June 18, 2015
July 16, 2015

A South Africa citizen “x” decides that he is going to study in England after leaving school. During this time abroad he meets the love of his life “y”, a British citizen. Both parties decide that they want to marry each other and are now unsure if the marriage will be valid once they return back to South Africa.

The abovementioned marriage and/ or relationship adequately demonstrate the need for private international law. Men and women of different domiciles and nationalities may fall in love and marry in the country where they happen to reside. Generally speaking, the formal validity of a marriage is determined by the law of the place where the marriage was solemnized. This is based on the common law doctrine of the law of the country were the marriage was solemnized ( lex loci celebrationis).

This rule is also subject to the  fraud of the law (fraus legis) doctrine that will prevent parties from deliberately solemnizing their marriage elsewhere to escape some essential requirements of the law of the place of a party’s dwelling house (lex domicilii). Kassim v Ghumran & another 1981 Zimbabwe LR 22, may be considered more fully to illustrate the principle of evasion. Here Ghumran and Kassim had eloped from Zimbabwe to Malawi in order to marry. Kassim was only 15 years old and the consent of her parents, which was not obatined, was required for her marriage under the law of Zimbabwe. Kassim’s father sought an order declaring that the Malawian Marriage is void. The court held that where one or both parties were

domiciled in the area of the court and had their marriage deliberately solemnized elsewhere to escape an essential requirement of the lex domicilii acted in fraudem legis.

The last exception to the lex loci celebrationis is the principle of public policy. The marriage will be against public policy if it offends fundamental moral principles of that society. Since the marriage relationship is one of the fundamental institutions of our society, it follows, none the less, that public policy will raise its head here. It does so primarily in two broad areas; marriages tainted by incest, want of age, or lack of consent and polygamous marriages, especially before the recognition of customary marriages is South Africa. The consensus seems to be that the union of siblings (whether of half or full blood) and the union of any blood relatives in the direct line will be against public policy (contra bonis mores).

Therefore their marriage will be valid in South Africa if they complied with the abovementioned international private law principles and that the marriage was legally conclude in accordance with the laws of England. It is also important to note that the legal consequences of the marriage will be governed by different international private law principles and the validity of the marriage will be determined according to the abovementioned principles.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.

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