So you and your loving partner decide that spending all your savings on a big South African wine farm wedding isn’t for you and that eloping to Greece for a beach ceremony with just close family is your dream come true. You return from your trip and find a home you love, and decide to use your savings to put a deposit down! You are contacted by the Conveyancing attorneys asking you about your marital status, where you got married, your matrimonial property regime, and your husband’s domicile at the time of marriage. What does this mean and why does it even matter?

First and foremost, in the Deeds Office, natural persons are described by their name, identity number or Passport if you haven’t been issued an ID, and your marital status. Therefore, it is a fundamental piece of information to be established by the Conveyancer to prepare the documents required and establish the contractual capacity a person has, which is impacted by this factor.

If you got married in South Africa without registering an Antenuptial contract, you will be married In community of property and your spouse will need to be cited and sign the transfer documents too.

If you got married in South Africa with registering an Antenuptial contract you will be married out of community of property. The Deeds Office doesn’t concern itself further regarding accrual etc. as each spouse has legal capacity to contract independently regardless.

If you got married outside of South Africa a further rule applies which is that the matrimonial property regime is determined according to the laws of the country where the husband is domiciled at the time of the marriage. For the purposes of the Deeds Office, you would be described for example, as  “Married, which marriage is governed by the laws of GREECE.”

So what does the word domicile mean and how is it established where a domicile is? Every person has a domicile, and this is where they have been legally present and intend to settle for an indefinite period. It is generally determined by asking the question of where one considers “home” to be. Therefore, if the husband considers home to be South Africa and you were married in Greece and no Antenuptial contact was registered then you will be married in community of property. If the husband is from Namibia and considers that to be his home, then the marriage will be governed by the laws of Namibia.

It must be mentioned that the domicile rule can be seen as outdated concerning equality of spouses and sexism. A further question to be raised is the position when it comes to same-sex marriages. This is a question for the High Court to look at and would bring to the surface some important discussion points. 

Should you have any questions, or any further legal assistance please don’t hesitate to be in touch.

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  • On June 28, 2024
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