South African Law on Foreign Marriages: Domicile, Property Regimes, and Legal Implications

 

Introduction

This article examines the legal implications of marriages solemnized outside South Africa, focusing on the determination of applicable law and property regimes. It explores key principles in South African matrimonial law, particularly concerning marriages where one or both parties are domiciled in South Africa.

Formal Validity and Governing Law

The formal validity of a marriage is determined by the lex loci celebrationis, the law of the place where the marriage is solemnized. However, this principle does not extend to governing the legal and proprietary consequences of the marriage.

South African Law on Matrimonial Property

According to the Matrimonial Property Act 88 of 1984, if the husband is domiciled in South Africa at the time of marriage, the union is automatically in community of property, unless a valid antenuptial contract exists. This principle applies even when the marriage is concluded outside South Africa, as established in Frankel's Estate and Another v The Master and Another (1950).

Concept of Domicile

Definition

Holland v Holland 1973 defined domicile as a particular territorial jurisdiction where a person intends to settle or is settled indefinitely. It is primarily a subjective determination based on the parties' intentions.

Legal Interpretation

The Frankel case established that the matrimonial regime is governed by the law of the husband's domicile at the time of marriage, not by any future domicile he intends to acquire. This principle has been reinforced by the Domicile Act of 1992 and the case of Esterhuizen v Esterhuizen 1999.

Antenuptial Contracts for Foreign-Domiciled Spouses

Spouses in a civil marriage, where the husband is domiciled in a foreign country, can enter into an antenuptial contract to regulate their marriage's consequences and register it in South Africa. This is supported by Johnson and Another v Registrar of Deeds 1931 and RCR 64 of 1961.

Important Distinction

It's crucial to note that entering into an antenuptial contract does not automatically make the marriage out of community of property. The marriage must still be described as "Married which marriage is governed by the laws of (name the country)".

Conclusion

The article highlights the complexity of determining the legal consequences of marriages concluded outside South Africa. It emphasizes the importance of the husband's domicile at the time of marriage in determining the applicable matrimonial property regime. While couples have some flexibility in regulating their marital property through antenuptial contracts, the underlying principle of the husband's domicile remains a key factor in South African matrimonial law.