When two women from Namibia and Russia fell in love, they needed to cement their union in a country that allows gay marriage, and settled on SA.

A Daily Dispatch report says soon afterwards, when the Russian asked the Western Cape High Court for a divorce – a move that had the Namibian’s full support – the judge said she did not qualify.

This was because she did not meet the requirement in the Divorce Act that she lived in the court’s area of jurisdiction or had been ‘ordinarily resident (in SA) for a period of not less than one year’.

Now a full Bench of three judges has upheld the woman’s appeal – but not without a hiccup.

Judges Judith Cloete and Robert Henney granted a decree of divorce after Cloete said a ‘flexible approach’ was called for.

‘To lean on legal certainty alone would be against the interest of justice,’ she said. Cloete concluded that the Russian had ‘established on a balance of probabilities that at the time of the institution of the divorce proceedings she was domiciled within this court’s area of jurisdiction and the court thus had the requisite jurisdiction to grant the decree of divorce’.

However, Judge Vincent Saldanha penned a dissenting judgment, saying: ‘In my view, the interests of justice are more properly served when a domicile of choice is properly established on the facts and on the evidence presented, rather than on an overly generous interpretation of the evidence, or by a lack thereof. That, in my view, could also lead to undesirable situations where a domicile of choice is expediently chosen as a guise for jurisdiction (country or forum) shopping.’

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Judgment