The Western Cape High Court recently delivered a decisive blow to a century-long patriarchal common law rule of lex domicilii matrimonii; paving the way for a fairer future for women, same-sex, and non-binary couples.

According to Trusts and Estates experts from commercial law firm Cliffe Dekker Hofmeyr (CDH), a woman has challenged the constitutionality of the common law rule relating to decisions based on a husband’s domicile at the time of a marriage.

“In a landmark ruling delivered on 23 June, the Court not only declared the rule inconsistent with the Constitution of South Africa but also found that the common law rule lacked a rational basis; unfairly discriminated against women and same-sex couples on the basis of sex, gender and sexual orientation; and ultimately ruled that the common law rule must be reconsidered,” says the firm. 

According to CDH, the woman was born in Bogota Colombia and educated and domiciled in England. She married her South African national husband, who was living in Zimbabwe with ties to multiple jurisdictions, in England in the 1990s. After settling in South Africa some years later the couple lived together until 2023, when their marriage irretrievably broke down. 

“When she instituted divorce proceedings, she was advised that the lex domicilli matrimonii rule would be applicable and that the proprietary consequences of the marriage, and in turn the divorce, would be governed by the domicile of her husband at the time of the marriage. Her husband alleged that the relevant domicile was Zimbabwe, and not England as she had assumed, which he considered to be his domicile at the time of the marriage. This distinction was significant because the applicable matrimonial property regime of Zimbabwe materially affected the division of assets by favouring the husband,” says CDH. 

The firm says that instead of using legal means to argue the correct domicile, she challenged the constitutionality of the common law itself. “She argued that the rule was rooted in a patriarchal and archaic assumption that recognised the husband’s domicile as the decisive factor, thereby treating husbands and wives unequally by affording husbands a procedural, symbolic, and substantive advantage over their wives.

“She further contended that the rule discriminated against spouses in same-sex marriages because it assumed that every marriage has a husband whose domicile determines the applicable law and in so doing violated section 9 of the Constitution,” says legal experts.

The court ruled in her favour with a judgement that is significant because it marks a departure from the outdated common law rule by replacing it with a gender-neutral and constitutional rule which paves a fairer future for women and same-sex marriages, says CDH. 

The firm adds that the ruling also has a significant impact on the treatment of a deceased estate. “Going forward, the proprietary consequences of a union will no longer solely be determined by the domicile of the husband, at the time of the union. Instead, practitioners, executors and the Master’s office must now apply the court’s gender-neutral hierarchy. This shift could significantly change the classification and distribution of assets; the existence of accrual claims; maintenance claims and the proprietary rights of surviving spouses in the deceased estate context,” says CDH.

Written by Gretchen Barkhuizen-Barbosa, Director and Head, Emily West, Director and Phomello Rasebeka, Candidate Attorney in the Trusts & Estates Law practice at Cliffe Dekker Hofmeyr