Gay women unhappily married in SA finally happily divorced after long legal struggle

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.

It was a beautiful summer’s day in Cape Town when they tied the knot on December 6 2017, when the temperature reached as high as 32°C.

But the weather and the relationship quickly became chilly when they went to wintry Germany on honeymoon and realised they had made a mistake.

By December 15 the marriage was over in all but name ... and that’s when their problems became even worse.

When the Russian asked the high court in Cape Town 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”.

More than three years after the marriage collapsed, a full bench of three judges upheld the woman’s appeal on Tuesday, 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.

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.”

They came to South Africa with the intention of marrying here, since same-sex marriages are not recognised in Namibia or Russia.

—  Court judgments

According to the judgments, the couple “came to South Africa with the intention of marrying here, since same-sex marriages are not recognised in Namibia or Russia”.

After touring the country, they found the home of their dreams on a farm near the Overberg town of Caledon “and intended to remain there indefinitely at the time of their marriage”.

But the Russian, a self-employed accountant, told the court that during the 10-day honeymoon “she realised the marriage had been a mistake. Although she no longer wished to continue with the marriage she nonetheless planned to continue living in Caledon.”

This plan also fell apart, however, when she realised over the next year that living on a different continent created too many difficulties for her Russian clients.

“It was at the end of December 2018 she came to realise that she would have to move back permanently,” said Cloete.

The judge who refused the couple a divorce said the Russian’s “sojourn” in the Western Cape village of Tesselaarsdal did not meet the “ordinarily resident” requirement in the act. “It was more a trial run before finally deciding to establish a domicile of choice in this country,” said the earlier judgment.

However, 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”.