The Matrimonial Property Act, 88 of 1984, does not apply to foreign marriages concluded in South Africa.
Normally, the formal validity of marriage is determined by the law of the place where the marriage certificate was issued.
However, it doesn't imply that the law of the country where the marriage was solemnized, governs the legal proprietary consequences involved.
A degree of legal uncertainty is present when one or both of the parties to the marriage are not domiciled in the same country or when the marriage is solemnized in a place outside either one or both spouses country of domicile, for example in South Africa.
From a conveyancing perspective it is of utmost important to determine whether a marriage concluded in South Africa between foreigners is a valid marriage.
This is because each country has its own internal regulations dealing with the recognition of marriages solemnized in or outside its borders.
The legal uncertainty can be addressed in the following ways:
A person's domicile is a particular territorial jurisdictional area or country where he or she intends to settle or is settled indefinitely.
It is therefore subjective determination based on the intention of the parties, but this sometimes difficult to establish.
Based on the South African common law and the Domicile Act of 1992, if either both parties are not domiciled in the same country or state, or if the marriage is solemnized in a place where either or both spouses are not domiciled, then the law of the place at the husband’s domicile, at the time of the marriage, will govern the legal and proprietary consequences.
This can only be determined through an affidavit from the parties concerned.
Although this theory is outdated and conflict with the principle of equality, until it's appeal, the application of the theory of the husband’s domicile prevails to marriages solemnized in South Africa.
The Hague Convention of 1978 provides both of unique and ground breaking solution to this problem.
According to this convention, if the spouses have not designated the marital property regime prior to marriage, the internal law of the state in which both spouses establish their first habitual residence after marriage will take prevalence.
However, the provisions of this convention may only be relied on in countries that are signatories thereto.
Because South Africa is not a signatory, such agreement is thus the equivalent of a policy document which contents may be considered by a South African court of law, but is not legally binding as in the case of the constitution or any legislation.
Where foreigners marry in South Africa, both parties have to produce valid documentation required to the marriage officer.
South African marriages are legally valid in almost every country in the world, however the couple is bound by the laws of the country in which the husband lives, and so they will have to find out what will be required when the marriage is registered in the country of domicile.
Unabridged marriage certificate will be received from the marriage officer, but some countries will not accept this as proof of the marriage.
The marriage officer who registers foreign marriage with the Department of Home Affairs can apply for an unabridged marriage certificate, which is stamped “Apostille” by the High Court.
This is issued to enable a foreigner to register the marriage once in the country of domicile.
Countries like Germany require at least one ‘Apostille”. The marriage of United Kingdom and Irish citizens in South Africa is legally binding under United Kingdom and Irish law.
Marriages or partnerships concluded by foreigners in South Africa in terms of the Civil Union Act, 17 of 2006, present a unique problem. Should the Hague Convention not be applied the question arises whose domicile will be used to determine the country which must govern the marriage.
From the information presented above it is abundantly clear that the mere conclusion of a civil union by foreigners in South Africa does not result in a valid partnership or marriage.
Their marriage or partnership will have to be registered in the country where the parties are domiciled and only then, if so registered and proof in this regard is provided, can it be accepted that a valid marriage or partnership exists.
In terms of RCR, 40 of 2009, as confirmed by RCR, 24 of 2010, if this marriage of partnership is registered in such foreign country, then the partners to such same sex unions will be described in the same manner as any other foreign marriage.
From a conveyancing perspective, where foreigners provide practitioners with a marriage certificate which was issued in South Africa, this marriage cannot prima facie be regarded as a valid marriage.
The conveyancer concerned will have to request the parties to the marriage to register the marriage in the country of domicile of the husband, alternatively in terms of the country as per the Hague Convention, and only then can it be deemed to be a valid marriage.
A foreign citizen who has concluded a marriage in South Africa may not be legally married and thus cannot be described as such.
The presented affidavit from the spouses that show the marriage is valid and binding is generally frowned upon and a more substantial form of proof is necessary for such a marriage to be valid.
Van Deventer & Van Deventer Incorporated can help tourists navigate the complex documentation for marriage in South Africa. It should be your happy time, get legal advice.
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