Well. It used to be!
On 26 June 2026, the Western Cape High Court made a ruling which, if confirmed by the Constitutional Court, will be groundbreaking – and possibly create more problems than it tried to solve!
Ever since 1994 ( when we saw the birth of our Bill of Human Rights, as enshrined in our Constitution), men in South Africa, have valiantly maintained pretty much the only remaining and legally recognised, bastion of “superiority” over women! It was the common law rule known as “lex domicilii matrimonii”.
In simple English: Where two love birds, from different countries, decided to tie the knot, but neither one of them ever bothered to ask the other, before that momentous occasion, which country’s marital regime would apply to their marriage, then by law (and not only in South Africa, but in several countries across the globe interestingly enough), the answer would be simple: the country of the husband’s domicile, would apply.
But then we saw the law in SA evolve to the point where we recognise same sex marriages, where this rule could not be applied); we have seen a myriad of laws changing, to ensure that women and men are now seen as equal before the law, especially in divorces and maintenance issues, etc. Yet, oddly enough, and until now, and in heterosexual marriages, the husband still had the only say in determining the consequences of that one life altering event called marriage!
In this matter (names are omitted from the judgement as it relates to a divorce involving minor children) the wife brought an application in the public interest in terms of Section 38(d) of the Constitution. Nota bene: this ruling was made in the light of divorce proceedings, and as will be seen, the final outcome did not cater for our world of property acquisition and disposal!
In this matter, the question was which country’s matrimonial property regime was to apply in deciding how assets were to be divided? As the parties had not concluded an antenuptial, and came from different countries at the time of marriage, the lex domicilii rule would have been applied.
The wife however alleged that the rule violated the right to equality in Section 9 of the Constitution and was inconsistent with the spirit, purport and objects of the Bill of Rights.
After hearing argument the Court then came to the following conclusion:
- The rule was declared to be inconsistent with the Constitution and therefore, invalid.
- The common law is developed so that the law that determines the proprietary consequences of a marriage is now determined in a type of 5 step sequential test as a method of applying legal criteria/requirements requiring each one to be considered in the order given below:
a. The parties may designate by agreement before or at the time of the marriage the country whose legal system shall apply, save that there should be evidence of a substantial link or connection between the choice of the applicable law and one or both spouses.
b. In the absence of agreement between the spouses or where there is no substantial link or connection with the designated legal system, the law of the country of the common domicile of the spouses at the time of the marriage shall apply.
c. In the absence of agreement or in the absence of a common domicile, the law of the country of common habitual residence of the spouses at the time of their marriage will apply.
d. In the absence of any of the previous factors, the law of the country of common nationality of the spouses at the time of the marriage will apply.
e. In the absence of any of the previous factors, the law of the country to which the spouses are jointly and most closely connected at the time of the marriage will apply.
The development of the common law set out above, shall apply retrospectively to all existing marriages, save that:f. Where the spouses have chosen a law to govern the proprietary consequences of their marriage in an ante nuptial contract, the development shall not apply for 2 (two) years from the date of the order to enable the parties to amend their ante nuptial contract to align with the new rule.
g. Where the spouses have not chosen a law to govern the proprietary consequences of their marriage, the development shall apply unless it will result in substantial prejudice.
h. The development shall not affect any positive steps and/or decisions and/or transactions already taken or performed in accordance with the law of the husband’s domicile as it relates to any existing marriage.
i. The development shall not apply to marriages that were dissolved by death or divorce prior to the date of this order.
Conclusion:
- Allowing parties who have chosen to conclude an antenuptial, 2 years to relook at the choices they made, with respect, makes no sense. In such an instance the lex domicilii rule did not even apply, so why open this door?
- Secondly, the intended solutions above, do not help us in property related transactions at all. We often have buyers who are married, but whose spouse hailed from a different country at the time of marriage, and who have not concluded an antenuptial, and where he/she is buying for the first time, or, having bought when single, subsequently got married without an antenuptial, and who now wants to sell, and where we must now determine which country’s law applies. Is the buyer/seller married under SA law and in COP or is he/she according to foreign law.
So, what if, at the time of marrying, none of these scenarios provided by the Court, apply? Let’s say the parties are from different countries, they met in Dubai where they were both halfway through working a 5-year working contract, decided to take a holiday in Zanzibar and got married there? Which country’s law will now apply because this scenario is not provided for. Is it Dubai law given they were both residing there at the time or is a work contract enough to establish “habitual” residence? What exactly does that mean? And what if the parties cannot agree on this?
So, where to from here?
- This judgment is, sadly and with respect, “clear as mud” for the sake of property transactions. This ruling must now be considered by the Constitutional Court which might agree or alter it.
- We will however suggest to couples coming to see us for an ANC, and who are from different countries, to consider the consequences of their property regime and to include a simple provision in their ANC, along the lines of: “The parties chose their domicile jointly as SOUTH AFRICA”. However, and in spite of this, if they chose to get divorced in another country, there is no guarantee that the Laws of that country will recognise our lex domicilii in any event.
- And as for the scenario sketched at 4 above, until the Constitutional Court makes a final ruling, the law in SA is that status quo remains in place. This means that until then, hubby’s domicile remains the deciding factor.
Kind Regards
Miltons Matsemela Inc