Destination weddings are becoming more popular as more and more couples prefer to have intimate weddings surrounded by their closest relatives and friends in an idyllic setting outside of South Africa.
Another scenario is that one or both parties work in another country temporarily and the couple decides to get married in that country.
So which matrimonial property system will apply?
The law which governs a marriage is the law of the country where the husband is domiciled at the time of the marriage. The husband’s country of domicile is the country which he considers to be his permanent home and where he intends to settle for an indefinite period. So, if the husband is ordinarily resident and working in South Africa and the couple goes to Jamaica for the sole purpose of getting married and having a holiday, then the country of domicile is still South Africa and the matrimonial property laws of South Africa will apply to the marriage. The same will apply if the couple is working in Scotland, for example, but intend to do so temporarily with the intention of returning to live in South Africa. If they marry in Scotland, the country of domicile is still South Africa and the matrimonial property laws of South Africa will apply to the marriage.
Where the husband’s country of domicile is South Africa, and if no contract is signed prior to the marriage, then the applicable matrimonial property system is IN of Community of Property. If a couple’s intention is to be married OUT of Community of Property, then they must remember to sign an Antenuptial Contract before leaving South Africa to get married as they will not be able to do so when they return (i.e. after the marriage).
If, for example, a couple gets married in Scotland with the intention of making it their home indefinitely, then the country of the husband’s domicile will be Scotland and the matrimonial property laws of the U.K. will apply to the marriage. In the U.K., if no contract is signed prior to the marriage, the applicable matrimonial property system is OUT of Community of Property.
Likewise, if the couple gets married in South Africa, but they are in the process of emigrating and the intention at the time of the marriage is to live in another country permanently, then the husband’s country of domicile will change and the laws of that country will apply. However, in such a scenario, to avoid any doubt in future, it is advisable to rather sign an Antenuptial Contract before the marriage.