I am from Venus, my husband is from Mars, do we have a foreign marriage?

Whenever an Agreement of Sale is entered into, it is important to determine, inter alia, the matrimonial property system of the respective parties and their spouses.

Sometimes this can get complicated, for example when dealing with a party who is a foreigner or involved in a marriage with a foreigner or parties that got married in a foreign country.  In order to determine the matrimonial property system of such persons or the laws of which country the marriage is supposed to be governed in terms of, the following should be looked at:

Determine the Domicile (permanent residence) husband at the time of entering into marriage:

The most authoritative judgments made with regards to this subject, which still governs this aspect, is: Holland v Holland 1973 (1) SA 897 (T) and Frankel’s Estate & Another v The Master & Another 1950(1) SA 220 (A) te 223, 230 en 261.

According to the ruling in Holland v Holland, a person’s domicilli (domicile) is a specific geographical jurisdictional region or country, where such person is of the intention to reside or to reside for an undetermined period.  The determination of such domicilli is subjective, in other words from the perspective of the person himself. Legal articles with regards to this, confirms that an affidavit by such a person is therefore sufficient proof of the persons perception, of where he is deemed to be permanently residing.

Marriage is governed by the laws of the country, where the husband is deemed to be permanently residing, at the time of marriage:

According to the ruling in Frankel’s Estate & Another v The Master & Another, it was held as follows: “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”

It should therefore be quite easy to determine whether a couple is married in terms of the laws of another country, or not. In South Africa, when dealing with a foreign marriage, we do not take cognisance of the specific matrimonial property systems, as determined by that country’s laws, which govern the specific marriage. We just treat it in general as determined in Section 17(6) of the Deeds Registries Act:

“A person married in terms of a marriage, the legal consequences of which are governed by the law of any other country, shall be assisted by his or her spouse in executing any deed or other document required or permitted to be registered in any deeds registry or required or permitted to be produced in connection with any such deed or document, unless the assistance of the spouse is in terms of this Act or on other grounds deemed by the registrar to be unnecessary.”

For example: Mr Jones is an Australian citizen. He gets married to miss Stevens, who is a German citizen. The marriage takes place in the Bahamas. At the time of marriage, Mr Jones deems himself to be permanently residing in Canada, even though he stays in the UK for three months each year and Australia for two months each year, for work purposes. Mr and Mrs Jones’ marriage will be governed in terms of the law of Canada.

Article by Etienne Stone