The Facts: From Cape Town to the Netherlands and Back Again
The plaintiff and defendant met in the Western Cape in 2016. Their relationship progressed quickly, with the couple moving in together at the plaintiff’s parents’ home in Cape Town in March 2017. By June 2020, they had relocated to a house in Constantia, a property owned by a company in which the plaintiff held a directorship, with shares held by a trust of which she was a beneficiary. The parties married on 9 April 2022, and their daughter was born on 19 May 2023.
From the outset, both parties agreed they wanted to live abroad after having children. However, a critical dispute emerged about whether this agreement contemplated temporary residence abroad or permanent emigration. This seemingly semantic difference would ultimately determine whether the Western Cape High Court had jurisdiction to hear the plaintiff’s divorce action.
The relationship between the defendant and the plaintiff’s extended family deteriorated dramatically during a family holiday to Mauritius in 2022, when the plaintiff was pregnant. Following this trip, the defendant wrote what the plaintiff described as “vile”, “vicious” and “hideous” letters to her extended family. The plaintiff’s father testified that the contents were “indescribable” and contained “disgusting stuff”, with the defendant calling people things that were “just beyond”. This caused a complete breakdown in relations between the defendant and the plaintiff’s family, with no contact in the immediate aftermath.
The plaintiff’s father attempted reconciliation, suggesting that family members and the defendant meet to resolve matters, which he viewed as “not insurmountable”. The defendant refused, and the situation escalated. The fallout resulted in the plaintiff’s father making the difficult decision to exclude the defendant from the family’s December 2023 Christmas holiday. The defendant, in turn, refused to allow the plaintiff and their daughter to attend. A “reunification mediation” was attempted in February 2024, but this ended when the defendant walked out of a session attended by the plaintiff, the defendant and the plaintiff’s parents.
By August 2024, the marriage had become, in the plaintiff’s words, “really rocky”. The plaintiff’s uncontested evidence, supported by her long-time friend Ms Lemkus and her father, painted a picture of the defendant becoming increasingly controlling, particularly regarding the family’s access to the parties’ daughter and the plaintiff’s ability to socialise freely with friends. The plaintiff began considering leaving the marriage and consulted her sister-in-law about doing so.
On 1 August 2024, the plaintiff and her daughter left the common home. The defendant pleaded with the plaintiff not to leave him, saying he was in “such a dark place”. The plaintiff returned after two nights because she feared for the defendant’s safety and was concerned he might attempt suicide. Her concern was grounded in the defendant’s previous acts of self-harm, including drinking bleach, stabbing himself, hitting himself in the head with a frying pan, and threatening suicide if the plaintiff left him. The plaintiff also testified that she wanted to try to make the marriage work for their daughter’s sake.
On the advice of her sister-in-law, the plaintiff wrote to the defendant on 6 August 2024, setting out non-negotiable and negotiable aspects of their relationship. Her non-negotiables included being able to visit her parents with their daughter regardless of who was present, being able to visit her mother “without feeling like I can’t breathe and need to rush home”, and being able to join family events no matter who was present. This letter triggered a lengthy conversation on the same day, with the move to the Netherlands becoming the focus.
The transcript of this conversation revealed several critical points. Although the plaintiff was reluctant to move to the Netherlands, she ultimately agreed to do so because she loved the defendant, wanted to keep their immediate family together, and wanted their daughter to have her father. However, one of her express concerns was that if the relationship ended, she would be stuck in the Netherlands and unable to return to South Africa with her daughter. The defendant assured her that if “we break up or whatever, you will come back with the dogs… and you will live here” with their daughter.
In June 2024, the parties had travelled to Italy, Portugal and the Netherlands, partly to decide whether to move to the Netherlands or Portugal. The defendant, with the plaintiff’s knowledge and consent, attended job interviews in both countries. He was ultimately offered a position in the Netherlands, which he accepted with the plaintiff’s agreement. The job commenced on 1 September 2024, with the defendant initially working remotely from Cape Town.
Before leaving South Africa, the plaintiff told her father in October 2024 that she intended to give the Netherlands a trial period. Although she had a six-month period in mind, she could not recall whether she told her father the specific timeframe. Her purpose was to allay his concerns about her moving in circumstances where her marriage was under pressure, the defendant’s relationship with her family had broken down, and she could end up isolated and stuck in the Netherlands. The plaintiff’s father’s uncontested evidence was that his conversation with his daughter left him understanding that if the trial did not work, she would return to South Africa in one, two or three months.
The plaintiff’s long-time friend, Ms Lemkus, testified that the plaintiff told her the move was “to test it out, see what the Netherlands was like, give it six months, and then make a call, reassess and make a call”. This was corroborated by a contemporaneous WhatsApp message Ms Lemkus sent to the plaintiff’s mother in early January 2025, shortly before the move, stating that the plaintiff had “a timeline to reassess how things are going on that side”. Ms Lemkus also testified that another friend had suggested the plaintiff obtain a document from the defendant allowing her to return to South Africa. When asked the day before departure whether she had such a document, the plaintiff responded that she was working on it. No such document was ever signed.
