Understanding Jurisdiction in Divorce Matters
Let us start off by taking things a bit hypothetically. If we turn to the Bible (please note that we neither condone nor promote one religion over another, we have deep respect for all religions and the attendant freedom of choice and religion), we read about the episode of David and Goliath.
Most of us, we presuppose, are familiar with this story.
Hypothetical Comparisons to Jurisdiction
Imagine if you were the commander of the Israelite army, and you are well aware of how big, muscular, fierce, boastful, and intimidating Goliath is. Would you have considered it a tactful, strategic, and militarily wise decision to set the youthful and inexperienced David against Goliath in battle? Would it not have made much more sense to set Goliath against a more experienced and equally big soldier?
On the same footing, let us say that you are a boxing promoter or an official of a boxing sanctioning organization (IBO, WBF, WBO). Would you sanction a boxing match between Mike Tyson during his prime and an inexperienced boxer, let alone someone far below Tyson’s weight division?
We assume not.
What Is Jurisdiction?
The principle of jurisdiction, to some extent, works in much the same way. By definition, jurisdiction is the competency of an adjudication forum (court, CCMA, bargaining council, etc.) to have a matter brought before it, hear the matter, make a decision, and enforce a judgment effectively.
Factors That Determine Jurisdiction
The question that becomes imminent would be, what factors determine jurisdiction? These include:
- Type of matter: Labour courts handle labour matters.
- Quantum of the claim: Small Claims Courts handle smaller claims, while superior courts handle larger claims.
- Locality: Divorce matters are handled by Regional and High Court divisions in the locality where either of the parties is domiciled or ordinarily resident.
- Legislative assignment: Some courts are assigned jurisdiction by law, such as the Commercial Crimes Court.
These factors are all aimed at ensuring that a matter is placed before a court that is equally capacitated to handle the matter.
Jurisdiction in Divorce Matters
With particular reference to divorce matters, jurisdiction is based on:
- Where either of the parties is domiciled or ordinarily resident for at least a year immediately before the commencement of the proceedings.
- Where the marriage was concluded.
- In some cases, where the marital assets are located.
Can Parties Choose Jurisdiction?
It is also pertinent to advise that the law allows, in some cases, for parties to confer jurisdiction on a specified forum. For example, in some lease agreements or other types of contracts, parties may include a clause stating that should there be a dispute in terms of the contract, a specific court will have jurisdiction.
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