South Africans increasingly marry foreign nationals, marry abroad or move overseas after the wedding. For these couples, an important question often goes unasked until divorce or death: which country’s law decides whether they are married in community of property, with accrual, or under some other regime?
The answer can make an enormous difference. A couple who assume they are married in community of property may discover that a foreign regime applies, or the reverse. In June 2026, the Western Cape High Court changed the rule that South African courts had applied for over 70 years.
The old rule: the husband’s domicile
Since Frankel’s Estate v The Master 1950 (1) SA 220 (A), South African courts applied the lex domicilii matrimonii: the proprietary consequences of a marriage were governed by the law of the country where the husband was domiciled at the time of the marriage. The rule applied regardless of where the wedding took place or where the couple later lived, and it did not change if the couple moved.
For example, a South African woman who married a man domiciled in England, with no ANC, would be subject to English law on matrimonial property, which has no community of property. This was so even if the couple lived in South Africa for their whole marriage.
The new position: N.P. v Minister of Justice (2026)
In N.P. v Minister of Justice and Constitutional Development and Others [2026] ZAWCHC 343, decided on 23 June 2026, the Western Cape High Court declared the husband’s domicile rule unconstitutional. It held that the rule unfairly discriminated on the grounds of sex, gender and sexual orientation.
The court replaced it with a sequence of connecting factors, assessed at the date of the marriage:
- the law chosen by the spouses, provided it has a substantial connection to at least one of them;
- failing a choice, the law of the spouses’ common domicile;
- failing that, the law of their common habitual residence;
- failing that, the law of their common nationality; and
- failing all of these, the law of the country with which the marriage has the closest connection.
According to reports of the judgment, the new rule applies to existing marriages, subject to protections: steps validly taken under the old rule remain valid, and estates that have already been finally wound up will not be reopened. Couples should take advice on how the judgment affects them, particularly as the position may still be considered by a higher court.
Why this matters
The governing law determines:
- whether there is a joint estate or separate estates;
- whether there is any sharing of growth on divorce, and how it is calculated;
- the rights of a surviving spouse on death; and
- the rights of creditors against each spouse’s assets.
Many foreign systems differ significantly from South African law. Some apply a form of community of acquests (sharing only assets acquired during the marriage), others give courts a wide discretion to divide assets on divorce, and others have no sharing at all.
The best protection: an antenuptial contract with a choice of law
Under the new rule, the spouses’ own choice of law takes priority, if it has a substantial connection to at least one spouse. An international couple can therefore achieve certainty by concluding an ANC that:
- expressly states which country’s law governs their property regime; and
- sets out the regime itself, such as out of community of property with accrual.
Couples who may live in more than one country should also consider whether the ANC will be recognised abroad, and whether a parallel agreement is needed in the other country. See our article on antenuptial contracts.
Getting divorced: jurisdiction
A separate question is which court can grant the divorce. Under section 2 of the Divorce Act, a South African High Court has jurisdiction if either spouse is:
- domiciled in the court’s area on the date the action is instituted; or
- ordinarily resident in the court’s area on that date and has been ordinarily resident in South Africa for at least one year immediately before.
Where spouses live in different countries, proceedings may be possible in more than one country, and the choice of forum can significantly affect the outcome. Early advice is important, as one spouse may try to issue proceedings first in a more favourable jurisdiction.
Recognition of foreign divorces
A divorce granted by a foreign court will generally be recognised in South Africa if the foreign court had jurisdiction and the order does not offend South African public policy. Orders relating to children, maintenance and property may need to be made enforceable in South Africa through separate proceedings. Children’s matters remain subject to the best interests of the child, and South African courts retain their role as upper guardian of minors in South Africa.
How O’Reilly Law can help
We advise international couples on choice of law, draft antenuptial contracts with cross-border provisions, and act in divorces with foreign elements, including jurisdiction disputes and the recognition of foreign orders. Contact us to discuss your situation.
Related reading: Antenuptial contracts · Travelling and relocating with children
This article is general information and not legal advice. The law in this area changed recently and may be developed further on appeal. Correct as at October 2026.