This case is of the utmost importance to Conveyancers and Notaries.
Here is the practical summary of the JUDGMENT IN N[…] P[…] V MINISTER OF JUSTICE AND CONSTITUTIONAL DEVELOPMENT & OTHERS, Western Cape High Court, case no. 2468/2024, delivered 23 June 2026.
Core issue
The case dealt with the old South African private international law rule known as lex domicilii matrimonii.
That rule provided that where a marriage has an international element, the proprietary consequences of the marriage are determined by the husband’s domicile at the time of the marriage.
The applicant challenged that rule as unconstitutional because it prefers the husband’s domicile over the wife’s domicile and does not work properly for same-sex marriages.
Court’s finding
The High Court declared the common-law rule unconstitutional and invalid because it unfairly discriminates on the grounds of:
• sex;
• gender; and
• sexual orientation.
The court held that the rule is rooted in outdated patriarchal assumptions, namely that the wife’s legal position follows that of the husband. The court also emphasized that the wife’s dependent domicile was abolished by the Domicile Act 3 of 1992, yet this old private international law rule survived.
NEW RULE DEVELOPED BY THE COURT
The court developed the common law. Going forward, the proprietary consequences of an international marriage are determined as follows:
1. First, the parties may agree before or at the time of marriage which country’s legal system applies, but there must be a substantial link or connection between that legal system and one or both spouses.
2. If there is no valid agreement, the law of the country of the parties’ common domicile at the time of marriage applies.
3. If there is no common domicile, the law of the country of their common habitual residence at the time of marriage applies.
4. If there is no common habitual residence, the law of their common nationality at the time of marriage applies.
5. If none of those apply, the law of the country with which the spouses are jointly and most closely connected at the time of marriage applies.
RETROSPECTIVE EFFECT
The new rule applies retrospectively to existing marriages, but with important limits:
• It does not apply to marriages already dissolved by death or divorce before the order.
• It does not undo positive steps, decisions or transactions already taken under the old husband-domicile rule.
• If spouses chose a governing law in an antenuptial contract, the development does not apply for two years, so they can amend the ANC if necessary.
• If there was no chosen law, the new rule applies unless it would cause substantial prejudice.
PRACTICAL IMPORTANCE FOR CONVEYANCING / NOTARIAL / MATRIMONIAL PROPERTY WORK
This judgment is important for international marriages and antenuptial contracts. It means one can no longer simply ask: “Where was the husband domiciled at the date of marriage?”
The safer approach is now to ask:
• Did the spouses choose a governing law in an ANC or other valid agreement?
• Is there a substantial connection to that chosen legal system?
• If not, what was the parties’ common domicile at marriage?
• If no common domicile, what was their common habitual residence?
• If no common habitual residence, did they have common nationality?
• If none, which country were they jointly and most closely connected to?
For ANC drafting, the judgment strongly supports expressly recording the chosen governing law where there is an international element, together with the facts showing the substantial connection to that law.
What is Your Opinion? (Post a comment below)
Allen West
Property Law Consultant
HANNES GOUWS AND PARTNERS INC.
Attorneys, Notaries & Conveyancers
Tel: 012 321 1008
Cell 078 7655928
E-mail: allen@hannesgouws.co.za
Author of The Practitioners Guide to Conveyancing and Notarial Practice 3rd Edition
