By Sanette Viljoen
In these modern times getting married abroad is very popular. What is the legal position if a South African gets married in another country.
The problem is that this beautiful romantic wedding explodes in the parties’ faces when it comes to divorce or the death of one of the parties, with the resultant big uncertainty about the parties’ true marital dispensation. Are they married in or out of community of property? Does the accrual dispensation apply? Which country’s legal system applies?
According to South African common law our matrimonial property dispensation is determined in terms of the legal system applicable in the country where the man is domiciled at the time of the marriage even if he does not marry in that country. In the case of South Africans who live in South Africa permanently the man is definitely domiciled here.
What is domicile? It is the address of your permanent home.
If there is doubt about the man’s domicile, e.g. if I marry a person who is a world traveller who has no permanent abode, things become complicated. In that event one has to look at the Domicile Act (Act 3 of 1992). This Act stipulates that domicile of choice is acquired by a person if he is legally present at a certain place and has the intention to settle there for an indefinite period. It is important that the intention of the party, the world traveller, be taken into consideration, which can be problematic at times. For this reason the Act further provides in section 5 that the acquisition or loss of a person’s domicile shall be determined by a court on a balance of probabilities.
Therefore, if one marries while on holiday in a foreign country, your country of origin will almost always determine the legal disposition of your marriage. If you therefore plan on getting married in Mauritius and your husband is a South African citizen, it is clear that your marriage will be in community of property, unless you enter into an antenuptial contract in which your marital property disposition is clearly set out.
However, if you are planning on living in the country where you are going to get married, your domicile will most probably change to your new home country where you intend to go and live and your marital property disposition will be that of the new country.
However, the easiest way is to enter into a proper marital property contract that stipulates exactly what your marital property disposition is, regardless of whether you get married in the Seychelles or Rietspruitdam.