This old legal concept, meaning literally “the law of the domicile of the marriage”, addresses a fundamental question facing courts when marriages involve multiple jurisdictions: “which country’s laws apply to this marriage?” If, for example, one spouse holds Canadian nationality, the other English, they marry in South Africa, live in Portugal and divorce in Norway, what laws apply?
It’s a critical question for those about to tie the knot (or to divorce) because legal systems vary widely when it comes to the financial and other consequences of marriage. Until now, the financial aspects of a marriage were governed by South African law if the husband was domiciled here at the time of marriage. This was entirely out of step with our new Constitution, and the Western Cape High Court has just formulated a new set of rules for deciding which laws apply (the Western Cape decision is likely to be followed by other High Courts).