In a landmark judgment delivered on 23 June 2026, the High Court of South Africa (Western Cape Division, Cape Town) has declared the long-standing common law rule of lex domicilii matrimonii unconstitutional and invalid.
For decades, this rule dictated that the proprietary consequences of a marriage (how assets are owned and divided) were determined by the law of the husband’s domicile at the time of the marriage. Acting Judge TJ Golden has now relegated this “archaic and discriminatory” principle to the history books.
Why was the rule struck down?
The Court found that the rule directly violated the right to equality under Section 9 of the Constitution. By automatically privileging the husband’s domicile over the wife’s, the rule:
- Discriminated based on sex and gender: It relied on the outdated patriarchal assumption that a wife’s legal status is subordinate to her husband’s.
- Discriminated based on sexual orientation: The rule was found to be unworkable and exclusionary for same-sex marriages, as it could not rationally determine who the “husband” was for domicile purposes.
The New Legal Framework
The High Court has developed the common law to provide a gender-neutral, multi-step test to determine which country’s laws apply to a marriage. The new order of preference is:
- Agreement: The law of the country designated by the spouses by agreement (provided there is a “substantial link” to that country).
- Common Domicile: If no agreement exists, the law of the country where both spouses were domiciled at the time of marriage.
- Habitual Residence: The law of the country of common habitual residence.
- Common Nationality: The law of the country of common nationality.
- Closest Connection: The law of the country to which the spouses are jointly and most closely connected.
Retrospectivity and Impact
The ruling applies retrospectively to all existing marriages, with a few critical exceptions to protect legal certainty:
- Previous Divorces: It does not apply to marriages already dissolved by death or divorce before the date of the order.
- Past Transactions: It does not affect legal steps or transactions already performed under the old rule.
- Grace Period: Spouses who specifically chose a law in an antenuptial contract that no longer aligns with the new rule have two years to amend their contracts.
A Victory for Substantive Equality
The Applicant, a woman currently involved in divorce proceedings where her husband sought to rely on Zimbabwean law (his domicile) to her disadvantage, was awarded costs against the State. Judge Golden noted that the government had failed for over thirty years to replace this unconstitutional rule, despite numerous recommendations from the South African Law Reform Commission.
This judgment marks a significant step forward in aligning South African private international law with the values of dignity and equality enshrined in the Bill of Rights.
by Jaques van den Ende