A High Court judgment changing how the proprietary consequences of cross-border marriages are determined could have significant implications for deceased estates, including the distribution of assets and the rights and claims of surviving spouses, according to Cliffe Dekker Hofmeyr (CDH).
The Western Cape High Court declared unconstitutional the long-standing common-law rule that made the husband’s domicile at the time of marriage decisive in determining the applicable law. It replaced the rule with a gender-neutral hierarchy of connecting factors that applies retrospectively to existing marriages, subject to safeguards.
CDH says the implications extend beyond divorce to deceased estates, while law firm STBB has highlighted consequences for property transactions and conveyancing.
The Court’s order does not apply to marriages already dissolved by death or divorce before 23 June.
How the old rule worked
A South African court can grant a divorce even where the proprietary consequences of the marriage are governed by the law of another country.
Section 7(9) of the Divorce Act expressly provides for a situation where, according to the rules of South African private international law, the patrimonial consequences of a marriage are governed by the law of a foreign state. In such a case, the South African court granting the divorce has the same power a competent court in that foreign state would have had to order the transfer of assets from one spouse to another.
Under the common-law rule known as lex domicilii matrimonii, the proprietary consequences of a marriage were determined by the law of the husband’s domicile at the time of the marriage.
The rule applied when the marriage was concluded. Once the relevant matrimonial domicile had been identified for purposes of the rule, the law governing the proprietary consequences of the marriage remained fixed and did not change merely because the spouses later lived elsewhere. Acting Judge Tanya Golden described the rule as inflexible, with no provision for exceptional circumstances to be considered.
The rule survived a significant change to South Africa’s law of domicile more than three decades ago.
The Domicile Act abolished a wife’s dependent domicile, allowing a married woman to acquire a domicile independently of her husband. However, this did not displace the rule that the husband’s domicile determined the law governing the proprietary consequences of the marriage.
The judgment noted that the then South African Law Commission had already recognised the anomaly in 1990. Although the Matrimonial Property Act was intended to give husbands and wives equal status and had abolished the husband’s marital power, the law relating to domicile remained unchanged.
A marriage spanning several jurisdictions
The dispute that came before the High Court in Cape Town illustrates the complexities that can arise when a marriage has connections with several countries.
The applicant was born in Colombia and educated in England, where she had established her home. Her husband was born in South Africa and later relocated to Zimbabwe. The couple subsequently lived and worked across several jurisdictions.
They married in England in the late 1990s while living in Hong Kong. They subsequently lived in the United Kingdom and South Africa and acquired property in Portugal.
After the marriage broke down and the applicant instituted divorce proceedings in 2023, the law governing the proprietary consequences of the marriage became a significant point of dispute.
The husband contended that Zimbabwean law applied because he was domiciled in Zimbabwe when they married. The applicant maintained that both spouses had been domiciled in England.
The applicant said the distinction was significant because her husband sought to rely on provisions of Zimbabwean law that she alleged favoured him compared with the law of England and Wales.
Golden AJ did not decide which country’s law applied, saying that issue was for the court hearing the divorce.
She said the case demonstrated the “hidden complexities” of international marriages, where spouses may be unaware of the implications and legal consequences of the law governing their marriage until they are confronted with divorce.
Instead of asking the Court merely to decide which country’s law applied, the applicant challenged the constitutionality of the rule that made her husband’s domicile decisive.
Court replaces the husband-domicile rule
The High Court declared the rule unconstitutional and invalid. It found that the rule unfairly discriminated on the grounds of sex and gender by preferring the husband’s domicile to that of the wife, and on the grounds of sexual orientation because it did not provide a workable rule for same-sex marriages.
Having reached that conclusion, the Court had to decide how to remedy the position. Golden AJ said the question arose whether, after declaring the rule invalid, the Court should develop the common law to replace it.
