- The High Court has ruled that an old common law rule unfairly favoured husbands and discriminated against women and same-sex couples.
- This case began with a divorce dispute involving a couple connected to several countries.
- The judgment introduces a new way to decide which country's laws apply to the financial consequences of international marriages.
If a couple from different countries gets divorced, or if they married while living overseas, an important question arises: which country's laws decide how their property is divided?
For decades, South African law answered this by looking at the country the husband considered his permanent home when the couple married. The High Court in the Western Cape has now found that the rule is unconstitutional, saying it unfairly discriminates against women and same-sex couples.
Acting Judge TJ Golden delivered the judgment after a woman challenged the common law rule during her divorce proceedings against her husband.
Background of the case
The applicant was born in Colombia and later settled in England. Her husband was born in South Africa and moved to Zimbabwe, where he became a citizen. The couple married in Hong Kong in 1997 and later lived in the United Kingdom and South Africa before their marriage broke down.
When divorce proceedings began in 2023, the couple disagreed on which country’s laws should govern the financial consequences of their marriage. The applicant argued that English law should apply because both spouses were living in England when they married. Her husband insisted Zimbabwean law should apply because Zimbabwe was his permanent home at the time.
This dispute highlighted a broader problem for many international marriages. Under South African law, the financial consequences of a marriage involving more than one country were automatically decided by the husband’s permanent home country at the time of marriage, ignoring the wife’s legal ties to another country.
Challenge based on equality
The applicant argued that the rule violated the constitutional right to equality because it always preferred the husband's permanent home country, ignoring the wife's.
She also argued that the rule was irrational, offering no solution for same-sex marriages and discriminating on the grounds of sex, gender, and sexual orientation.
Although the Minister of Justice did not oppose declaring the rule unconstitutional, the Minister asked the court to consider how the law should be changed and how any new rule should apply to existing marriages. The Minister of Home Affairs did not oppose the application.
Judge Golden found the old rule reflected outdated views about the role of women in marriage. "The Rule clearly differentiates between men and women as spouses in a marriage.” He added that there was “no rational reason to prefer a husband’s domicile over that of the wife," the judge said.
The judgment found that the rule kept women in an unequal position, even though South African law had long recognised wives as legally independent from their husbands. It also failed to reflect the reality that modern couples often make homes and careers in different countries before or during marriage.
Judge Golden also ruled that the rule discriminated against same-sex couples because it provided no framework for deciding which country’s laws should apply to their marriages. According to the judge, “The Rule unfairly discriminates based on sex, gender and sexual orientation.”
A new legal framework
Instead of simply declaring the rule unconstitutional, the court created a new, gender-neutral framework.
Couples entering international marriages may now choose, before or at the time of marriage, which country’s laws will govern the financial consequences of their marriage, provided they have a genuine connection to that country.
If no choice has been made, courts must decide the applicable law by considering the couple’s common permanent home, their common habitual residence, their common nationality, or, if necessary, the country to which they were both most closely connected when they married.
The court ordered that this new framework should apply retrospectively to most existing international marriages. However, it will not affect marriages dissolved before the judgment through death or divorce, completed transactions made under the previous rule, or certain antenuptial contracts, which will be given time to comply with the new framework.
State ordered to pay costs
Judge Golden ordered the Ministers of Justice and Home Affairs to pay the applicant’s legal costs. He found that the discriminatory rule had stayed in South African law for more than three decades after Parliament abolished the rule that required a wife to share her husband's legal home.
The judgment noted that concerns about the constitutionality of the rule had been raised many times over the years, yet no legislative changes had been made.
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