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by Andrew Duncan
A friend of many years informed me that his daughter had secretly upped and married her American boyfriend in Cape Town! The presumption by all concerned was that the happy couple were thus married in community of property and liable for each other’s debts. Both parents being entrepreneurs of note themselves were concerned with this marital regime.
A celebration of magnificent proportions at the family home restored the balance, whereafter the bridal couple left for America.
I then pondered on whether the proprietary consequences of the couple’s marriage was indeed governed by South African Law in that the couple wanted to be residents of Florida, where they intended to settle. I researched the position and concluded that the proprietary consequence of the marriage would be governed indeed by the “domicile” (place of ordinary residence) of the couple i.e. Florida. Under Florida law, the consequences of marriage would be similar to an Antenuptial Contract with Accrual in South Africa. A relieved father thanked us for our lateral thinking (rendered without charge) and in the fullness of time will no doubt assist his daughter entrepreneurially!
Little did he know that our probe took into account the complex concept of renvoi whereby in order to determine which country’s laws applies, one looks first to the law of the place where the marriage took place (the Lex Fori, which may require the law of the domicile of the husband to apply. The State referred to however may return the question to the Lex Fori on the basis that its laws require the Lex Fori’s laws to solve the thorny conundrum. The lesson for lawyers is to question the obvious!
Contractors et
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