Critically, the plaintiff admitted under cross-examination that she did not expressly tell the defendant that she was moving to Amsterdam for a trial period or for a set period. This admission was consistent with the absence of any reference to a trial period in the transcript of the 6 August 2024 conversation. Her explanation was that she wanted to avoid a serious confrontation with the defendant that might have arisen had she disclosed this.
The plaintiff’s arrangements before leaving South Africa were telling. She did not alter her affairs in any manner consistent with an intention to leave permanently or indefinitely. The Constantia house was rented out rather than sold. She retained her South African tax residency, her South African bank accounts which she continued to use, her South African medical practitioners, her Vodacom account and South African mobile telephone number, and her supermarket loyalty cards and pharmacy accounts. In contrast, the defendant’s uncontested evidence was that he arranged his affairs consistent with a permanent move, including resigning from his South African employment, stopping medical aid and retirement annuity contributions, and cashing out his investments.
The parties left for the Netherlands on 17 January 2025. Once there, they took out medical insurance, rented a property, attended a “Moms and Tots Group” with their daughter, and enrolled her in both a play school and a primary school. For the first few months, the parties were happy. However, the previous conflicts resurfaced after the plaintiff’s mother visited towards the end of March 2025. This was the point of no return.
The plaintiff moved out of the rented accommodation on 14 April 2025 and instituted divorce proceedings in the Western Cape High Court in mid-April 2025. The defendant defended the action and raised a special plea in abatement, arguing that the court lacked jurisdiction because the plaintiff, defendant and their daughter had been domiciled in the Netherlands since January 2025.
The Special Plea: Does a “Trial Period” Defeat Domicile of Choice?
The defendant’s special plea in abatement turned on a deceptively simple question: did the plaintiff acquire a domicile of choice in the Netherlands when she moved there in January 2025, thereby depriving the Western Cape High Court of jurisdiction to hear her divorce action?
Section 2(1)(a) of the Divorce Act, 70 of 1979 provides that a court has jurisdiction “if the parties or either of the parties is domiciled within the area of jurisdiction of the court on the date on which the action is instituted”. The plaintiff therefore needed only to establish that she was domiciled within the court’s jurisdiction when she instituted proceedings to establish jurisdiction. It was common cause that the plaintiff’s domicile of origin was within the Western Cape High Court’s jurisdiction.
Under section 3(1) of the Domicile Act, 3 of 1992, the plaintiff could not in law lose her domicile of origin until she acquired another domicile by choice. The special plea therefore turned entirely on whether the plaintiff acquired a domicile of choice in the Netherlands in January 2025 or at any time prior to instituting divorce proceedings.
Section 1(2) of the Domicile Act provides that a 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. This requires proof of two elements: residence within the jurisdiction in question, tested objectively, and an intention to settle within that jurisdiction indefinitely, tested subjectively. The Chinatex Oriental Trading Co v Erskine 1998 (4) SA 1087 (C) case, cited with approval in OB v LBDS 2021 (6) SA 215 (WCC), confirmed this objective and subjective distinction.
It was common cause that the plaintiff and defendant resided in the Netherlands when the divorce proceedings were instituted. The entire dispute therefore centred on whether the plaintiff intended to settle there for an indefinite period when she moved on 18 January 2025.
The onus of proving that the plaintiff acquired a domicile of choice in the Netherlands rested on the defendant. This was because the defendant asserted that the plaintiff acquired such a domicile when she moved. The authority for this principle is Eilon v Eilon 1965 (1) SA 703 (A). Section 5 of the Domicile Act required the defendant to discharge this onus on a balance of probabilities.
By agreement between the parties, the special plea was determined separately from the remainder of the divorce action in terms of Rule 33(4) of the Uniform Rules of Court.
The court heard evidence from four witnesses: the plaintiff, Ms Lemkus, the plaintiff’s father Mr S, and the defendant. A central factual dispute emerged about whether the parties’ pre-existing agreement to live abroad after having children meant they would live abroad temporarily, as the plaintiff contended, or would emigrate and live abroad permanently, as the defendant contended.
The plaintiff was cross-examined extensively on this issue. She consistently denied that there was ever an agreement to leave South Africa permanently, testifying that the defendant’s use of the word “emigrate” was used loosely to mean “live abroad”. In contrast, the defendant testified that the agreement was to leave South Africa permanently after having children.
Significantly, the defendant was not cross-examined at all on his evidence regarding this alleged agreement to emigrate permanently. Miller AJ noted that he would return to this issue and the consequences of the plaintiff’s failure to cross-examine the defendant on this evidence.
The plaintiff’s case rested on her evidence that she moved to the Netherlands for a trial period to see if the marriage could be saved. She was cross-examined extensively on this point. She fairly admitted that she did not expressly tell the defendant that she was moving for a trial period or for a set period. This admission was consistent with the absence of any reference to a trial period in the transcript of the crucial 6 August 2024 conversation between the parties.
However, her evidence was corroborated by what she told her father and Ms Lemkus before leaving, and by the contemporaneous WhatsApp message from Ms Lemkus to the plaintiff’s mother. The plaintiff also testified that even if the trial period had been successful, the maximum period she would have stayed in the Netherlands was two years, to mirror the happy two-year period she had spent abroad as a nine-year-old child. The defendant disputed this evidence.
