SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy

IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)

REPORTABLE

Case No.: 2468/2024
In the matter between:

N[…] P[…] (BORN O[…]) Applicant


and


MINISTER OF JUSTICE AND CONSTITUTIONAL
DEVELOPMENT First Respondent

MINISTER OF HOME AFFAIRS Second Respondent

I[…] N[…] P[…] Third Respondent
Coram: TJ Golden, AJ
Date of Hearing: 7 November 2025
Date of Judgment: 23 June 2026

Summary: The common law rule of lex domicilii matrimonii in terms of
which the proprietary consequences of a marriage are determined
by the husband’s domicile at the time of the marriage is declared

2

inconsistent with the Constitution and invalid; development of the
common law to introduce a new rule to govern the proprietary
consequences of the marriage; costs order against the State; no
difference in principle between awarding costs in relation to an
unconstitutional provision in a statute and an unconstitutional
common law rule.
ORDER
1. It is declared that the common law rule of lex domicilii matrimonii in
terms of which the proprietary consequences of a marriage are
determined by the husband’s domicile at the time of the marriage, is
inconsistent with the Constitution and invalid.
2. The common law is developed so that the law that determines the
proprietary consequences of a marriage is determined as follows:

2.1 the parties designate by agreement before or at the time of the
marriage the country whose legal system shall apply, save that
there should be evidence of a substantial link or connection
between the choice of the applicable law and one or both
spouses, failing which, the provisions below shall apply;
2.2 in the absence of agreement between the spouses or where there
is no substantial link or connection with the designated legal
system, the law of the country of the common domicile of the
spouses at the time of the marriage shall apply; or

3


2.3 in the absence of agreement or in the absence of a common
domicile, the law of the country of common habitual residence
of the spouses at the time of their marriage; or

2.4 in the absence of any of the previous factors, the law of the
country of common nationality of the spouses at the time of the
marriage; or

2.5 in the absence of any of the previous factors, the law of the
country to which the spouses are jointly and most closely
connected at the time of the marriage.

3. The development of the common law set out in paragraph (2) above,
shall apply retrospectively to all existing marriages, save that:
3.1 where the spouses have chosen a law to govern the proprietary
consequences of their marriage in an antenuptial contract, the
development shall not apply for 2 (two) years from the date of
the order to enable the parties to amend their antenuptial
contract to align with the new rule;

4

3.2 where the spouses have not chosen a law to govern the
proprietary consequences of their marriage, the development
shall apply unless it will result in substantial prejudice;

3.3 the development shall not affect any positive steps and/or
decisions and/or transactions already taken or performed in
accordance with the law of the husband’s domicile as it relates
to any existing marriage; and

3.4 the development shall not apply to marriages that were
dissolved by death or divorce prior to the date of this order.

4. The First and Second Respondents shall pay the Applicant’s cost
jointly and severally on Scale C.
________________________________________________________________
JUDGMENT
________________________________________________________________

GOLDEN, AJ:
Introduction
1. This is an application to declare unconstitutional and invalid the common
law lex domicilii matrimonii rule (“the domicilii matrimonii rule” or “the
Rule”) where the proprietary consequences of a marriage are governed by

5

the law of the husband’s domicile at the time of marriage.
2. Other than her own direct interest in the relief sought, the applicant also
brings this application in the public interest in terms of Section 38(d) of
the Constitution.
3. The applicant alleges 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. She alleges that the Rule violates Section 9 in two
ways:
3.1 Contrary to Section 9(1) of the Constitution, it bears no rational
connection to any legitimate government purpose. A wife’s
domicile of dependence was abolished by the Domicile Act, 3 of
1992, yet the lex domicilii matrimonii rule preserves the
subordinate and unequal position of a woman in a relationship.
The law is also irrational because it fails to regulate same -sex
marriages.
3.2 Contrary to Section 9(3), it constitutes unfair discrimination on the
basis of sex, gender and sexual orientation. In heterosexual
marriages, it privileges the husband’s domicile over the wife’s
affording him a procedural, symbolic and substantive advantage.
The Rule discriminates against same-sex partners

6

because, while providing a rule for the resolution of opposite -sex
marriages, it fails to provide a rule for determining which law
governs the proprietary consequences of same-sex marriages.
4. She has also brought a conditional, alternative challenge to the
Matrimonial Property Act, 88 of 1984 (“the MPA”) in the event that the
Court determines it is necessary or appropriate to challenge the Act for
failing to regulate the choice of law of the proprietary consequences of a
marriage constitutionally.
5. She seeks no primary substantive relief against either of the Ministers and
has cited them because they are jointly responsible for the laws that
regulate marriage and divorce in South Africa, including the Marriage
Act, 25 of 1961, the Civil Union Act, 17 of 2006, the Recognition of
Customary Marriages Act, 120 of 1998, the Divorce Act, 70 of 1979 (“the
Divorce Act”) , and the MPA. She asserts that the application was
necessary because of the failure of the Ministers to introduce amendments
to replace the unconstitutional rule, and therefore seeks costs against them,
jointly and severally, whether or not they oppose the application.

6. The Minister of Justice and Constitutional Development (“the Minister”) ,
the first respondent, has filed an answering affidavit but has indicated her
intention to abide the Court’s decision in relation to the declaration of
invalidity. The parameters of her involvement in the application are ,

7

according to the affidavit filed on her behalf, the following:
6.1 She a bides the order of the Court in respect of the claim for a
declaration that the common law rule is invalid.
6.2 She seeks to place her views before the Court about the
appropriateness of the a pplicant’s proposed development of the
common law and its wider consequences.
6.3 Her opposition to the application has been necessitated by (a) the
applicant’s conditional, alternative challenge to the MPA, and (b)
the costs order sought against her.
7. I deal more fully with the Minister’s position and involvement in the
application later in the judgment.
8. The Minister of Home Affairs, the second respondent, has filed a notice of
non-opposition.
9. The applicant’s husband, the third respondent, has filed an answering
affidavit limited to the factual averments which the applicant has made in
relation to the marriage. He otherwise does not oppose the substantive
relief sought in the application.
10. The applicant and the third respondent are currently engaged in divorce
proceedings. In the divorce action, the third respondent seeks to rely on
the Rule to contend that the proprietary consequences of the marriage are

8

governed by the laws of Zimbabwe, where he asserts he was domiciled at
the time of the marriage. The applicant, however, contends that the
proprietary consequences of their marriage are governed by the laws of
England and Wales because: (a) both she and the third respondent were
domiciled in England at the time of their marriage; and (b) the proposed
reform of the common law she seeks in this application would have that
effect.
11. She asserts that the determination of which law governs the proprietary
consequences of the marriage will make a significant difference to the
divorce.
12. The applicant has attached to her founding affidavit an expert legal
opinion authored by Professor Elsabe Schoeman, Professor Marlene
Wethmar-Lemmer and Elisa Rinaldie titled Academic Opinion on the
Private International Law Rule for Proprietary Consequences of
Marriage: Lex Domicilii Matrimonii, being the Law of the Matrimonial
Domicile at the Time of Marriage, referring to the Domicile of the
Husband at the Time of the Marriage , on the common law rule of the lex
domicilii matrimonii, the constitutional challenges to the rule, global
perspectives and the proposed development of the rule , in support of her
application.
1

