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LJU4804 PRIVATE INTERNATIONAL LAW PORTFOLIO MAY JUNE 2022
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LJU4804 PRIVATE INTERNATIONAL LAW PORTFOLIO MAY JUNE 2022
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Page |1Question 1
In terms of the rules of private international law the material validity of marriage is
governed by the lex loci celebrationis that is the law of marriage celebration. The law
of marriage celebration refers to the place where the marriage was celebrated. By
virtue of the given set of facts the marriage was concluded in Mauritius meaning. The
legal system would then be Mauritian law. 1
We have pointed out above that material validity of a marriage is governed by the lex
loci celebrationis. However this general rule has two exceptions which are doctrine of
fraus legis and the principle of public policy. Our main focus is on the former since it
is the most relevant to our hypothetical case.
In terms of the doctrine of fraus legis if it is established that parties to marriage
deliberately celebrated their marriage somewhere else to avoid the parental consent
requirement they are consequently held to have acted in fraudem legis and
consequently the validity of their marriage will then be tested by the local law as the
lex domicilii.
In the Kassim decision the court held that since Kassim was a minor she needed the
consent of her legal guardians (parents in this regard) for the marriage to be valid. 2
The court further reiterated that since the parents refused to give consent it renders
the marriage concluded between Kassim and Ghumran invalid.
If the application of the lex loci celebrationis is in conflict with the principles of public
policy of the forum, the forum will not recognise the law of the place of celebration of
the marriage. For instance, a South African court will not recognise an incestuous
marriage.
For many years, (foreign) polygamous marriages were regarded as contrary to South
African public policy and, therefore, not recognised as valid. In this regard, refer to
Seedat's Executors v The Master (Natal) 1917 AD 302. With the dawn of the
constitutional dispensation in South Africa, this rule in respect of polygamous
marriages was also reformed.
Firstly, the courts recognised de facto monogamous marriages – see Ryland v Edros
1997 (2) SA 690 (C). Secondly, in the case of Hassam v Jacobs NO and Others
1
Friedman v Friedman’s Executors and Others 1922 43 NLR 259
2
Kassim v Ghumran and Another 1981 Zimbabwe LR 227
, Page |2
2009 (5) SA 572 (CC), polygamous marriages were recognised by the Constitutional
Court. Although this case did not have a foreign element, this approach should
extend to future conflict cases involving foreign polygamous marriages
1.2
Mr Tembo is domiciled in Zambia at the time of the marriage because that is where
he was domiciled in zambia at all relevant times. He was in London only for a two
year fixed contract. According to common law, he is domiciled in Zambia as a
domicile of choice and he is over the age of 21 years to choose his place of domicile.
However, the Domicile Act 3 of 1992 came into operation after Mr. Tembo entered a
marriage in 1983. However, according to the Domicile Act, Mr Tembo domicile of
choice is Johannesburg . There are two requirements that Mr. Tembo has to meet
for Johannesburg to be required his place of domicile which is that he has to be
lawfully present at a particular place and has the intention to settle there for an
indefinite period. These were also argued in the Chinatex Oriental Trading v Eskine
1998 (4) SA 1087 (C) case.1 MR Tembo is physically and lawfully present in
Johannesburg, however, in terms of the second requirement he does not need to
have an intention to settle permanently but to remain indefinitely and from the
permanent contract he wants to take it shows his intention to remain indefinitely in
Johannesburg .
1.3
In this question, the constitutionality of section 7(3) of the Divorce Act 3 will be
considered, specifically with reference to the date of the conclusion of the marriage
and the matrimonial property system as limitations to the application thereof.
Contractual freedom will also be deliberated. The right to equality, as a specific
constitutional right, and the imbalances brought about by the differentiation of this
provision will be considered as well.
Section 7(3) has limited application. It is important to fully comprehend the realm of
this subsection to properly consider its constitutionality. The intention of the
legislature was to grant the court a discretionary power to order a redistribution of
assets, even if such redistribution was to differ radically from the content of an
antenuptial agreement entered into between the parties. The aim of this provision
3
70 of 1979
, Page |3
was to redress the inequities that naturally flow from a marriage out of community of
property.4
The first ground upon which the constitutionality of section 7(3) may be attacked
might cause uproar amongst the liberalists of women’s rights: it is the question
whether section 7(3) infringes upon contractual freedom of individuals. In a way, this
consideration differs, in principle and in approach, from the other considerations
discussed below. When soon to be spouses enter into an antenuptial contract, it is
with a view to regulate the economical side of their relationship.
It must be borne in mind that subsection 7(9) was only added by Divorce
Amendment Act5. Even after the enactment of s 7(9), it may be that the foreign lex
domicilii matrimonii does not make provision for redistribution and therefore a party
may wish to rely on s 7(3)
The question therefore remains: may a party to marriage with a foreign matrimonial
domicile rely on section 7(3) to effect a redistribution of assets upon divorce in a
South African High Court? T
The answer to this question depends largely upon how redistribution of assets is
classifi ed. If it is classified as a divorce matter, the lex fori would apply and therefore
section 7(3) may be relied on – provided that the requirements for such an order (as
set out in section 7) are met.
The author Kahn argued that a redistribution order may be classified as a divorce
matter. In the case of Lagesse v Lagesse6 it seems as though a redistribution order
was also classified as a divorce matter. The husband and wife married in Mauritius,
where the husband was also domiciled at the time of marriage. The parties did not
enter into a notarially executed antenuptial contract but stated to the marriage officer
that they wished their marriage to be governed by the Status of Married Women
Ordinance of 1949, which had the effect of excluding community of property. The
marriage officer made a note to this effect. Upon instituting an action for divorce in a
South African High Court, the wife applied for a redistribution order in terms of
section 7(3) of the (South African) Divorce Act. The judge looked at whether the
requirements of section 7(3) had been met and held that nothing in the wording of
4
Robinson & Horsten, 2010 Speculum Juris 98
5
Divorce Amendment Act 44 of 1992
6
1992 (1) SA 173 (D
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