15/07/2026
The unconstitutionality of Lex Domicilii Matrimonii
On 23 June 2026, the Western Cape High Court declared the entrenched common law rule of lex domicilli matrimonii (“the rule”), in South Africa, according to private international law, as inconsistent with the South African Constitution and invalid.
The rule provides that the proprietary consequences of a marriage are governed by the law of the husband’s domicile at the time the marriage is concluded. Once the matrimonial domicile is established, it cannot be changed while the marriage subsists and any later change in domicile does not affect the applicable law.
N.P. v Minister of Justice and Constitutional Development and Others (2468/2024) [2026] ZAWCHC 343 ;-
The applicant in this matter alleged that the rule violates the right to equality in Section 9 of the Constitution and is inconsistent with the spirit, purport and objects of the Bill of Rights.
The application stemmed from divorce proceedings involving the applicant and third respondent in which the third respondent seeks to rely on the rule to contend that the propriety consequences of the marriage are governed by the laws of Zimbabwe, being his domicile at the time of the marriage. The applicant contends that the propriety consequences of their marriage are governed by the laws of England and Wales as she and the third respondent were domiciled in England at the time of their marriage.
The court had to determine whether the rule differentiates between people or categories of people and if so, whether the differentiation serves a legitimate government purpose. Accordingly, the court found that the rule is underpinned by the patriarchal norm that women are subordinate to their husbands and only regulates opposite-sex marriages, thus not recognising same-sex marriages.
Development of the common law rule: Five (5) stage inquiry
In the court declaring the rule unconstitutional, the court formulated a new rule which spouses ought to adhere to:
1.The parties must agree on the legal system that will apply, provided there is evidence of a substantial link or close connection between the chosen law and one or both spouses;
2. Should there be no agreement or where there is no substantial link, then the law of the country of the common domicile of the spouses shall apply;
3. Should there be no agreement or common domicile, then the law of the common habitual residence of the spouses at the time of the marriage shall apply;
4. Should the above not be applicable, then the law of the common nationality of the spouses shall apply;
5. Should all of the above not be applicable then the law of the country in which the spouses are jointly and most closely connected to at the time of the marriage shall apply.
The current status and impact of the new development
The new rule shall apply retrospectively to all existing marriages. However, where spouses have chosen a law to govern the propriety consequences of their marriage in an antenuptial contract, the development shall not apply for 2 (two) years, from 23 June 2026, in order for the parties to amend their antenuptial contract to align with the new rule, essentially ensuring that there is a substantial link with the agreed chosen law.
In circumstances where there has been no choice of law from the spouses, the new rule shall apply, unless it results in considerable prejudice.
This development will not affect any steps already taken in accordance with the husband’s domicile and to marriages that were dissolved by death or divorce prior to 23 June 2026.
For further information on the impact of this judgment, we encourage clients to contact our offices.
Charne Goosen
Position: Director
Department: Conveyancing
Tel: 031 536 7572
Email: [email protected]
Tanatswa Chinyanga
Position: Associate
Department: Maritime and Litigation
Tel: 031 536 7512
Email: [email protected]
