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travellers marriage

A “traveller’s marriage” may seem romantic, but can quickly turn into a nightmare! 

 As the world gets smaller and smaller and global movement increases, an “international wedding” becomes a much greater reality for many couples.

From the beach wedding in Mauritius to the castle wedding in Ireland or the Tuscan wedding in Italy.

These are all distinct possibilities if one can afford it.

This international marriage or “traveller’s marriage” may seem romantic, but can quickly turn into a nightmare when questions regarding the matrimonial property regime of the parties are raised at the time of a divorce or the death of one of the parties to the marriage.

The question arises as to which legal regime governs the marriage: the country where they were married, the home country of a spouse, or the country in which the couple reside? Left in the air, the romantic traveller’s marriage could very well turn into a wearisome ball and chain and legal nightmare.


It is difficult to think of consequences such as death and divorce when just married and sipping champagne on the Champs-Elysees. The reality is that this is exactly the time when planning for such eventuality must be done, particularly given the complex consequences that could follow a division of estates when a marriage is terminated, especially where the parties are married without an ante-nuptial contract that provides clarity on their matrimonial property regime and the division of their assets. 

In terms of the common law in South Africa, the matrimonial property regime is determined according to the law applicable in the husband’s country of domicile at the time of the marriage. 

Section 1(2) of the Domicile Act No 3 of 1992 states that: 

“A domicile of choice shall be acquired by a person when he is lawfully present at a particular place and has the intention to settle there for an indefinite period.”

Thus the intention of the party is an important aspect to consider. But establishing intention can be difficult and subjective. Accordingly, the Domicile Act continues in section 5 by stating that:

“The acquisition or loss of a person’s domicile shall be determined by a Court on a balance of probabilities.”

In simple terms; this means that the Court will look at the surrounding circumstances to determine the intention of a party and eventually the person’s domicile.

As the domicile of the husband is the deciding factor when determining the applicable legal regime governing a matrimonial estate, the following aspects should be borne in mind: 

• As a rule of thumb in determining domicile, one can apply the “home or holiday “rule. If you are getting married when on holiday in another country, your country of origin will almost always decide the legal regime of your marriage. If you intend to make another country your home, your domicile will change and that new home-country will decide your domicile. 

• Disputes relating to matrimonial property matters often arise because the parties did not enter into an ante nuptial contract. When entering into an ante nuptial contract, the contract must be registered in a specific place, and the place of conclusion and registration of the ante nuptial contract will generally then determine the legal regime that is applicable to the marriage and estates of the parties.

• In South Africa; our law determines that where South African law applies to the marriage, in the absence of the married couple concluding an ante nuptial contract which changes their matrimonial property regime, the couple will automatically be married in community of property. Thus when the parties decide to divorce; the joint estate will, in general, be divided in equal shares, irrespective of the parties’ respective contribution to the estate.

• In South Africa and several other countries, a civil union can be concluded between two partners of the same gender and which bears many of the same consequences as a civil marriage. The obvious result is that the Domicile Act’s reference to a ‘husband’ can become problematic. Again, entering into an ante nuptial contract can avoid any disputes which might arise regarding domicile.  


In conclusion:

The lesson to be learnt here is not so much the complexity of determining domicile and the applicable matrimonial property regime, but rather that when getting married, whether in your backyard or in Timbuktu, you should properly plan for your marriage, consult with a lawyer and ensure that you have an ante nuptial contract drawn up that determines the applicable matrimonial property regime that will govern your marriage in the event of its dissolution.

Having done that, you can then enjoy your champagne at your destination with total peace of mind.

Please visit our website at www.legaladviceoffice.co.za or send us an email to This email address is being protected from spambots. You need JavaScript enabled to view it. and we will respond to your legal queries within 48 hours.

About our author:

Hugh Pollard (Legal Consultant), has a BA LLB and 42 years’ experience in the legal field. 22 years as a practicing attorney and conveyancer; and 20 years as a Legal Consultant.

082-0932304 (Hugh’s Cell Number)

This email address is being protected from spambots. You need JavaScript enabled to view it.

www.legaladviceoffice.co.za

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