Whose Law Applies to an International Marriage?

International marriages are becoming increasingly common, and with them come important legal questions when property is bought, sold or transferred in South Africa. One of the most significant of these questions is which country's law governs the matrimonial property consequences of the marriage.

A recent Western Cape High Court judgment could fundamentally change how that question is answered. In N.P. v Minister of Justice and Constitutional Development and Others (Case No. 2468/2024), the Court declared an outdated common law rule unconstitutional and developed a new, gender-neutral choice-of-law framework. However, because the judgment includes a declaration of constitutional invalidity, it must first be confirmed by the Constitutional Court before the proposed change to the common law becomes legally effective.

The Old Rule

For many years, South African common law applied the principle of lex domicilii matrimonii. Simply put, where spouses married outside of South Africa, the husband's domicile at the time of the marriage automatically determined which country's laws governed the proprietary consequences of the marriage.  In this context, domicile refers to a person's permanent legal home rather than merely where they happen to live.

Why Was the Rule Challenged?

The case arose from the marriage of a Colombian-born woman, who was educated and domiciled in England, and a Zimbabwean-born man. Although they married while living in Hong Kong, their marriage later broke down, and divorce proceedings were instituted in the Western Cape High Court.

The parties disputed where the husband had been domiciled when they married. Rather than asking the Court to determine that dispute under the existing common law, the wife challenged the constitutionality of the lex domicilii matrimonii rule itself.

Court’s Finding

The court found that the rule was based on outdated assumptions that effectively privileged the husband's legal status while disregarding that of the other spouse. The Court held that this amounted to unfair discrimination on the grounds of sex and gender and was therefore inconsistent with the Constitution.

The Court also recognised that the rule was incompatible with modern family structures. Because it depended on identifying "the husband", it provided no workable solution for same-sex marriages.

The Court also developed the common law by proposing a modern, gender-neutral framework for determining which country's law governs the proprietary consequences of a foreign marriage.

What Is The Proposed New Approach?

Spouses may choose, before or at the time of the marriage, the legal system that will govern the proprietary consequences of their marriage.

However, that choice is not unlimited. The chosen legal system must have a genuine connection to the spouses. For example, one or both spouses may be citizens of that country, be domiciled or habitually resident there, intend establishing their married life there, or otherwise have a meaningful connection with that legal system.

If the spouses have not made a valid choice, subject to confirmation by the Constitutional Court, the High Court proposed the following:

1. The spouses' common domicile at the time of the marriage.

2. If there is no common domicile, their common habitual residence.

3. If there is no common habitual residence, their common nationality.

4. If none of these apply, the law of the country with which the marriage has the closest connection at the time of the marriage.

Why Does This Matter?

For conveyancers and property practitioners, the significance of this judgment lies in determining which country's matrimonial property law applies to a foreign marriage.

Where parties are married outside South Africa, it is often necessary to establish the foreign matrimonial property regime before a transfer or mortgage bond can proceed.

The Takeaway

This judgment represents an important step towards a more modern and constitutionally compliant approach to international matrimonial property law.

However, the law has not yet changed. The High Court’s judgment must first be confirmed by the Constitutional Court. Until then, the existing legal position remains unchanged.

Property practitioners should monitor developments closely, as confirmation of this judgment could significantly change how foreign matrimonial property regimes are determined in future conveyancing transactions.

Written by: Maret Carroll and Lutendo Nemavhola
Moderated and approved by: Rohula Kgabu-Mnyayi

‍