How to find a divorce lawyer in Cape Town, South Africa

Impact of getting married overseas

I recently had a client who came to consult me, who had met a lady in Italy and on the spur of the moment they decided to get married. She was an Italian lady, and he was a South African from Cape Town. After two or three weeks they discovered that their marriage was not working out. He had only been in Italy on holiday, and decided to move back to Cape Town.

He then came to consult me, and the obvious legal question arises as to whether the marriage should be governed by the law of South Africa or according to Italian law. What is important here in determining which court has jurisdiction is where the husband’s domicile is at the date of the marriage. What one must understand by the term “domicile” is that it means the principle place of residence of a person. That person must have a mental intention to remain at that place indefinitely.

In the particular case which I mention above, my client, the man considered his permanent home to be in Cape Town. In this case the marriage was therefore governed by the laws of South Africa, and not the laws of Italy.

The marriage would furthermore be one in community of property, as if it were to be out of community of property, the parties should have entered into an antenuptial contract at some stage, which they never did. They would therefore have to share all assets on a 50/50 basis in terms of the matrimonial regime of being married in community of property.

If one of the parties however alleges that for some or other reason their intention was to get married out of community of property, then he/she can apply to court for a postnuptial contract to be registered. This is however not such an easy procedure. One must provide sufficient reasons to the courts as to why an antenuptial contract was never concluded in the first place. It is also very costly, as it involves a High Court application.

In the above example the opposite would apply if my client had been domiciled in Italy at the time of the marriage, and the parties had subsequently immigrated to South Africa. The matrimonial regime of Italy would then apply to their marriage. A South African court could divorce them but would have to apply Italian law.

This article was written by Cape Town divorce specialist, Peter M Baker

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