LJU4804_PORTFOLIO 2021.

LJU4804_PORTFOLIO 2021. LJU4804 - Private International Law. As above the lex domicilii matrimonii is interpreted as the domicile of the husband at the time of conclusion of the marriage. It has been argued that the reason for this interpretation stems from when a wife automatically took her husband’s domicile upon marriage. It was argued that this rule prevents a husband from changing his domicile after marriage to secure a property advantage at the expense of his wife. However, this rule is untenable under our current Constitutional dispensation. Firstly, the Domicile Act 3 of 1992 abolished the wife’s domicile of dependence, so the main ratio for the rule has fallen away. Secondly, section 9(3) of the Constitution prohibits discrimination based on gender – rendering the current conflict rule in this regard unconstitutional. However, the Constitutional Court has not formally struck it down. In the case Sadiku v Sadiku the judge questioned whether the current conflict rule is acceptable under the new Constitutional dispensation, but failed to decide on the matter. Thirdly, it would be impossible to apply this rule to civil unions as provided for in terms of the Civil Union Act 17 of 2006. The current connecting factor for proprietary consequences of marriage is unconstitutional. It is proposed that a suitable alternative connecting factor be found through conducting relevant comparative research in this field.6 When parties institute divorce proceedings in a South African court but the marriage was concluded while domiciled in another country, conflict of laws questions arise. However, some aspects in South African private international law remain overdue for change. According to the principles of South African private international law, the proprietary consequences of marriage are governed by the lex domicilii matrimonii, 5 . Forsyth Private international law 291. 6 . Wethmar-Lemmer MM Private International Law Department of Jurisprudence University of South Africa,Study Guid. 6 4 STUDENT NAME : NEERSHA SINGH STUDENT NUMBER : interpreted as the domicile of the husband at the time of the conclusion of the marriage.7 From the outset, it is important to distinguish between personal matters and proprietary consequences of marriage, since the former are not governed by the lex domicilii matrimonii, but indeed by the lex fori.8 In some instances, it is not entirely clear whether a matter should be classified as a divorce matter or a proprietary consequence of marriage. Domicile plays a significant role as a connecting factor with regard to personal and proprietary consequences of marriage.9 It also plays a central role in determining the law applicable to proprietary consequences of marriage and as such it is necessary to analyse the South African law of domicile. The content of a connecting factor must be determined by the lex fori. 10 The law of the forum will govern where a person is domiciled.11 The South African Law Reform Commission accepted that domicile “is the place where a person is de iure considered to reside permanently, even if he is de facto absent”.12 Lex loci domicilii is the law of the place where a person is domiciled.13 In South Africa, a person’s status is determined by the law of the place where he is domiciled.14 Domicile must be definitively defined as a place where a person is legally deemed permanently present for exercising his rights and fulfilling his obligations, even in the case of his factual absence.15 The law of domicile rests on two principles: first, that everyone must have a domicile at all times; and secondly that each person should have only one domicile at any time.16 The above principles are important, since domicile plays a huge part in selecting the appropriate legal system to govern a person’s affairs. Should a couple decide not to have the proprietary consequences of their marriage governed by the lex domicilii matrimonii, they should include a clause in their antenuptial contract that indicates a different legal system to govern the proprietary consequences of their 7 . Forsyth Private international law 291; Brown v Brown 1921 AD [478]; Frankel’s Estate and Another v the Master 1950 (1) SA 220 (A); Sperling v Sperling 1975 (3) SA 707 (A). 8 . Holland v Holland 1973 (1) SA 897 (T) [900A and 904G]; Forsyth Private international law 307. 9 . Schoeman, Roodt and Wethmar-Lemmer Private international law in South Africa 23. 10.Neels and Wethmar-Lemmer 2008 TSAR 592. 11. Forsyth Private international law 11; Jones v Jones 1984 (4) SA 725 (W); Bisonboard Ltd v K Braun Woodworking Machinery (Pty) Ltd 1991 (1) SA 482 (A) [501F]. 12. Law Commission “Domicile report – Project 60” 5. 13. Kruger et al The law of persons 67. 14. Barnard, Cronjé and Olivier The South African law of persons and family law 35. 15. Barnard, Cronjé and Olivier The South African law of persons and family law 35. 16. Forsyth Private international law 132-133. 5 STUDENT NAME : NEERSHA SINGH STUDENT NUMBER : marriage; or, if they wish to change their matrimonial property regime after the marriage, conclude a postnuptial contract. 