17/07/2026
𝗟𝗔𝗡𝗗𝗠𝗔𝗥𝗞 𝗝𝗨𝗗𝗚𝗠𝗘𝗡𝗧 𝗥𝗘𝗦𝗛𝗔𝗣𝗘𝗦 𝗠𝗔𝗧𝗥𝗜𝗠𝗢𝗡𝗜𝗔𝗟 𝗣𝗥𝗢𝗣𝗘𝗥𝗧𝗬 𝗟𝗔𝗪
The Western Cape High Court's judgment in 𝙉.𝙋 𝙫 𝙈𝙞𝙣𝙞𝙨𝙩𝙚𝙧 𝙤𝙛 𝙅𝙪𝙨𝙩𝙞𝙘𝙚 𝙖𝙣𝙙 𝘾𝙤𝙣𝙨𝙩𝙞𝙩𝙪𝙩𝙞𝙤𝙣𝙖𝙡 𝘿𝙚𝙫𝙚𝙡𝙤𝙥𝙢𝙚𝙣𝙩 & 𝙊𝙩𝙝𝙚𝙧𝙨, delivered on 23 June 2026, marks a significant development in South African matrimonial property law. The Court declared the long-standing common-law rule of lex domicilii matrimonii unconstitutional and introduced a new framework for determining the proprietary consequences of all marriages.
The long-standing common-law principle held that the proprietary consequence of a marriage is determined by the law of the country where the 𝗵𝘂𝘀𝗯𝗮𝗻𝗱 𝗶𝘀 𝗱𝗼𝗺𝗶𝗰𝗶𝗹𝗲𝗱 when the marriage is concluded.
The case concerned a divorce between spouses with international ties. The applicant, originally from Colombia and educated in England, married the respondent, a Zimbabwean, while they were living in Hong Kong and later relocated to South Africa. Following the breakdown of the marriage, a dispute arose regarding which country the respondent was domiciled in at the time of the marriage. The applicant argued that both parties were domiciled in England, while the respondent maintained that his domicile remained Zimbabwe. Rather than asking the divorce court to determine the husband's domicile at the date of marriage, the applicant challenged the constitutionality of the common-law rule itself, arguing that it unfairly discriminated on the grounds of s*x, gender and s*xual orientation, because it gave preference to the husband’s domicile and failed to accommodate same-s*x marriages.
The Court found that the rule unfairly discriminated on the stated grounds, rendering it inconsistent with the Constitution and therefore unconstitutional.
The Court replaced the old principle with a modern framework for determining the applicable law:
• First, spouses may 𝗰𝗵𝗼𝗼𝘀𝗲 the governing legal system before or at the time of marriage, provided there is a substantial connection to that legal system.
• If no valid choice exists, the applicable law is determined by the parties' 𝗰𝗼𝗺𝗺𝗼𝗻 𝗱𝗼𝗺𝗶𝗰𝗶𝗹𝗲 at the time of marriage.
• If there is no common domicile, the law of their 𝗰𝗼𝗺𝗺𝗼𝗻 𝗵𝗮𝗯𝗶𝘁𝘂𝗮𝗹 𝗿𝗲𝘀𝗶𝗱𝗲𝗻𝗰𝗲 applies
• If there is no common habitual residence, then their 𝗰𝗼𝗺𝗺𝗼𝗻 𝗻𝗮𝘁𝗶𝗼𝗻𝗮𝗹𝗶𝘁𝘆 is used.
• Where none of these factors can be established, the law of the country with which the spouses were 𝗷𝗼𝗶𝗻𝘁𝗹𝘆 𝗺𝗼𝘀𝘁 𝗰𝗹𝗼𝘀𝗲𝗹𝘆 𝗰𝗼𝗻𝗻𝗲𝗰𝘁𝗲𝗱 at the time of the marriage will apply.
The court ordered that the new framework applies 𝗿𝗲𝘁𝗿𝗼𝘀𝗽𝗲𝗰𝘁𝗶𝘃𝗲𝗹𝘆 to all existing marriages subject to certain limitations. The judgement does not affect marriages already dissolved by death or divorce before the date of the order. It does not invalidate transactions or legal steps already completed under the previous legal position. Where a governing legal system was chosen in an antenuptial contract, the previous position remains applicable for two years from date of judgement, allowing time for the parties to amend their contract should they wish to do so.
For conveyancers and notaries, this judgment has important consequences for property transactions and divorce actions. Before preparing transfer documents or obtaining spousal consents, conveyancers and notaries must determine the applicable matrimonial property regime using the Court’s new framework rather than relying on the husband’s domicile. Practitioners should also establish whether the parties concluded an antenuptial contract and whether they expressly selected the governing legal system, together with the facts establishing the required substantial connection.
For sellers, purchasers and estate agents, correctly identifying the matrimonial property regime remains essential when dealing with immovable property. The judgment changes the method used to determine the applicable legal system and reinforces the need for careful due diligence where international domiciles, residences or nationalities are involved.
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