JUR5901
ASSIGNMENT 1 2026
DUE: 29 MAY 2026 (MEMO)
, JUR5901 ASSIGNMENT 1 2026
DUE 29 MAY 2026
Introduction
The general rule in South African private international law, as enunciated by Jan Neels,
is that maintenance belongs to the domain of the lex fori (the law of the forum).¹ This
principle classifies maintenance as a procedural or personal consequence of marriage,
rather than a substantive patrimonial matter. However, in Hassan v Hassan 1998 (2) SA
589 (D), the Durban and Coast Local Division departed from this rule by applying
foreign law (Scottish law) to determine both the division of the matrimonial estate and
the payment of maintenance after divorce. This assignment discusses the judgment
in Hassan, explains how it deviates from the lex fori rule, and engages with Neels’s
critique of the decision.
Case Discussion: Hassan v Hassan 1998 (2) SA 589 (D)
Facts
The parties were married in Scotland in November 1963, when they were 17 and 16
years old respectively, and were domiciled in Scotland at the time of marriage.² In about
1970, they emigrated to South Africa and had lived there ever since, apparently
intending to remain in South Africa.³ The marriage had produced three children, the
youngest of whom was 20 years old and living independently, so the children did not
concern the court further.⁴
¹ Jan Neels ‘Classification as an Argumentative Device in International Family Law’ (2003) 120 South
African Law Journal 883 at 888.
² Hassan v Hassan 1998 (2) SA 589 (D) at 590C-D.
³ Ibid at 590D.
⁴ Ibid at 590E-F.
ASSIGNMENT 1 2026
DUE: 29 MAY 2026 (MEMO)
, JUR5901 ASSIGNMENT 1 2026
DUE 29 MAY 2026
Introduction
The general rule in South African private international law, as enunciated by Jan Neels,
is that maintenance belongs to the domain of the lex fori (the law of the forum).¹ This
principle classifies maintenance as a procedural or personal consequence of marriage,
rather than a substantive patrimonial matter. However, in Hassan v Hassan 1998 (2) SA
589 (D), the Durban and Coast Local Division departed from this rule by applying
foreign law (Scottish law) to determine both the division of the matrimonial estate and
the payment of maintenance after divorce. This assignment discusses the judgment
in Hassan, explains how it deviates from the lex fori rule, and engages with Neels’s
critique of the decision.
Case Discussion: Hassan v Hassan 1998 (2) SA 589 (D)
Facts
The parties were married in Scotland in November 1963, when they were 17 and 16
years old respectively, and were domiciled in Scotland at the time of marriage.² In about
1970, they emigrated to South Africa and had lived there ever since, apparently
intending to remain in South Africa.³ The marriage had produced three children, the
youngest of whom was 20 years old and living independently, so the children did not
concern the court further.⁴
¹ Jan Neels ‘Classification as an Argumentative Device in International Family Law’ (2003) 120 South
African Law Journal 883 at 888.
² Hassan v Hassan 1998 (2) SA 589 (D) at 590C-D.
³ Ibid at 590D.
⁴ Ibid at 590E-F.