The defendant’s counsel argued that the plaintiff’s failure to inform the defendant about the trial period was fatal to her case. If her true intention was to move temporarily, it would be inconceivable that she would not tell her husband this when it was clear he was packing up his life in Cape Town and leaving permanently. The plaintiff’s explanation was that she wanted to avoid a serious confrontation with the defendant.
The question before Miller AJ was whether, on these facts and applying the correct legal test for animus manendi under section 1(2) of the Domicile Act, the defendant had discharged the onus of proving that the plaintiff intended to settle in the Netherlands for an indefinite period.
Animus Manendi Under the Domicile Act: Contingencies, Foreseeability and the Pollak Test Revisited
Miller AJ embarked on a comprehensive analysis of the animus requirement to establish a domicile of choice, tracing its development through common law and examining its current formulation under the Domicile Act. The learned Acting Judge noted that the animus requirement has a long and rich history in South African law, with the central question always being the degree of permanence required to establish the necessary intention to acquire a domicile of choice.
Prior to the enactment of the Domicile Act, the seminal case of Johnson v Johnson 1931 AD 391 adopted the views of Westlake, an English academic, holding that “all contemplation of any event on the occurrence of which the residence would cease” excludes the intention required to acquire a domicile of choice. De Villiers CJ, delivering the majority judgment, held that Westlake’s view accorded with Voet’s propositum illic perpetuo morandi and thus with Roman-Dutch common law.
The Johnson case formulation was subsequently refined in Ley v Ley’s Executors 1951 (3) SA 187 (A). Centlivres CJ distinguished between contemplation of a change of residence and mere speculation about such a change. The Chief Justice explained that if a person’s state of mind is “I may settle here permanently, and anyhow I’ll stay for a time; but perhaps I’ll move to another country”, the intention required to establish a domicile is not present. However, if the state of mind is “I shall settle here”, that suffices, even though the person might say “never is a long day. Who knows? I might move if I change my mind or if circumstances were to change.”
The critical distinction drawn in the Ley case was that any doubt actually present to a person’s mind as to whether he will move or not will exclude the intention to settle permanently, but the possibility that if the idea of a future move had been suggested he might not at once have rejected it does not amount to contemplation of an event on which residence would cease. Only the former has to be disproved by the person alleging a change of domicile.
As Schoeman noted in her article “Domicile of choice and animus: How definite is indefinite?” published in the 1999 Tydskrif vir Hedendaagse Romeins-Hollandse Reg, this dictum meant that the required animus would only be defeated by genuine doubt about the permanence of a person’s stay in the country in question. This qualified what constituted “any event” in the Westlake test adopted in Johnson in the sense that it includes the contemplation of an event that will not necessarily occur but which was definitely contemplated.
The development of the common law culminated in the Eilon case. Potgieter AJA, writing the majority judgment, held that it seemed quite clear that the words “excludes all contemplation” in Johnson could never mean and were never intended to mean that the person in question has excluded from his or her mind all possibility that in future he or she might leave the country. In other words, the intention of permanent residence was not excluded if it was contingent on an unforeseen event.
The seminal dictum in Eilon provided that the onus of proving a domicile of choice is discharged once it is proved that the person had at the relevant time a fixed and deliberate intention to abandon his previous domicile and to settle in the country of choice. Critically, a contemplation of any certain or foreseeable future event on the occurrence of which residence in that country would cease excludes such an intention. If he entertains any doubt as to whether he will remain or not, intention to settle permanently is likewise excluded.
Miller AJ noted that the Eilon case marked the end of the common law development of the animus requirement. The enactment of the Domicile Act was preceded by a report on domicile by the South African Law Commission in March 1990. After considering the cases referred to above, the views of leading academic writers including Kahn, Forsyth and Pollak, and the position under English law and other foreign jurisdictions, the Commission recommended that the legislature adopt the third meaning ascribed to the animus requirement by Pollak, namely “the intention to reside in a country for an indefinite period”.
Pollak’s views emanated from his article titled “Domicile” published in the 1933 South African Law Journal. As part of his analysis of the animus manendi requirement, Pollak identified four types of intention regarding future residence: an intention to reside in the country for a definite period and then leave; an intention to reside until a definite purpose is achieved and then leave; an intention to reside for an indefinite period, meaning until and unless something, the happening of which is uncertain, occurs to induce the person to leave; and an intention to reside in a country forever.
Pollak stated that the first two types of intention are clearly insufficient to constitute animus manendi, while the fourth type is obviously sufficient. Differences of opinion existed in respect of the third type. The legislature accepted the Law Commission’s recommendation and incorporated the first part of Pollak’s third meaning of intention in section 1(2) of the Domicile Act, providing that the test for requisite intention is having “the intention to settle there for an indefinite period”. Significantly, however, the legislature did not include Pollak’s tag explaining what “indefinite period” meant.
