“It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV.” (Oliver Wendell Holmes Jr)

A couple may marry in one country, live in several others, hold different nationalities and eventually settle in South Africa. If the marriage ends, which country’s law governs their financial and property rights?

Under South Africa’s old rules, the answer depended on the husband’s domicile at the time of the marriage.

Why the old rule was unconstitutional

The common-law rule of lex domicilii matrimonii provided that the financial and property consequences of a marriage were governed by the law of the husband’s domicile when the marriage was concluded.

That remained the position even after the Domicile Act of 1992 abolished the rule that a wife’s domicile automatically followed her husband’s and allowed married women to establish their own domicile.

The Western Cape High Court has now found there was no rational basis for continuing to prefer the husband’s domicile over the wife’s. The rule also failed when applied to same-sex marriages because it could not determine which spouse’s domicile should govern.

The Court held that the rule unfairly discriminated on the grounds of sex, gender and sexual orientation and was inconsistent with the constitutional right to equality.

The Court also ordered the two Ministers involved in the case to pay the applicant’s legal costs, criticising the State for allowing the unconstitutional rule to remain in place for three decades despite earlier recognition of its discriminatory effect.

What replaces the old rule?

Rather than simply declaring the rule invalid, the Court developed the common law and set out a new order for determining which country’s law applies.

Spouses may first agree, before or at the time of marriage, which country’s law will govern the financial and property consequences of their marriage. There must, however, be a substantial link or connection between the chosen legal system and one or both spouses.

If there is no agreement, or if there is no substantial link or connection with the chosen legal system, the law is determined in the following order:

The spouses’ common domicile at the time of marriage
Their common habitual residence at the time of marriage
Their common nationality at the time of marriage
If none of these applies, the country to which they were jointly and most closely connected at the time of marriage.

Domicile therefore remains relevant. What has gone is the automatic preference for the husband’s domicile.

The change is already in effect

Because the case concerned a common-law rule rather than legislation or conduct of the President, the Western Cape High Court’s order did not need to be confirmed by the Constitutional Court. The new framework therefore took effect on 23 June 2026.

Courts elsewhere in the country are not bound by the judgment but are likely to follow it.

What about existing marriages?

The new rule also applies to marriages that already existed when the judgment was handed down, subject to important safeguards.

Where spouses have chosen a law to govern the financial and property consequences of their marriage in an antenuptial contract, the new rule will not apply for two years from the date of the order, giving them an opportunity to amend the contract to align with the new framework.

That transitional period applies specifically where the antenuptial contract contains a choice of governing law, not simply because an antenuptial contract exists.

Where no governing law was chosen, the new rule applies unless this would result in substantial prejudice. Steps, decisions and transactions already taken under the old rule remain protected, while marriages dissolved by death or divorce before 23 June 2026 are unaffected.

In a cross-border marriage?

The Court described the “hidden complexities” of marriages with international elements, where spouses may not appreciate which country’s law governs their financial and property relationship until they are faced with divorce.

If you and your spouse have connections to more than one country, the applicable law may now depend on your common domicile, common habitual residence, common nationality or other shared connections at the time of the marriage.

Married abroad, or married with connections to more than one country? We’d be happy to look over your ANC or help you draft one.

Disclaimer: The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact us for specific and detailed advice.