1 In L.E v L.A (1884/2018) [2024] ZAGPJHC 104; 2025 (5) SA 539 (GJ) (9 February 2024), the applicant also
sought to place an expert legal opinion before the Court but which she sought to do irregularly in her replying
affidavit which the Court in terms of Rule 36(9) disallowed not only in terms of the procedure followed but also
for the reason that the proprietary consequences of the marriage, whether in terms of Turkish or Romanian law,

9


13. The applicant’s marriage is testimony to the hidden complexities which
marriages with international elements (often referred to as “international
marriages”)2 have and where the spouses to the marriage are often not
aware of the associated implications and legal consequences of the law
which governs their marriage until they are confronted with divorce.
14. Unsurprisingly, the applicant was not aware of any private international
law rule that determined the proprietary consequences of the marriage
until the issue was raised by her attorney in early 2023. According to the
third respondent, they had received legal advice previously in South
Africa that Hong Kong was their domicile because they had been living
permanently in Hong Kong at the time of their marriage.
15. The facts of this case also reveal the uncertainty associated with the
regulation of international marriages in South Africa.
16. Judicial pronouncement on the common law lex domicil ii matrimonii is,
needless to state, long overdue.

was for the court in the divorce action to determine. However, the Schoeman et al expert legal opinion does not
advance an argument for the application of a specific foreign law, but the focus of the opinion is rather more
broadly directed at the constitutionality of the lex domicilii matrimonii rule and the development of the rule.
There is nothing in the expert legal opinion which is inconsistent with the relevant authorities and international
law principles which are referred to in the judgment. As a matter of general legal principle, expert opinions are
required to be of assistance to the Court although a Court is not bound to adopt the reasoning and conclusions
set out in the opinion. Notwithstanding this principle, the opinion was helpful to the Court.
2 An international marriage or foreign marriage is commonly defined as a marriage where one or both spouses
have different nationalities and/or citizenship.

10


The Applicant’s Marriage and Divorce Proceedings
17. I summarise broadly only the most salient facts pertaining to the marriage.
I do not make any findings in relation to the disputed allegations as they
are for determination by the trial court who will determine the divorce
action with the benefit of oral evidence.
18. The applicant was born in Bogota, Colombia. She was educated in
England from the age of 11 and as an adult had established her home in
England. At the time of her marriage to the t hird respondent, she
considered herself domiciled in England.
19. The third respondent was born in South Africa and relocated to Zimbabwe
in 1970. He has been a Zimbabwean citizen since 1981.
20. According to the applicant, a lthough she and the third respondent were
temporarily living in Hong Kong at the time of their marriage, they were
domiciled in England at the time and always intended to return to the UK.
According to the third respondent the applicant was already in Hong Kong
in 1996 and had a job there. He denies that his secondment to Hong Kong
was temporary as it was an open -ended contract. He still considered
Zimbabwe to be his home, and at the time, he had no intention of
returning to the UK and sold his house in the UK when he moved to Hong
Kong in 1995.

11


21. The applicant alleges that both she and the t hird respondent were British
citizens at the time of their marriage.
22. The third respondent’s UK citizenship was approved two days prior to
their marriage. He entered the United Kingdom in 1992 on a Zimbabwean
passport and secured a five -year ancestry visa under the British
Nationality Act, 1981 . He had subsequently obtained British citizenship
by way of naturalisation after his marriage to the a pplicant. His UK
citizenship was approved in 1997 when he became a dual citizen of
Zimbabwe and the UK. He denies that he was domiciled in the UK at the
time of the marriage.
23. The applicant alleges that the t hird respondent’s career was UK based at
the time of their engagement. The third respondent denies this.
24. The applicant returned to the UK in April 1998 and was pregnant with
their only child, whom they wanted to be born in the UK. After their
son’s birth, she returned to Hong Kong at the end of July 1998. They
enrolled their son at a school in England shortly after he was born as ,
according to the applicant, they always intended to return to England as
soon as the t hird respondent’s tenure in Hong Kong ended. The third
respondent denies that it was a joint decision that their son be enrolled in a
school in the UK and points out that the school where the applicant had

12

enrolled their son was a boarding school for boys aged 13 to 18 for
secondary education, and was no way indicative of where they intended to
reside after their son’s birth.
25. They returned to the UK toward the end of 1998 where they bought
property close to where the third respondent worked at the time.
26. They moved to South Africa in June 2000 when the t hird respondent
worked for B P Southern Africa. The applicant alleges that the third
respondent had secured temporary work permits for South Africa.
According to the third respondent , they required a temporary residence
permit which was essential for him to work for BP in South Africa, and
that the temporary residence permit had no bearing on his domicile at the
time. They sold their property in the UK in December 2000 because South
Africa was intended to be their permanent home, and they had bought
property in Cape Town.
27. The third respondent was unexpectedly transferred back to the UK in
August 2001 on a three-year contract. When this occurred, they sold their
home in Rondebosch and bought land in Cape Town to build their dream
permanent home in South Africa, which home was developed and
completed in 2004. They rented a home from 2001 to 2004 while he was
stationed in the UK as, according to the third respondent, they had no
intention of remaining in the UK post-retirement.

13

28. The third respondent retired in 2004 and moved back to South Africa.
During their time in South Africa, they bought and sold several properties
over the years, including the house where he currently resides.
29. They purchased property jointly in Portugal in 2019, where the applicant
currently resides.
30. The third respondent ac cepts that previous legal advice which they had
received that their domicile at the time of the marriage was Hong Kong
was incorrect. When he obtained further legal advice, it became clear to
him at the time of his marriage, that Zimbabwe, then considered to be his
home and the place where he was most closely connected, was his
domicile. At the time, he felt that he would ultimately return to
Zimbabwe.
31. The marriage had subsequently irretrievably broken down, and the
applicant instituted a divorce action in this Court on 19 April 2023.
32. When the applicant instituted the divorce action, she was advised that in
terms of the lex domicilii matrimonii rule, the proprietary consequences of
their marriage were governed by the law where the t hird respondent was
domiciled at the time of the marriage , which she believed was the UK.
According to her, she w as also domiciled in the UK at the time of the
marriage. Thus, the proprietary relief that she seeks in the divorce is
therefore based on the laws of England and Wales.

14

33. The third respondent has defended the divorce action where he contends
that due to the Rule, the patrimonial consequences of the marriage are
determined by the laws of Zimbabwe , as he contends that he was
domiciled in Zimbabwe at the time of the marriage.
34. Whilst the a pplicant alleges that the third respondent seeks to rely on the
laws of Zimbabwe which have provisions that favour him versus the laws
of England and Wales, she does not ask the Court to make any finding
regarding the law that is applicable to the proprietary consequences of the
marriage, correctly so, as it is an issue pending before the Court that will
determine the divorce action. But o n the current South African law , the
proprietary consequences of their marriage would be governed by
Zimbabwean law because that would have been the t hird respondent’s
domicile. She asserts that whatever the practical outcome of her case, it
would discriminate against her for the proprietary consequences of their
marriage will be d etermined by the application of an outdated, gender
discriminatory rule.
35. Although it is not for this Court to engage the merits of the applicant’s
case, the international elements which underpin the marriage only but
confirms that the time has come for this Court to pronounce on the validity
of the rule which has been the prevailing legal position for at least three
decades.
36. It is desirable that there is legal certainty about the applicable marital

15

property regime during the marriage, and for which a choice must be made
either before the marriage or at the start of the marriage.