Forsyth, in Private International Law, fifth edition, described the adoption of Pollak’s third type of intention in the Domicile Act as a “great advance”. The version of Pollak’s third type of intention, including the tag, received judicial support in the OB v LBDS case, which stated that the most apt description of an intention to reside in a particular place for an indefinite period for purposes of section 1(2) of the Domicile Act is “until and unless something, the happening of which is uncertain, occurs to induce the person to leave”.
Miller AJ identified a crucial question: how does the tag to Pollak’s third type of intention square with the test for requisite intention as per Potgieter AJA’s dictum in Eilon? Although section 1(2) of the Domicile Act requires an intention to settle “indefinitely” rather than “permanently” as per Eilon, the remainder of the dictum in that case remains applicable and good law to determine whether a person has met the requirements of section 1(2).
The trigger for this question was the fact that the tag in Pollak’s formulation does not contain any reference to the foreseeability of the uncertain event. Miller AJ noted that the answer to this question was important to the present case. On the assumption that the plaintiff’s trial move to the Netherlands was not for a fixed period, then she moved for an open-ended or indefinite period. The success or failure of the trial period was an uncertain event. On this test, it would appear the plaintiff had the requisite intention under section 1(2) to acquire a domicile of choice in the Netherlands.
However, as a result of the precarious state of the relationship, the plaintiff had doubts about whether the trial period would succeed or fail. On the assumption that she intended to return to Cape Town if the trial failed, then on the test in Eilon, she would not have the requisite intention to have acquired a domicile of choice. The absence of any element of foreseeability regarding the uncertain event in the Pollak test meant it was at odds with Eilon, and this mattered.
Miller AJ observed that in the footnote to the third type of intention, Pollak referred to and quoted the test for requisite intention set out in the old English law case of Lord v Colvin S.C 28 L.J Ch 361: “That place is properly the domicile of the person in which he has voluntarily fixed the habitation of himself and his family, not for a mere special purpose, but with a present intention of making it his permanent home, unless and until something (which is unexpected, or the happening of which uncertain) shall occur to induce him to adopt some other permanent home.”
Pollak did not explain why he omitted to include “unexpected” in his definition of the third type of intention. Regardless of whether this omission was intentional or in error, Miller AJ found no cogent reason in principle for the omission. Including “unexpected” in the definition was material. If a person’s intention is that he or she would be induced to leave a country on the occurrence of an expected event, the requisite intention to acquire a domicile of choice would be absent. The inclusion of “unexpected” would also align Pollak’s test with the test in Eilon, as an expected event is necessarily foreseeable.
Miller AJ concluded that the OB v LBDS case did not intend to, or did, alter the law in respect of the test to be applied to determine whether a person has acquired a domicile of choice in terms of section 1(2) of the Domicile Act.
The learned Acting Judge then turned to English law, noting that South African courts have a long history of drawing on helpful learning from English law on the test for acquiring domicile of choice. Re Fuld (No 3) [1968] P 675 held that a domicile of choice is acquired when a man fixes voluntarily his sole or chief residence in a particular place with an intention of continuing to reside there for an unlimited time.
IRC v Bullock held that the expression “unlimited time” required further definition. Buckley LJ provided an example: a man might move to another country because he had obtained employment there without knowing how long that employment would last but without intending to reside there after ceasing to be so employed. Whilst his prospective residence in that country would be “indefinite”, it would not be “unlimited” in the relevant sense.
Regarding the intention to return to one’s domicile of origin on the happening of an event or contingency, the Re Fuld case held that the domicile of origin adheres unless displaced by satisfactory evidence of the acquisition and continuance of a domicile of choice. A domicile of choice is acquired only if it is affirmatively shown that the person is resident in a territory subject to a distinctive legal system with the intention, formed independently of external pressures, of residing there indefinitely. If a man intends to return to the land of his birth upon a clearly foreseen and reasonably anticipated contingency, such as the end of his job, the intention required by law is lacking. However, if he has in mind only a vague possibility, such as making a fortune or winning a football pool, or some sentiment about dying in the land of his fathers, such a state of mind is consistent with the intention required by law.
The Re Fuld case emphasized that no clear line can be drawn; the ultimate decision in each case is one of fact, concerning the weight to be attached to the various factors and future contingencies in the contemplation of the person, their importance to him, and the probability, in his assessment, of the contingencies he has in contemplation being transformed into actualities. This statement of law was approved in Agulian & Anor v Cyganik [2006] EWCA Civ 129.
In the IRC v Bullock case, Buckley LJ held that where the contingency is not itself of a doubtful or indefinite character, bearing in mind that it is characteristic of a contingency that it is doubtful whether that event will or will not occur, the question is whether there is a sufficiently substantial possibility of the contingency happening to justify regarding the intention to return as a real determination to do so on the contingency occurring rather than a vague hope or aspiration.
Dicey, Morris & Collins, The Conflict of Laws, sixteenth edition, summarises the position under English law regarding acquisition of a domicile of choice and contingencies. A person who determines to spend the rest of their life in a country clearly has the necessary intention even though he or she does not consider that determination to be irrevocable. However, it is rare for the animus manendi to exist in this positive form; more frequently a person simply resides in a country without any intention of leaving it, and such a state of mind may suffice for acquiring a domicile of choice. The fact that a person contemplates that he or she might move is not decisive: thus a person who intends to reside in a country indefinitely may be domiciled there although he or she envisages the possibility of returning one day to their native country.
