As pointed out in our November 2013 issue, a vital first step in planning your marriage is to choose which “marital regime” will apply to it (“in community of property”, “out of community of property with accrual” or “out of community of property without accrual”).
But there’s more. Another question is easily forgotten, namely what happens if either –
- You are getting married in another country, or
- One or both of you is not South African (or more correctly, is not “domiciled” in South Africa, your formal citizenship not being the issue here – see below).
Which country’s laws apply? The answer can make a huge difference to you both – if South African law applies, you will be married in community of property unless you contract otherwise, whilst in other countries a whole host of different rules, requirements and regimes apply.
So whose law applies?
In a nutshell – the legal and property consequences of your marriage will, unless you expressly agree otherwise, be governed by the law of the country where the husband is domiciled at the time of the marriage (your “domicile” is broadly speaking your place of permanent residence, the country where you live and have “the intention to settle… for an indefinite period”).
There is much room for confusion here. Determining “domicile” involves a court trying to determine mental state or “intention” – never an exact science at the best of times. Moreover, the concept that only the domicile of the “husband” should count is outdated and unlikely to survive Constitutional scrutiny for gender equality, nor is it practical since it cannot be applicable to same-sex marriages.
So the only way to be really sure that both of you are protected from nasty surprises as to which laws, formalities and marital regimes will apply to you is to take advice before you marry.
A case study: Mauritian law and the wife who was left with nothing
A recent Supreme Court of Appeal decision illustrates the potential for confusion –
- A couple married in Mauritius in 1983
- A month later they moved to South Africa, and the wife sued for divorce after 23 years of marriage here
- She claimed 50% of two properties acquired during the marriage
- The High Court, finding on the facts that the husband had been domiciled in South Africa at the time of the marriage and that South African law therefore applied, granted the wife a 50% share in both properties based on the Court’s conclusion that the couple had been married in community of property (the default marital regime here)
- The SCA however decided that the husband had been domiciled in Mauritius at the time of the marriage, Mauritian law therefore applied, the wife had not proved any entitlement to a share in the properties as required by Mauritian law, and her claim to a half share failed accordingly.
The wife must be regretting not having taken legal advice before her marriage.
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