Why these concepts matter
For a South African court to grant a divorce, it must first be satisfied that it has jurisdiction, meaning the legal authority to hear and decide the case. Under the Divorce Act 70 of 1979, the court will have jurisdiction if either spouse is domiciled in South Africa, or if either spouse has been ordinarily resident in South Africa for at least one year immediately before the divorce action is filed.
Importantly, only one spouse needs to meet one of these criteria. This allows many couples, especially those with international connections, to proceed with a South African divorce even if one partner is living abroad.
Understanding the term “Domicile”
Domicile refers to your permanent home, the country you regard as your long-term base and the place you intend to return to, even if you travel or work elsewhere.
A court looks at two key elements when determining domicile: whether you are physically present in South Africa, and whether you genuinely intend to live here permanently or indefinitely.
The courts have developed this concept through several important decisions.
In Frankel’s Estate v The Master (1950), the court described domicile as the place a person considers their “fixed and settled home,” emphasising that long-term intention, not temporary presence, is the decisive factor.
In Eilon v Eilon(1965), the court went further by stressing that intention must be proven through actions rather than words. Factors such as relocating your family, moving assets, or establishing your daily life in South Africa are all indicators of genuine intention. The modern approach was reaffirmed in Di Bona v Di Bona (1993), where the court looked holistically at a person’s work, property, family life and overall conduct to determine whether South Africa had become their permanent home.
Understanding the term “Ordinary Residence”
Ordinary residence is a more flexible concept than domicile. It refers to the place where you normally live as part of your regular pattern of life, even if you do not intend to stay there for the rest of your life.
To rely on ordinary residence for divorce jurisdiction, the Divorce Act requires that one spouse must have lived in South Africa in the ordinary course for at least twelve continuous months before filing the divorce.
The courts have explained this idea clearly in several decisions.
In Herbstein v Herbstein (1974), the court noted that ordinary residence involves continuity and regularity – the place where your everyday life happens.
Similarly, in Ex parte Minister of Native Affairs: In re Molefe (1959), ordinary residence was described as a person’s usual or principal home, the place to which they naturally return.
The one-year requirement was confirmed as strict and compulsory in B v B (2008), where the court held that even a settled living pattern cannot overcome a shorter period of residence.
How courts assess jurisdiction
A South African court will have jurisdiction to hear a divorce if, on the day the divorce summons is issued, either spouse is domiciled in South Africa or has been ordinarily resident here for at least a full year.
The leading case in this regard, Schwartz v Schwartz (1984), confirmed that only one spouse needs to satisfy this requirement. Jurisdiction is therefore determined at a single point in time: the date the proceedings begin.
A recent case – HGW & MW (A207/2024) – has reinforced this principle. The court clarified that jurisdiction must be established through clear evidence of domicile or ordinary residence as at the time of issuing the summons, and that disputes about intention, residence patterns or foreign relocation must be resolved through objective indicators rather than subjective statements. This decision provides helpful modern guidance for families with cross-border living arrangements or spouses who have recently moved.
Practical effect for your divorce
Even where spouses are living in different countries, a South African court will normally be able to hear the divorce if you regard South Africa as your permanent home, or if you have lived here continuously for at least one year before starting the process. The same rule applies to your spouse, if they meet either requirement, the court can still assume jurisdiction, even if you yourself are living elsewhere.
These rules make it possible for many internationally mobile couples to resolve their divorce through South African courts, provided the correct jurisdictional basis is established from the outset.
Jurisdiction Checklist
A quick way to determine whether the South African court can hear your divorce:
Domicile Test
- Do you currently regard South Africa as your permanent or indefinite home?
- Do your actions support this intention (e.g., residence, employment, property, family life)?
- Alternatively, does your spouse meet these criteria?
Ordinary Residence Test
- Have you lived in South Africa as your usual home for the past twelve consecutive months?
- If not, has your spouse done so?
Timing
- Can jurisdiction be clearly shown on the date the divorce summons will be issued?
If any one of these boxes is ticked by either spouse, the South African court will normally have jurisdiction to hear the divorce.
If you are unsure whether the South African court has jurisdiction over your divorce, or you need guidance on how domicile or ordinary residence applies to your situation, our experienced divorce attorneys can assist you. Contact Wade Theron Attorneys for clear, professional advice tailored to your circumstances.