Lex Domicilii Matrimonii Case Study

1. Introduction
The discussion in this essay will initially provide the Common Law determination of the Lex Domicilii Matimonii and its potential constitutional problems. Thereafter, the different proposals for determining the marriage domicile will be addressed with regards to several academic authors. The judgment of Sadiku v Sadiku will then be considered focusing on immovable property. Finally, this discussion will conclude with a synopsis of the Lenferna v Lenferna judgment and its determination of the Lex Domicilii Matrimonii.
2. Common Law determination and its Constitutional Challenges
The patrimonial consequences of a marriage are always governed by the Lex Domicilii Matrimonii which is the law of the marriage domicile. Such a marriage
With reference to Sadiku v Sadiku , the parties were married in Nigeria and thereafter moved to South Africa. The parties purchased immoveable property in Soweto and subsequently obtained a decree of divorce. Mr Sadiku’s wife then refused to vacate such property contending that she had an equal share in the property. Mr Sadiku contended that the immoveable property belonged to him as the parties were married out of community of property, resulting in his application for an eviction order. The Court in casu had to determine what the marriage domicile of the parties was and whether such was applicable to the immoveable property. In an obiter dictum, the Court also considered whether the application of the husband’s domicile is still acceptable in a gender equal society in determining the Lex Domicilii Matrimonii. The parties had common domicile in Nigeria, therefore, no inequality existed. The Court further held that the Common Law position relating to the marriage domicile amounts to discrimination as it is in conflict with gender equality as stipulated in section 9(3) of the Constitution. In its judgment, the Court also considered section 26(3) of the Constitution which provides that “no one may be evicted from their home, or have their home demolished, without an order of the court made after considering all the relevant
In casu, the Appellant and Respondent concluded a marriage in Mauritius and thereafter the parties moved to South Africa. The Respondent (wife) then instituted divorce proceedings against the Appellant (husband). The question then arose which legal system, Mauritius or South Africa, governed the patrimonial consequences of the marriage in the absence of an ante-nuptial contract. The dispute in this case concerned the distribution of assets upon the dissolution of the marriage. In applying the obiter dictum from Sadiku v Sadiku to the facts in casu, the Court would have made a finding that the moveable property would be governed by Mauritian Law as proper law of the patrimonial consequences of the marriage and the immovable property which is governed by the lex situs, would then be governed by South African law as it was situated in South Africa. However, according to the authors Neels and Fredericks, such a distinction would be based on social considerations which are unknown to the parties and would result in juridical fragmentation. Therefore, it was evident in Lenferna v Lenferna that the Court did not apply the proposal in the obiter dictum and consequently found that moveables and immoveables are still governed by the proper