The Lex Domicilii Matrimonii Common Law Rule
37. Although a South African court can grant a divorce in respect of a
marriage which is not governed by South African law if one or both
spouses are domiciled or ordinarily resident in the area of the court’s
jurisdiction at the time when summons is issued, different rules apply in
determining the proprietary consequences of non- South African
marriages.
38. Section 7(9) of the Divorce Act provides that:
‘When a court grants a decree of divorce in respect of a marriage, the
patrimonial consequences of which are according to the rules of the South
African private international law governed by the law of a foreign state, the
court shall have the same power as a competent court of the foreign state
concerned would have had at that time to order that assets be transferred from
one spouse to the other spouse.’
39. Under the common law in South Africa, the proprietary consequences of a
marriage are determined according to private international law, by the
husband’s domicile at the time of the marriage known as the lex domicilii

16

matrimonii rule.3 The Rule applies immediately when the marriage is
concluded. Once the matrimonial domicile is adopted, it cannot be
changed during the subsistence of the marriage.4



40. The Rule is inflexible and provides for no exceptional circumstances that
may be considered in its application.5
41. The Rule was formally adopted in Frankel’s Estate in 1950. 6 The
Appellate Division (as it then was), had justified the Rule as the wife had
always assumed the domicile of her husband upon marriage. The Rule was
confirmed by the AD in Sperling7.
42. The Domicile Act 3 of 1992 (‘the Domicile Act’) which has abolished the
wife’s dependent domicile and gives her the right to acquire a separate
domicile independent of her spouse, has not disturbed this rule. 8 The
South African Law Commission Project 60, Domicile Report, March 1990
(“SALC Report on Domicile”) recognised that although the MPA , which

3 Sperling v Sperling 1975 (3) SA 707 (A) at 716F-H.
4 L.E v L.A 2024 (5) SA 539 (GJ) at para [42] and the authorities cited thereunder.
5 CF Forsyth, Private International Law (The Modern Roman Dutch Law Including The Jurisdiction of the
High Court) 5th Edition at p297
6 Frankel’s Estate & Another v The Master & Another 1950 (1) SA 220 (A).
7 Sperling v Sperling 1975 (3) SA 707 (A) at 716F-G.
8 See Esterhuizen v Esterhuizen where the Court held that the MPA was intended to deal with local marriages
concluded in circumstances where the domicile of the husband was in South Africa ; C.F Forsyth, Private
International Law (The Modern Roman -Dutch Law Including The Jurisdiction Of The High Courts) 5th
Edition, p 295, FN 115 and p296; L.E v L.A supra at paras [44] and [45] ; SALRC Report of the South
African Law Commission on Project 60 (Domicile) (March 1990) at S.6.7; see also E Kahn, Appendix on the
‘Conflict of Laws’ to MM Corbett, G Hofmeyr and E Kahn The Law of Succession in South Africa 2nd Ed
(Khan (Succession) ) at 613.

17

has as its object the granting of equal status to husband and wife, has
abolished the husband’s marital power, the law of domicile remains
unchanged in section 11 of the Act.9



43. The Rule was confirmed more recently in L.E v L.A , albeit reluctantly, by
Bezuidenhout AJ in 2024 where an order was sought for the immediate
division of the joint estate in terms of section 20 of the MPA. 10 Here the
parties were married in Romania. The husband opposed the application
and asserted that the parties’ proprietary rights were governed by either
Turkish or Romanian law on the basis that he and his wife were domiciled
either in Turkey or Romania at the time of the marriage.
44. One can no longer assume that prospective spouses who wish to conclude
a marriage share a domicile, residence or nationality. The international
experience is that more persons of different countries and nationalities
marry and often move away from their place of birth or country of
citizenship.
45. As the author, Forsyth, has recognised, it is a commonplace social fact of
modern life that husbands and wives frequently have permanent homes
separate from each other and that children increasingly live apart from

9 South African Law Commission Project 60, Domicile Report, March 1990 at para 2.32, p15
10 (1884/2018) [2024] ZAGPJHC 104; 2024 (5) SA 539 (GJ) (9 February 2024) at para [40].

18

their parents. In such circumstances, assigning to wives the domiciles of
their husbands (and to children the domiciles of their father) may lead to
excessive artificiality and assigning to those persons domiciles hardly in
accord with their factual

positions. It was therefore unsurprising, that the Domicile Act has
abolished the domicile of dependence.
11
46. As Lord Denning in the English Court of Appeals held in In Re P. ( GE)
(An Infant)12:
‘The tests of domicile are far too unsatisfactory. In order to find out a person’s
domicile you have to apply a lot of archaic rules. They ought to have been done
away with a long time ago but they still survive, particularly the rule that the
wife takes the domicile of her husband and the rule that a child takes the
domicile of its father.’13
The Constitutional Validity of the Lex Domicilii Matrimonii Rule
47. As counsel for the applicant contended, the lex domicilii matrimonii rule is
not simply a matter of procedure. The substantive content of the Rule
provides that the proprietary consequences of a marriage is determined by
the husband’s domicile.

11 Forsyth, p 160.
12 [1965] Ch 568 (CA) at 583
13 Forsyth, p 160, FN 170; E Kahn, “The South African Law of Domicile of Natural Persons, Cape Town”, Juta
& Co 1972 (also published in 1971 Acta Juridica 1) at 72-3.

19

48. However, dependent domicile was abolished by Section 1 of the Domicile
Act but the lex domicilii matrimonii rule survived this amendment and
remains in force.

49. The applicant contends that the Rule is discriminatory and violates section
9 of the Constitution.

50. As the Constitutional Court held in Prinsloo v Van der Linde and Another,
the right to equality requires that all laws that distinguish between people
have a “rational relationship between the differentiation in question and
the governmental purpose which is proffered to validate it. In the absence
of some rational relationship, the differentiation would infringe section 8.”
14
51. In Hugo15, Goldstone J held that:
‘At the heart of the prohibition of unfair discrimination lies a recognition that the
purpose of our new constitutional and democratic order is the establishment of a
society in which all human beings will be accorded equal dignity and respect
regardless of their membership of particular groups.’
16

52. The right to equality is enshrined in section 9 of the Constitution.
53. Section 9 provides that:
(1) Everyone is equal before the law and has the right to equal protection

14 [1997] ZACC 5; 1997 (3) SA 1012 (CC) at para [26].
15 President of the Republic of South Africa and Another v Hugo 1997 (4) SA 1 (CC) (18 April 1997)
16 Ibid at para [41]

20

and benefit of the law.
(2) Equality includes the full and equal enjoyment of all rights and
freedoms. To promote the achievement of equality, legislative and other
measures designed to protect or advance persons, or categories of
persons, disadvantaged by unfair discrimination may be taken.
(3) The state may not unfairly discriminate directly or indirectly against
anyone on one or more grounds, including race, gender, sex,
pregnancy, marital status, ethnic or social origin, colour, sexual
orientation, age, disability, religion, conscience, belief, culture,
language and birth.
(4) No person may unfairly discriminate directly or indirectly against
anyone on one or more grounds in terms of subsection (3). National
legislation must be enacted to prevent or prohibit unfair discrimination.
(5) Discrimination on one or more of the grounds listed in subsection (3) is
unfair unless it is established that the discrimination is fair.

54. Section 9(2) envisages substantive equality.17
55. Differentiation lies at the heart of equality jurisprudence and the section 9
rights.18

56. I must determine as part of my analysis whether the lex domicil ii
matrimonii rule differentiates between people or categories of people , and
if so, w hether the differentiation serves a legitimate government purpose.
If it fails this test, it violates the right to equality in section 9(1) of the

17 Ibid para [48]; Jordaan and Others v Minister of Home Affairs and Another (CCT 296/24) 2025 (6) SA 323
(CC) at para [30]
18 Prinsloo supra at para [23], although Prinsloo dealt with the equality clause in section 8 of the Interim
Constitution.

