(Supreme Court of the Federation of Rhodesia and Nyasaland) The husband, a fugitive from justice in England, had entered Southern Rhodesia on a false passport and his entry and residence had at all times been unlawful under the Immigration Act. The wife obtained a declaration of nullity, but on the husband’s appeal, the court questioned its own jurisdiction. The court conducted a full review of the authorities.
Held: The court distinguished the cases of precarious residence and condoned residence, and found more helpful some South African cases on the statutory concept of domicile in their Immigration Act (which was deliberately distinguished from the common law concept in another case cited by Dicey and Morris, Parker v Principal Immigration Officer [1926] CPD 255) and the cases holding that a domicile of choice acquired during precarious residence was destroyed by actual deportation, at least where there was also a prohibition on return (including Ex parte Macleod [1946] CPD 312, the last of the cases cited by Dicey and Morris; see also Ex parte Donelly 1915, WLD 29; Ex parte Gordon 1937, WLD 35). He concluded: ‘I should formulate the proposition in this way. Acquisition of a domicile of choice requires both residence and animus manendi. Not every kind of de facto residence will suffice. It must usually be residence of one’s free will, or at least, if it is not, the residence can be of no value as evidence of an animus manendi. The animus manendi must be both genuine and honest. An intention to persist indefinitely in a course of unlawful conduct may be genuine: but it cannot be honest. Fears that the worst may happen do not necessarily preclude a sufficient animus. But knowledge that one is residing only in defiance of the law, and will so continue indefinitely, makes it impossible to have an animus manendi of the requisite quality. I think also that the matter may properly be put in another way. The animus manendi, though it does not require an absolute intention to reside permanently, must at least be an unconditional intention to reside for an indefinite period. . . . In this case, the intention of the appellant, putting it at the highest, can only have been, ‘I will stay in Rhodesia if I can escape the attention of the authorities whose statutory duty is to deport me, and who will at once do so if they learn the true facts about me.’
Judges:
Briggs ACJ
Citations:
[1962] (3) SA 930
Jurisdiction:
Commonwealth
Cited by:
Not persuasive – Jablonowski v Jablonowski 1972
(Ontario High Court) The petitioner had met both the residence and animus requirements despite having entered Canada illegally. . .
Cited – Mark v Mark HL 30-Jun-2005
The petitioner sought to divorce her husband. Both were Nigerian nationals, and had married under a valid polygamous marriage in Nigeria. She claimed that the courts had jurisdiction because of her habitual residence here despite the fact that her . .
Lists of cited by and citing cases may be incomplete.
Commonwealth
Updated: 07 December 2022; Ref: scu.228190
