A hole?

Chief Registrars Circular 1/2007 (GhostDigest 1 February 2007) clarifies how parties to a marriage or civil union in terms of the act are to be described in conveyancing and notarial documents and is to be welcomed.

There may be a gaping hole in the Act (but perhaps it is intended) and clarification may be needed for conveyancers and notaries. According to our common law, if a marriage takes place in South Africa and the husband is domiciled in a country other than South Africa then the proprietary consequences of the marriage are governed by the laws of that country. Of course if he is domiciled in South Africa then the law of South Africa will apply.

What then is the situation when both parties to a marriage or civil union in terms of the Act are of the same sex but one is domiciled in, say, England? Are the proprietary consequences of the marriage or civil union governed by the laws of England or South Africa? If both are male are there two husbands? This would be very confusing. If both are female then there can be no problem as the rule of our common law could not apply.

I think that the answer is that the law of South Africa will apply to the proprietary consequences of such a marriage or civil union but I would appreciate comments from anyone interested.

One may also speculate as to whether the proprietary consequences of a heterosexual marriage or civil union in terms of the Act where the husband is domiciled outside of South Africa will be the same as for a marriage in terms of the Marriage Act. Views on this would also be interesting.

Donald Moore
Attorney
Guthrie & Rushton
Fish Hoek