Written by Roy Bregman, an admitted attorney with over 51 years’ experience in family law and matrimonial property matters.
Last updated: 6 July 2026
| Key Takeaways
• On 23 June 2026, the Western Cape High Court declared the 75-year-old rule that the husband’s home country decides the property consequences of a marriage unconstitutional, because it discriminated on grounds of sex, gender and sexual orientation. • A new gender-neutral, five-tier test now applies: the couple’s agreed choice of law (with a real connection), then common domicile, common habitual residence, common nationality, and finally the country they were most closely connected to when they married. • The new rule applies retrospectively to existing marriages, with protections for steps already completed and estates already wound up. • If your antenuptial contract chose a governing law that clashes with the new rule, you have a two-year window to amend it. Act now rather than later. |
For three quarters of a century, one question decided which country’s law governed the money side of any South African marriage with a foreign connection: where did the husband regard as his permanent home on the day of the wedding? His answer bound both spouses for life, and the wife’s connections counted for nothing. Same-sex couples had no answer at all, because the rule could not identify a “husband”.
That era ended on 23 June 2026. In N.P. v Minister of Justice and Constitutional Development and Others (2468/2024) [2026] ZAWCHC 343, the Western Cape High Court declared the old rule, known by its Latin name lex domicilii matrimonii, unconstitutional and replaced it with a modern test that treats both spouses as equals. If you married overseas, if either spouse was born abroad, or if you are planning a marriage with an international element, this judgment affects you directly.
The lex domicilii matrimonii rule said that the property consequences of a marriage were governed by the law of the country where the husband was domiciled on the day of the marriage. The Latin phrase simply means “the law of the matrimonial home country”, but our courts always read it as the husband’s home country, fixed forever, even if the couple emigrated the following week.
The rule was formally adopted by our then highest court in Frankel’s Estate & Another v The Master & Another 1950 (1) SA 220 (A) and confirmed in Sperling v Sperling 1975 (3) SA 707 (A), both of which predate SAFLII’s online collection. The Domicile Act 3 of 1992 abolished the idea that a wife automatically takes her husband’s domicile, yet Parliament left this property rule untouched. As recently as February 2024, the Johannesburg High Court applied it, reluctantly, in L.E v L.A (1884/2018) [2024] ZAGPJHC 104; 2024 (5) SA 539 (GJ). That constitutional challenge has now succeeded.
Your domicile is the country you treat as your permanent home, the place you intend to return to and settle in, even if you are living somewhere else for now. A Johannesburg engineer on a three-year contract in Dubai is probably still domiciled in South Africa. “Habitual residence” simply means where you actually live day to day, and “nationality” means the country whose passport you hold. All three matter under the new test.
The court held that the rule unfairly discriminated on the grounds of sex, gender and sexual orientation, all expressly protected by section 9 of the Constitution, and that no legitimate government purpose could justify it.
The facts show why the rule caused hardship. The applicant, born in Colombia and educated in England, married a Zimbabwean-born businessman while the couple were living in Hong Kong. When she sued for divorce in the Western Cape in 2023, everything turned on where he was domiciled on the wedding day. He said Zimbabwe, she said England, and her own connections were legally irrelevant. Rather than fight that factual battle, she challenged the rule itself.
Golden AJ, applying the rationality test from Prinsloo v Van der Linde [1997] ZACC 5 and the equality framework from President of the Republic of South Africa v Hugo [1997] ZACC 4, found that the rule privileges the husband over the wife, rests on the outdated assumption that a wife follows her husband, and cannot function at all for same-sex marriages because there is no “husband” to point to. The court drew on the Constitutional Court’s judgment in Jordaan v Minister of Home Affairs [2025] ZACC 19, the case that allowed husbands to take their wives’ surnames, which confirmed that patriarchal assumptions remain embedded in our law. Tellingly, the court ordered the State to pay the applicant’s costs, because the government had known since a 1990 law reform report that the rule was discriminatory and did nothing for over thirty years.
