As the world is getting smaller and smaller and is easier to travel between countries, an "international wedding" becomes a greater reality for many couples. This type of marriage may seem awfully romantic and appealing, but can turn quickly sour when questions regarding the matrimonial property regime of the parties are raised at divorce or death.
A vital step in planning your marriage is to choose the correct "marital regime" that will suit both parties, which is registerable in South African Law, namely:-
- In community of property.
- Out of Community of Property (With or Without Accrual).
Besides the types of marital regimes above one should be asking the following questions:-
- Where are you getting married? i.e. locally in South Africa or Abroad?
- Are you both South African Citizen's or not?
- Where is the husband (to be) domiciled? A slight complication can arise with same sex marriages as stated below.
So if you do get married abroad then the above questions become very prevalent as to which legal regime will govern your marriage, being:
- Where you were married?
- The home country of a spouse? or
- The country in which the couple reside?
In terms of the common law in South Africa the matrimonial property regime is governed by the husband's country of domicile at the time of marriage.
Section 1(2) of the Domicile Act 3 of 1992 (as amended) 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."
Therefore the intention of the husband (or either party in same sex marriages) is imporant to consider. Establishing intention can be difficult and subjective and if this cannot be easily determined then Section 5 of the Domicile Act 3 of 1992 (as amended) states further "The acquisition or loss of a person's domicile shall be determined by a Court on a balance of probabilities."
Please note that the concept that only the domicile of the "husband" should count is outdated and unlikely to survive Constitutional scrutiny for gender equality, nor is it practical since it cannot be applicable to same-sex marriages.
So taking all the above into consideration the lesson to be learnt is not so much the complexity of determining domicile and which matrimonial regime to enter into, that you need to properly plan for your marriage. You can start by consulting with your attorney to ensure that you have antenuptial contract drawn up that determines the applicable matrimonial regime that will govern your marriage in the event of its dissolution.
Once you have sorted the above out you can sit back and relax and enjoy your wedding day knowing that you will have total piece of mind.