Domicile, Foreign Marriages and N.P. v Minister of Justice

If you married outside South Africa, or married a foreign national, the law that governs your assets may not be South African law, and moving to South Africa after the wedding does not change that. On 23 June 2026 the Western Cape High Court, in N.P. v Minister of Justice and Constitutional Development and Others (2468/2024) [2026] ZAWCHC 343, struck down the rule that the husband’s domicile decides the question and replaced it with a gender-neutral, five-tier test.[1]

Mandy Simpson Attorneys acted for the husband in the divorce. He was a respondent to the application brought by N.P. discussed in this article, and did not oppose her application. We specifically do not intend to comment in this article on the facts in dispute in the divorce as a whole.

Domicile, habitual residence and nationality

Domicile is the country a person treats as their permanent home, which is not necessarily where they live or which passport they hold. Under the Domicile Act 3 of 1992, a person acquires a domicile of choice by being lawfully present in a place with the intention of settling there indefinitely, and keeps their existing domicile until a new one is acquired.[2] A South African on a long foreign contract who always intends to come home therefore usually remains domiciled here.

The new test also uses habitual residence (where the spouses actually live day to day) and nationality (the country of which a spouse is a citizen). These three concepts often point to different countries, which is exactly why international marriages are prone to dispute.

The old rule: the husband’s domicile, fixed forever

Since Frankel’s Estate (1950) and Sperling v Sperling (1975), the proprietary consequences of a marriage were governed by the law of the husband’s domicile at the time of the marriage — the lex domicilii matrimonii.[3] The wife’s domicile, nationality and connections were irrelevant. The Domicile Act abolished a wife’s dependent domicile in 1992, but left this rule untouched.[4]

The governing law was also immutable: it attached when the marriage was concluded and could not change during the marriage, however long the couple later lived elsewhere.[5] The consequences are significant. Where a foreign law governs, the Matrimonial Property Act 88 of 1984, including community of property and the accrual system, does not apply.[6] A South African divorce court instead applies the foreign law and, under section 7(9) of the Divorce Act, has the same power to order a transfer of assets as a court of that country would have.[7] That foreign law must usually be proved through expert evidence, adding cost and complexity.

N.P. v Minister of Justice and Constitutional Development and Others (2468/2024) [2026] ZAWCHC 343

The spouses married in the late 1990s while living in Hong Kong, and later lived in the United Kingdom and then, for many years, in Cape Town. When divorce proceedings began in 2023, the competing contentions were that English law or Zimbabwean law governed, depending on where the husband was domiciled on the wedding day.[8] N.P. then brought a separate application, partly in the public interest, challenging the constitutionality of the rule itself. The court expressly made no findings on the disputed facts, which remain for the divorce court.[9]

The court (Golden AJ) held that the rule differentiates on the grounds of sex and gender by preferring the husband’s domicile, and on sexual orientation because it cannot operate at all in a same-sex marriage, where there is no “husband” to identify. No legitimate purpose could justify this, so the rule is invalid under section 9 of the Constitution.[10] The constitutional relief was not opposed by any party: the Minister of Justice abided the declaration of invalidity, the Minister of Home Affairs did not oppose, and the husband limited his affidavit to the facts of the marriage.[11]

Drawing on the 1978 Hague Convention on matrimonial property regimes and EU Regulation 2016/1103, the court held that the applicable law is now determined in this order, all assessed at the time of the marriage:[12]

1. Agreed choice: the law the spouses chose before or at the marriage, provided there is a substantial link between that law and at least one of them;
2. Common domicile: failing a valid choice, the law of the country where both were domiciled;
3. Common habitual residence: failing that, where both were habitually resident;
4. Common nationality: failing that, the country of which both were nationals;
5. Closest connection: failing all of these, the country to which they were jointly most closely connected.

The court declined a Law Reform Commission proposal that spouses be free to choose any legal system at all, reasoning that an unrestricted choice could be abused by the stronger party.[13]

How does this effect existing marriages?

The new rule applies retrospectively, subject to four qualifications:[14]

• where an antenuptial contract chose a governing law, the new rule does not apply until 23 June 2028, giving spouses time to amend the contract;
• where no law was chosen, the new rule applies unless it would cause substantial prejudice;
• steps and transactions already completed under the old rule are not affected; and
• marriages already ended by death or divorce before the order are excluded.

Does a change of domicile change the governing law?

No. N.P. changed whose connections count, not when they are measured. Because every tier looks to the date of the marriage, immutability survives. A couple who were both domiciled in England when they married in London, and who later settled in Cape Town and became South African citizens, remain governed by English law.

This is a deliberate departure from the international models. The EU Regulation lets spouses change the applicable law during the marriage, and the Hague Convention allows a choice of the law of a new habitual residence established after the marriage.[15] Under the South African rule, a choice is only effective if made before or at the time of the marriage.[12]

The new test can, however, change the answer for marriages concluded under the old rule. A South African-domiciled husband and an English-domiciled wife who were both living in Dubai when they married, with no antenuptial contract, were governed by South African law and in community of property by default. Under the new test, the law of their common habitual residence is likely to apply instead, subject to the substantial-prejudice qualification.

A later change of domicile still matters for other purposes. Under section 2(1) of the Divorce Act, a South African court has jurisdiction if either spouse is domiciled in its area when the divorce is instituted, or is ordinarily resident there and has lived in South Africa for at least a year.[16] The court may then apply a foreign matrimonial property law to divide the assets. Whether spouses whose marriage is governed by foreign law can use section 21(1) of the Matrimonial Property Act to change their regime by court order is not settled.[6][17]

Mandy Simpson Attorneys regularly advises on international family law, including antenuptial contracts for cross-border couples, determining the governing law of an existing marriage, and divorces with a foreign element. If your marriage has an international dimension, we would be glad to help you establish where you stand.

This article is for general information only and does not constitute legal advice. Please obtain advice on your specific circumstances.

References

1. 1. P. v Minister of Justice and Constitutional Development and Others (2468/2024) [2026] ZAWCHC 343 (23 June 2026). SAFLII
   2. Domicile Act 3 of 1992, ss 1(2) and 3(1).
   3. Frankel’s Estate & Another v The Master & Another 1950 (1) SA 220 (A); Sperling v Sperling 1975 (3) SA 707 (A).
   4. Domicile Act 3 of 1992, s 1; P. paras 42 and 48.
   5. P. para 39.
   6. E v L.A (1884/2018) [2024] ZAGPJHC 104. SAFLII
   7. Divorce Act 70 of 1979, s 7(9); P. para 38.
   8. P. paras 10 and 18–33.
   9. P. para 17.
   10. P. paras 57–72.
   11. P. paras 6, 8 and 9.
   12. P. para 142, order para 2; paras 84–96.
   13. P. paras 94–95.
   14. P. para 142, order para 3; paras 97–122.
   15. Council Regulation (EU) 2016/1103, arts 22 and 26 (EUR-Lex); Hague Convention on the Law Applicable to Matrimonial Property Regimes (1978), art 3, quoted in P. para 89.
   16. Divorce Act 70 of 1979, s 2(1).
   17. Matrimonial Property Act 88 of 1984, s 21(1).