The new rule works through five tiers in strict order, all assessed as at the date of the marriage, and treats both spouses identically. The court developed it following the framework in Mighty Solutions v Engen Petroleum [2015] ZACC 34, and borrowed from the 1978 Hague Convention on matrimonial property and the European Union’s 2016 regulation on the same subject.
| Tier | The question the court asks | What it means in practice |
| 1. Agreed choice | Did the spouses agree, before or at the marriage, which country’s law would govern their property? | The choice stands, but only if there is a substantial link between the chosen country and at least one spouse. You cannot pick a random tax haven. |
| 2. Common domicile | Were both spouses domiciled in the same country when they married? | If both treated the same country as their permanent home, that country’s law applies. |
| 3. Common habitual residence | Were both spouses actually living in the same country when they married? | Day-to-day residence counts here, even without an intention to stay permanently. |
| 4. Common nationality | Did both spouses hold the same nationality when they married? | A shared passport becomes the connecting factor if the first three tiers fail. |
| 5. Closest connection | Which country were the spouses, together, most closely connected to at the marriage? | A safety net for couples with genuinely scattered lives, weighing all their joint circumstances. |
Notably, the court rejected the Law Reform Commission’s suggestion that couples be free to choose any legal system whatsoever, reasoning that an unlimited choice would be open to abuse by the spouse with the stronger bargaining position and would undermine certainty. The substantial-link requirement is not a technicality; it is the guardrail.
Yes. It applies retrospectively to existing marriages, in line with the default position confirmed in Du Plessis v De Klerk [1996] ZACC 10, with three sensible protections. Steps already validly taken under the old rule remain valid. Estates already finally wound up on death or divorce are not reopened. And if your antenuptial contract chose a governing law inconsistent with the new rule, that choice remains effective for two years, giving you time to amend the contract.
The Minister of Justice proposed delaying the new rule for existing opposite-sex marriages only. The court rejected this as irrational and itself a fresh form of discrimination, so everyone benefits from the reformed rule immediately.
If your marriage, or a marriage you are winding up as an executor, has any foreign element, work through these steps.
Business owners should take particular note. The law governing a director’s or shareholder’s marriage determines whether a spouse has claims against business assets and how buy-and-sell arrangements play out on death or divorce.
The N.P. judgment closes a chapter that opened in 1950. The law no longer defers automatically to the husband’s homeland, and same-sex couples finally have a workable rule. But the judgment rewards planning. Couples who record a sensible, substantially linked choice of law in an antenuptial contract will enjoy certainty; couples who leave the question to the tiers may be surprised by the answer. If any part of your marriage story crosses a border, now is the time to check where you stand.
Since 23 June 2026, a five-tier test applies. First, the law the spouses validly chose, provided it has a substantial link to at least one of them. Failing that, the law of their common domicile, then common habitual residence, then common nationality, and finally the country they were jointly most closely connected to, all assessed at the date of marriage.
It was the common law rule that the property consequences of a marriage were governed by the law of the husband’s permanent home country on the wedding day, fixed forever. Adopted in 1950, it was declared unconstitutional by the Western Cape High Court in June 2026 because it discriminated on grounds of sex, gender and sexual orientation.
Yes, the new test applies retrospectively to existing marriages. However, steps validly completed under the old rule remain valid, and estates already finally wound up on death or divorce are not reopened. Ongoing divorces and unfinalised estates with a cross-border element must now be assessed under the new five-tier test.
Possibly. If your antenuptial contract chose a governing law that has no substantial link to either spouse, that choice survives for only two years from the judgment, after which the new rule overrides it. Have the contract reviewed by an attorney now, so any amendment is registered well before the window closes.
Profoundly. The old rule could not work for same-sex marriages because it depended on identifying a husband, leaving those couples with no rule at all. The new test is entirely gender-neutral, so same-sex spouses now have exactly the same clear, five-tier answer as everyone else, applied to their circumstances at the date of marriage.
Roy Bregman has been advising on matrimonial property, antenuptial contracts and deceased estates since 1974. Whether you need your antenuptial contract reviewed within the two-year window, a cross-border divorce assessed under the new test, or an estate plan updated, we will give you a clear answer in plain English, quickly and at a sensible fee.
Call Roy directly on +27 (0)11 646 0335, email roy@bmalaw.co.za or visit bregmans.co.za. Bee at Ease | Taking the Sting Out of Legal Problems Since 1974.
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