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.
, In June 1996, while the plaintiff (wife) was visiting the United Kingdom to dispose of her
late mother’s ashes, the defendant (husband) formed an intimate relationship with a
third party, Taryn.⁵ Although there were some desultory efforts at reconciliation, the
relationship revived and persisted.⁶ The court found that the marriage had broken down
irretrievably, principally as a result of the defendant’s extramarital relationship.⁷
The parties agreed that the law of Scotland regulated the proprietary consequences of
their marriage.⁸ However, no evidence was led on what the appropriate Scottish law
was in 1963. Both parties agreed that the Family Law (Scotland) Act 1985 (the “Scottish
Act”) should be applied.⁹ The court took judicial notice of the Scottish Act under section
1(1) of the Law of Evidence Amendment Act 45 of 1988, finding that the Act could be
ascertained readily and with sufficient certainty.¹⁰
The issues before the court were limited to the division of the parties’ estate and the
payment of maintenance to the plaintiff, as there were no dependent minor children.¹¹
Legal Question
The central legal question was whether the issue of maintenance after divorce should
be governed by Scottish law (the lex causae applicable to the proprietary consequences
of the marriage) or by South African law as the lex fori. The plaintiff argued that
maintenance concerned a personal consequence of marriage and was therefore not
governed by Scottish law.¹²
⁵ Ibid at 590E.
⁶ Ibid at 590E.
⁷ Ibid at 590E.
⁸ Ibid at 590G-H.
⁹ Ibid at 590H-I.
¹⁰ Ibid at 590I-J.
¹¹ Ibid at 590E-F.
¹² Ibid at 591F-G.
¹³ Ibid at 591G.
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.
, In June 1996, while the plaintiff (wife) was visiting the United Kingdom to dispose of her
late mother’s ashes, the defendant (husband) formed an intimate relationship with a
third party, Taryn.⁵ Although there were some desultory efforts at reconciliation, the
relationship revived and persisted.⁶ The court found that the marriage had broken down
irretrievably, principally as a result of the defendant’s extramarital relationship.⁷
The parties agreed that the law of Scotland regulated the proprietary consequences of
their marriage.⁸ However, no evidence was led on what the appropriate Scottish law
was in 1963. Both parties agreed that the Family Law (Scotland) Act 1985 (the “Scottish
Act”) should be applied.⁹ The court took judicial notice of the Scottish Act under section
1(1) of the Law of Evidence Amendment Act 45 of 1988, finding that the Act could be
ascertained readily and with sufficient certainty.¹⁰
The issues before the court were limited to the division of the parties’ estate and the
payment of maintenance to the plaintiff, as there were no dependent minor children.¹¹
Legal Question
The central legal question was whether the issue of maintenance after divorce should
be governed by Scottish law (the lex causae applicable to the proprietary consequences
of the marriage) or by South African law as the lex fori. The plaintiff argued that
maintenance concerned a personal consequence of marriage and was therefore not
governed by Scottish law.¹²
⁵ Ibid at 590E.
⁶ Ibid at 590E.
⁷ Ibid at 590E.
⁸ Ibid at 590G-H.
⁹ Ibid at 590H-I.
¹⁰ Ibid at 590I-J.
¹¹ Ibid at 590E-F.
¹² Ibid at 591F-G.
¹³ Ibid at 591G.