21

Constitution.19 Where the discrimination is on a listed ground in section
9(3), it is presumed that the discrimination is unfair unless it is established
that the discrimination is fair.20


57. The Rule clearly differentiates between men and women as spouses in a
marriage. It differentiates on the basis of sex and gender , two listed
grounds in section 9(3) of the Constitution.
58. My analysis of the constitutionality of the lex domicilii matrimonii rule
would not be complete without acknowledging the underlying
assumptions and stereotypes which has underpinned the Rule.

59. The Constitutional Court in Jordaan has acknowledged that gender
discrimination and patriarchy is well -established in our society and
worldwide.21 Theron J recognised that the steadfast progression of
women’s rights in South Africa has allowed for significant advancement
of gender equality and the self determination of women, however there are
still many practices and laws that continue to perpetuate harmful
stereotypes regarding the role and autonomy of women.
22
60. The Rule is predicated on the outdated assumption that the wife cannot
acquire, or is not capable of acquiring, a domicile separate to that of her

19 Hugo supra at para [31]
20 Ibid para [32]; Jordaan at para [30]
21 Jordaan at paras [21] and [22].
22 Ibid para [29]

22

husband. The notion of dependency and the wife adopting the depende nt
domicile of her husband is also completely inconsistent with the lived
reality of contemporary marriages where wives are financially
independent, where they share equally in the financial contribution to the
marriage and household, and w here they often are also the main
breadwinner. The underlying assumption of dependency is patently
outdated and demonstrably inconsistent with the contemporary role of a
wife in a marriage. The Rule is also irrational for this reason.
61. The Rule is underpinned by the patriarchal norm that women are
subordinate to their husbands . It perpetuates gender inequality and the
subordinate stereotypical role of the wife in a marriage.
62. The Rule also operates in a time where the concept of the international
marriage is becoming more commonplace, but where the Rule is
inconsistent with contemporary international private law.
63. Notably, the Minister’s affidavit expressly states that there “ are strong
indications that the Rule is inconsistent with the Constitution and ought to
be declared invalid”, recognised in the SALRC Discussion Paper 160,
Project 100E: Review of Aspects of Matrimonial Law (“the Discussion
Paper”) upon which the Minister relies. The Discussion Paper
acknowledges with reference to Issue Paper 41 that “even in opposite sex
marriages, the invariable choice of the husband’s domicile as the
applicable legal system discriminates on the bases of sex and gender by

23

conferring a benefit – familiarity with the applicable legal rules, or at
least, ease of ascertaining what the applicable matrimonial property
system would be on husbands – but not wives. There appears to be no
justifiable reason for the different treatment of husbands and wives other
than the need to designate one legal system which will govern the
proprietary consequences of the marriage.”
23
64. It is difficult to conceive of any underlying factors which would justify
this differentiation between a husband and wife in a marriage. There can
be no rational reason to prefer a husband’s domicile over that of the wife. I
assume that this must have been recognised when the wife’s depende nt
domicile was abolished by Section 1 of the Domicile Act.
65. The Rule clearly constitutes an arbitrary differentiation which violates
Section 9(1) of the Constitution.
66. The Rule also only regulates opposite-sex marriages. It does not recognise
same-sex marriages or unions.
67. The Rule cannot determine which law applies in same -sex marriages. It
will be very difficult, if not impossible , to determine in a same -sex
marriage who the “husband” is for purposes of determining the domicile.
24
68. The Rule therefore differentiates:

23 SALRC, Discussion Paper, para 3.5, p 31; Issue Paper 41 at 9.
24 SALRC Discussion Paper; the Schoeman et al expert legal opinion at para 2.3.

24

68.1 On the ground s of sex and gender because it prefers the husband’s
domicile to that of the wife.


68.2 On the basis of sexual orientation because it does not provide a
remedy for the choice of law for same-sex marriages.
69. Because the Rule differentiates on three listed grounds set out in Section
9(3), these differentiations constitute discrimination and are presumed to
be unfair. Although none of the respondent parties have contended that the
discrimination is fair, I am still required to satisfy myself that it constitutes
unfair discrimination.
25
70. In the absence of any justification contemplated in Section 36(1) of the
Constitution, I accept and conclude that the Rule unfairly discriminates on
the basis of sex, gender and sexual orientation. 26 It is difficult to conceive
of any countervailing interests or rights that could legitimately justify the
differentiation.

71. Notably, the SALRC Discussion Paper also acknowledges that the Rule
cannot be applied to same -sex civil unions and unfairly discriminates

25 Jordaan at para [42]; National Coalition for Gay and Lesbian Equality and Another v Minister of Justice and
Another [1998] ZACC 15 (‘the Sodomy case”); 1999 (1) SA 6 (CC) at para 18.
26 Van der Merwe v Road Accident Fund [2006] ZACC 4; 2006 (4) SA 230 (CC) at paras [62] and [63].

25

against same-sex civil union partners.27
72. The lex domicilii matrimonii rule directly violates the right to equality in
section 9(1) of the Constitution and is therefore unconstitutional and
invalid.
73. The Rule is also patently unconstitutional because it is inconsistent with
the spirit, purport and objects of the Bill of Rights.
74. Given the finding that the Rule is unconstitutional and invalid, I do not
deem it necessary to deal with the applicant’s conditional alternative
challenge to the MPA.
The Just and Equitable Remedy and the Development of the Common Law
75. Given the finding that the lex domicilii matrimonii common law rule is
unconstitutional and invalid under section 172(1)(a) of the Constitution , I
am required in terms of section 172(1)(b) to remedy this
unconstitutionality and may make any order that is just and equitable,
including an order limiting the retrospective effect of the declaration of
invalidity.28 The question which arises, whether, having made such a
declaration, the court should develop the common law as part of the just
and equitable relief so as to remedy the constitutionally offensive Rule.29

27 SALRC Discussion Paper at para 3.4, pp30 and 31.
28 Section 172 (1)(b)(i); National Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs
and Others
(CCT10/99) [1999] ZACC 17; 2000 (2) SA 1 (CC); 2000 (1) BCLR 39 (CC) (2 December 1999) at para [24].

29 [2005] ZACC 19; 2006 (1) SA 524 (CC) at para [120].

