Update on Marital Property Law: The "Husband’s Domicile" Rule
On 26 June 2026, the Western Cape High Court made a significant ruling regarding how the law determines which country’s rules apply to a couple’s assets when they get married. Because this ruling involves changing the common law, it still needs to be confirmed by the Constitutional Court before it becomes final.
What was the old rule?
For decades, South Africa (like many other countries) used a rule called lex domicilii matrimonii. If a couple from different countries got married without signing an antenuptial contract (ANC) to decide otherwise, the law automatically chose the husband’s home country (his "domicile") to decide how their property and assets would be managed.
Critics argued this was outdated, sexist, and inconsistent with the modern equality guaranteed by the South African Constitution.
What is the new 5-step test?
The Court has declared the old rule unconstitutional. In its place, it proposed a new, sequential "test" to determine which country’s laws should govern a couple's marriage. If step 1 doesn’t apply, you move to step 2, and so on:
- Agreement: Did the couple agree on which country’s laws apply at the time of the wedding? (This must be linked to a country they have a genuine connection to).
- Common Domicile: If no agreement, which country did both spouses call "home" at the time of the marriage?
- Habitual Residence: If they didn't share a home country, where did they both habitually live at the time of the marriage?
- Common Nationality: If none of the above apply, what is the country of their shared citizenship?
- Closest Connection: If none of the above apply, which country are they both most closely connected to?
Important Notes on Timing
- Existing Marriages: This new rule applies to couples already married, unless it causes "substantial prejudice" or interferes with transactions already completed under the old law.
- Divorces/Deaths: It does not apply to marriages that already ended in death or divorce before this ruling.
- ANC Holders: If you already have an ANC, you have a 2-year window to amend it if you feel this new ruling changes your situation.
Why is this causing confusion?
While the goal is to make the law fairer and more equal, legal experts are concerned that the ruling is "clear as mud" for practical situations, especially in property sales:
- Vague Definitions: It is still unclear what constitutes "habitual residence" (e.g., does working in a country on a 5-year contract count?).
- Property Complications: Real estate agents and conveyancers often need to know immediately if a seller is married "in community of property" or not to process a sale. This complex 5-step test makes it much harder to determine that status quickly.
- The "Wait and See" Period: Because the Constitutional Court must still confirm this ruling, the legal status of many marriages remains in limbo. For now, in practice, the "husband's domicile" rule is essentially still the default until the highest court has the final say.
Advice for Couples
If you are planning to get married and one or both of you are from a different country, the safest path is to be proactive. Do not rely on default legal rules. When you sign an antenuptial contract, explicitly state which country's laws you want to apply to your marriage. This provides certainty regardless of what the courts decide in the future.
Disclaimer: This summary is for information purposes and does not constitute legal advice. Because this is a complex and evolving area of law, please consult with a legal professional regarding your specific situation.