The legal status of a marriage is determined by the legal regime of the country where it was solemnised or concluded.
There are reasons for this, chief among them being that a marriage is in essence an agreement between at least two consenting parties, where reciprocal obligations arise.
Jurisdiction in respect of contractual disputes is mainly (not exclusively however) founded where the contract was concluded.
Furthermore, it is flawed to apply legal rules to determine marriage consequences whereas such marriage was never concluded under those rules in the first place.
It is one thing for foreign nationals wishing to conclude their marriage in the Republic of South Africa according to its laws, being the Marriage Act 25 of 1961 or the Civil Union Act 17 of 2006.
Such marriages must comply with the requirements as provided in the pieces of legislation as aforementioned being:
It is another matter however, to request the South African state and its institutions to recognise a marriage solemnised outside the Republic between two foreign nationals as valid.
For all intents and purposes, different countries have policy and legal considerations applicable to the recognition of marriages solemnised outside their territorial jurisdictions.
Therefore, it’s important that a married couple determine whether their marriage is recognised in their new place of habitation.
For foreign parties married under the Civil Union Act in South Africa, the marriage will need to be validly registered in their country of domicile with proof of this provided for it to be recognised as a foreign marriage.
In terms of patrimonial consequences however, the Matrimonial Property Act 88 of 1984, does not apply to foreign marriages concluded in South Africa. This legislation regulates marital property systems in South Africa.
In a transaction where immovable property is mortgaged, sold or purchased by a person within a foreign registered marriage, the other spouse’s involvement is required in terms of executing the documents of such transaction.
The Title Deeds must also note that the marriage is governed by such foreign country’s laws.
Where a foreign marriage is concluded outside the parties’ domicile, the husband’s domicile at the time of the conclusion of the marriage prevails. This was the view of the Court in Frankel′s Estate and Another v The Master and Another (1950) ALL SA 347 A, where it was held that,
“The conclusion at which I arrive is that the matrimonial regime is governed by the law of the husband’s domicile at the time of the marriage, and that it is not governed by the law of another domicile which he then intends to acquire immediately or within a reasonable time after his marriage.”
The same principles were confirmed further in the case of Esterhuizen v Esterhuizen 1999 (1) SA 492 C, whereby a couple entered into a marriage out of community of property in Mauritius but settled in South Africa soon thereafter.
The Plaintiff then claimed half of some assets upon dissolution of the marriage. The claim did not succeed because of peculiar circumstances in this case but chiefly upon the Court’s determination with regards to the prevailing domicile of the husband to determine the prevailing matrimonial property system.
Added to this, the Hague Convention of 1978 provides that parties to a marriage where one or both is neither domiciled thereat may designate as to “the law of the state to which either spouse is a national at the time of designation, or the law of the state to which either spouse has habitual residence at the time of designation, or the law of the first state where one of the spouses established a new habitual residence after marriage.”
Contact our attorneys in Johannesburg and Cape Town before tying the knot in foreign lands or if you need to understand the legal consequences of the intended marriage.
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