How a new Western Cape judgment changes the rules for international marriages - N[…] P[…] v Minister of Justice and Constitutional Development and Others, Western Cape High Court, Case No. 2468/2024, 23 June 2026

For decades, South African law answered one question about marriages with a foreign element: where was the husband domiciled? On 23 June 2026, the Western Cape High Court put an end to that. In N[…] P[…] v Minister of Justice and Constitutional Development and Others, the court struck down the old rule - lex domicilii matrimonii - as unconstitutional, and set out a new test for deciding whose law governs the property consequences of an international marriage.

Why the old rule had to go

The old rule kicked in whenever a marriage had a foreign element — not only where one spouse held foreign nationality, but also, for example, where two South Africans were domiciled abroad when they married. Whatever the facts, one thing decided everything: the husband's domicile at the time of the marriage. The wife's domicile didn't matter, and the rule had no real answer for same-sex couples.

The court found that this discriminates unfairly on the grounds of sex, gender and sexual orientation. It's built on the old assumption that a wife's legal position follows her husband's - an assumption the Domicile Act did away with back in 1992. The private international law rule had simply never caught up.

The new test

1. Did the spouses choose a governing legal system before or at the time of marriage, with a real, substantial link between that system and one or both of them?
2. If not, where were they commonly domiciled at the time of marriage?
3. If that doesn't apply, where did they commonly, habitually reside?
4. Failing that, what is their common nationality?
5. And if none of the above apply, which country were they jointly and most closely connected to at the time of marriage?

The “substantial link” requirement in step one is worth flagging to clients. A chosen law backed by nothing more than convenience = a favourable tax or banking regime, say - is unlikely to survive scrutiny. Courts will be looking for a genuine connection: domicile, residence, assets, employment.

What happens to marriages that already exist

The new rule applies retrospectively, but with real limits. It won't unwind marriages already ended by death or divorce, and it won't undo transactions already completed under the old rule. Where a couple chose a governing law in their antenuptial contract, that choice stands for two years from the judgment - until 23 June 2028 - giving them time to amend it if it doesn't hold up. Where no law was chosen at all, the new test applies immediately, unless doing so would cause real prejudice.

Practically, this means an ANC choosing a law with no substantial link isn't overridden today - it has a shelf life. After 23 June 2028, a court, or a bank assessing a bond, can decline to honour that choice and apply the five-step test instead.

Does this need Constitutional Court sign-off?

This came up directly in our own discussion of the case, so it's worth addressing head-on: No. Developing the common law is something a High Court can do on its own authority, under section 39(2) of the Constitution. That's different from striking down legislation, which does need Constitutional Court confirmation under section 172(2). This judgment took effect immediately, with no further ratification required.

One thing worth keeping in mind for clients: this is a first-instance High Court decision. It's binding and effective today, but it can still be appealed, so it's worth keeping half an eye on whether it goes further.

What this means for conveyancing and notarial work

“Where was the husband domiciled?” is no longer good enough due diligence. On any matter involving an international marriage, we now need to establish:

1. The marriage facts - where, when, and under what regime. Get the certificate.
2. Where each spouse was domiciled, resident, and a national at the date of marriage, and where their assets were.
3. Whether the ANC chose a governing law, and whether we can show a real connection to it today.
4. If not, whether an amending addendum is needed before 2028 - and, where a bond is involved, whether the bank needs to be told a conflict-of-laws question may arise.

Same-sex couples married abroad need particular care. If the country where they married doesn't itself recognise the marriage, choosing that country's law is unlikely to hold up as a substantial link - common domicile or habitual residence is the safer bet.

Why it matters

This judgment gives couples with an international element to their marriage - and the conveyancers advising them - four workable paths that didn't clearly exist before: a genuine choice of law, common domicile, common habitual residence, and common nationality. It removes the automatic preference for the husband, and finally gives same-sex couples, dual nationals and expats a sensible answer.

The question isn't “whose domicile?” anymore. It's “what's the real connection?”

Bongani Mahlangu | Candidate Legal Practitioner