SOUTH AFRICA Law and Practice Contributed by: Beverley Clark, Jana van Breda, Elmarie Erasmus and Jessica Clark, Clarks Attorneys
hear divorce cases, but different procedural rules and directives apply. Religious Marriages Historically, religious marriages (such as Muslim and Hindu) were not recognised in South Africa. However, this has changed following the deci - sion in Women’s Legal Centre Trust v President of the Republic of South Africa and Others (2022) ZACC 23, in which the court declared parts of the Marriage Act and Divorce Act unconstitu - tional for excluding Muslim marriages. Marriages that are concluded according to Islamic rites are now recognised. Void and Voidable Marriages A void marriage fails to meet the requirements for a civil marriage as set out in the Marriages Act 25 of 1961 and is considered non-existent, with no legal consequences. A voidable marriage is valid until set aside by a court owing to specific legal grounds present at the time of the marriage. Requirements for a valid marriage include: • solemnisation by an authorised marriage officer; • the presence of both parties during the cer - emony (proxy marriages are not allowed); • the absence of prohibited blood relationships; and In terms of Section 2(1) of the Divorce Act, a court has jurisdiction over a divorce if one or both parties are: • domiciled in the court’s jurisdiction on the date the divorce is initiated; or • legal capacity of both parties. 1.2 Choice of Jurisdiction
• ordinarily resident in the court’s jurisdiction and have resided in South Africa for at least one year prior to filing. If jurisdiction is disputed by the defendant, the court may consider: • whether the matter involves the same cause of action as a matter pending in another jurisdiction (lis alibi pendens) and, if so, which jurisdiction is more appropriate (forum con - veniens); and • relevant facts of the matter at hand, such as: (a) applicable foreign law; (b) the location of evidence, children and assets; (c) procedural advantages or prejudice; and (d) costs and timelines in different jurisdic - tions. Domicile, Residence and Nationality Domicile refers to a person’s intended perma - nent home. South Africa uses the lex domicilii matrimonii principle to determine marital prop - erty laws – ie, the proprietary consequences of the marriage are governed by the laws of the husband’s domicile at the time the marriage was concluded. This principle will likely be over - turned if an appropriate case tests the constitu - tional validity of the principle. Residence refers to where an individual ordinar - ily lives. It is used to determine jurisdiction. Nationality refers to the legal belonging to a nation state. However, it does not impact juris - diction in South African divorce cases if legal requirements are met.
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