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Periodical article Periodical article Leiden University catalogue Leiden University catalogue WorldCat catalogue WorldCat
Title:Some problems in the application of South African private international law
Author:Thomashausen, A.E.A.M.
Periodical:The Comparative and International Law Journal of Southern Africa
Geographic term:South Africa
Subjects:international law
private law
Abstract:By established case law, the proprietary consequences of a marriage are governed by the law of the husband's domicile at the time of the marriage, with respect both to movable and immovable property, whensoever acquired. The original domicile remains the connecting factor, even if the spouses subsequently acquire a new domicile, for instance by immigrating to South Africa. This is the principle of immutability. Moreover, and of great practical importance, the reference to the law of the husband's domicile at the time of marriage includes a reference to that country's transitional law, and generally to the lex causae. South African case law, in accordance with the law of most other systems, will not freeze the law of the husband's domicile as it was at the time of marriage. Nor will the South African law of conflicts accept renvoi. This facilitates the choice of the applicable foreign law. The problems created by the application of the South African conflict rules to the legal capacity of spouses result from the fact that most foreign marriage laws have moved too far from South African common law marriage. Notes.