The Court decided that spouses should be able to agree on the legal system governing the proprietary consequences of their marriage, but their choice could not be arbitrary. There had to be a substantial link or connection between one or both spouses and the chosen legal system.
In its formal order, the Court set out a five-stage hierarchy for determining the applicable law.
First, the parties may, by agreement before or at the time of marriage, designate the country whose legal system will apply, provided there is evidence of a substantial link or connection between the choice and one or both spouses.
If there is no agreement, or the required connection with the chosen legal system does not exist, the law of the spouses’ common domicile at the time of marriage applies.
If there is no common domicile, the applicable law is that of their common habitual residence at the time of marriage.
Failing that, the law of their common nationality at the time of marriage applies.
If none of these factors resolves the question, the applicable law is that of the country to which the spouses were jointly and most closely connected at the time of their marriage.
The new framework therefore does not give spouses an unrestricted choice of any country’s law. The hierarchy also remains anchored to circumstances at the time of the marriage: subsequent moves between countries do not automatically change the law governing the marriage’s proprietary consequences.
What about existing marriages?
The Court ordered that the development of the common law apply retrospectively to existing marriages but imposed four qualifications.
Where spouses chose the law governing the proprietary consequences of their marriage in an antenuptial contract, the new rule does not apply for two years from the date of the order, giving them an opportunity to amend the contract to align it with the new rule.
Where spouses did not choose a governing law, the new rule applies unless doing so would result in substantial prejudice.
The order also protects positive steps, decisions, and transactions already taken or performed in accordance with the law of the husband’s domicile under the previous rule.
Finally, the new rule does not apply to marriages dissolved by death or divorce before the date of the order. It therefore does not re-open marriages that had already ended in either way before 23 June.
Implications for deceased estates
CDH’s Gretchen Barkhuizen-Barbosa, Emily West, and Phomello Rasebeka described the judgment as a significant departure from the old common-law rule and a move towards a gender-neutral approach to cross-border marriages.
They said the judgment has implications beyond divorce for deceased estates, where the applicable matrimonial property law may affect the classification and distribution of assets, the existence of accrual and maintenance claims, and surviving spouses’ proprietary rights.
Barkhuizen-Barbosa, West, and Rasebeka said that, going forward, the proprietary consequences of a marriage will no longer be determined solely by the husband’s domicile at the time of the marriage. Instead, practitioners, executors, and the Master’s Office will have to apply the gender-neutral hierarchy developed by the Court.
The implications identified by CDH concern estates arising after the judgment; the High Court expressly protected marriages already dissolved by death before its order.
The issue may be particularly relevant where spouses have connections with several jurisdictions, and the applicable matrimonial property law must first be established before their respective rights to assets and claims can be determined.
Implications for property transactions
Samantha Smith of STBB highlighted a further practical implication for conveyancing and property transactions.
Smith said conveyancing attorneys dealing with immovable property owned or acquired by married people must establish the applicable matrimonial property regime before preparing transfer documentation or obtaining any necessary spousal consents.
She said the new framework requires legal practitioners in the Western Cape to determine the governing law by applying the Court’s hierarchy of connecting factors rather than relying on the husband’s domicile.
STBB also highlighted the transitional protection afforded to spouses who have already selected a governing law in an antenuptial contract. They have two years from the date of the order before the new rule applies to their agreement, allowing them an opportunity to amend it to align with the new framework.
Practical effects still to emerge
CDH said the judgment was particularly relevant in an increasingly globalised world in which marriages between people with ties to multiple jurisdictions are becoming more common.
The firm described the Court’s approach as more flexible and responsive to the realities of modern relationships but cautioned that greater flexibility may also bring uncertainty.
“While this approach has notable merits, it may also create ambiguity within the wider international law framework, with its practical effects likely to emerge only through future judicial application,” Barkhuizen-Barbosa, West, and Rasebeka said.
Disclaimer: This article is for general informational purposes only and does not constitute legal advice. Readers should obtain professional legal advice regarding their specific circumstances.
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