C&A Friedlander Attorneys

We live in a global village, so it is no surprise that questions of international private law are becoming more prevalent. One such question is: What legal regime is applicable to foreign marriages when divorce proceedings are instituted in South Africa?

It is not uncommon for parties who were married abroad to have entered into a financial agreement (either an antenuptial or postnuptial contract), intended to regulate the division of assets in the event of a breakdown of marriage and often includes details relating to the payment of spousal maintenance, children’s maintenance, and how the parties will regulate care and contact of the minor children. These contracts are normally prepared by the relevant legal professionals in the foreign country and thus rely on foreign legislation.

Assuming that the parties were domiciled in the foreign jurisdiction when they got married, and acquired a new domicile of choice when they relocated to South Africa prior to instituting divorce proceedings, two questions arise: What legal regime is applicable, and how do our Courts view these foreign financial agreements?

The proprietary 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 (see Frankel’s Estate & another v The Master & another 1950 (1) SA 220 (A) at 241; Sperling v Sperling 1975 (3) SA 707 (A) at 716 F – G;  and Lenferna v Lenferna (120/13) [2013] ZASCA 204). For the purposes of this article, we do not intend discussing the inherent problems with the current legal position.

As such, if the husband was domiciled in England at the time of the parties’ marriage, the relevant laws of England would be applied by our Courts.

Insofar as the foreign financial agreement is concerned, in accordance with the cases Ex parte Wismer et Uxor 1950 (2) SA 195 (C) at 196 and Ex parte Spinazze and another NNO 1985 (3) SA 650 (A) at 659 C – 660 A, as long as the agreement was executed in accordance with the requirements of the lex loci contractus, i.e. the law of the place where the contract was concluded, our Courts will recognise the agreement as valid and binding between the spouses. However, as the Court confirmed in Ex parte Spinazze at 658 A – B, the financial agreement will not be of any force or effect against any person who is not a party thereto (i.e. third parties), unless such agreement has been duly registered in a deeds registry in South Africa under section 87(2) of the Deeds Registries Act 47 of 1937, which reads as follows: “An antenuptial contract executed outside the Republic shall be attested by a notary or otherwise be 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 or within such extended period as the court may on application allow.”

What does this mean in practice? It means that our Courts will regard the parties’ marriage to be out of community of property and subject to the terms of their financial agreement between the parties themselves, but as in community of property as against third parties. Since the creditors of the parties are not bound by the terms of their financial agreement and may regard their marriage as one of in community of property, both spouses remain jointly and severally liable for all debts accrued. It is therefore critical that the parties reach an agreement on how they intend dealing with their respective liabilities (for example one party could indemnify the other against certain creditors’ claims) and incorporating the terms of such agreement into their consent paper.

It should be noted that despite the foreign agreement being binding between the parties themselves, any agreement concerning spousal maintenance, children’s maintenance, and with regard to the care and contact of the minor children, will be unenforceable. These aforementioned issues fall within the exclusive jurisdiction of the country where the spouse and children now reside, and will therefore be determined in accordance with the laws of South Africa.

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).