If they have in mind the possibility of such a return should a particular contingency occur, Dicey, Morris & Collins explains, the possibility will be ignored if the contingency is vague and indefinite, for example making a fortune or suffering some ill-defined deterioration in health. However, if it is a clearly foreseen and reasonably anticipated contingency, such as termination of employment, the offer of an attractive post in the country of origin, succession to entailed property, a change in relative taxation levels between two countries, or the death of one’s spouse, it may prevent acquisition of a domicile of choice. If a person intends to reside in a country for a fixed period only, they lack the animus manendi, however long that period may be. The same is true where a person intends to reside in a country for an indefinite time but clearly intends to leave the country at some time.
Miller AJ identified three important points to draw from English law relevant to determination of the case. First, if a person moves to another country for an indefinite or open-ended period, this does not mean the person acquires a domicile of choice in that country in circumstances where he or she intends to return to his or her country on the happening of an event. Second, foreseeability of an event or contingency that would cause a person to leave a country plays a central role in determining whether a person intends to reside in that country indefinitely and thereby acquires a domicile of choice. Third, where a person says that he or she intends to return to his or her domicile of origin on the occurrence of a contingency, this will be ignored where the contingency itself is vague and indefinite. It will, however, be taken into account, along with other relevant facts, where the contingency is clearly foreseen and reasonably anticipated or there is a sufficiently substantial possibility of the contingency happening to justify the intention to return.
Miller AJ held that these three points are consistent with Potgieter AJA’s dictum in Eilon and with Pollak’s third type of intention, subject to the rider that it includes the word “unexpected” in the tag. As a result, one can apply them to determine the case.
The learned Acting Judge then turned to contingency cases in South African law. The Domicile Act is silent about contingencies, which Schoeman suggested raises the question whether they are relevant to the animus requirement at all. With reference to Ricketts v Ricketts 1929 EDL 221 and Quayle v Quayle 1949 SR 203, she concluded that there seem to be very few contingencies, if any, which should be considered seriously.
The question in Ricketts was whether the defendant had acquired a domicile of choice in Cape Town or whether he was domiciled in Port Elizabeth. Based on an admission by the defendant that he would have no hesitation moving to Port Elizabeth or elsewhere if offered more lucrative employment, the court found that the defendant was domiciled in Port Elizabeth. However, Miller AJ noted that the Ricketts case pre-dated both Ley and Eilon and does not apply the principles regarding contingencies set out above. No relevant conclusions about contingencies in South African law can be drawn from that case.
The question in Quayle was whether the defendant retained his domicile of origin in England or acquired a domicile of choice in Southern Rhodesia. The defendant’s evidence was that when he moved back to Southern Rhodesia he had mental reservations that he only intended to settle permanently provided the marriage was successful and that he always contemplated the possibility that the marriage might break down, in which case he would return to England. Based on various objective contemporaneous facts, including the contents of letters and an application for assistance premised on entering Southern Rhodesia on a permanent basis, the court rejected the defendant’s evidence on the facts. Miller AJ noted that the enquiry and analysis of the evidence in Quayle is consistent with the position that contingencies have a role to play in determining whether a person had the requisite intention to acquire a domicile of choice.
Miller AJ concluded that the fact that the Domicile Act does not deal expressly with contingencies does not render them irrelevant in the enquiry into the animus requirement. It is evident from the legal principles set out that they can and do, in appropriate cases, form part of the inquiry into whether a person intended to settle in a country indefinitely. As a general proposition, Miller AJ disagreed with Schoeman’s conclusion that there seem to be very few contingencies, if any, which should be considered seriously. Each case must be decided on its own facts with reference to the governing principles.
The Court’s Findings: Why Relationship Uncertainty Negated Indefinite Settlement
Miller AJ commenced the application of the legal principles to the facts by accepting the plaintiff’s evidence that she moved to the Netherlands on a trial basis in an attempt to save her marriage. This finding was supported by cogent contemporaneous evidence. The plaintiff had told her father and long-term friend that she was moving on a trial basis. She had also made it clear to the defendant in the conversation on 6 August 2024 that if their relationship ended, she did not want to be stuck in the Netherlands and not be free to come back to South Africa. Although not stated in express terms, this, in the context of the issues in the parties’ relationship and the fact that the plaintiff had recently moved out of the common home, did imply a trial period.
The learned Acting Judge held that a move to the Netherlands on a trial basis in circumstances where the parties’ relationship was, at best, in a very precarious state, accorded overwhelmingly with common sense from the plaintiff’s perspective and therefore with the probabilities.
Miller AJ addressed the defendant’s reliance on the prior discussion or agreement that the parties would “emigrate” after having children. Although it was perhaps unfortunate that the defendant was not cross-examined on this issue, the court had both parties’ versions before it. The plaintiff’s version was that “emigrate” in this context meant live abroad temporarily rather than permanently, and the defendant’s version was that it meant to live abroad permanently. Both versions were logical and tenable. Miller AJ held that it was not necessary to resolve this issue in order to decide the case. Regardless of the content of the parties’ prior agreement, it was clear on the facts that when the plaintiff left for the Netherlands on 17 January 2025, she did so on a trial basis for the reasons already set out.
