It is difficult to think of consequences such as death and divorce when just married and sipping champagne on the Champs-Elysees. The reality is that this is exactly the time when planning for such eventuality must be done, particularly given the complex consequences that could follow a division of estates when a marriage is terminated, especially where the parties are married without an antenuptial contract that provides clarity on their matrimonial property regime and division of assets.
In terms of the common law in South Africa the matrimonial property regime is determined according to the law applicable in the husband’s country of domicile at the time of the marriage.
Section 1(2) of the Domicile Act 3 of 1992 determines that:
“A domicile of choice shall be acquired by a person when he is lawfully present at a particular place and has the intention to settle there for an indefinite period.”
Thus the intention of the party is important to consider. But establishing intention can be difficult and subjective. Accordingly the Domicile Act continues in section 5 by stating that:
“The acquisition or loss of a person’s domicile shall be determined by a Court on a balance of probabilities.”
In simple terms this means that the Court will look at the surrounding circumstances to determine the intention of a party and eventually the person’s domicile.
As the domicile of the husband is the deciding factor when determining the applicable legal regime governing a matrimonial estate, the following aspects should be kept in mind:
• As a rule of thumb in determining domicile, one can apply the “home or holiday”-rule. If you are getting married when on holiday in another country, your country of origin will almost always decide the legal regime of your marriage. If you intend to make another country your home, your domicile will change and that new home-country will decide your domicile.
• Disputes relating to matrimonial property matters often arise because the parties did not enter into an antenuptial contract. When entering into an antenuptial contract, the contract must be registered in a specific place, and the place of conclusion and registration of the antenuptial contract will generally then determine the legal regime that is applicable to the marriage and estates of the parties.
• In South Africa, our law determines that where South African law applies to the marriage, in the absence of the married couple concluding an antenuptial contract which changes their matrimonial property regime, the couple will automatically be married in community of property. Thus when the parties decide to divorce the joint estate will in general be divided in equal undivided shares, irrespective of the parties’ respective contribution to the estate.
• In South Africa and several other countries a civil union can be concluded between two partners of the same gender and which bears many of the same consequences as a civil marriage. The obvious result is that the Domicile Act’s reference to a ‘husband’ can become problematic. Again, entering into an antenuptial contract can avoid any disputes regarding domicle arising.
In conclusion – the lesson to be learnt here is not so much the complexity of determining domicile and the applicable matrimonial property regime, but rather that when getting married, whether in your backyard or in Timbuktu, you should properly plan for your marriage, consult with an attorney and ensure that you have an antenuptial contract drawn up that determines the applicable matrimonial property regime that will govern your marriage in the event of its dissolution. Having done that, you can then enjoy your champagne with total peace of mind!
