Private International Law Family Law
1) Validity of Marriage:
a) Formal validity of marriage:
The formal requirements for the conclusion of a marriage are governed by the lex loci celebrationis (the law of the place of conclusion of the marriage). This rule is founded firmly in Roman-Dutch law and entrenched in South African case law.
( Exception: S 10 of the Marriage Act 25 of 1961 makes provision for South African diplomatic and consular officers to solemnise marriages between South Africans in the countries in which they are stationed. Such embassy marriages are deemed to have been concluded in South Africa and their formal validity is thus governed by South African law (as the lex loci celebrationis).
b) Essential validity of marriage:
The essential (substantive) requirements for the conclusion of a marriage are likewise governed by the lex loci celebrationis [Friedman v Friedman’s Executors 1922 (N)].
( Exceptions: - Act (Handeling) in Fraus legis (reg omsuil): If the parties deliberately evade an essential requirement of their lex domicilii by concluding their marriage elsewhere, they act in fraudem legis and their marriage is tested according to the lex domicilii (plek waar getroud). • Kassim v Ghumran 1981 (Z): The marriage of Kassim and Ghumran, who had eloped to Malawi, was void under Zimbabwean law (lex domicilii), which required the consent of Kassim’s parents (which had been refused), as she was only 15 at the time. - Public policy: If the application of the lex loci celebrationis would be repugnant to the moral principles of the forum (e.g. marriages tainted by incest, extreme youth or lack of consent), the court will refuse to apply it. • Banubhai v Chief Immigration Officer 1913 (N): The marriage of Banubhai, who was 9 years old, could not be recognised, despite its validity under the lex loci celebrationis.
2) Consequences of Marriage:
a) Personal consequences of marriage:
i)
a) Formal validity of marriage:
The formal requirements for the conclusion of a marriage are governed by the lex loci celebrationis (the law of the place of conclusion of the marriage). This rule is founded firmly in Roman-Dutch law and entrenched in South African case law.
( Exception: S 10 of the Marriage Act 25 of 1961 makes provision for South African diplomatic and consular officers to solemnise marriages between South Africans in the countries in which they are stationed. Such embassy marriages are deemed to have been concluded in South Africa and their formal validity is thus governed by South African law (as the lex loci celebrationis).
b) Essential validity of marriage:
The essential (substantive) requirements for the conclusion of a marriage are likewise governed by the lex loci celebrationis [Friedman v Friedman’s Executors 1922 (N)].
( Exceptions: - Act (Handeling) in Fraus legis (reg omsuil): If the parties deliberately evade an essential requirement of their lex domicilii by concluding their marriage elsewhere, they act in fraudem legis and their marriage is tested according to the lex domicilii (plek waar getroud). • Kassim v Ghumran 1981 (Z): The marriage of Kassim and Ghumran, who had eloped to Malawi, was void under Zimbabwean law (lex domicilii), which required the consent of Kassim’s parents (which had been refused), as she was only 15 at the time. - Public policy: If the application of the lex loci celebrationis would be repugnant to the moral principles of the forum (e.g. marriages tainted by incest, extreme youth or lack of consent), the court will refuse to apply it. • Banubhai v Chief Immigration Officer 1913 (N): The marriage of Banubhai, who was 9 years old, could not be recognised, despite its validity under the lex loci celebrationis.
2) Consequences of Marriage:
a) Personal consequences of marriage:
i)