In a landmark judgment, the Western Cape High Court declared the long-standing lex domicilii matrimonii rule unconstitutional. The rule provided that the proprietary consequences of a marriage involving foreign elements were determined by the husband’s domicile at the time of the marriage, regardless of the wife’s connection to another jurisdiction.
The Court held that this principle unfairly discriminates on the basis of gender and is inconsistent with the constitutional rights to equality and dignity.
To remedy the position, the Court introduced a new, gender-neutral framework. Spouses may now choose the legal system that will govern the proprietary consequences of their marriage where there is a substantial connection to that jurisdiction. If no election is made, the applicable law will be determined by the parties’ common domicile or habitual residence at the time of the marriage.
The judgment marks a significant development in South African private international law and, if confirmed by the Constitutional Court, will fundamentally change how cross-border marriages are regulated.