26

76. Section 172(1)(a) also applies to declarations that the common law is
invalid.30 Sachs J in Minister of Home Affairs and Another v Fourie and
Another31 held, in relation to a just and equitable remedy, that the
challenges to the common law definition of marriage and challenge to the
Marriage Act fell to be considered together to enable the court to develop
a less attenuated remedy that was available to the SCA, and that the
challenge now meant that the question of whether and how to develop the
common law need no longer be answered narrowly as an independent and
abstract matter separately from how to respond to the defects of the
Marriage Act. He held:
‘[120] It is clear that, just as the Marriage Act denies equal protection and
subjects same-sex couples to unfair discrimination by excluding them
from its ambit, so and to the same extent does the common- law
definition of marriage fall short of constitutional requirements. It is
necessary, therefore, to make a declaration to the effect that the
common-law definition of marriage is inconsistent with the
Constitution and invalid to the extent that it fails to provide to same -
sex couples the status and benefits coupled with responsibilities which
it accords to heterosexual couples. The question then arises whether,
having made such declaration, the Court itself should develop the
common law so as to remedy the consequences of the common -law’s
under-inclusive character.’
32
77. The C ourt in the Sodomy case where it dealt with the constitutional
invalidity of a common law criminal offence, held that “there is no valid
reason why the constitutional principles underlying the above approach

30 Ibid at paras [118] – [120].
31 [2005] ZACC 19; 2006 (1) SA 524 (CC).
32 Ibid, at para [120].

27

should not, suitably adapted, also apply to the instant case where, on a
direct application of the Bill of Rights, we have found the very core of the
offence to be constitutionally invalid.”33
78. Where the common law deviates from the spirit, purport and objects of the
Bill of Rights, the Courts have an obligation to develop the common law
by removing the deviation.34
79. Thus, if a common law provision is inconsistent with the Constitution, and
when appropriately challenged, it will be declared invalid and struck
down.35
80. The Constitution provides for the development of the common law in the
following circumstances:
80.1 In terms of Section 8(3)(a), when applying a provision of the Bill
of Rights to a natural or juristic person in terms of subsection (2), a
court, in order to give effect to a right in the Bill, must apply, or if
necessary develop, the common law to the extent that legislation
does not give effect to that right and may develop rules of the
common law to limit the right, provided that the limitation is in
accordance with Section 36(1).

33 National Coalition for Gay and Lesbian Equality and Another v Minister of Justice and Others 1998 (12)
BCLR 1517 (CC); 1999 (1) SA 6 (CC) at [69] (‘the Sodomy case”); Fourie op cit at para [121].
34 Carmichele v Minister of Safety and Security 2001 (4) SA 938 (CC) at para [33].

35 Fourie op cit at para [121]; The Courts have developed the common law in cases such as K v Minister of
Safety and Security [2005] ZACC 8; 2005 (6) SA 419 (CC), F v Minister of Safety and Security [2011]
ZACC 37; 2012 (1) SA 536 (CC); Masiya v Director of Public Prosecutions, Pretoria and Another (Centre
for Applied Legal Studies, Amici Curiae) 2007 (5) SA 30 (CC) and Women’s Legal Centre Trust v President
of the Republic of South Africa and Others 2022(50 SA 323 (CC)

28

80.2 In terms of Section 39(2), when interpreting any legislation, and
when developing the common law or customary law, every court,
tribunal or forum must promote the spirit, purport and objects of
the Bill of Rights.
80.3 In terms of Section 173, the Constitutional Court, the Supreme
Court of Appeal and the High Court of South Africa have the
inherent power to protect and regulate their own process, and to
develop the common law, taking into account the interests of
justice.
36
81. The approach to the development of the common law has been set out by
the Constitutional Court in Mighty Solutions CC t/a Orlando Service
Station v Engen Petroleum Ltd and Another:
‘[38] Before a Court proceeds to develop the common- law, it must (a)
determine exactly what the common- law position is; (b) then consider
the underlying reasons for it; and (c) enquire whether the rule offends
the spirit, purport and object of the Bill of Rights and thus requires
development. Furthermore, it must (d) consider precisely how the
common-law could be amended; and (e) take into account the wider
consequences of the proposed change on that area of the law.’
37

82. The applicant and the Minister both accept that a declaration of invalidity
is not sufficient and that it must be replaced to regulate the choice of law

36 See the Constitutional’s Court’s approach to the development of the common law in Carmichele v Minister
of Safety and Security 2001 (4) SA 938 (CC) at paras [33] and [34].
37 2016 (1) SA 621 (CC) at para [38]; MEC for Health and Social Development, Gauteng v DZ obo WZ 2018
(1) SA 335 (CC) at paras [31] – [32].

29

although they disagree on the ambit of the new rule. The applicant asserts
that the SALRC has already endorsed a five -step proposal that fairly
regulates which law should apply, and that this Court can and should
develop the common law and adopt this position, with minor variation.
83. On the question as to how the common law should be amended and
formulated, the Minister proposes “ slight revisions” and asserts that there
are no substantive differences between the applicant’s proposed wording
and her proposal.
84. Support for the introduction of a new rule is found in two international
instruments, namely, the Convention on the Law Applicable to
Matrimonial Property R egimes (1978 Hague Convention) (“the
Convention”)
38 and the European Union’s Council Regulation 2016/1103
(“the EU Regulation”)39.
85. I commence my analysis with consideration of the relevant provisions of
the Convention.
86. The Convention permits spouses to decide which jurisdiction’s laws will
apply to their property. They may select the laws of any state of which
one of the spouses is a national at the time of selection, the laws of any
state in which one of the spouses has his/her habitual residence at the time
of selection, or the law of the first state in which one of the spouses

38 Convention on the Law Applicable to Matrimonial Property Regimes (1978 Hague Convention) , The Hague
Conference on Private International Law. https://www.hcch.net/en/instruments/conventions/full-text
39 https://eur-lex.europa.eu/eli/reg/2016/1103/oj/eng. Accessed on 8 June 2026.

30

establishes a new habitual residence after the marriage. 40 If no such
selection is made, the laws of the first state in which the couple had their
habitual residence after marriage govern the property.41
87. Although South Africa is not a signatory to the Convention, this court is
not precluded from having regard to its provisions or the provisions of the
EU Regulation.
88. Section 39(1)(b) of the Constitution mandate s courts to consider
international law when interpreting the Bill of Rights. 42 Section 233 of the
Constitution provides that w hen interpreting any legislation every court
must prefer an y reasonable interpretation which is consistent with
international law.43 This includes international conventions as a source of
international law, even though it has not been ratified domestically.
Having regard to international conventions and regulations would promote
harmonisation, one of the recognised objectives of private international
law, and will introduce legal certainty in a world of rapidly growing
international marriages,
89. Article 3 of the Convention provides as follows:
Article 3

40 Article 2.
41 Ibid, Article 3.
42 There is an obligation to consider international law but courts are not obliged to apply it. See S v Williams
1995 (3) SA 632 (CC) at para [23] and Jordaan supra at para [64].
43 See also Mahlangu and Another v Minister of Labour and Others (CCT306/19) [2020] ZACC 24;
(2021) 42 ILJ 269 (CC); 2021 (2) SA 54 (CC) (19 November 2020) at para [41]

31

The matrimonial property regime is governed by the internal law
designated by the spouses before marriage.
The spouses may designate only one of the following laws-
(1) the law of any State of which either spouse is a national at the
time of designation;
(2) the law of the State in which either spouse has his habitual
residence at the time of designation;
(3) the law of the first State where one of the spouses establishes a
new habitual residence after marriage.
The law thus designated applies to the whole of their property.
Nonetheless, the spouses, whether or not they have designated a law
under the previous paragraphs, may designate with respect to all or
some of the immovables the law of the place where these immovables
are situated. They may also provide that any immovables which may
subsequently be acquired shall be governed by the law of the place
where such immovables are situated.

Article 4
If the spouses, before marriage, have not designated the applicable
law, their matrimonial property regime is governed by the internal
law of the State in which both spouses establish their first habitual
residence after marriage.
Nonetheless, in the following cases, the matrimonial property regime
is governed by the internal law of the State of the common
nationality of the spouses-

32

(1) where the declaration provided for in Article 5 has been made
by the State and its application to the spouses is not excluded by
the provisions of the second paragraph of that article;
(2) where that State is not a Party to the Convention and according
to the rules of private international law of that State, its internal
law is applicable, and the spouses establish their first habitual
after marriage-

(a) in a State which has made the declaration provided for in
Article 5, or
(b) in a State which is not a Party to the Convention and
whose rules of private international law also provide for
the application of the law

of their nationality; or

(c) where the spouses do not establish their first habitual
residence after marriage in the same State.

