S.H-K v R.K

The applicant (wife) and respondent (husband) are both qualified medical doctors married in community of property in South Africa in 2010, having previously married by Islamic law in 2008. They have a minor son. The parties established a family trust in South Africa holding assets valued around R10 million, including six properties. They also jointly own immovable property in Strand, Western Cape purchased as recently as 2017. The husband took up employment in Singapore in 2014 on a work visa; the wife and child hold dependent passes linked to his employment. The wife was born in Scotland to South African parents and moved to Cape Town at age 8, which she considers her permanent home and domicile of choice. She holds both British and South African passports. The wife returned to Cape Town in August 2021 and subsequently instituted divorce proceedings in the Western Cape High Court, obtaining leave on 23 March 2022 to serve the summons on the husband in Singapore via edictal citation. The husband thereafter instituted divorce proceedings in the Singapore Syriah Court, but those proceedings were stayed upon the wife's application. The wife brought a Rule 43 application seeking maintenance pendente lite, interim payment of her rental accommodation, and a contribution toward legal costs.

• Whether the Rule 43 application is barred by lis pendens due to pending divorce proceedings in the Singapore Syriah Court
• Whether the High Court lacks jurisdiction to adjudicate the Rule 43 application based on the parties' domicile outside South Africa
• Whether the applicant failed to comply with the mediation procedures of Rule 41A
• Whether the applicant's founding papers were non-compliant with Rule 43 due to prolixity

All four points in limine raised by the respondent were dismissed with costs. The court ordered that the Rule 43 application is capable of adjudication before the Western Cape High Court.

For purposes of Rule 43, a mere challenge to jurisdiction in the main divorce action does not defeat the court's jurisdiction to entertain the Rule 43 application. A Rule 43 application may be brought only before the court in which the main divorce action is pending, and that court is entitled to adjudicate the application even where jurisdiction is disputed in the principal proceedings.

The court noted that post the Covid-19 pandemic, there has been a global shift in approaches to work and what is considered residence, which may require reconsideration in relation to the Divorce Act. Quoting from Cheshire Private International Law, the court observed that a century ago an intention to reside indefinitely was regarded as permanent, but nowadays indefinite residence is not equivalent to permanent residence if contingent on an uncertain event.

This case affirms the principle established in Glen v Glen that a challenge to jurisdiction in divorce proceedings does not automatically preclude a court from hearing Rule 43 applications for interim relief pendente lite. It clarifies that the existence of parallel foreign divorce proceedings that have been stayed does not constitute lis pendens barring a Rule 43 application. The judgment also touches on evolving concepts of domicile and residence in the context of international employment mobility post-Covid-19, suggesting potential future development in this area of law.