The court rejected the proposition that this conclusion was gainsaid by the fact that the plaintiff did in fact move to the Netherlands. That she did so does not itself erase the fact that she did so on a trial basis.
Miller AJ referred to the Cambridge Dictionary definition of “trial” as “a test, usually over a limited period of time, to discover how effective or suitable something or someone is”. This was precisely what the plaintiff did when she moved to the Netherlands. Although she did not have a clear and fixed time period for the trial in mind, the court accepted her evidence that it was for a relatively short period measured in months. The trial was therefore for a limited time period, albeit not a fixed one. As per the definition, the move to the Netherlands nevertheless remained for a trial period in these circumstances.
The critical conclusion reached by Miller AJ was that the fact that the plaintiff moved to the Netherlands for a trial period meant that she did not do so with the intention of settling there for an indefinite period in terms of section 1(2) of the Domicile Act. Expressed differently, she lacked the required animus manendi to acquire a domicile of choice in the Netherlands when she moved there or at any time prior to instituting the divorce proceedings.
In the context of the precarious state of the parties’ relationship, the fact that it might end and that the plaintiff would return to South Africa was unquestionably a “foreseeable future event on the occurrence of which residence in that country would cease” as per Eilon. In the language of the Re Fuld case, it was “a clearly foreseen and reasonably anticipated contingency” rather than a “vague possibility”. On Pollak’s test, as revised to include the word “unexpected”, this event was not unexpected.
Miller AJ held that there was, in the language of the IRC v Bullock case, a “sufficiently substantial possibility of the contingency happening” to justify regarding the plaintiff’s intention of returning to South Africa as a “real determination to do so on the contingency occurring rather than a vague hope or aspiration”. It also followed that the plaintiff had “doubts” as per Eilon whether she would remain in the Netherlands.
The learned Acting Judge held that his conclusion that the plaintiff lacked the requisite animus manendi was not, as per the IRC v Bullock case, undermined by the mere fact that the trial period was not fixed. In essence, this was because the plaintiff nevertheless intended to return to South Africa if the relationship ended, regardless of the fact that the trial period was an open-ended one.
Miller AJ’s conclusion that the plaintiff lacked the requisite animus manendi was also supported by other facts in the case: the plaintiff’s very close ties to her family in the Western Cape; the fact that she did not arrange her affairs on departure in a way that suggests that the move to the Netherlands was a permanent or indefinite one; the plaintiff had no other ties or connections to the Netherlands; and the fact that when the relationship did end, the plaintiff wanted to return to South Africa and did not do so because of the defendant’s refusal to permit their daughter to return with her.
For the sake of completeness, Miller AJ rejected the submission by the plaintiff’s counsel that the plaintiff’s move to the Netherlands was affected by compulsion and was effectively involuntary. This was never put to the defendant and the facts did not support it.
Although it was not necessary to decide the issue in light of the conclusions already reached, Miller AJ stated that he would have rejected the plaintiff’s evidence that she in any event intended to return to Cape Town after two years even if the relationship had not ended. There was no contemporaneous evidence to support this evidence. The plaintiff’s evidence that this was to recreate for her daughter the happy two-year period that she spent abroad as a nine-year-old child did not ring true given that the parties’ daughter was just over one and a half years old when they moved to the Netherlands and would have little, if any, memory of the experience.
Miller AJ found that the defendant had not discharged the onus of establishing that the plaintiff acquired a domicile of choice in the Netherlands when the divorce proceedings in the Western Cape High Court were instituted. It followed that the plaintiff retained her domicile of origin in the Western Cape, that the court therefore had jurisdiction in the divorce proceedings, and that the special plea failed.
On the question of costs, Miller AJ held that costs must follow the result. Both parties submitted that costs should be awarded on scale C, and the court agreed. The plaintiff employed two counsel, including a senior counsel, whilst the defendant employed one counsel.
The case was argued in very short order after the conclusion of the evidence. The parties’ heads of argument were, by agreement and with the court’s permission, submitted on the day of the argument. This timetable was set in an attempt to accommodate the request from the Dutch Court that a copy of the judgment be placed before them prior to the hearing scheduled for 16 October 2025. When the case was argued, Miller AJ did not fully appreciate the complexity of the legal issues that were ultimately traversed in the judgment. Nor did counsel. These issues were therefore not covered in either parties’ heads of argument, which the court was sure was because the heads were prepared under time pressure.
Given the nature of the matter and the manner in which the case was conducted and presented, Miller AJ held that it was fair to the parties to award the plaintiff the costs of her senior counsel only rather than the costs of two counsel.
The plaintiff’s counsel had requested the matter stand down at the conclusion of the defendant’s evidence in chief on 18 September 2025. At the resumption of the hearing on 29 September 2025, the plaintiff’s counsel cross-examined the defendant in a very limited manner. There was more than sufficient time on 18 September 2025 to complete that cross-examination. The hearing on 29 September 2025 was therefore not necessary. Miller AJ therefore disallowed the plaintiff all her costs relating to the hearing on 29 September 2025.