If the spouses do not have their habitual residence in the same State,
nor have a common nationality, their matrimonial property regime is
governed by the internal law of the State with which, taking all
circumstances into account, it is most closely connected.
90. The relevant provisions of the EU Regulation are Articles 22 and 26.
91. Article 22 of the EU Regulation 2016 provides as follows:
Article 22
Choice of the applicable law

33

(1) The spouses or future spouses may agree to designate , or to
change, the law applicable to their matrimonial property
regime, provided that that law is one of the following:

(a) the law of the State where the spouses or future spouses,
or one of them, is habitually resident at the time the
agreement is concluded; or
(b) the law of a State of nationality of either spouse or future
spouse at the time the agreement is concluded.

(2) Unless the spouses agree otherwise, a change of the law
applicable to the matrimonial property regime made during the
marriage shall have prospective effect only.

(3) Any retroactive change of the applicable law under paragraph
(2) shall not adversely affect the rights of third parties deriving
from that law.

Article 26
Applicable law in the absence of choice by the parties

(1) In the absence of a choice -of-law agreement pursuant to Article
22, the law applicable to the matrimonial property regime shall
be the law of the State:
(a) of the spouses’ first common habitual residence after the
conclusion
of the marriage; or, failing that
(b) of the spouses’ common nationality at the time of the
conclusion of the marriage; or, failing that
(c) with which the spouses jointly have the closest connection

34

at the time of the conclusion of the marriage, taking into
account all the circumstances.

(2) If the spouses have more than one common nationality at the
time of the conclusion of the marriage, only points (a) and (c) of
paragraph (1) shall apply.
(3) By way of exception and upon application by either spouse, the
judicial authority having jurisdiction to rule on matters of the
matrimonial property regime may decide that the law of a State
other than the State whose law is applicable pursuant to point
(a) of paragraph (1) shall govern the matrimonial property
regime if the applicant demonstrates that:
(a) the spouses had their last common habitual residence in
that other State for a significantly longer period of time
than in the State designated pursuant to point (a) of
paragraph (1);

and

(b) both spouses had relied on the law of that other State in
arranging or planning their property relations.

The law of that other State shall apply as from the conclusion of the
marriage, unless one spouse disagrees. In the latter case, the law of
that other State shall have effect as from the establishment of the last
common habitual residence in that other State.
The application of the law of the other State shall not adversely
affect the rights of third parties deriving from the law applicable
pursuant to point (a) of paragraph (1).

35

This paragraph shall not apply when the spouses have concluded a
matrimonial property agreement before the establishment of their
last common habitual residence in that other State.
92. Both the Convention and the EU Regulation provide the spouses with a
choice of law which would regulate the proprietary consequences of the
marriage, but the choice is a limited one and confined to a connecting
factor such as nationality or habitual residence.
93. In the absence of a choice of law by the spouses, both instruments provide
for a tiered set of factors that will determine the applicable law which
should govern the proprietary consequences of the marriage. But the most
significant factor is that the governing regime in both instruments are
gender neutral (refers to “spouses”) and do not differentiate on the basis of
sex, gender and sexual orientation.
94. The SALRC’s Discussion Paper
44 proposes that the spouses in the first
instance at any time before or at the time of the marriage , may agree that
any legal system shall apply to the proprietary consequences of their
marriage, irrespective of their domicile, nationality or habitual residence at
the time of the marriage. 45 This is undesirable and also inconsistent with
international law principles.
95. It is undesirable, in my view, to allow spouses to agree that any legal
system may apply to the proprietary consequences of their marriage

44 Albeit that it recommends an amendment of the Divorce Act
45 SALRC Discussion Paper, para 3.34, p41

36

irrespective of their domicile, nationality or habitual residence. There must
be a substantial connection between the parties and the designated legal
system. This serves to provide certainty to both spouses as to what the
law is, and the implications and consequences of the chosen or applicable
legal system. This knowledge and awareness are facilitated by a governing
law which is both familiar and accessible to both parties. A legal system
entirely disconnected from the parties and/or their marriage would subvert
this purpose mindful that the wife has traditionally adopted the
subordinate role of the less powerful and more financially under-resourced
spouse, and where the husband was likely to have made the choice of the
applicable legal system or influenced this choice.
96. Thus, in the order that I shall make, the formulation of the new rule will
make provision for the spouses to agree on the applicable legal system
which will govern the proprietary consequences of their marriage provided
there is a substantial link or close connection between the spouses and
choice of legal system.
The Retrospective Application of the New Rule
97. It is settled law that the default position, in relation to declarations of
legislative invalidity, is that the new law is retrospective in its operation. 46
A change to the common law is no different. 47 However, courts can in
terms of section 172(1)(b)(i) make any order that is just and equitable

46 Du Plessis and Others v De Klerk and Another 1996 (3) SA 850 (CC) at para 65
47 Ibid para [65]

37

including an order limiting the retrospective effect of the declaration of
invalidity. A departure from the default position is depende nt on the facts
of the case and the consequential effects of the introduction of the new law
or, in the present case, the new rule.
98. An important consideration in the debate on retrospectivity is that an
applicant must derive the full benefit of the new rule and should not be
subjected to an ongoing constitutionally offensive law or rule. This
manifestly engages the issue of a just and equitable remedy to which the
applicant, and similarly placed persons, is entitled. Thus, an order
regulating the consequences of retrospective invalidity should be carefully
considered and any departure from the default position should be done
only when it is necessary to do so.
99. The applicant and the Minister agree that there should be some limitation
on retrospectivity but are not in agreement on the scope of the limitation.
The Minister agrees that an unqualified retrospective order could have
undesirable consequences.
100. The applicant proposes default retrospectivity with two “carve-outs”:
100.1 If spouses have chosen a law in an antenuptial contract, but that
choice is inconsistent with the development because there is no
substantial link to that country. In those circumstances, the
applicant proposes that the development will not take effect for two

38

years. This carve-out is necessary if the Court decides not to limit
the spouses’ choice of law.

100.2 If applying the development would cause substantial injustice, that
will generally only be the case where the parties were aware of the
rule, regulated their affairs accordingly, and the development
would result in a different law applying. In those cases, either
spouse could argue that the development should not apply to their
situation.

101. Although the Minister asserts that she abides the order of the Court in
respect of retrospectivity, she provides her views on the “wider
consequences of the proposed development of the common law and a
possible alternative for the court’s consideration ”, according to her, to
assist the Court in its determination . She is guided by SALRC’s
preliminary proposals on the retrospective application of the proposed rule
(although in her answering affidavit she refers to the proposed statutory
amendment considered by the SALRC). She asserts that what is required
is an order of constitutional invalidity fashioned in such a way as to limit
the retrospective effect so as to reduce administrative difficulties and to
protect the position of bona fide third parties as best possible, on the one
hand, while granting effective relief to the a pplicant and similarly situated
persons, on the other.

