Same-Sex Marriages, Civil Unions, and Domicile Law in South Africa

Introduction

Understanding the legal implications of marriage, particularly when it involves parties from different countries, can be complex. In South Africa, the law that governs marriage and its consequences, especially when parties are from different countries, is primarily determined by the domicile of the husband. This article explores the current legal framework, its implications, and the challenges posed by civil unions and foreign marriages in South Africa.

Summary of the Law

Domicile and Marriage

Domicile is a key factor in determining the legal consequences of a marriage. According to South African common law, and as stated in the Domicile Act 3 of 1992 and the Marriage Act 25 of 1961, when a marriage involves spouses from different countries, the law of the husband's domicile at the time of marriage governs the legal and proprietary consequences of that marriage. This rule, though outdated, remains in effect unless repealed.

Challenges with the Current Framework

The rule that the husband’s domicile determines the legal framework is viewed as outdated and contradictory to modern principles of equality. However, it still applies in South Africa, even as societal norms evolve. A critical issue arises when considering same-sex marriages, particularly those involving foreigners, as the traditional approach does not easily accommodate these unions.

International Perspective: The Hague Convention of 1978

The Hague Convention of 1978 offers a potential solution by allowing couples to choose which country's law will govern their marriage. Couples can select the law of the state where either spouse is a national, where they have habitual residence, or where one spouse establishes a new habitual residence after marriage. However, the Convention only applies in countries that have signed it, and South Africa is not a signatory to this specific Hague Convention. Consequently, while South African courts may consider the principles of the Convention, they are not legally binding.

Foreign Marriages and Civil Unions in South Africa

Requirements for Foreigners Marrying in South Africa

Foreigners marrying under South African law (either the Marriage Act or the Civil Union Act) must provide several documents to the marriage officer, including valid passports, a basic affidavit (DHA-form), and any relevant divorce decrees or death certificates. South African marriages are generally recognized worldwide, but the couple must ensure compliance with the legal requirements of the husband's country of domicile.

Validity of Foreign Marriages and Civil Unions

Foreign marriages and civil unions, particularly those involving same-sex couples, pose unique challenges. For such marriages or partnerships to be considered valid, they must be registered in the country of domicile. Without this registration, the union may not be legally recognized. This is particularly important in conveyancing, where a marriage certificate issued in South Africa does not automatically validate the marriage unless it is registered in the domicile country.

Conclusion

South Africa’s legal framework governing marriages, particularly those involving foreign nationals, relies heavily on the concept of domicile, specifically the husband’s domicile. While this approach is seen as outdated, it remains the law until formally repealed. The Hague Convention of 1978 provides modern solutions for choosing applicable laws in marriages, but its provisions are not binding in South Africa since the country is not a signatory. Practitioners and individuals involved in such marriages should proceed with caution, ensuring all legal requirements are met to avoid complications.