The court ordered that the defendant’s special plea in abatement be dismissed. The defendant was ordered to pay the costs of the special plea on scale C, including the costs of the plaintiff’s senior counsel only and excluding all costs relating to the hearing on 29 September 2025. The Office of the Family Advocate was directed to open a file and commence an enquiry into the parental responsibilities and rights in respect of the parties’ minor child, including regarding the residence, care and contact arrangements which will be in her best interests. The parties were directed to cooperate with the enquiry of the Office of the Family Advocate.
The case serves as an important reminder that the concept of “indefinite period” in section 1(2) of the Domicile Act does not simply mean an open-ended or unspecified timeframe. Where a person moves to a new jurisdiction with the clear contemplation that a foreseeable and reasonably anticipated contingency may cause them to return to their domicile of origin, the requisite animus manendi to acquire a domicile of choice will be absent. The plaintiff’s move to the Netherlands to test whether her troubled marriage could be salvaged, with the clear understanding that she would return to South Africa if the relationship failed, fell squarely within this principle. The precarious state of the marriage meant that its potential failure was not a vague possibility but a clearly foreseen and reasonably anticipated contingency that negated any intention to settle indefinitely in the Netherlands.
Questions and Answers
What is the statutory test for acquiring a domicile of choice under South African law?
Section 1(2) of the Domicile Act, 3 of 1992 provides that a 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. This requires proof of two elements: residence within the jurisdiction in question, which is tested objectively, and an intention to settle within that jurisdiction indefinitely, which is tested subjectively. The Chinatex Oriental Trading Co v Erskine case confirmed this objective and subjective distinction.
What is the significance of section 2(1)(a) of the Divorce Act in relation to domicile and jurisdiction?
Section 2(1)(a) of the Divorce Act, 70 of 1979 provides that a court has jurisdiction if the parties or either of the parties is domiciled within the area of jurisdiction of the court on the date on which the action is instituted. This means that only one party needs to be domiciled within the court’s jurisdiction for the court to have jurisdiction to hear a divorce action. The plaintiff therefore only needed to establish that she was domiciled within the Western Cape High Court’s jurisdiction when she instituted proceedings to establish jurisdiction.
Who bears the onus of proving that a person acquired a domicile of choice and what is the standard of proof?
The onus of proving that a person acquired a domicile of choice rests on the party asserting that the domicile of choice was acquired. In this case, the defendant bore the onus because he asserted that the plaintiff acquired a domicile of choice in the Netherlands when she moved there. The authority for this principle is Eilon v Eilon. Section 5 of the Domicile Act requires the party bearing the onus to discharge it on a balance of probabilities.
What was Pollak’s third type of intention and why is it significant?
Pollak identified four types of intention regarding future residence. The third type was an intention to reside in a country for an indefinite period, meaning until and unless something, the happening of which is uncertain, occurs to induce the person to leave. This is significant because the South African Law Commission recommended that the legislature adopt this third meaning, and it was incorporated into section 1(2) of the Domicile Act. The legislature included the first part of Pollak’s definition requiring “intention to settle there for an indefinite period” but did not include Pollak’s explanatory tag.
What was the test for animus manendi established in Eilon v Eilon?
Potgieter AJA held in Eilon that the onus of proving a domicile of choice is discharged once it is proved that the person had at the relevant time a fixed and deliberate intention to abandon his previous domicile and to settle in the country of choice. Critically, a contemplation of any certain or foreseeable future event on the occurrence of which residence in that country would cease excludes such an intention. If he entertains any doubt as to whether he will remain or not, intention to settle permanently is likewise excluded.
How did Miller AJ reconcile Pollak’s test with the test in Eilon v Eilon?
Miller AJ identified a potential tension between Pollak’s tag, which refers to “something, the happening of which is uncertain”, without reference to foreseeability, and the Eilon test which requires contemplation of any certain or foreseeable future event to exclude the necessary intention. The court noted that Pollak had quoted from the old English case of Lord v Colvin which included the word “unexpected” in describing the event. Miller AJ held that there was no cogent reason in principle for omitting “unexpected” from the definition. Including “unexpected” would align Pollak’s test with the Eilon test, as an expected event is necessarily foreseeable.
What is the distinction drawn in Ley v Ley’s Executors between contemplation and speculation?
The Ley case distinguished between contemplation of a change of residence and mere speculation about such a change. Centlivres CJ explained that any doubt actually present to a person’s mind as to whether he will move or not will exclude the intention to settle permanently. However, the possibility that if the idea of a future move had been suggested to him he might not at once have rejected it does not amount to contemplation of an event on which residence would cease. Only the former has to be disproved by the person alleging a change of domicile. This meant that the required animus would only be defeated by genuine doubt about the permanence of a person’s stay.
What did the English case of Re Fuld (No 3) establish regarding contingencies and domicile of choice?
The Re Fuld case held that a domicile of choice is acquired only if it is affirmatively shown that the person is resident in a territory with the intention, formed independently of external pressures, of residing there indefinitely. If a man intends to return to the land of his birth upon a clearly foreseen and reasonably anticipated contingency, such as the end of his job, the intention required by law is lacking. However, if he has in mind only a vague possibility, such as making a fortune or winning a football pool, or some sentiment about dying in the land of his fathers, such a state of mind is consistent with the intention required by law.
