South Africans Marrying Overseas
What is the effect of a South African couple getting married overseas?
For example, if a South African couple is on holiday in England and, on an impulse, decides to get married, would their marital regime be one in or out of community of property and would they be married according to English law?
The test is the husband’s domicile as at the date of the marriage, i.e. what country the husband considered to be his permanent home plus his mental intention to remain there indefinitely. Domicile may be defined as the principal place of residence of an individual. This is determined primarily by intent. A good indication of domicile is where a person registers to vote.
Thus, if the husband regarded his place of domicile to be Johannesburg, the parties would be married according to the laws of South Africa and not England and their type of marriage (matrimonial property regime) would be one in community of property.
For the marriage to have been one out of community of property, the parties would have had to enter into an antenuptial contract here in South Africa before leaving for holiday. If they failed to do so, they would have to apply to court to register their antenuptial contract, postnuptially.
Persons domiciled overseas
The converse applies to a husband domiciled in England (or anywhere else in the world). If, say, the parties marry in England and subsequently immigrate to South Africa then the matrimonial property regime of England would apply to their marriage. In this case, the parties would be married out of community of property. And even if the husband and wife become citizens of South Africa, English law would always apply to their marriage.
However, a South African court could divorce them but in the event of a contested divorce, the court would have to apply English Law.