Chapter 2- Family Law Flashcards
Which legal system governs the real validity of the marriage?
1) • Governed by the lex loci celebrationis (LLC)
Ie: the law of the place of where the marriage was concluded
2) • S10 Marriage Act:
SA citizens who concluded their marriage at an SA embassy in another country = valid
This = an exception to the lex loci celebrationis because things valid in terms of SA law are not necessarily valid in the LLC
What 2 presumptions apply when dealing with family law?
• 1ST presumption:
Classification takes place in terms of the lex fori
Not always the case – regulated by the different rules in the different legal systems
• 2ND presumption:
That the doctrine of renvoi (sending back) doesn’t apply
Not always the case – but mostly is
WHICH LEGAL SYSTEM GOVERNS THE ESSENTIAL/ MATERIAL/ SUBSTANTIVE/ INHERENT VALIDITY OF THE MARRIAGE?
• 3 cases answer this question: Friedman case Kassim case As v CS • All these cases decided that the lex loci celebrationis governs
What exception to LLC existed in the Friedman and Kassim case?
• An exception in the Friedman case and Kassim case:
An act in fraudem legis (ie: an act concluded to circumvent the laws in a legal system) – then the LLC will not apply but rather the law they tried to circumvent
Public policy (eg: issues of consent of parents, age of parties, polygamy)
- Friedman case and Kassim case:
Minors did not have the permission of their parents to get married – therefore they went to another country where it was legal for them to get married without their parent’s permission. Thus because they tried to circumvent the SA legal system, they acted in fraudem legis – therefore the LLC didn’t apply, but SA law applied so it was still not a valid marriage
Which legal system governs the personal consequences of a marriage?
• Generally = governed by the lex domicilii (LD)
Law of the domicile of the parties
• Issues:
1) Maintenance of ex-spouse
2) Surname of parties
3) Grounds for divorce
4) Capacity to litigate
5) Claims for household expenses
6) Contractual capacity
7) Donations between parties
What legal system governs the maintenance of ex-spouses?
MAINTENANCE OF EX-SPOUSE:
• Applies to spouses – not children
• Usually the LD applies (RD Law)
But this has been changed by S2(3) Divorce Act
S2(3) provides if the SA court has jurisdiction over the divorce case then it is assumed that the parties are domiciled here in SA
When does it have jurisdiction = Parties must be habitually resident in SA for at least 1 year (so court will have jurisdiction even if not domiciled in SA )
See AS v CS
• \ Effect of S2(3) = lex fori applies to ALL cases of maintenance of ex-spouses
There is an exception to this – see Hassan case
Case provides the lex domicilii matrimonii (LDM) may apply in some cases
What legal system governs the surname of spouses?
Lex Domicilii always applies.
What legal system applies to grounds of divorce?
• Lex fori (LF) applies
Confirmed in AS v CS and Holland cases
• This even applies to foreigners who want to divorce when in SA
What legal system governs capacity to litigate?
Always Lex Domicilii.
What legal system governs the issue of household necessities?
• Governed by the parties LD at the time the expenses were occurred
Decided in the Perrott-Humphrey case
• But what if parties had different domiciled at time the expenses occurred
Lecturer suggests at looking at the domicile of the plaintiff (ie: party claiming the household expenses)
What legal system governs the issue of contractual capacity?
• No SCA decision on the contractual capacity of parties - \ this situation is unclear in SA law so apply different cases
• With regards to immovable property:
Common law rule of the lex situs applies
(Ie: the law of the place where the immovable property is situated)
• With regards to movable property – different cases:
Kent case:
Held that lex loci contractus (LLC) applies – ie the law of the place where the contract was concluded
Guggenheim case:
Court refers to both the lex loci contractus and the lex domicilii. In casu these systems were regulated by the same country
Court however, preferred the LD
Powell case:
Difficult to interpret this case
Friedericks case interpretation = judge applied the LD
Tesoriero case interpretation = judge applied the proper law of the contract
It is submitted that the Friedericks interpretation is correct
Tesoriero case:
Court referred to both the lex loci contractus AND the proper law of the contract (ie: the law of the place that governs the contract)
Court preferred the proper law of the contract
• \ Legal position in SA today = unclear
So according to the above cases it will either be the lex loci contractus or the proper law of the contract
• If SA had to apply the LD of the parties – which parties’ domicile would apply
Lecturer suggests to look at the LD of the party concluded the contract
Which legal system governs the issue of donations between spouses?
- Is it allowed in SA? ® In principle = Yes
- But which legal system governs?
Powell case:
Held that the LD of the parties at the time of the donation
• If SA law applies (ie: LD = SA law) – S22 Matrimonial Property Act provides that donations inter partes = valid
• LD of which party?
