Download THE LEGAL CONSEQUENCES OF A MARRIAGE CONCLUDED

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THE LEGAL CONSEQUENCES OF A MARRIAGE CONCLUDED OUTSIDE YOUR
COUNTRY OF DOMICILE - THE SOUTH AFRICAN APPROACH
Introduction
Generally, the formal validity of a marriage is
determined by the law of the place where the
marriage is solemnised (country that issued the
marriage certificate), i.e. the lex loci
celebrationis.1 However, this does not imply that
the law of the country where the marriage was
solemnised, governs the legal and proprietary
consequences of that marriage.
A problem arises where either (or both) of the parties to the marriage are not
domiciled in the same country or state or when the marriage is solemnised in a place
where either (or both) of the spouses are not domiciled.
Every country in the world has its own internal laws regulating the recognition of
marriages solemnised in and outside its borders and these should therefore be
thoroughly investigated prior to solemnising any marriage outside the borders of your
country of domicile.
Thus, the following approaches can be applied in addressing this problem:
1. Registration of antenuptial contracts:
Marriage in itself is essentially a contract entered into between spouses, regardless
of whether or not an antenuptial contract is / was executed. Therefore, in terms of
common law, specifically Roman - Dutch law, like in the case of other contracts, the
intention of the contracting parties (or consensus / the meeting of the minds in terms
of their respective intention) is one of the essential requirements of legally valid
contracts.
Therefore, one may infer that when a couple executes an antenuptial contract to
embody their intention and that by deduction the execution thereof should serve as
prima facie proof of the couple’s intention that South African law (in this case) applies
to their marriage. This conclusion however, is not supported by legal precedent (to
date).
However, in terms of South African law and in the absence of the execution of a valid
antenuptial contract, not only is the couple married in community of property but,1 the
law of the place of the husband’s domicile prevails where the marriage is concluded
in a territory outside the couple’s (one or both parties) domicile.2
2. The law of the place of the husband’s domicile:
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Requirements prescribed by the Matrimonial Property Act 88 of 1984. Thus, the intention of the parties without
actually executing a valid antenuptial contract is not enough.
Frankel’s estate and another v The Master and another [1950] 1 All SA 347 (A).
A person’s domicile is a particular territorial jurisdictional area or country where he /
she intends to settle or is settled indefinitely. 3 It is therefore a subjective
determination based on the intention of the parties, something which is sometimes
difficult to establish.
In terms of South African common law and the Domicile Act of 1992, where either or
both parties are not domiciled in the same country or state or when the marriage is
solemnised in a place where either or both spouses are not domiciled, the law of the
place of the husband’s domicile, at time of the marriage,4 will govern the legal and
proprietary consequences thereof.5
Nevertheless, even though this theory is probably outdated and certainly in conflict
with the principle of equality, it has not been repealed and therefore its application
prevails to South African marriages.
3. The Hague Convention of 1978
The Hague convention concluded on 14 March 1978 (came into force and effect on 1
September 1992), attempts to provide a unique and maybe ground - breaking
solution to this problem.
Under the convention the legal system (to be applicable to the couple’s marriage),
can be selected by the parties prior thereto and is based on:
1. “the law of the state to which either spouse is a national at the time of
designation, or
2. the law of the state to which either spouse has habitual residence at the time
of designation, or
3. the law of the first state where one of the spouses established a new habitual
residence after marriage.”6
However, according to this convention, if the spouses have not designated their
marital property regime prior to marriage (by deduction - by means of entering into an
antenuptial contract), the internal law of the state in which both spouses establish
their first habitual residence after marriage will prevail.7
The provisions of this convention can however, only be relied on in countries that are
signatories thereto, namely: Austria, France, Luxembourg, Netherlands and Portugal.
Therefore, like other international treaties and agreements, where South Africa is not
a signatory, such agreement is the equivalent of a policy document which contents
may be considered by a South African court of law, but it is not legally binding on the
state (or country) as in the case of the Constitution and (parliamentary) legislation.8
3
4
Holland v Holland 1973 1 SA 897 (T) and Bisonboard Ltd v K Braun Woodworking machinery (Pty) Ltd 1991 1
SA 482 A.
Frankel’s estate and another v The Master and another [1950] 1 All SA 347 (A):
“The conclusion at which I arrive is 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” Also Esterhuizen v
Esterhuizen 1999 1 SA 492 (C).
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6
7
8
Frankel’s estate and another v The Master and another [1950] 1 All SA 347 (A).
The Hague convention 14 March 1978: atrticle 3.
The Hague convention 14 March 1978: atrticle 4.
The Constitution of the Republic of South Africa, Act 108 of 1996 section: 2, 146, 233.
© Nicolene Schoeman - Schoeman Attorneys 2010
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Thus, the provisions of the common law, the Matrimonial Property Act 88 of 1984 (as
amended) and related legislation, govern the legal and proprietary consequences of
civil marriages in South Africa.
Even though this convention provides couples with a great deal of flexibility in
exercising their intention, the provisions hereof cannot be enforced in South African
marriages.9
Conclusion:
Due to the legal uncertainty (outlined above) that persists in situations where either
(or both) of the parties are not domiciled in the same country or state or when the
marriage is solemnised in a place where either (or both) of the spouses are not
domiciled and that South African law still supports a provision that is clearly in conflict
with the principles of equality, some legal reform is urgently required in order to
address this prevailing issue more effectively.
9
The Constitution of the Republic of South Africa, Act 108 of 1996 section: 231.
© Nicolene Schoeman - Schoeman Attorneys 2010
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