Tenille Mechelie Whitby v Marcel Herbert Whitby

### Preamble
1
HH 423-12
HC 4040/12
TENILLE MECHELIE WHITBY
versus
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TENILLE MECHELIE WHITBY
versus
MARCEL HERBERT WHITBY

HIGH COURT OF ZIMBABWE
UCHENA J
HARARE, 24 September and 15 November 2012

Opposed Application

A Mutsiwa, for the plaintiff
F Girach, for the defendant

UCHENA J: The plaintiff issued summons against the defendant her husband, seeking a decree of divorce and ancillary relief. The plaintiff and the defendant were married in Zimbabwe on 6 January 2007. They had both left Zimbabwe in 2002 and were living in London in the United Kingdom. They only came back to marry in Zimbabwe as the plaintiff’s parents are still living in Zimbabwe and wanted to attend the wedding.

The defendant pleaded in bar that this court has no jurisdiction to determine their case as he is not domiciled in Zimbabwe. His plea in bar is premised on the following facts;

1) That he is a citizen of Portugal rather than a citizen of Zimbabwe.

2) That he permanently emigrated from Zimbabwe in 2002 and has been permanently resident in England ever since.

3) That plaintiff herself is a naturalized British citizen and has also been permanently resident in England since 2002.

4) That their marriage was only effected in Zimbabwe for the convenience of the plaintiff’s parents who are still resident in Zimbabwe and wished to attend the wedding.

5) Plaintiff and the defendant traveled from England to Zimbabwe for the wedding and went back to England two weeks after the wedding.


6) Plaintiff traveled to Zimbabwe with the couple’s minor child on 14 December 2011 on her British passport and required a visitors Visa to enter Zimbabwe.

The facts on which the defendant pleaded in bar are confirmed by the defendant’s passport, and the Visa through which he entered Zimbabwe. The plaintiff’s passport the Visa through which she entered Zimbabwe confirms what the defendant said in 3 above.

Mr Mutsiwa for the plaintiff did not dispute these facts but submitted that the defendant’s domicile of origin is Zimbabwe and that he has not yet abandoned it, therefore this court has jurisdiction over him. He also submitted that the defendant has not yet established a domicile of choice therefore he is still domiciled in Zimbabwe.

Mr Girach for the defendant submitted, that the facts of this case clearly establishes that the defendant abandoned his Zimbabwean domicile and has decided to permanently reside in England, which is his domicile of choice.

The defendant was born in Zimbabwe and grew up in Zimbabwe. He says he permanently emigrated from Zimbabwe in 2002. He and his wife lived in England till December 2011, when his wife the plaintiff came to Zimbabwe using her British passport as a visitor. He followed her and visited Zimbabwe on his Portuguese passport on a visitor’s visa.

At law one can only have one domicile at a time. That is why one 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. In the case of De- Jager v De Jager 1998 (2) ZLR 419 (H) @ 421 B-F GARWE J as he then was said;

“Whether a litigant is domiciled in Zimbabwe is a question of fact. Accordingly, all the relevant facts must be placed before the court so that the court can determine whether or not a litigant is so domiciled. The fact that a litigant stays in Zimbabwe does not necessarily mean he is domiciled in Zimbabwe. A statement such as:

‘Defendant was born in Zimbabwe, has lived in Zimbabwe most of his life and considers Zimbabwe to be his permanent home’

or

‘Defendant immigrated to Zimbabwe in 1980. He has lived in Zimbabwe since then. He has no intention of emigrating and considers Zimbabwe his permanent home’

would put it beyond doubt that this court has jurisdiction. It is not sufficient to simply state that a particular party is domiciled in Zimbabwe without giving the facts which support such a statement. A person is said to be domiciled in that country which the law regards as his permanent home. This is frequently also the country in which he in fact lives permanently, though it may also be a country in which he has never dwelt or which he has never heard of. The latter possibility arises with domiciles of origin and of dependence: The Law of Persons and the Family supra at p 63.

