The Western Cape High Court recently delivered a decisive blow to a century-long patriarchal common law rule known as lex domicilii matrimonii. The ruling paves the way for a fairer future for women, same-sex and non-binary couples.
A woman challenged the constitutionality of the common law rule. The rule relates to decisions based on a husband’s domicile when a couple marries.
Challenging an outdated legal rule
In a landmark ruling delivered on 23 June, the court not only declared the rule inconsistent with the Constitution of South Africa but also found that the common law rule lacked a rational basis.
The court also found that the rule unfairly discriminated against women and same-sex couples. It did so based on sex, gender and sexual orientation. Ultimately, the Court ruled that the common law rule must be reconsidered.
The woman was born in Bogota, Colombia, and educated and domiciled in England. She married her South African national husband in England in the 1990s.
At the time, her husband lived in Zimbabwe and maintained ties to multiple jurisdictions. The couple later settled in South Africa and lived together until 2023. Their marriage then irretrievably broke down.
When she instituted divorce proceedings, she was advised that the lex domicilii matrimonii rule would apply. She was also advised that the proprietary consequences of the marriage, and therefore the divorce, would depend on her husband’s domicile when they married.
Her husband alleged that the relevant domicile was Zimbabwe, rather than England, as she had assumed. He considered Zimbabwe his domicile at the time of the marriage.
The impact on the divorce
This distinction carried significant consequences. The applicable matrimonial property regime in Zimbabwe materially affected the division of assets by favouring the husband.
Instead of using legal means to argue about the correct domicile, the woman challenged the constitutionality of the common law itself. She argued that the rule rested on a patriarchal and archaic assumption. That assumption recognised the husband’s domicile as the decisive factor. She argued that the rule therefore treated husbands and wives unequally. It gave husbands a procedural, symbolic and substantive advantage over their wives. She further contended that the rule discriminated against spouses in same-sex marriages.
The rule assumed that every marriage has a husband whose domicile determines the applicable law. In doing so, the rule violated section 9 of the Constitution. The court ruled in her favour. The judgement carries significance because it marks a departure from the outdated common law rule.
A gender-neutral approach
The court replaced the rule with a gender-neutral and constitutional approach. This change paves the way for a fairer future for women and same-sex marriages.
The divorce ruling therefore extends beyond the immediate dispute between the couple. It changes how the law approaches matrimonial property consequences when the traditional domicile rule no longer provides a constitutionally acceptable basis.
The divorce ruling also has a significant impact on the treatment of a deceased estate. Going forward, the proprietary consequences of a union will no longer depend solely on the husband’s domicile at the time of the union. Instead, practitioners, executors and the Master’s office must now apply the court’s gender-neutral hierarchy.
Implications for deceased estates
This shift could significantly change the classification and distribution of assets. It could also affect the existence of accrual claims, maintenance claims and the proprietary rights of surviving spouses in the deceased estate context.
The divorce ruling consequently has implications beyond divorce proceedings. It may influence how practitioners approach matrimonial property regimes and related proprietary rights in future matters.
For women, same-sex couples and others affected by the former rule, the judgment represents a significant change in the legal framework governing matrimonial property consequences.
The court’s decision also places constitutional equality at the centre of an area of law historically shaped by the husband’s domicile. Its gender-neutral approach changes the legal framework that practitioners must now apply.
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| Gretchen Barkhuizen-Barbosa | Director and Head | Trusts & Estates Law Practice | mail me | | Emily West | Director | Trusts & Estates Law Practice | mail me | | Phomello Rasebeka | Candidate Attorney | Trusts & Estates Law Practice | mail me | |
| | Cliffe Dekker Hofmeyr | | ||
