A client asked: 'We are a South African couple that got married in Mauritius. Are we married in or out of community of property?
These are the legal
principles:
·
Where
the husband in a marriage regards South Africa as his domicile (permanent place
of residence) at the time of conclusion of the wedding, such marriage is one in
community of property, in the absence of the execution of a valid antenuptial
contract.
·
In Frankel′s Estate and Another v The Master and
Another (1950)
ALL SA 347 A, the court held that the law of the place of the husband′s
domicile prevails where a marriage is concluded in a territory outside of the
husband's domicile.
·
So, if the husband lived permanently in South
Africa when the couple got married in Mauritius, if they did not conclude a
marriage contract before the wedding, they were married in community of
property.
·
Although
the formal validity of a marriage is determined by the law of the place where
the marriage is solemnised (in this case, Mauritius), this does not mean that
Mauritian law governs the legal and proprietary consequences of such
marriage.
·
The
principles provided for in the Frankel case do not apply to same-sex marriages
governed by the Civil Union Act 17 of 2006. One hopes that the law will clarify
the uncertainty of whose domicile will be the deciding factor where a civil
union is concluded.
·
In some countries (the United Kingdom,
Zimbabwe, and Botswana, to name a few), the opposite applies. Parties will be
married out of community of property, automatically, without having to conclude
a prenuptial contract.
·
In Holland
v Holland 1973 (1) SA 897 T, the court held that a person′s
domicile is a particular territorial jurisdiction area or country where he/she
intends to settle or is settled indefinitely. The court in the Frankel case
held that:"…the matrimonial regime is governed by the law
of the husband′s domicile at the time of the marriage, and that it is not
governed by the law of another domicile which he then intends to acquire
immediately or within a reasonable time after his marriage."
·
The
above principles were confirmed in the Domicile Act of 1992 and the case of Esterhuizen
v Esterhuizen 1999 (1) SA 492 C.
·
If you
intend to have a destination wedding or if the husband is domiciled in a
foreign country, you can and should enter into an antenuptial contract
regulating the consequences of your marriage and register the contract in South
Africa. This will avoid uncertainty regarding whether the marriage is one in or
out of community of property.