It is important to stress that 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: E Spiro Law of Parent and Child 4 ed pp 131-132.” (Emphasis added)

In a case 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 [Cap 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 Immigration Act is of critical importance in determining whether or not one is domiciled in Zimbabwe.

The facts which indicate whether or not one has lost his or her domicile in Zimbabwe, are specified in s 3(4) of the Immigration Act.

In this case the issue is whether or not the defendant has lost his domicile of origin in Zimbabwe. He says he has while the plaintiff says he has not. As I have already said the question can be resolved by considering the provisions of s 3(4) of the Immigration Act. Section 3(4) provides as follows;

“(4) Subject to subsection (5)—

(a) a person shall, for the purposes of this Act, lose his domicile in Zimbabwe if he—

(i) has voluntarily departed from and resides outside Zimbabwe with the intention of making his home outside Zimbabwe; or

(ii) is absent from Zimbabwe for a continuous period of five years or such longer period as the Minister may, at his request, fix before the expiry of that period:
 Provided that the Minister may, in special circumstances, fix a longer period in terms of this subparagraph after the expiry of the period of five years;

(b) the fact that a person has taken up residence outside Zimbabwe shall be prima facie evidence of his intention of making his home outside Zimbabwe and the onus of proving otherwise shall be on the person whose status is in question;

(c) the fact that a person who was domiciled in Zimbabwe has made any statement, whether for the purposes of this Act or any other enactment or otherwise, to the effect that he is no longer a resident or no longer regards himself as a resident of Zimbabwe shall be prima facie evidence that he has lost his domicile in Zimbabwe.”

The defendant left Zimbabwe in 2002. He said he did so intending not to return to Zimbabwe as a permanent resident of this country. He has acquired the citizenship of Portugal. He is living in England where he says he intends to permanently reside. He only came back to Zimbabwe to marry the plaintiff, whose parents stay in Zimbabwe. The marriage therefore took place in Zimbabwe not for their attachment to this country but for the convenience of the plaintiff’s parents. The plaintiff herself has acquired citizenship in the United Kingdom. She has also stayed in England since 2002. These facts tend to prove an intention to permanently reside in England on the part of the defendant and his family

The facts of the defendant’s departure from Zimbabwe fall within the provisions of s 3(4)(a)(i) and (ii). He voluntarily left Zimbabwe in 2002 and has since that time been residing in England. He told this court that he departed with an intention of making his home outside Zimbabwe. The defendant has in terms of s 3(4)(c) made a statement that he no longer regards himself as a resident of Zimbabwe. That statement is “prima facie evidence that he has lost his domicile in Zimbabwe.” Such a statement need not be for purposes of the Immigration Act or any other Act. It can be any other statement as the one in this case. The use of the words “or otherwise” in s 3(4)(c) qualifies statements other than those made for purposes of the Immigration Act or any other enactment.

In terms of s 3(4)(a)(ii) one 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 has been absent from Zimbabwe for more than five years, for purposes other than those referred to in s 3(5).

In terms of s 3(4)(b) of the Immigration Act, the fact that a person has taken up residence outside Zimbabwe shall be prima facie evidence of his intention of making his home outside Zimbabwe and the onus of proving otherwise shall be on the person whose status is in question. The defendant’s intention to permanently stay in England where he has taken up residence is therefore prima facie evidence that he intends to make his home outside Zimbabwe. He has confirmed it by his evidence. He has openly declared that he abandoned his domicile of origin in Zimbabwe. The facts of this case are consistent with his declared intention.

The defendant’s circumstances fit perfectly into the provisions of s 3(4) of the Act. His conduct and declared intention are supported by the Act. He has according to the Immigration Act, clearly, abandoned and lost, his domicile of origin in Zimbabwe. This court does not have jurisdiction over him. His plea in bar must succeed.

The plaintiff’s case is therefore dismissed with costs.

Donsa-Nkomo & Mutangi, plaintiff’s legal practitioners
Atherstone & Cook, defendant’s legal practitioners
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