What test did Buckley LJ establish in IRC v Bullock regarding contingencies?
Buckley LJ held in IRC v Bullock that where the contingency is not itself of a doubtful or indefinite character, the question is whether there is a sufficiently substantial possibility of the contingency happening to justify regarding the intention to return as a real determination to do so on the contingency occurring rather than a vague hope or aspiration. The case also held that the expression “unlimited time” required further definition, and that whilst a person’s prospective residence might be “indefinite”, it would not be “unlimited” in the relevant sense if they intended to reside there only while employed without intending to remain after ceasing to be so employed.
What are the three important points Miller AJ drew from English law regarding domicile of choice?
Miller AJ identified three important points from English law. First, if a person moves to another country for an indefinite or open-ended period, this does not mean the person acquires a domicile of choice in that country in circumstances where he or she intends to return to his or her country on the happening of an event. Second, foreseeability of an event or contingency that would cause a person to leave a country plays a central role in determining whether a person intends to reside in that country indefinitely and thereby acquires a domicile of choice. Third, where a person says that he or she intends to return on the occurrence of a contingency, this will be ignored where the contingency itself is vague and indefinite, but will be taken into account where the contingency is clearly foreseen and reasonably anticipated.
Are contingencies relevant to determining animus manendi under the Domicile Act despite the Act being silent on them?
Miller AJ held that the fact that the Domicile Act does not deal expressly with contingencies does not render them irrelevant in the enquiry into the animus requirement. It is evident from the legal principles that they can and do, in appropriate cases, form part of the inquiry into whether a person intended to settle in a country indefinitely. Each case must be decided on its own facts with reference to the governing principles. The court disagreed with Schoeman’s conclusion that there seem to be very few contingencies, if any, which should be considered seriously.
Why did Miller AJ conclude that the plaintiff moved to the Netherlands on a trial basis?
Miller AJ accepted the plaintiff’s evidence that she moved on a trial basis for several reasons. Her evidence was supported by cogent contemporaneous evidence, being the fact that she told her father and long-term friend that she was moving on a trial basis. She had made it clear to the defendant in the conversation on 6 August 2024 that if their relationship ended, she did not want to be stuck in the Netherlands. Although not stated in express terms, this, in the context of the issues in the relationship and the fact that the plaintiff had recently moved out of the common home, did imply a trial period. A move on a trial basis in circumstances where the relationship was in a very precarious state accorded overwhelmingly with common sense from the plaintiff’s perspective and therefore with the probabilities.
Why was the potential failure of the marriage considered a clearly foreseen and reasonably anticipated contingency rather than a vague possibility?
The court held that in the context of the precarious state of the parties’ relationship, the fact that it might end and that the plaintiff would return to South Africa was unquestionably a foreseeable future event on the occurrence of which residence in the Netherlands would cease. It was a clearly foreseen and reasonably anticipated contingency rather than a vague possibility because the relationship was, at best, in a very precarious state. The plaintiff had recently moved out of the common home, the defendant had engaged in acts of self-harm, the marriage was “really rocky”, and the plaintiff was moving to the Netherlands specifically to test whether the marriage could be saved. There was a sufficiently substantial possibility of the contingency happening to justify regarding the plaintiff’s intention of returning to South Africa as a real determination rather than a vague hope or aspiration.
Did the fact that the trial period was not fixed in time undermine the conclusion that the plaintiff lacked animus manendi?
Miller AJ held that his conclusion that the plaintiff lacked the requisite animus manendi was not undermined by the mere fact that the trial period was not fixed, as per the IRC v Bullock case. In essence, this was because the plaintiff nevertheless intended to return to South Africa if the relationship ended, regardless of the fact that the trial period was an open-ended one. Although the plaintiff did not have a clear and fixed time period for the trial in mind, the court accepted her evidence that it was for a relatively short period measured in months. The trial was therefore for a limited time period, albeit not a fixed one, and remained a trial period in these circumstances.
What other facts supported the conclusion that the plaintiff lacked the requisite animus manendi to acquire a domicile of choice in the Netherlands?
Miller AJ’s conclusion was also supported by several other facts. The plaintiff had very close ties to her family in the Western Cape. She did not arrange her affairs on departure in a way that suggested the move to the Netherlands was permanent or indefinite; she retained her South African tax residency, bank accounts, medical practitioners, mobile telephone number, and supermarket loyalty cards. The plaintiff had no other ties or connections to the Netherlands. When the relationship did end, the plaintiff wanted to return to South Africa and did not do so only because of the defendant’s refusal to permit their daughter to return with her. These facts all pointed to an absence of intention to settle indefinitely in the Netherlands.
Written by Bertus Preller, a Family Law and Divorce Law attorney and Mediator at Maurice Phillips Wisenberg in Cape Town and founder of DivorceOnline and iANC. A blog, managed by SplashLaw, for more information on Family Law read more here. For free and useful Family Law tech applications visit Maintenance Calculatorand Accrual Calculator.
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