WHITBY v WHITBY 2012 (2) ZLR 386 (H)

Flynote

Family law — husband and wife — divorce — domicile — loss of — when domicile lost — Immigration Act [Chapter 4:02] — application of in determining whether domicile lost

Headnote

The plaintiff brought an action in the High Court for divorce. She and the defendant were married in Zimbabwe in 2007. They had both left Zimbabwe in 2002 and were living in the United Kingdom. They only came back to marry in Zimbabwe as the plaintiff's parents were still living in Zimbabwe and wanted to attend the wedding. The defendant was born in Zimbabwe but emigrated in 2002 and had been permanently resident in England ever since. He had acquired Portuguese citizenship. When the parties came to Zimbabwe on holiday in 2011 they entered as visitors and obtained visas. The defendant pleaded in bar that the court had no jurisdiction to determine the case as he was not domiciled in Zimbabwe. Held, that in law one can only have one domicile at a time. A person loses his domicile of origin when he acquires a domicile of choice. The issue of domicile is factual and can be determined by the facts of each case. Domicile is not the same as residence. As distinct from residence, domicile does not only involve a physical element. There is also a mental element consisting of an intention to settle in a certain country. Domicile is the place which is or which the law considers to be the permanent home of a person. Two principles flow from this: every person must have a domicile and no person can have more than one domicile at a particular time, although a person may be homeless or have more than one residence.

Held, further, that where the facts on which the issue of domicile is to be determined involve immigration or emigration, one has to consider the provisions of the Immigration Act [Chapter 4:02] to determine whether such immigration has established a domicile of choice, or whether such emigration has caused the loss of a domicile of origin. In such circumstances, the Act is of critical importance in determining whether or not one is domiciled in Zimbabwe. The facts of the defendant's departure from Zimbabwe fell within the provisions of s 3(4)(a)(i) and (ii) of the Act. He voluntarily left Zimbabwe in 2002 and had since that time been residing in England, where he intended to reside permanently. He departed with an intention of making his home outside Zimbabwe. In terms of s 3(4)(a)(ii) a person loses his domicile in Zimbabwe if he is absent from Zimbabwe for a continuous period of five years for purposes other than those referred to in s 3(5). The defendant had been absent from Zimbabwe for more than five years, for purposes other than those referred to in s 3(5). The defendant had lost his domicile in Zimbabwe and the court had no jurisdiction.