A mother, who wants to return to Cape Town from the Netherlands after moving there in an attempt to salvage her marriage, will be able to conduct her divorce proceedings through the Western Cape High Court after the court granted her application.  

The couple moved to the Netherlands earlier this year, but due to the breakdown in their marriage, the wife, under the arrangement of living in the new country for a trial period, instituted divorce proceedings in the Western Cape High Court in mid-April 2025.

Having gone on a number of international vacations with the wife’s family, the court heard that after a family holiday in Mauritius, one of the issues that bedevilled the couple’s relationship was a letter written by the husband to the wife’s extended family.

The wife described the content of those letters as “vile”, “vicious”, and “hideous”. 

The divorce proceedings are opposed by the husband, who raised a special plea in abatement (procedural objection) that the court lacks jurisdiction in the divorce proceedings on the basis that the couple and their daughter have since January 2025, been domiciled in the Netherlands.

Essentially, he was attempting to have the case dismissed or postponed on technical grounds to try to move proceedings to a different court or jurisdiction.

According to the background in the matter, the two met in 2016 in the Western Cape. They lived with the wife’s parents in Cape Town from March 2017 to June 2020.

Thereafter, they moved into a home together in Constantia, Cape Town, and married in 2022. Their daughter was born in Cape Town in 2023. 

The court said it was for the husband, who accepted a job offer in the Netherlands, to prove that his wife chose the Netherlands as her domicile of choice when she moved there.

It was his argument that she reneged on discussions where they agreed before and during the marriage that they wanted to live abroad after they had a child. 

Before instituting the divorce proceedings, the wife said she wanted to try and make the marriage work for the sake of her daughter, and as part of this reunification, set out certain non-negotiable and negotiable aspects of their relationship, which included that she would be 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.

The judgment noted that one of the woman’s concerns about moving to the Netherlands was that if their relationship ended, then she would be stuck there and would not be free to return to South Africa with her daughter. The husband assured her that she would be free to return.

Following their move to the Netherlands and suffering further breakdown in their relationship, the wife moved out of their rented accommodation on April 14, 2025, and instituted the divorce proceedings. She wants to move back to Cape Town with her daughter but the husband refused for her to do so and there are currently proceedings pending in the Netherlands to determine this issue. 

The only reason that the woman is not presently residing in Cape Town is because her husband refused to give her their daughter’s passport when she left their rented accommodation and refused to give his permission for their daughter to return to Cape Town with the mother.

In the Western Cape High Court, it is common cause that the woman’s domicile of origin was within the area of this court’s jurisdiction and in law cannot lose her domicile of origin until she acquired another domicile by choice. 

According to the judgment, the wife consistently denied that there was ever an agreement to leave South Africa permanently.

Her constant evidence under cross-examination was that her husband’s use of the word “emigrate” was used loosely to mean “live abroad”.

Uncontested evidence was that the woman did not alter her affairs in South Africa in any manner consistent with an intention to leave South Africa permanently or indefinitely. 

 chevon.booysen@inl.co.za

Source link