With a foreign same sex marriage, which of the partner's domiciliums is followed?
At this point in time this is a lacuna in the Civil Union Act. However, it is clear that a civil union can only be concluded between South Africans and thus it is held that the domicile will not play a role.
At the Conference of Registrars it was held that a foreign same sex marriage will follow the prescripts of section 17 (6) of the Deeds Registries Act 47 /1937. Should the marriage be valid in the country where it was concluded it will be deemed a foreign marriage and section 17(6) will apply. As per my previous response, a Civil Union, in my view, can only be concluded between South Africans
Alan, why do u say that the CUA is applicable to South Africans only? In my situation, the one partner was domiciled in SA, and the other in the UK. They were married in SA.
Where another Country does not recognise the validity of such a marriage , you cannot apply the laws of South Africa to enforce it upon such Country
Alan, thank you. So in my example only SA law can be applicable, ie if there is no Pre-nuptual, they are married in com of ppty? I do not see a prohibition in the Act against foreigners entering into a marriage ito the CUA. So, if a couple gets married in SA ito CUA, one domiciled in England and one in California, how do we describe them if they buy a ppty here?
Should England and California recognise such marriage as a valid marriage, it will be deemed a foreign marriage and described as per CRC 5 / 1994. Please read the case of Steyn v Steyn which will shed more light on this issue
Whether or not a marriage is recognised as valid in South Africa, is determined by the laws of the country where the marriage is concluded. It is only the matrimonial property regime applicable to such marriage which is determined by the country of domicile of the husband.
Therefore, if a same sex marriage is validly entered into abroad, while both partners are domiciled in South Africa, it is a marriage in community of property, not a marriage which is governed by the laws of the other country. Or is it contended that a same sex marriage legally entered into abroad offends public policy in South Africa, and should not be recognized?
A person's nationality and domicile is not the same thing. Whose domicile will be followed if two same sex South Africans get married in South Africa terms of the CUA while the one partner is domiciled in England and the other in South Africa? Who will be the husband for purposes of domicile to determine the matrimonial property system applicable to the marriage?
If the same sex parties have entered into an ANC without the Accrual System. One party is resident in SA and the other in Japan. Japan does not recognise same sex marriages. But both parties have signed the ANC in terms of the Matrimonial Property Act 1984 and the document was authenticated in Japan and the ANC is to be registered in South Africa then the marriage should be OUT OF COMMUNITY OF PROPERTY even though it is same sex. Am I correct?