Article courtesy of Law Dot News | Family Law

Marriage Law Drags Itself into the 21st Century

“It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV.” (Oliver Wendell Holmes Jr)

A couple may marry in one country, live in several others, hold different nationalities and eventually settle in South Africa. If the marriage ends, which country’s law governs their financial and property rights?

Under South Africa’s old rules, the answer depended on the husband’s domicile at the time of the marriage.

Why the old rule was unconstitutional

The common-law rule of lex domicilii matrimonii provided that the financial and property consequences of a marriage were governed by the law of the husband’s domicile when the marriage was concluded.

That remained the position even after the Domicile Act of 1992 abolished the rule that a wife’s domicile automatically followed her husband’s and allowed married women to establish their own domicile.

The Western Cape High Court has now found there was no rational basis for continuing to prefer the husband’s domicile over the wife’s. The rule also failed when applied to same-sex marriages because it could not determine which spouse’s domicile should govern.

The Court held that the rule unfairly discriminated on the grounds of sex, gender and sexual orientation and was inconsistent with the constitutional right to equality.

The Court also ordered the two Ministers involved in the case to pay the applicant’s legal costs, criticising the State for allowing the unconstitutional rule to remain in place for three decades despite earlier recognition of its discriminatory effect.

What replaces the old rule?

Rather than simply declaring the rule invalid, the Court developed the common law and set out a new order for determining which country’s law applies.

Spouses may first agree, before or at the time of marriage, which country’s law will govern the financial and property consequences of their marriage. There must, however, be a substantial link or connection between the chosen legal system and one or both spouses.

If there is no agreement, or if there is no substantial link or connection with the chosen legal system, the law is determined in the following order:

1. The spouses’ common domicile at the time of marriage
2. Their common habitual residence at the time of marriage
3. Their common nationality at the time of marriage
4. If none of these applies, the country to which they were jointly and most closely connected at the time of marriage.

Domicile therefore remains relevant. What has gone is the automatic preference for the husband’s domicile.

The change is already in effect

Because the case concerned a common-law rule rather than legislation or conduct of the President, the Western Cape High Court’s order did not need to be confirmed by the Constitutional Court. The new framework therefore took effect on 23 June 2026.

Courts elsewhere in the country are not bound by the judgment but are likely to follow it.

What about existing marriages?

The new rule also applies to marriages that already existed when the judgment was handed down, subject to important safeguards.

Where spouses have chosen a law to govern the financial and property consequences of their marriage in an antenuptial contract, the new rule will not apply for two years from the date of the order, giving them an opportunity to amend the contract to align with the new framework.

That transitional period applies specifically where the antenuptial contract contains a choice of governing law, not simply because an antenuptial contract exists.

Where no governing law was chosen, the new rule applies unless this would result in substantial prejudice. Steps, decisions and transactions already taken under the old rule remain protected, while marriages dissolved by death or divorce before 23 June 2026 are unaffected.

In a cross-border marriage?

The Court described the “hidden complexities” of marriages with international elements, where spouses may not appreciate which country’s law governs their financial and property relationship until they are faced with divorce.

If you and your spouse have connections to more than one country, the applicable law may now depend on your common domicile, common habitual residence, common nationality or other shared connections at the time of the marriage.

Married abroad, or married with connections to more than one country? We’d be happy to look over your ANC or help you draft one.

Disclaimer: The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact us for specific and detailed advice.

© LawDotNews

Article courtesy of Law Dot News | Family Law

It’s Wedding Season – Three Questions to Ask Before You Marry

“Marriage is a matter of more worth / Than to be dealt in by attorneyship” (Shakespeare)

Wedding Season is well and truly upon us, and if you (or anyone near and dear to you) is busy planning for marriage (note that we are talking “civil marriage” here, “customary marriages” and “civil unions” are beyond the scope of this article), you will have a long “To Do” List to work through. Venue, invites, catering, flowers, service, this, that, the other. The list goes on, and on…

But no matter how long or complicated your Wedding Plan may get, make sure that “Get All the Boring Legal Bits Sorted” is high on your priority list. Yes, this is the not-fun part of all this, and getting to grips with all the legal niceties is a chore.

But whilst we can all agree with Shakespeare’s observation that “Marriage is a matter of more worth / Than to be dealt in by attorneyship”, understanding and managing the legal consequences of marriage remains absolutely vital.

So, where to start? Ask your lawyer three questions –

 

1. “Do we need an ANC?”

Whether you need an ANC (antenuptial contract), and if so, what should be in it, will depend in part on which “marital regime” you choose.

This is a critical decision. Which regime you choose now (and you must choose before you marry) will affect you and your family long after the ink dries on your marriage certificate. It will affect all of you throughout your marriage, and it will affect everyone when your marriage eventually comes to an end (whether by divorce or death – both grim prospects, but realities that must be faced).

Our law presents you with three alternatives, and professional assistance is essential here because your choice involves a complex mix of individual preference, circumstance, and personal and financial status –

 

1. Marriage in community of property: All of your assets and liabilities are merged into one “joint estate” in which each of you has an undivided half share. On divorce or death the joint estate (including any profit or loss) is split equally between you, regardless of what each of you brought into the marriage or contributed to it thereafter. This is the “default” regime – so you will automatically be married in community of property if you don’t specify otherwise in an ANC executed before you marry. This regime will suit some couples, but most will be advised to rather choose one of the other options (b or c below).
2. Marriage out of community of property without the accrual system: Your own assets and liabilities, both what you bring in and what you acquire during the marriage, remain exclusively yours to do with as you wish. Note here that the “accrual system” (see option c below) will apply to you unless your ANC specifically excludes it.
3. Marriage out of community of property with the accrual system: As with the previous option, your own assets and liabilities remain solely yours. On divorce or death you share equally in the “accrual” (growth) of your assets (with a few exceptions) during the marriage.

P.S. Already married? As a side note, if you happen to be married already and you now want to change your marital regime – perhaps you have only now found out that you are by default married in community of property and you realise what a mistake that was in your case – you may still be able to fix things. Ask your lawyer if you might be able to enter into a postnuptial contract. You are in for an expensive court application and requirements apply, so rather make the right choice before you marry.

 

2. “Are our wills in order?”

Marriage is one of those life events that focuses the mind on how important it is to have valid wills (or perhaps one “joint will”) in place. Existing wills need immediate review. Of course, your will (“Last Will and Testament”) is only the first step in a full estate planning exercise, but it is the foundational step, so prioritise it.

Don’t be tempted to procrastinate on this one – as the old saying has it “Death Knocks at All Doors”, and often it knocks without warning. There’s no other way to ensure that your loved ones will be fully protected and catered for after you are gone.

 

3. “Can we choose new surnames?”

As a man, you can only change your surname by application to DHA (the Department of Home Affairs) but as a woman you can automatically –

 

1. Take your husband’s surname, or
2. Revert to or retain your maiden surname or any other prior surname, or
3. Join your surname with your husband’s as a double-barreled surname.

Ask about the legal ramifications of your choice and tell the marriage officer upfront what your choice is so that your marriage certificate, marriage register and National Population Register all reflect your married name correctly.

Disclaimer: The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your professional adviser for specific and detailed advice.

 

© LawDotNews