oa Comparative and International Law Journal of Southern Africa - Some problems in the application of South African private international law
|Article Title||Some problems in the application of South African private international law|
|© Publisher:||Institute of Foreign and Comparative Law|
|Journal||Comparative and International Law Journal of Southern Africa|
|Affiliations||1 Institute of Foreign and Comparative Law, UNISA|
|Publication Date||Mar 1984|
|Pages||78 - 91|
|Keyword(s)||Foreign law, Law of conflicts, Marriage, Matrimonial domicile, Matrimonial matters, Moslem countries, Principle of immutability, Private international law, Renvoi and South African law|
By established case law, the proprietary consequences of a marriage are governed by the law of the husband's domicile at the time of the marriage, with respect both to movable and immovable property, whenever acquired. The original domicile remains the connecting factor, even if the spouses subsequently acquire a new domicile, for instance by immigrating to South Africa. This is known as the principle of immutability. Moreover - and this is of great practical importance - the reference to the law of the husband's domicile at the time of the marriage includes a reference to that country's transitional law, and generally to the lex causae. Although it may seem odd to the parties concerned that they are subjected to the changes in the law of a country from which they may long since permanently have departed - changes of which they may never even have heard - it is clear that South African case law, in accordance with the law of most other systems, will not freeze the law of the husband's domicile at the time of the marriage includes a reference to that country's transitional law, and generally to the lex causae.
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