Legal Talk

With regard to acquiring the domicile of choice, the wording according to the Domicile Act, is as follows 'The domicile of choice shall be acquired by a person when he is lawfully present at a particular place and has the intention to settle there for an indefinite period.' In the case of a couple getting married, all that is needed is establish what the intention of the husband in this regard. The husband does not need to have permanent residence in a country. The requirements for acquiring domicile of choice is for a person to have the intention to live in a place for an indefinite period, to be physically be present in the place and for the decision to be exercised freely and voluntarily.

In December 2014, the Western Cape High Court delivered a judgment, in a matter in which a Philippine woman ("A") who married her German husband "B" in South Africa, brought an application, pending divorce proceedings, for an order declaring that they were married in community of property. This means that both spouses equally share the profits and loss of the community of property. The husband opposed it saying that he did not regard South Africa as his place of domicile and considered Germany to be his domicile.

Consequently, he argued that their marriage was governed according to German law. German law would allow the man to retain the bulk of his estate, which he built up prior to his marriage to the woman, and not share it with her. The facts of the case were as follows. In 1996, "B" whilst still married to an Austrian woman, left Germany to travel the world on his yacht. In 2001 he met "A" in Singapore who worked for him as an "au pair" and they became romantically involved. They set sail for South Africa arriving in the country in 2002. They continued to travel on their yacht in late 2002 or early 2003 and eventually settled in the Cape area. Two sons were born of their relationship.

In January 2004, they signed a notarial agreement recording that they had lived together as husband and wife since April 2001 and that it was their intention to continue that relationship indefinitely in the future. In 2006 after earlier divorcing his Austrian wife, "B "married "A" in South Africa, without an ante nuptial contract. According to our matrimonial laws, if a couple fails to register an ante nuptial contract, their marriage will automatically be regarded as a marriage in community of property. The court heard that the man did not return to Germany, even for a holiday, between the date of his arrival in South Africa in late 2002 and the date of the marriage in February 2006.

Based on all the evidence before it, the court did not agree with the man's version and found that the man intended to remain, at least indefinitely, in South Africa. The court held that the man was domiciled in South Africa at the time of his marriage to "A" and that the parties are thus married in community of property.

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