If you are planning to get married abroad – congratulations – but have you considered which laws will govern your intended union?
The lex domicilii matrimonii – domicile of the husband
In South Africa, the property rights of spouses are governed by the lex domicilii matrimonii or the law of the matrimonial domicile, which is the law of the husband’s domicile at the time of the marriage.
As such, if the husband is domiciled in England at the time of the parties’ marriage, the default position is that the relevant laws of England will govern the said marriage.
Conversely, if the husband is domiciled in South Africa at the time of the marriage, the laws of South Africa will govern the marriage.
A party’s domicile is not only where one resides, but more importantly where one intends to remain.
Therefore, if you consider South Africa to be your permanent home, i.e. where you live and have a substantial connection with, then you are domiciled in South Africa.
South African law does not, at this stage, account for matrimonial domicile in same-sex marriages. We, therefore, recommend that an antenuptial contract is entered into prior to the marriage wherein it will be specified that the laws of South Africa are to govern the marriage.
An antenuptial contract is instrumental in determining the financial consequences of a marriage. It specifies which matrimonial property regime the parties intend to govern their marriage as well as enables the parties to safeguard their respective estates.
For the purpose of this article, we shall not discuss the different marital property regimes. A detailed article containing this information is available for consideration on our website, titled “Notarial Practice – Seal the deal (literally) and make it official”, dated 7 December 2020.
Execution of the antenuptial contract
In circumstances where you are unable to execute your antenuptial contract in the Republic of South Africa, you are entitled to do so abroad provided it is attested to by a notary or otherwise entered into in accordance with the law of the place of its execution, and shall be registered in a deeds registry within six months after the date of its execution.
In such an event, a local South African notary will prepare the antenuptial contract according to the wishes of the parties. Thereafter, the parties may execute the antenuptial contract abroad. We recommend that the local notary liaise with the foreign notary to ensure compliance with the relevant laws of South Africa.
Alternatively, your local notary may prepare a special power of attorney authorising an agent to sign the antenuptial contract on behalf of the party or parties who are unable to execute the antenuptial contract personally in the Republic.
The special power of attorney, together with a copy of the antenuptial contract must be executed in the foreign country by the said party or parties and thereafter authenticated.
Once authenticated, the original special power of attorney must be delivered to your South African notary to be retained in their protocol.
The South African notary will ensure that the original antenuptial contract executed by your agent is lodged and registered at the relevant deeds registry in South Africa.
Authentication of documents executed outside the Republic of South Africa
Before your antenuptial contract may be executed by your agent in South Africa, the special power of attorney must be authenticated, in other words, the signature thereon must be verified abroad by the legally accepted process, which is by the signature and seal of office of either of the below parties:
- the head of a South African diplomatic or consular mission or a person in the administrative professional division of the public servicing at a South African diplomatic, consular or trade office abroad, or a South African service officer grade VI, or an honorary consul-general, honorary consul, vice-consul, honorary vice- consul, or honorary trade commissioner; or
- a consul-general, consul, vice-consul or consul agent of the United Kingdom of Great Britain and Northern Ireland or any other person acting in any of the aforementioned capacities or pro-consul of the United Kingdom; or
- any Government authority of such foreign place charged with the authentication of documents under the law of that foreign country; or
- any notary or other person in such foreign place who shall be shown by a certificate of any person referred to above to be duly authorised to authenticate documents under the laws of that foreign country; or
- a notary of the United Kingdom of Great Britain and Northern Ireland or in Zimbabwe, Lesotho, Botswana or Swaziland.
The abovementioned procedure of authentication is lengthy, therefore a shortened procedure was established by the Hague Convention, known as the “Convention Abolishing the Requirements of Legalisation for Foreign Public Documents of 5 October 1961”.
South Africa became a member of the Convention on 30 April 1995, and in the event that the foreign country is also a member of the Convention, then in that event the only formality required to certify the authenticity of a signature, is the addition of a certificate known as an “Apostille”, issued by a competent authority of that foreign country and affixed to the Special Power of Attorney.
The special power of attorney must be timeously executed and correctly authenticated. It is advisable to contact your attorney or notary to ensure that unintended consequences do not flow from the execution of the special power of attorney and/or antenuptial contract.
You may contact me at amber@caf.co.za or on 021 674 2083 for assistance.
Written by: Amber Stucke
This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE).