December 11, 2017
“He was a dreamer, a thinker, a speculative philosopher… or, as his wife would have it, an idiot” (Douglas Adams)
Note: Although by way of example we explore below the “international wedding” scenario, even if you are South Africans marrying in South Africa you need an ANC. Read on…
The Rand’s weakness notwithstanding, many couples still plan their dream weddings overseas. Likewise, many couples living overseas come back to South Africa to marry. If you are one of them, ask your lawyer before you get married for advice on which country’s laws will apply to your marriage.
Why get advice?
In South Africa, our default marital regime is marriage “in community of property”, and for many couples that is the worst option. You may well be better off opting rather for the “out of community” option (with or without “accrual”). The point is to make an informed choice rather than drift blindly into the default regime.
Don’t assume that you will be married out of community of property if your marriage takes place in a country where “out of community” is the default. And don’t assume that it’s your nationality/citizenship that counts.
Not so! No matter where you tie the knot and no matter what your citizenship is, what counts is where the husband is domiciled at the time of the marriage.
The difficulty – determining domicile
So you must figure out where the husband is domiciled at the time of marriage – how do you do that?
“A domicile of choice”, says our law “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.” In lay terms, that’s where he considers his “home” to be, where he lives and intends to remain permanently. Note that in law you must be domiciled somewhere (even if you think you aren’t), and you can only be domiciled in one country at a time. In other words, you can be stateless but not without a domicile, and you can hold dual citizenship but not dual domicile.
There are two main grey areas here –
- The “intention” bit. What if you have recently moved to South Africa? Or if you are a foreign national living in South Africa? A South African working overseas for a year or two? Or if you have plans to emigrate in the future?There’s a lot of potential for uncertainty and dispute there, and the problem is that in doubt it’s a court that will have to decide. It’s difficult enough at the best of times to decide what another person’s mental “intention” is, and remember that here we’re talking about intention at the time of the marriage. Years (in some cases decades) down the line, imagine the difficulty faced by the poor judge tasked with that one! There have been cases like that and they’ve been messy.
- The “husband” bit. Referring to only “the husband” is discriminatory and almost certainly unconstitutional, and in any event with same-sex unions which partner’s domicile are we looking at? Until parliament sorts that one out with new legislation, uncertainty will reign.
The remedy – avoid all doubt with an ANC
Fortunately, there’s an easy way to avoid all that doubt and potential for dispute, delay and cost.
Simply have your lawyer – before you marry – draw up an ante-nuptial contract (ANC) tailored to meet your particular needs. Then sign it. Then fly away and enjoy your wedding secure in the knowledge that all the annoying (but critical) little legalities have been put to bed!