A recent case developed the law that determines which country governs the financial consequences of a marriage where there is a foreign element to the marriage. The development has modernised an outdated rule and is an important step towards ensuring all couples, including same sex couples, are treated equally in the eyes of the law.
What was Lex Domocili matrimonii?
- Lex domocili matrimonii is a rule used in private international law to determine which country’s laws govern the financial and proprietary consequences of a marriage. In terms of this outdated rule, if there is no explicit agreement between the spouses at the time of marriage regarding the matrimonial domicile, the law of the country in which the husband was domiciled at date of marriage, governs the consequences of the marriage.
- Domicile means the country a person treats as their permanent home.
- The Western Cape High Court in the case of P. v Minister of Justice and Constitutional Development and Others (2468/2024) [2026] ZAWCHC 343 (23 June 2026) declared the lex domocilli matrimonii rule inconsistent with the Constitution of the Republic of South Africa in terms of Section 9 (right to equality) and invalid.
Brief facts of the case:
- In this case, a dispute arose regarding the law applicable to the parties’ marriage.
- The applicant contended that both spouses were domiciled in England when they married, despite temporarily residing in Hong Kong, and therefore alleged that their marriage was governed by the laws of England and Wales. Her husband, the third respondent, maintained that Zimbabwe was his domicile and was accordingly the law applicable to their marriage.
- While the Court did not determine the parties’ disputed domicile or the applicable foreign law, it noted that the dispute illustrates the need to reconsider the validity of the gender-based common-law rule.
What the Court Ordered:
- Aside from the Court finding that the lex domocilli matrimonii to be unconstitutional and invalid, it also ruled that the common law must be developed.
- The Court set out that the common law should be developed to determine the proprietary consequences of a marriage in the following manner, rather than the domicile of the husband at the time of the marriage:
- Before or when they get married, the spouses can agree on which country’s laws will apply to their marriage. However, there must be a strong and meaningful connection between that country and one or both spouses. If there is no such connection, the rules below will apply instead.
- If the spouses do not agree on which country’s laws should apply, or if the country they chose has no strong connection to either spouse, then the law of the country where both spouses were living (their common domicile) when they got married will apply.
- If the spouses did not agree on the applicable law and they did not have a common domicile when they got married, then the law of the country where they both normally lived (their common habitual residence) when they got married will apply.
- If none of the above applies, then the law of the country of which both spouses were citizens (their common nationality) when they got married will apply.
- If none of the previous rules applies, then the law of the country with which the spouses had the closest overall connection when they got married will apply.
- The Court held further that the development of the common law set out in paragraphs 1.1 – 1.5 shall apply in retrospect to all existing marriages, save that:
- If the spouses agreed in their antenuptial contract which country’s legal system’s law would govern the financial consequences of their marriage, the new rule will not apply to them for 2 (two) years from the date of the court order. This gives them time to amend their antenuptial contract so that it complies with the new rule;
- If the spouses did not agree on which law would govern the financial consequences of their marriage, the new rule will apply to them, unless applying it would cause substantial prejudice to one of the parties;
- The new rule will not affect any steps, decisions or transactions that have already been lawfully taken in an existing marriage based on the previous rule, namely that the law of the husband’s domicile applied;
- The new rule will not apply to marriages that had already ended by divorce or by the death of one of the spouses before the date of the court order.
How does this apply to you?
- Couples who are planning to get married by way of antenuptial contracts are encouraged to expressly state in their contracts which country the parties elect to be their domicile and ensure that the 5-step test is met when doing so. This will remove any ambiguity and uncertainty in the future should the marriage dissolve.
- Couples who are already married by way of antenuptial contract and have expressly stated their chosen domicile but have not met the requirements for the 5-step test have 2 years to rectify their antenuptial contracts so that they are in line with the new rule.
- Marriages that have already been dissolved are not affected by this new rule.
Conclusion
While getting married is an extremely exciting time, couples whose relationships span across borders are encouraged to consult family law or notarial practitioners to ensure that they are well informed, not only about the various matrimonial property regimes available, but also ensuring that their contract is compliant with the new rules as set out by the Court. This provides the couples with certainty and doesn’t leave it to the Courts to decide.
Kimberley Mali
Associate
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).