DIVORCE IN DUBAI OR PRETORIA – DOMICILE, JURISDICTION, APPLICABLE LAW, ANTI-SUIT INJUNCTION AV v WV [2017] ZAGPPHC 324 (case no 5881/17) (6 July 2017) (GDP)

Jan L Neels Jan L Neels

doi:10.17159/obiter.v38i3.11431

Abstract

Many South Africans work and live in the United Arab Emirates, especially in Dubai, which is one of the seven emirates. The emirate of Abu Dhabi is the seat of the federal government and the emirate of Dubai is the commercial and financial centre of the country. Numbers of South Africans in Dubai alone run into the tens of thousands. South Africans often move there to avoid crime in their home country and are enticed by the generally higher salaries. Nevertheless, most South Africans do not intend to settle in the United Arab Emirates permanently. Conflicts of family and succession law may readily ensue. Private international law has the function to delineate and harmonise the roles of domestic legal systems in this regard.AV v WV ([2017] ZAGPPHC 324) is typical in this regard. The case deals with the intended divorce of two South African parties resident in Dubai. Husband and wife are citizens of the Republic of South Africa and their domicile of origin was South African. After an armed robbery, the parties moved to Dubai, where the husband found employment as a pilot. Approximately eight or nine years later, the wife initiated divorce proceedings in the Gauteng Division, Pretoria, of the High Court of South Africa. However, the husband instituted divorce proceedings in Dubai and contended that the Pretoria High Court did not have jurisdiction, as the parties were not domiciled in its area of jurisdiction. The wife petitioned the Pretoria High Court to interdict the husband from proceeding with the divorce in Dubai. PM Mabuse J came to the conclusion that the Pretoria High Court had jurisdiction in the divorce proceedings between the parties and issued an interdict against the respondent, the husband, to refrain from proceeding with the divorce action in Dubai. The case was marked as “not reportable” by the judge, being “not of interest to other judges”. However, it is suggested that the decision is of substantive social and legal interest and deserves a wide readership. The case discussed is the revised version, as reported on the Saflii website.

Highlights

Many South Africans work and live in the United Arab Emirates, especially in Dubai, which is one of the seven emirates
The possibility of the application of Islamic law caused the wife to approach the Pretoria High Court to interdict the husband from proceeding with the case in Dubai: “[T]he divorce law that the Court in Dubai will apply to [the] divorce action will be highly prejudicial to her as a woman by reason of the fact that she will not be able to claim spousal maintenance for a period in excess of three months after the order of the divorce action in Dubai” and “[T]he law that applies in Dubai, a wholly Muslim country, is Sharia law in terms of which there is no equality between man and woman and in particular in terms of which a woman’s rights are subordinate to a man’s rights”
Under South African law, an ex-wife married under customary law (s 8(4) of the Recognition of Customary Marriages Act, inter alia referring to s 7 of the Divorce Act 70 of 1979) or the Marriage Act may, if she has the need and the ex-husband has the means, claim maintenance until death or remarriage (see s 7(2) of the Divorce Act; Neels 2012 TSAR 500–502)

Summary

Introduction

Many South Africans work and live in the United Arab Emirates, especially in Dubai, which is one of the seven emirates. The case deals with the intended divorce of two South African parties resident in Dubai. Husband and wife are citizens of the Republic of South Africa and their domicile of origin was South African (par 14, 18 and 21). The husband instituted divorce proceedings in Dubai (par 8) and contended that the Pretoria High Court did not have jurisdiction, as the parties were not domiciled in its area of jurisdiction (par 7 and 14). The wife petitioned the Pretoria High Court to interdict the husband from proceeding with the divorce in Dubai (par 1). PM Mabuse J came to the conclusion that the Pretoria High Court had jurisdiction in the divorce proceedings between the parties and issued an interdict against the respondent, the husband, to refrain from proceeding with the divorce action in Dubai (par 2). The case discussed is the revised version, as reported on the Saflii website (www. saflii.org (accessed 2017-08-21))

Jurisdiction and applicable law in the courts of

Islamic and South African law of maintenance

Relevance and determination of the domicile of the parties

Concluding remarks