Married Across Borders? The Rules Have Just Changed
High Court declares 70-year-old marriage law unconstitutional and replaces it with a new test.
For decades, South African law has quietly relied on an old and, frankly, outdated rule to decide which country’s law governs the finances of a marriage with an international element: the law of the husband’s domicile at the time of the wedding. On 23 June 2026, the Western Cape High Court struck that rule down as unconstitutional, and replaced it with a new, more balanced test. If you, your spouse, or your children have any cross-border connection (eg. a foreign birthplace, an overseas move, dual nationality, or property abroad) this judgment may affect you.
The Old Rule, and Why It Fell
Under the common law rule known as the lex domicilii matrimonii, whenever a marriage had an international dimension, it was the husband’s domicile at the time of the wedding, and his alone, that determined which country’s matrimonial property law applied for the rest of the marriage. The wife’s domicile was simply irrelevant, and same-sex marriages could not be accommodated by the rule at all, since it depended on identifying a “husband.”
The case arose out of a real and difficult divorce. The wife believed she and her husband were domiciled in England when they married; he contended it was Zimbabwe. Because the old rule turned entirely on the husband’s position, the outcome of her divorce, and which country’s laws would divide their assets, hinged on a rule that took no account of her own circumstances at all. The Court found this could not survive constitutional scrutiny: it unfairly discriminated on the grounds of sex, gender, and sexual orientation, and served no legitimate purpose that could justify it.
The New Test
Rather than leaving a gap in the law, the Court set out a new, gender-neutral hierarchy for determining which country’s law governs the financial consequences of a marriage. In order of priority:
- The country the spouses agree on, before or at the time of the marriage — provided there is a genuine, substantial connection between them and that country;
- Failing agreement, the country of their common domicile at the time of the marriage;
- Failing that, the country of their common habitual residence at the time of the marriage;
- Failing that, the country of their common nationality at the time of the marriage;
- Failing all of the above, the country to which the spouses were, at the time of the marriage, jointly most closely connected.
This approach draws on international instruments used in Europe and elsewhere and applies equally, and fairly, regardless of the spouses’ sex or gender.
Does This Apply to Existing Marriages?
Yes, in most cases. The Court ruled that the new test applies retrospectively to marriages already in existence, subject to some important safeguards:
- If you and your spouse chose a governing law in an antenuptial contract, that choice will continue to apply for two years from the date of the order, giving you time to review and, if necessary, amend it to align with the new test.
- If no such choice was made, the new rule applies automatically, unless doing so would cause substantial prejudice to one of the spouses.
- Anything already validly done under the old rule (for example, a completed transaction or a finalised divorce) will not be reopened or undone.
- Marriages already ended by death or divorce before 23 June 2026 are not affected.
Why This Matters to You
This judgment is particularly relevant if any of the following applies to you:
- You or your spouse was born, raised, or previously lived abroad, or hold dual or foreign citizenship;
- You married while living outside South Africa, or while one of you was working or studying abroad;
- You have an antenuptial contract that specifies (or assumes) a particular country’s law;
- You own property, or have family, in more than one country;
- You are currently going through, or anticipating, a divorce with any international element.
For clients with existing antenuptial contracts that touch on choice of law, we recommend having these reviewed within the next two years to ensure they remain effective and reflect your intentions under the new test. For clients without an antenuptial contract who have an international connection, it is worth understanding which country’s law would now apply to your matrimonial property regime – the answer may have changed as of 23 June 2026, and may differ from what you, or your previous advisors, assumed.
Our Recommendation
Given the complexity of the new hierarchy – and the fact that “domicile,” “habitual residence,” and “nationality” are all separate legal concepts that can point in different directions – we recommend that any client with a cross-border marriage, an existing antenuptial contract with an international element, or plans to marry someone of a different nationality or residence, come in for a short consultation. We can help you understand where you stand under the new rule and, where appropriate, put a clear choice of law in place going forward.
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