Introduction
Since the Civil Union Act of 2006 came into force on 30 November 2006, following the Constitutional Court’s judgment in Minister of Home Affairs and Another v Fourie and Another (CCT 60/04) [2005] ZACC 19, South Africa has recognised same‑sex marriage on constitutional equality grounds. Yet despite this landmark development, South African private international law remains anchored in an older principle: the proprietary consequences of a marriage are governed by the law of the husband’s domicile at the time of the marriage: the so‑called lex domicilii matrimonii.
The Traditional Domicile Rule in Matrimonial Law
Under South African common law, as reflected in the Domicile Act 3 of 1992 and the Marriage Act 25 of 1961, when spouses have different domiciles at marriage, the law that applies to their matrimonial property regime is that of the husband’s domicile at the time of marriage. That regime is immutable, meaning that even if the husband’s domicile changes later, the applicable property law remains fixed from that starting point.
The Inadequacy of the Rule for Same Sex Couples
In the case of same‑sex marriages or civil unions, where no party is a “husband”, the traditional rule cannot be applied in its conventional form. In Steyn v Steyn (6427/2010) [2010] ZAWCHC 224, the Western Cape High Court explicitly observed that the lex domicilii matrimonii is incapable of application in same‑sex unions, and that Parliament had yet to remedy this lacuna, resulting in legal uncertainty about which domicile should apply.
Constitutional Concerns: Equality, Dignity, Privacy
The continued application of the husband‑domicile rule poses serious constitutional concerns. Section 9 of the Constitution prohibits unfair discrimination on grounds including sexual orientation and sex, while sections 10 and 14 protect human dignity and privacy. When the law cannot meaningfully determine a matrimonial property regime for same‑sex spouses, it undermines these fundamental rights.
As the Constitutional Court in Fourie, and earlier in National Coalition for Gay and Lesbian Equality and Another v Minister of Justice and Others (CCT11/98) [1998] ZACC 15, has held, denying equal legal recognition based on sexual orientation is unconstitutional, including in contexts where matrimonial property consequences are undefined or inaccessible.
The Path Forward: Reform and Legal Certainty
The logical responses to this legal gap are three‑fold. First, legislative reform is required to amend or replace the domicile rule, providing a neutral mechanism that may allow designation of either partner’s domicile or habitual residence. Second, constitutional litigation could compel the courts to reinterpret or invalidate the current domicile rule as incompatible with equality and dignity. Third, same‑sex couples, especially those with cross‑border domiciles, may rely on antenuptial or post‑nuptial agreements to select a governing regime where possible, though this remains conditional on legal recognition in the domicile jurisdiction.
Until legal clarification occurs, foreign and same‑sex civil unions must proceed with caution to ensure enforceability of their property rights.
Conclusion
South Africa’s legal framework continues to reflect a tension between constitutional values of equality and the traditional lex domicilii matrimonii rule grounded in common law. In the context of same‑sex marriages and civil unions, the doctrine fails to provide clarity or equal protection in matrimonial property matters and thus stands at odds with constitutional mandates. For same‑sex couples, especially those with foreign domiciles, the current regime demands meticulous planning and awareness. Reforming the domicile rule is both a legal and moral imperative to align South African matrimonial property law with its constitutional promise of equality, dignity, and non‑discrimination.
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