39




102. The heads of argument filed on her behalf contends that there is no
substantive opposition to the retrospective effect of the development of the
common law contended for.48
103. The Minister submits, consonant with the SALRC’s Discussion Paper, that
the interests of justice may be served by an order directing that
retrospectivity be provided for in the following manner:
103.1 The order will have no effect on the validity of any exercise of
power, duty, function, procedure, process, provision or any other
act performed in accordance with the law of the husband’s domicile
in respect of an existing marriage (this is similar to the position
envisaged in the applicant’s prayer 3.3).
103.2 The order will have no effect on marriages that were dissolved by
death or divorce before or on the date of the order (as envisaged in
the applicant’s prayer 3.4).
103.3 Spouses in existing marriages are afforded two years from the date
of the order to enter into an agreement or amend an existing

48 The Minister’s HOA, para 16.

40

antenuptial contract in respect of the single matrimonial property
system which will apply.
103.4 The development will operate retrospectively in the case of same -
sex marriages which were concluded before the date of the order,
or where it can be shown that substantial injustice will result absent
such retrospective application.
104. The applicant and the Minister agree that retrospectivity must be limited to
protect the validity of steps which have already occurred and must not
allow the reopening of estates that have already been wound up as a result
of death or divorce.
49
105. I have difficulty with the third and fourth aspects o f the Minister’s
proposal.
106. The Minister proposes that spouses in existing marriages are afforded two
years from the date of the order to enter into an agreement or amend an
existing antenuptial contract in respect of the matrimonial property system
which will apply. But this would mean that spouses in the applicant’s
position would continue to be governed by an unconstitutional common
law where the third respondent’s domicile would regulate the marriage for
a period of two years.
107. The effect of this proposal would mean that the applicant , and similarly

49 See EB v ER and Others; KG v Minister of Home Affairs and Others 2024 (2) SA 1 (CC). See Women’s Legal
Centre Trust where similar provisions were considered and applied to limit the effects of retrospectivity.

41

placed persons, would not have obtained effective relief that will regulate
the divorce. The formulation and the effect of the proposal would not
provide any practical assistance to the applicant in the determination of the
proprietary consequences of her marriage given that, realistically, she and
the third respondent are unlikely to agree on a matrimonial property
regime. Whilst they may have had a harmonious relationship at some
stage during their marriage, it would be unrealistic to expect them (and
parties similarly placed) to resolve this issue , according to the Minister’s
proposal, when they are in the middle of divorce proceedings and in a
position of conflict.
108. The second difficulty re lates to the p roposal that the development will
operate retrospectively in the case of same -sex marriages which were
concluded before the date of the order.
109. The Minister provides no explanation or rationale that the development
should operate retrospectively in the case of same- sex marriages
concluded before the date of the order, but why the development cannot ,
or should not , operate retrospectively in respect also of opposite -sex
marriages. It is difficult to understand the cogency of the Minister’s
proposal.

110. She relies on Option 3 in the Discussion Paper which proposes that the
new rule apply prospectively but that spouses in existing marriages be
given a window period of two years within which they can opt into the

42

new rule by way of a formal written agreement , but that in the case of
same-sex marriages, which were concluded before the operation of the
adoption of the legislation, the new rules operate retrospectively.
111. I was unable to discern a rationale for this proposal in the Discussion
Paper.
112. The Minister’s proposal is also irreconcilable with her own position and
that of the SALRC that the Rule is discriminatory in respect of husbands
and wives and that it is unworkable in relation to same-sex marriages.

113. Her position is also irreconcilable with her own heads of argument which
acknowledges that in order to address the shortcomings of the common
law rule, it is necessary to remove sex or gender as a determinative
factor.
50
114. The effect of the Minister’s proposal is that extant same -sex marriages
without an antenuptial contract will be regulated by a constitutional law,
while extant opposite -sex marriages will be governed by an
unconstitutional law unless they can prove applying it will cause them
substantial injustice. Same- sex spouses with an antenuptial contract
governing choice of law will also be discriminated against relative to their
opposite-sex counterparts in that they will be denied the two- year
opportunity to amend their antenuptial contract that will be granted to

50 The Minister’s HOA, para 13

43

opposite-sex spouses.
115. It is difficult to conceive of a rationale that could legitimately differentiate
between same- sex and opposite -sex marriages in relation to the
retrospective application of the rule – a rule which is necessary to remedy
an unconstitutional common law position.
116. The Minister’s propos ed order is patently irrational, seeks to perpetuate
the discriminatory effects of the common law position and creates a new
form of discrimination whereby same-sex marriages are treated differently
to opposite-sex marriages with no justifiable basis for this differentiation.
117. Any proposed retrospectivity regime must apply equally to all marriages
and must provide just and equitable relief to all spouses.
118. On the Minister’s proposed order, the applicant, and similarly situated
spouses, will be denied an immediate and effective remedy.
119. The Constitutional Court has pronounced on the grant of effective relief in
Gory v Kolver N.O. and Others 51 and Gumede (born Shange) v President
of the Republic of South Africa and Others.52
120. In Gumede the effect was to immediately change the proprietary regime of
all existing monogamous customary marriages, and in respect of the

51 [2006] ZACC 20; 2007 (4) SA 97 (CC).
52 [2008] ZACC; 2009 (3) SA 152 (CC)

44

Women’s Legal Centre Trust 53, the Constitutional Court provided for an
interim regime which would allow spouses in Muslim marriages to
approach a court in terms of Section 7(3) of the Divorce Act for an
equitable redistribution of assets. The interim regime effectively altered
the proprietary consequences to allow for equitable redistribution. The
point to be made is that the effect of the orders granted was to provide
immediate and effective protection to the applicants.

121. The applicant cannot be expected to demonstrate why she will suffer
substantial injustice in the absence of retrospective application. In
addressing substantive equality, the Constitutional Court has held that past
unfair discrimination frequently has ongoing negative consequences , the
continuation of which if not halted immediately when the initial causes
thereof are eliminated, and unless remedied, may continue for a
substantial time and even indefinitely. In the reasoning of the
Constitutional Court, “Like justice, equality delayed is equality denied”.
54
122. Effective relief means that the applicant, and similarly situated spouses,
must obtain the benefit of the change in the common law position. This
will be reflected in the order that I propose to make.

53 Women’s Legal Centre Trust v President of the Republic of South Africa and Others [2022] ZACC 23; 2022
(5) SA 323 (CC).
54 National Coalition for Gay and Lesbian Equality v Minister of Justice [1999] ZACC 15; 1999(1) SA 6 (CC)
at para 60; Jordaan supra at para [48].

45

Costs
123. The applicant seeks her costs against both Ministers jointly and severally,
alternatively, only against the Minister of Justice. She relies on
Magnificent Mile Trading 30 (Pty) Limited v Charmaine Celliers N.O. and
Others,55 Gory and Fourie in support of her argument that she is entitled
to costs.
124. Her primary reason for seeking costs is that she had to bring this
application because of the State’s failure to replace the unconstitutional
rule, notwithstanding that it was not a direct challenge to existing
legislation.
125. Counsel for the applicant argued that courts cannot develop the common
law proactively and can only do so in response to litigation brought before
them but that it is open to the Executive to amend the common law rule
through legislation, and they did not have to wait for the SALRC to
propose amendments. He contended that although the Minister has not
opposed the declaratio n of invalidity of the common law rule , she has
opposed the applicant’s remedy and which denies her an effective remedy.

126. The fact that the Minister has abided the order in relation to the
retrospective application of the new rule does not detract from the effect of
her proposal, which stands in contrast to that which is sought by the

55 [2019] ZACC 36; 2020 (4) SA 375 (CC) at para [65].