17 Section 9 of the Constitution 18 prohibits discrimination, inter alia, on the grounds of sex. The current connecting factor for proprietary consequences of marriage clearly falls foul of the equality clause. There is no justification for giving preference to the domicile of the husband. 19 17. Schoeman 2001 TSAR 72. 18. Constitution of the Republic of South Africa, 1996. 19. Schoeman 2001 TSAR 72. 6 STUDENT NAME : NEERSHA SINGH STUDENT NUMBER : 1.3 Another important private international law matter in respect of proprietary consequences concerns the question of whether a party to a marriage with a foreign matrimonial domicile may apply for redistribution of assets in terms of section 7(3) of the Divorce Act. The legislator did not take into consideration a scenario where the proprietary consequences of marriage are not governed by South African law. 20 The answer to this question depends largely upon how redistribution of assets is classified. If it is classified as a divorce matter, the lex fori would apply and therefore section 7(3) may be relied on – provided that the requirements for such an order (as set out in section 7) are met. The author Kahn argued that a redistribution order may be classified as a divorce matter. In the case of Lagesse v Lagesse21 it seems as though a redistribution order was also classified as a divorce matter. The husband and wife married in Mauritius, where the husband was also domiciled at the time of marriage. The parties did not enter into a notarially executed antenuptial contract but stated to the marriage officer that they wished their marriage to be governed by the Status of Married Women Ordinance of 1949, which had the effect of excluding community of property. The marriage officer made a note to this effect. Upon instituting an action for divorce in a South African High Court, the wife applied for a redistribution order in terms of section 7(3) of the (South African) Divorce Act. The judge looked at whether the requirements of section 7(3) had been met and held that nothing in the wording of section 7 indicated that a narrow interpretation should be given to the requirement of an “ante-nuptial contract”. The judge found that the requirements for the application of section 7(3) had been met and ordered a redistribution of assets. In a contrary interpretation, however, in the case of Milbourn v Milbourn22 the requirement of the existence of an antenuptial contract was given a very strict interpretation. In this matter, the parties were married in England while they were both domiciled there. They did not conclude an antenuptial contract, but in terms of English law their marriage was out of community of property (by operation 20. Heaton The law of divorce and dissolution of life partnerships in South Africa 654. 21. 1992 (1) SA 173 (D). 22. 1987 (3) SA 62 (W). 7 STUDENT NAME : NEERSHA SINGH STUDENT NUMBER : of law). The parties emigrated to South Africa and Mrs Milbourn instituted divorce proceedings in a South African High Court. She also applied for redistribution of assets in terms of s 7(3) of the Divorce Act. However, the court found that one of the essential requirements of s 7(3), namely a notarially executed antenuptial contract, was not met and the order was not granted. If, on the other hand, a redistribution of assets is classified as a proprietary consequence of marriage, then the lex domicilii matrimonii would govern redistribution and a party to a marriage with a foreign matrimonial domicile would not be able to rely on s 7(3). In the case of Bell v Bell 23 the parties were married in England while domiciled there. They emigrated to South Africa and some years later the wife instituted divorce proceedings in a South African High Court. She also claimed redistribution of assets, but based her claim on sections 23 and 24 of the English Matrimonial Causes Act of 1973. The court held that a redistribution of assets is indeed a proprietary consequence of marriage and is governed by the lex domicilii matrimonii, which was English law in this case. The court therefore granted the redistribution order. Thirdly, authority exists for the argument that a redistribution of assets upon divorce has two aspects. The first is a maintenance aspect (to provide for future maintenance of a spouse), which is a divorce matter and is governed by the lex fori. In this regard, the spouse has a claim for redistribution to provide for future maintenance in terms of section 7(3), if the requirements of the article are met. Secondly, redistribution of assets has a proprietary aspect as far as it attempts to remunerate a spouse for past contributions. Redistribution of assets for past contributions is governed by the law of matrimonial domicile and a party to a marriage with a foreign matrimonial domicile cannot rely on s 7(3) for redistribution in respect of past contributions. The other main question faced in terms of redistribution orders under South African law is whether a party to a marriage, the proprietary consequences of which are governed by a foreign matrimonial domicile, can rely on it if the requirements set out in terms of section 7(3) are met. The answer to this question depends upon the classification of the redistribution order.