a distinction between a strong and a weak intention — stated desire to retain Zimbabwe as country of domicile — cannot prevail over clear indications to the contrary

Practice and procedure — matrimonial action — divorce — jurisdiction of court to entertain divorce cases — domicile of husband — entitlement of court to consider such domicile mero motu

Headnote

There are three requirements for the acquisition of a domicile of choice. They are:

• (1) the factum of residence;
• (2) the animus manendi, or intention of remaining permanently; and
• (3) the freedom of volition.

In divorce proceedings before the High Court, the judge mero motu considered the question of the appellant's domicile at the time he commenced divorce proceedings in January 2003. The evidence revealed that the parties had been married in 1999 and had initially lived in Harare. However, in the middle of 2002, the appellant had left Zimbabwe in order to live in South Africa.

He had divested himself of all his assets in Zimbabwe, had bought a house in South Africa and commenced employment there. His evidence was that he was moving "backwards and forwards" between these countries but he was not specific as to how often this was. He also said that he intended to come back to Zimbabwe should the economic situation improve. In the result, the High Court found that the appellant had adopted South Africa as his domicile of choice at the time he had instituted proceedings. It therefore decided that it had no jurisdiction to entertain the action.

On appeal to the Supreme Court, it was argued on behalf of the appellant that in determining the animus manendi for the purpose of ascertaining his domicile of choice, a distinction had to be made between a "weak"intention and a "strong" intention.

Held, that the judge was correct, in the circumstances, in considering mero motu the question of the appellant's domicile.

Held, further, that the acquisition of a domicile of choice is proved on a balance of probabilities. It cannot be qualified on the basis of a "weak" or "strong" intention. To do so would be akin to applying a test higherthat a balance of probabilities.

Held, further, that to suggest, as the appellant did, that he intended to return to Zimbabwe, should the economic situation improve, was based on some vague, improbable contingency and did not help his case.

Held, further, dismissing the appeal, that while the appellant stated that he wished to retain Zimbabwe as his country of domicile, this statedintention could not prevail over clear indications to the contrary (Howard v Howard 1996 RLR 182 (G) followed).