Getting married abroad has its attractions… But before you say ‘I do’ take a moment to consider the legal consequences of getting married outside South Africa.
Although marriage symbolises many things, it is fundamentally a legal act concluded by two people when they express the will to enter into a marriage union. As with any legal act, it requires compliance with the relevant laws of the country to be valid.
The general principle of common law is that the validity of legal acts falls under the law of the place where they were performed. This means that the validity of your marriage is determined by the law of the place where it was celebrated or entered into. For South Africans getting married abroad, a marriage concluded in another country will (barring exception) be valid only if it was validly concluded according to the law of that country.
The validity of such a marriage is often only determined when the validity or invalidity of the marriage is called into question, such as where one party claims for a divorce, performance in terms of an antenuptial contract, inheritance claims, disputes arise regarding their minor children, or claims by third parties against the household property of on or both of the parties to the marriage.
Even if your marriage is valid, if it is dissolved in South Africa, whether by death or divorce, the laws of the country of you and your partner’s domicile (ordinarily resident) at the time that your marriage was concluded will be applied to the patrimonial consequences, whether you and your partner are married in or out of community of property.
You and your partner are responsible for ensuring that your marriage is validly concluded, and that you both understand the marital regime (in community of property, or out of community of property with or without accrual) and that your antenuptial contract is properly executed.
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)