A client asked: “I am South African, and my husband is a Zimbabwean national. We got married in Johannesburg. Are we married in or out of community of property?”

As a matter of private international law and longstanding South African precedent, the matrimonial property regime of a married couple is determined by the lex domicilii matrimonii, which is the law of the domicile of the husband at the time of the marriage.

In Gunn v Gunn 1910 TPD 423 at 427, the Court held:

“Where both spouses are not, at the date of the marriage, domiciled in the same country, then the domicile of the husband prevails, and the law of that domicile is the one to which the parties are understood to have submitted themselves.”

The law of the domicile of the husband applies regardless of the subjective intention of the couple to resettle or to establish a new domicile. The current, post-Constitutional legal position is summarised by our Division of the High Court in Sadiku v Sadiku [2007] ZAGPHC 1; [2007] JOL 19342 (T).

In that matter, a couple married in Nigeria in circumstances where the husband was employed in South Africa prior to his marriage; and after marriage promptly obtained a temporary work permit and then permanent residence in South Africa, where the couple had lived for several years.

Van Rooyen AJ summarised the law as follows:

“[7] In Frankel’s Estate v The Master^[FN1]  our Appellate Division, after a scrutiny of Roman-Dutch authorities and a few works on modern Private International Law, held that the lex domicilii of the husband at the time of a marriage, governed the patrimonial consequences of the marriage. The question which arose before me during argument was whether that Court had not possibly left open the possibility that if a husband and wife, at the time of their wedding, agreed to move their domicile to a new country, that would not also have an effect on the law that would govern the patrimonial consequences of the marriage. I have, once again, read the learned opinions of the Judges of Appeal, and it is clear that only an express contract between them could alter the law that governs the patrimonial consequences of their marriage. The mere fact that they planned to move to a new country does not justify the inference that there was a “tacit” contract between them to alter the governing law, i.e the lex domicilii of the husband at the time of the marriage.

^{[FN1] 1950(1) SA 220(A)}

[emphasis added]

The determination of the husband’s domicile at the time of marriage will necessarily be fact-specific, requiring proof animo et facto.

In Sadiku, Van Rooyen AJ applied the reasoning of the Appellate Division in Eilon v Eilon 1965(1) SA 703(A), where the fact that a husband had applied for permanent residence in South Africa was, in itself, insufficient to establish an intention to change his domicile. The learned judge considered that the fact that a husband was “at the time of the marriage, hoping to settle permanently in South Africa” does not permit an inference “on the probabilities, that he had at the time of the marriage decided to alter his domicile animo et facto. There were simply too many uncertainties as to whether his attempts would be successful. (at para 9)”.

The default matrimonial property regime applicable to marriages contracted in Zimbabwe is without community of property or profit and loss. This is set out in the Zimbabwean Married Persons Property Act (Ch 5:12), at section 1(1):

“Community of property and of profit and loss and the marital power or any liabilities or privileges resulting therefrom shall not attach to any marriage solemnized between spouses whose matrimonial domicile is in Zimbabwe entered into after the 1st January, 1929, unless such spouses shall, by an instrument in writing, signed by each of them prior to the solemnization of their marriage and in the presence of two persons, one of whom shall be a magistrate, who shall subscribe thereto as witnesses, have expressed their wish to be exempt from this Act.

[emphasis added]

Despite the possible protective benefits of the principle of immutability, the current legal position implies differentiated and unequal treatment of the husband and the wife. It may not be acceptable in a society committed to gender equality. However, this position subsists in our law; it has not yet been challenged under the equality provisions of the Bill of Rights.