Generally speaking, the formal validity of a marriage is determined by the law of the place where the marriage was solemnised (country that issued the marriage certificate); this is based on the common law doctrine of lex loci celebrationis. However, this does not imply that the law of the country where the marriage was solemnised, governs the legal and proprietary consequences thereof. Thus a certain degree of legal uncertainly exists where either (or both) of the parties to the marriage are not domiciled in the same country or when the marriage is solemnised in a place outside either (or both) spouses’ country of domicile.
Moreover, each country has its own internal regulations dealing with the recognition of marriages solemnised in or outside its borders, these should be observed by couples prior to marriage in South Africa.
Possible ways to address the legal uncertainty
1. Execution and registration of an antenuptial contract:
Marriage itself is essentially a contract entered into between spouses, regardless of whether or not an antenuptial contract is executed. Therefore, in terms of common law, specifically Roman – Dutch law, as in the case of other contracts, the intention of the contracting parties (consensus / the meeting of the minds) is the essential requirements for all legally valid and enforceable contracts.
Therefore, one may deduce that when a couple executes an antenuptial contract it embodies their intention and therefore, the execution thereof may serve as prima facie proof of the couple’s intention that South African law (in this case) applies to their marriage. This however, is not supported by legal precedent (to date).
Moreover, in terms of South African law, in the absence of the execution of a valid antenuptial contract, the couple is married in community of property and, 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. The law of the place of the husband’s domicile:
A person’s domicile is a particular territorial jurisdictional area or country where he / she intends to settle or is settled indefinitely. 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, will govern the legal and proprietary consequences thereof.
Nevertheless, even though this theory is in our view outdated and in conflict with the principle of equality. Legal reform is therefore required. However, until its repeal the application of the theory of the husband’s domicile prevails to marriages solemnised in South Africa.
3. The Hague Convention of 1978:
The Hague convention concluded on 14 March 1978 (came into force and effect on 1 September 1992), proposal a unique and maybe ground – breaking solution to this problem.
Under the convention the legal system (to be applicable to the couple’s marriage), may be selected by the parties prior thereto and is based on:
- “the law of the state to which either spouse is a national at the time of designation, or
- the law of the state to which either spouse has habitual residence at the time of designation, or
- the law of the first state where one of the spouses established a new habitual residence after marriage.”
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.
The provisions of this convention may 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 as in the case of the Constitution and / or any legislation.
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.
It is of the utmost importance that couples intending to solemnise their marriage in South Africa consult with an attorney prior thereto and to execute an antenuptial contract that will embody their intentions and promote their best interests.
Article provided by Schoeman Attorneys
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