A person’s domicile is a particular territorial jurisdictional area or country where he/she intends to settle or is settled indefinitely. It is therefore a subjective determination based on the intention of the parties, something which is sometimes difficult to establish.
In terms of South African common law and the Domicile Act 3 of 1992, read with the section 10 of the Marriage Act 25 of 1961, where either or both parties are not domiciled in the same country or state, or when marriage is solemnised in a place where either or both spouses are not domiciled, the law of the place of the husband’s domicile, at time of the marriage, will govern the legal and proprietary consequences thereof. This can only be determined by virtue of an affidavit from the parties concerned.
This theory is outdated and in conflict with the principle of equality. However, until its repeal, the application of the theory of the husband’s domicile prevails to marriages solemnised in South Africa. But see the discussion below regarding same sex marriages entered into between foreigners.
The Hague Convention of 1978 provides a unique and maybe ground-breaking solution to this problem.
Under the Convention the legal system (to be applicable to the couple’s marriage) may be selected by the parties prior thereto and is based on:
‘The law of the state to which either spouse is a national at the time of designation; or
The law of the state to which either spouse has habitual residence at the time of designation; or
The law of the first state where one of the spouses established a new habitual residence after marriage.’
According to this Convention, if the spouses have not designated their marital property regime prior to marriage, the internal law of the state in which both spouses establish their first habitual residence after marriage will prevail. However, the provisions of this Contravention may be relied on only in countries that are signatories thereto. Therefore, like other international treaties and agreements, where South Africa is not a signatory, such agreement is the equivalent of a policy document, which contents may be considered by a South African court of law, but it is not legally binding as in the case of the Constitution and/or any legislation.
Where foreigners marry in South Africa, in terms of the Marriage Act or the Civil Union Act, both the groom and the bride must produce to the marriage officer:
Ø a valid passport;
Ø a basic affidavit called a DHA-form, which states the dates and places of birth, completed by the foreigner;
Ø clear copies of divorce decrees (if relevant); and
Ø clear copies of death certificates (if relevant).
South African marriages are legally valid in almost every country in the world. However, as already mentioned, the couple is bound by the laws of the country in which the husband lives, and one will have to ascertain what will be required when the marriage is registered in the country of domicile.
An abridged marriage certificate will be received from the marriage officer and some foreign countries will accept this as proof of the marriage. The marriage officer who registers a foreign marriage with the Department of Home Affairs can apply for an unabridged marriage certificate, which is stamped ‘Apostille’ by the High Court. This is issued to enable a foreigner to register the marriage once in the country of domicile. Countries like Germany require at least one ‘Apostille’. The marriage of United Kingdom and Irish citizens in South Africa is legally binding under United Kingdom and Irish law. This is also the case for citizens from most other countries wishing to marry in South Africa, but it advisable to firstly ascertain whether a foreign country acknowledges South African marriages as legally binding, before concluding such marriage.
Marriages or partnerships concluded by foreigners in South Africa in terms of the Civil Union Act 17 of 2006, poses a unique problem in that, should the Hague Convention (as discussed above) not be applied, the question arises whose domicile will be used to determine the country which must govern the marriage. From the discussion above, it is clear that the mere conclusion of a civil union by foreigners in South Africa does not result in a valid partnership/marriage. Their marriage or partnership will have to be registered in the country where the parties are domiciled, and only if so registered and proof in this regard is provided, can it be accepted that a valid marriage/partnership exists. In terms of RCR 40 of 2009, as confirmed by RCR 24 of 2010, if the marriage/partnership is registered in such foreign country, the parties to such same sex union will be described in the same manner as any other foreign marriage (CRC 5 of 1994).
From a conveyancing perspective, where foreigners provide a practitioner with a marriage certificate that was issued in South Africa, this marriage cannot prima facie be regarded as a valid marriage (obviously the same applies to civil unions entered into in terms of the Civil Union Act). The conveyancer concerned must request the parties to the marriage to register the marriage in the country of domicile of the husband, alternatively in terms of the country as per the Hague Convention, and only then can it be deemed to be a valid marriage.
Practitioners, be warned that a foreign citizen who has concluded a marriage in South Africa might not be legally married and can thus not be described as such. A mere affidavit from the spouses that the marriage is valid and binding should be frowned upon.
Please do not hesitate to contact me for further information.
Regards,
Allen West
TONKIN CLACEY PRETORIA
012 346 1278
