VALIDITY OF MARRIAGES ENTERED INTO BY FOREIGNERS IN SOUTH AFRICA
The Matrimonial Property Act, 88 of 1984, does not apply in respect of foreign marriages concluded in South Africa. Generally speaking, the formal validity of a marriage is determined by the law of the place where the marriage was solemnized (country that issued the marriage certificate); this is based on the common law doctrine of lex loci celebrationis. However, this does not imply that the law of the country where the marriage was solemnized, governs the legal and proprietary consequences thereof (see Frankel’s Estate and Another v The Master and Another (1956) ALL SA 347 A. A certain degree of legal uncertainty exists where either (or both) of the parties to the marriage are not domiciled in the same country or when the marriage is solemnized in a place outside either (or both) spouses’ country of domicile, for example in South Africa. Moreover, each country has its own internal regulations dealing with the recognition of marriages solemnized in or outside its borders; these should be observed by parties prior to concluding a marriage in South Africa. From a conveyancing perspective it is of the utmost importance to determine whether a marriage concluded in South Africa between foreigners is a valid marriage.
The following are ways in which the legal uncertainty can be addressed:
1. The law of the place of the husband’s domicile
A person’s domicile is a particular territorial jurisdictional area or country where he / she intends to settle or is settled indefinitely. It is therefore a subjective determination based on the intention of the parties, something which is sometimes difficult to establish.
In terms of South African common law and the Domicile Act of 1992, where either or both parties are not domiciled in the same country or state, or when the marriage is solemnized in a place where either or both spouses are not domiciled, the law of the place of the husband’s domicile, at time of the marriage, will govern the legal and proprietary consequences thereof. This can only be determined by virtue of an affidavit from the parties concerned.
This theory is outdated and in conflict with the principle of equality. However, until its repeal the application of the theory of the husband’s domicile prevails to marriages solemnized in South Africa, but see the discussion infra regarding same sex marriages entered into between foreigners.
2. The Hague Convention of 1978
The Hague Convention of 1978 provides a unique and maybe ground breaking solution to this problem.
Under the Convention the legal system (to be applicable to the couple’s marriage), may be selected by the parties prior thereto and is based on:
- “the law of the state to which either spouse is a national at the time of designation, or
- the law of the state to which either spouse has habitual residence at the time of designation, or
- the law of the first state where one of the spouses established a new habitual residence after marriage.”
According to this Convention, if the spouses have not designated their marital property regime prior to marriage, the internal law of the state in which both spouses establish their first habitual residence after marriage will prevail. The provisions of this Convention may, however, only be relied on in countries that are signatories thereto. Therefore, like other international treaties and agreements, where South Africa is not a signatory, such agreement is the equivalent of a policy document which contents may be considered by a South African court of law, but it is not legally binding as in the case of the Constitution and / or any legislation.
Where foreigners marry in South Africa, both the groom and the bride must produce to the marriage officer the following:
- A valid passport;
- A valid South African Identity Document;
- A foreigner must complete a basic affidavit called a B1 31, which states the dates and places of birth;
- Clear copies of divorce decrees (if relevant); and
- Clear copies of death certificates (if relevant)
South African marriages are legally valid in almost every country in the world. However, as already mentioned the couple is bound by the laws of the country in which the husband lives, and one will have to ascertain what will be required when the marriage is registered in the country of domicile. An abridged marriage certificate will be received from the marriage officer, however, some foreign countries will accept this as proof of the marriage. The marriage officer who registers a foreign marriage with the Department of Home Affairs can apply for an unabridged marriage certificate, which is stamped ‘Apostille’ by the High Court. This is issued to enable a foreigner to register the marriage once in the country of domicile. Countries like Germany require at least one ‘Apostille’. The marriage of United Kingdom and Irish citizens in South Africa is legally binding under United Kingdom and Irish law.
This is also the case for citizens from most other countries wishing to marry in South Africa, but it is advisable to firstly ascertain whether a foreign country acknowledges South African marriages as legally binding, before concluding such marriage.
Marriages or partnerships concluded by foreigners in South Africa in terms of the Civil Union Act, 17 of 2006, pose a unique problem in that should the Hague Convention as discussed supra not be applied, the question arises whose domicile will be used to determine the country which must govern the marriage. From the discussion above it is abundantly clear that the mere conclusion of a civil union by foreigners in South Africa does not result in a valid partnership / marriage. Their marriage or partnership will have to be registered in the country where the parties are domiciled, and only if so registered and proof in this regard is provided, can it be accepted that a valid marriage / partnership exists. In terms of RCR 40 of 2009 as confirmed by RCR 24 of 2010, if the marriage / partnership is registered in such foreign country, the parties to such same sex union will be described in same manner as any other foreign marriage (see CRC 5 of 1994).
From a conveyancing perspective, where foreigners provide a practitioners with a marriage certificate which was issued in South Africa, this marriage cannot prima facie be regarded as a valid marriage (obviously the same applies to civil unions entered into in terms of the Civil Union Act). The conveyancer concerned will have to request the parties to the marriage to register the marriage in the country of domicile of the husband, alternatively in terms of the country as per the Hague Convention, and only then can it be deemed to be a valid marriage.
Practitioners be warned that a foreign citizen who has concluded a marriage in South Africa might not be legally married and can thus not be described as such. A mere affidavit from the spouses that the marriage is valid and binding should be frowned upon.
It is the law of the country in which the ceremony takes place which governs whether that particular ceremony results in a valid marriage. So if foreigners marry in South Africa and the marriage ceremony is one which creates a valid marriage, then that marriage is a valid marriage. However, it is the domicile of the husband on the date of the marriage which will determine the proprietary consequences of the marriage. So,it is a two stage enquiry, so to speak. First establish whether there is indeed a valid marriage, and if so, then enquire as to the domicile of the husband on that date. And remember - domicile is more than just residence or citizenship.
One must not confuse the validity of a marriage and the matrimonial property system applicable to such marriage. In terms of South African law, the validity of a marriage is determined by the laws of the country where the marriage was entered into. Therefore, when foreigners get married in South Africa, the question of whether or not their countries of nationality or domicile recognize such marriage, is irrelevant from a South African conveyancing perspective - they are married in terms of South African law.
One must also not confuse a person's nationality and domicile. The country of domicile of the spouses / partners at the time of conclusion of the marriage is important only to describe the matrimonial property regime applicable to the marriage. A person's nationality does not have any effect on the validity of the marriage or the matrimonial property regime applicable to such marriage. South African law also recognizes all marriages validly entered into in foreign countries, unless such marriage offends public policy or is contra bonos mores. I agree that if a couple enter into a same sex marriage in South Africa or elsewhere, and the partners are not domiciled in the same country, and the parties do not nominate the legal system applicable to their marriage, a problem arises regarding the matrimonial property system applicable to such marriage.
What constitutes customary marriage between a South African woman and a foreigner who uses a work permit in South Africa? Does paying lobola only constitutes a legal customary marriage without declaring the marital status from your country of origin. Normally as a foreigner, you are required to produce official documentation from your country of origin indicating your marital status.
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