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 This rule, though outdated, remains
in effect unless repealed.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domicile determines the legal framework is viewed as outdated and contradictory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.
