International marriage, South African divorce: which country’s law governs your assets?

Consider the following scenario: a Romanian and a French citizen meet while studying in Paris. They fall in love, get married in France and spend the next few years building a life together. Eventually, work brings them to Cape Town, where they settle down. Years later, their marriage unfortunately comes to an end.

That raises the question: Does a South African court have jurisdiction to hear this divorce?

Potentially, yes.

Jurisdiction in divorce matters is based on domicile or ordinary residence, not citizenship. This position is set out in section 2 of the Divorce Act 70 of 1979.

However, just because a South African court may have the authority to grant the divorce does not automatically mean South African law determines what happens to the parties’ assets.

That raises another, and perhaps more interesting, question: Which country’s law decides what happens to their assets?

Many people assume the answer must be South Africa because the divorce is taking place here, but this is not necessarily the case.

In fact, until recently, South African private international law answered that question in a rather old-fashioned way.

A bit of background

For many years, South African private international law applied a common law rule known as lex domicilii matrimonii. Although the name sounds intimidating, the principle is relatively straightforward.

Where a marriage had an international element, the matrimonial property consequences of that marriage were determined by the husband’s domicile at the date of the marriage.

Historically, this rule reflected a time when a wife’s domicile was regarded as following that of her husband. While this might have made sense centuries ago, society and the law have changed considerably since then.

Women have long been able to establish their own domicile independently in terms of the Domicile Act 3 of 1992, and South Africa’s Constitution guarantees equality before the law. Yet this common law rule remained in place.

It also presented an obvious practical difficulty: how does a rule based on ‘the husband’s domicile’ apply to marriages between two wives or two husbands?

The law simply no longer reflected the reality of modern relationships.

The Judgment

In the recent case of N.P. v Minister of Justice and Constitutional Development, the Western Cape High Court declared the common law lex domicilii matrimonii rule unconstitutional.

The Court found that basing the decision of the applicable law solely on the husband’s domicile unfairly discriminated on the grounds of sex, gender and sexual orientation. The Court further recognised the impracticality of the rule in relation to same-sex marriages.

The Court did not simply remove the old rule, but replaced it with a far more practical, modern framework.

The new approach requires a court to consider a series of sequential factors:

1. Did the spouses choose which country’s law should apply, for example, in their antenuptial contract? Note that in this case the parties must still show a substantial connection to the chosen country and its laws.

   
   

2. If not, did they share a common domicile when they married?

   
   

3. If not, did they share a common habitual residence?

   
   

4. If not, did they share a common nationality?

   
   

5. If none of the above apply, which country are they most closely connect to?

The emphasis has therefore shifted from the husband’s legal status to a couple’s agreed choice of law or their joint connection to a legal system at the time of marriage.

The Court’s decision applies not only to future marriages but also has a retrospective effect. However, the retrospective application of the new rule is subject to the following important safeguards:

• The judgment does not affect marriages that had already ended through divorce or the death of a spouse before the Court’s order was made.

• The judgment does not invalidate or reopen decisions, transactions or legal steps that were already properly taken or performed under the previous domicile rule.

• Where the parties have selected the applicable law in an antenuptial contract, the new rule will only take effect after a two-year transitional period, giving spouses an opportunity to review and amend their antenuptial contracts if they wish.

• In cases where no governing law was chosen, the new rule applies immediately, unless doing so would result in substantial prejudice.

  
  

Although this is undoubtedly a welcome development toward a more inclusive and equal society, the replacement framework is unfortunately not free from difficulty.

Concepts such as “substantial connection”, “habitual residence”, “most closely connected” and “substantial prejudice” are inherently fact-sensitive and may themselves increase the complexity of disputes. Questions also remain about the impact of the order’s retrospective application and the form and requirements of a valid choice-of-law agreement.

It is interesting to note that many of these practical difficulties had already been identified by the South African Law Reform Commission in its 2023 Discussion Paper 160 (https://www.justice.gov.za/salrc/dpapers/dp160-prj100E-ReviewMatrimonialPropertyLaw.pdf).

Further judicial guidance or legislation may therefore be required before the practical consequences of the new framework are fully settled.

Does this judgment affect most married couples?

Probably not.

If two South Africans marry in Stellenbosch, live in South Africa and later divorce here, this judgment is unlikely to affect them.

Instead, the decision is aimed at marriages with an international element. For example, where spouses have different nationalities, marry in one country and settle in another, or live and acquire assets across multiple jurisdictions.

One practical implication is that legal practitioners advising on international marriages will need to give careful consideration to the law that will govern the matrimonial property consequences of the marriage and ensure that this is properly recorded in the antenuptial contract. In cross-border relationships, that question may be just as important as the matrimonial property regime itself.

Conclusion:

As our world becomes increasingly interconnected, the law must evolve alongside it. This judgment is a welcome step towards ensuring that South African private international law reflects the realities of modern relationships rather than outdated assumptions about marriage.

You can read the full judgment ofN.P. v Minister of Justice and Constitutional Development and Others(2468/2024) [2026] ZAWCHC 343here.