46

applicant. I am of the view that the Minister has effectively opposed the
applicant’s remedy.
127. The Minister opposes the order for costs and asserts that each party should
bear their own costs of the application. Her reasons for this is : (i) that she
abided the relief sought by the applicant in relation to the declaration of
invalidity, (ii) this is not a case of inaction on the part of the Minister as it
is common cause that the SALRC was investigating the common law rule
and made recommendations in this regard in the Discussion Paper
published in June 2023. She asserts that the applicant ha s failed to
demonstrate any constitutional delinquency on her part, and there is no
reason that she should be directed to pay the applicant’s costs.


128. Although Gory dealt with a challenge to legislation, the principles set out
by van Heerden AJ as to why the State had to pay the successful
applicants’ costs, apply equally to a position where the common law is
unconstitutional.
129. There is no persuasive countervailing argument that the State was not
responsible for allowing this discriminatory common law rule to remain in
place.
130. As a matter of legal principle, I am not precluded from granting a costs

47

order in relation to a declaration of invalidity of the common law. But the
grant of costs remains within the discretion of the Court.
131. Counsel for the Minister submitted that there are no exceptional
circumstances that justify a costs order against the Minister and argued
that the facts of the matter do not justify the extension of the principles
that apply to successful challenges to legislation, to challenges to the
common law and that different considerations apply. But the M inister
does not explain what these different considerations are, and why they
should also not apply to challenges to the common law. She has not put up
any argument - of any force - to support her proposition that different
considerations ought to apply in relation to the common law and costs
orders.
132. The Ministers cannot be shielded by the SALRC process in the discharge
of their constitutional duties. Notably, neither of the Ministers have
initiated amendments to either the Divorce Act or the MPA.

133. But perhaps the most compelling reason for the grant of a costs order, in
my view, is the intransigence on the part of the State to permit the
unconstitutional rule to remain in place for three decades , notwithstanding
that:

(i) the wife’s dependent domicile was abolished more than thirty years
ago pursuant to an amendment to the Domicile Act 1992;

48

(ii) our courts have acknowledged in a number of judgments that the
lex domicilii matrimonii rule is discriminatory56,
(iii) the SALC in the Project 60 Report on Domicile (pursuant to which
the Domicile Act was amended) acknowledged – 30 years ago –
that the wife follows the husband’s domicile is not in step with
legislation that has been adopted in South Africa during the past
years and that notwithstanding the MPA which has as it object the
granting of equal status to husband and wife , the law relating to
domicile however remains unchanged57; and
(iv) the SALRC’s Discussion Paper ha s acknowledged that the rule is
discriminatory.

134. It took this application for the common law rule to be struck and for the
law to change.
135. My view on the issue of costs would not be complete without reference to
the Convention on the Elimination of All Forms of Discrimination against
Women, New York, 18 December 1975 (CEDAW), ratified by South
Africa on 15 December 1995.
136. Confirming South Africa’s international law obligations in relation to
CEDAW, Rogers J in KG held that in assessing the constitutional standard
of fairness in Section 9 of the Constitution are this country’s international

56 More recently in L.E v L.A supra
57 SALC, Report on Domicile, para 2.31 p15

49

law obligation s and that the international instruments by which South
Africa is bound militate against accepting as a factor, a form of
discrimination which continues in the main to prejudice women.58

137. The Convention requires States Parties to take “ all appropriate measures,
including legislation, to ensure the full development and advancement of
women, for the purpose of guaranteeing them the exercise and enjoyment
of human rights and fundamental freedoms on the basis of equality with
men.”
59

138. The Convention provides that States Parties shall:

138.1 take all appropriate measures, including legislation, to modify or
abolish existing laws, regulations, customs and practices which
constitute discrimination against women;
60
138.2 take all appropriate measures: (a) To modify the social and cultural
patterns of conduct of men and women, with a view to achieving
the elimination of prejudices and customary and all other practices
which are based on the idea of the inferiority or the superiority of
either of the sexes or on stereotyped roles for men and women;61
138.3 accord to women equality with men before the law and that States

58 KG supra at [136]
59 Article 3
60 Article 2(f)
61 Article 5

50

Parties shall accord to men and women the same r ights with regard
to the law relating to the movement of persons and the freedom to
choose their residence and domicile;62
138.4 take all appropriate measures to eliminate discrimination against
women in all matters relating to marriage and family relations and,
in particular, shall ensure on a basis of equality of men and
women.63

139. Notwithstanding the adoption of the Constitution in 1996, the ratification
of CEDAW more than 30 years ago and the abolishment of the wife’s
dependent domicile in the Domicile Act 1992, there has been no change in
the law . Although I respect that the SA LRC’s process is a rigorous one
and often serves as a platform for the promulgation of new laws, it should
not be used to shield the Ministers from the ir obligation to take positive
steps to amend an unconstitutional law and to do so expeditiously.

140. The Constitutional Court in Jordaan awarded costs against the Minister of
Home Affairs for the reason that, but for the constitutionally offensive
provisions, the applicants would not have had to bring the litigation to
vindicate their constitutional rights.64 Notably, a costs order was awarded
notwithstanding that the Minister of Home Affairs and the Minister of
Justice (cited respectively as the first and second respondents) abided the

62 Article 15(1) and (2)
63 Article 16(1)
64 Jordaan supra at para [84]

51

order of the Court.

141. In the circumstances, both Ministers are ordered to pay the applicant’s
costs, jointly and severally.
The Order

142. In the result, I make the following order:

1. It is declared that the common law rule of lex domicilii matrimonii in
terms of which the proprietary consequences of a marriage are
determined by the husband’s domicile at the time of the marriage, is
inconsistent with the Constitution and invalid.

2. The common law is developed so that the law that determines the
proprietary consequences of a marriage is determined as follows:

2.1 the parties designate by agreement before or at the time of the
marriage the country whose legal system shall apply, save that
there should be evidence of a substantial link or connection
between the choice of the applicable law and one or both
spouses, failing which, the provisions below shall apply;

52

2.2 in the absence of agreement between the spouses or where there
is no substantial link or connection with the designated legal
system, the law of the country of the common domicile of the
spouses at the time of the marriage shall apply; or

2.3 in the absence of agreement or in the absence of a common
domicile, the law of the country of common habitual residence
of the spouses at the time of their marriage; or

2.4 in the absence of any of the previous factors, the law of the
country of common nationality of the spouses at the time of the
marriage; or

2.5 in the absence of any of the previous factors, the law of the
country to which the spouses are jointly and most closely
connected at the time of the marriage.


3 The development of the common law set out in paragraph (2) above,
shall apply retrospectively to all existing marriages, save that:

3.1 where the spouses have chosen a law to govern the proprietary
consequences of their marriage in an antenuptial contract, the

53

development shall not apply for 2 (two) years from the date of
the order to enable the parties to amend their antenuptial
contract to align with the new rule;
3.2 where the spouses have not chosen a law to govern the
proprietary consequences of their marriage, the development
shall apply unless it will result in substantial prejudice;
3.3 the development shall not affect any positive steps and/or
decisions and/or transactions already taken or performed in
accordance with the law of the husband’s domicile as it relates to
any existing marriage; and
3.4 the development shall not apply to marriages that were dissolved
by death or divorce prior to the date of this order.

4. The First and Second Respondents shall pay the Applicant’s costs
jointly and severally on Scale C.

_______________________________
TJ GOLDEN
Acting Judge of the Western Cape High Court
23 June 2026

54



For the Applicant: Adv M Bishop, instructed by Catto Neethling
Wiid Inc

For the First Respondent: Adv T Sarkas instructed by the State Attorney,
Cape Town

For the Third Respondent: Ms M Simpson of Mandy Simpson Attorneys