Unclear
Lecturer suggests the domicile of the party making the donation
What legal system governs the Patrimonial consequences of marriage?
• So which legal system governs
Lex domicilii matrimonii (LDM – law of the matrimonial domicile)
• Immutability principle
Means that this legal system is determined once and for all
Ie: the LDM always governs the patrimonial consequences of the marriage regardless of how their domicile changes
This even applies to immovables – so normally the lex situs would apply – but not when dealing with the patrimonial consequences of the marriage
Sadiku case:
Court made a mistake and applied the common law test of lex situs to immovables
Difficulty with this:
Different legal systems would govern the movable property to the immovable property
Reasonable expectation of the parties relating to the ownership of immovable property
• Can parties choose a legal system to govern their patrimonial consequences of their marriage:
Depends on the LDM
If LDM is SA law = yes
• Intended matrimonial domicile:
Refers to when parties intend to have their matrimonial domicile in another country
Depends on whether their intended domicile is contained in the ANC
Frankels Estate case and Sadiku case:
Court held that the intended matrimonial domicile does not play a role for various reasons
• Changes in the law of LDM:
Parties were originally married in community of property in terms of the law of the LDM, but then the law changed retrospectively and now they are married out of community of property (vic versa)
Which LDM applies? The original one? Or the changed one?
Sperling case:
Changes must be accepted if retrospective and even if parties acquire another domicile
What is the Lex Domicilii matrimonii (law of marriage domicile)?
• Common law:
Sperling case and Frankels Estate case interpret the LDM as the domicile of the husband at the time the marriage was concluded
Sadiku case and AS v CS case – this common law LDM discriminates unfairly against woman and same sex unions
\ There are proposals to change the LDM – not yet changed
What are the proposals to change the LDM?
• Schoeman:
First look at the ANC
If none – look at the common LD of parties
If none – look at the law of common habitual residence
If none – look at the law of the closest connection
• Stoll and Visser (preferred proposal):
First look at ANC
If none – look at common LD of parties
If none – look at law of common habitual residence
If none – look at common nationality
If none – look at the law of closest connection
• Forsyth:
First look at ANC
If none – look at common LD of parties
If none – look at law of common habitual residence
If none – look at common nationality
If none – look at LLC (lex loci celebrationis)
(Can we still use the term LDM with these propoals? – Rather use the term LCPM – lex causa proprietatis matrimonii – OR proper law of the proprietary consequences of the marriage)
What are the patrimonial consequences of marriage?
• 6 Patrimonial consequences:
1) Whether parties are married IN or OUT of community of property (main consequence)
2) Changes to the matrimonial property regime
3) Administration of the estate (eg: marital power)
4) Ex lege revocation of a will due to marriage
5) Forfeiture of marital benefits
6) Redistribution of assets at divorce
What legal system governs the issue of changes to the matrimonial property regime?
- With regard to changes to the matrimonial regime – LDM is not necessary applicable
- Must distinguish between 2 types of scenarios:
1) Post-patrimonial execution of the ANC
2) S21 Matrimonial Property Act
1)• Post-patrimonial execution of ANC:
Normally ANC is concluded before marriage is concluded
Are the courts allowed to execute such an ANC after the marriage is concluded
In SA – it is not allowed except in certain situations, and then you still only have 3 months to register it
Larkan case:
Court decided that the LDM applies BUT when parties acquire domicile in SA the LD applies (ie: SA law will apply)
2)• S21 Matrimonial Property Act:
Provides that if parties are married in community of property – they can apply to the HC to change their regime to be married out of community of property (vic versa)
Which legal system applies then?
Forsyth states that the LF should apply
Senekal case:
Court supports the view of Forsyth – ie: lex fori applies – but only in appropriate cases
Appropriate cases:
Both parties are domiciled in SA at date of application to HC
Both parties are SA citizens
Other factors
What legal system governs the issue of administration of estate (eg- Marital Power)?
• Common law authors – Van der Keesel and Voet provide:
In respect of movables – lex domicilii (LD) applies
In respect of immovables – lex situs applies
• Modern authors – Kahn and Forsyth provide:
LDM always applies (both to the movables and immovables)
Tesorieno case:
Court automatically applied the lex fori without even looking at the common law (it just assumed that SA law applied)
What legal system governs the issue of ex lege revocation of previous will by marriage?
• Ie: when you get married – does it automatically revoke any previous wills made by the parties
In SA – not allowed
Pitluk case:
This is a proprietary consequence of marriage – thus the LDM should apply
What legal system deals with the issue of forfeiture of patrimonial benefits?
• Kahn provides = lex fori should apply
Wyker case:
Confirmed that the LF applies
Redistribution of assets?
Check notes
