7 September 2026
A 75-Year-Old Rule Comes to an End
For 75 years, one question decided which country's law governed the money side of any South African marriage with a foreign connection: where did the husband regard his permanent home to be on the day of the wedding? This is the historical common-law lex domicilii matrimonii rule: literally, “the law of the matrimonial domicile” and until recently, it was interpreted exclusively as the husband's domicile at the time of the marriage. His answer bound both spouses for the lifetime of the marriage, wherever the couple later moved. On 24 June 2026, the Western Cape High Court declared this rule unconstitutional and invalid, and replaced it with a new test.
The Old Rule
The rule was formally adopted in Frankel's Estate v The Master and Another 1950 (1) SA 220 (A) and remained part of South African law for over 70 years, most recently being applied in LE v LA 2024 (5) SA 539 (GJ).
Why did this matter? South African law recognises that the proprietary consequences of a marriage may be governed by the law of another country. In fact, section 7(9) of the Divorce Act specifically provides that where a foreign legal system governs the patrimonial consequences of a marriage, a South African court hearing the divorce may exercise the same powers that a competent court in that foreign country would have exercised, including powers relating to the transfer of between spouses.
The rule also survived major developments in South African law. Although the Domicile Act 3 of 1992 abolished a wife's domicile of dependence and allowed a married woman to acquire her own domicile independently of her husband, the husband's domicile continued to determine the law governing the proprietary consequences of the marriage.
The result was that the legal consequences of a marriage could depend on a factor that many couples were entirely unaware of when they got married. It also created difficulties in an increasingly global world where spouses may have connections to several different countries and, in the case of same-sex marriages, provided no obvious answer at all.
The Pringle Judgment
The issue came before the Western Cape High Court in Pringle v Minister of Justice and Constitutional Development and Others (2468/2024) [2026] ZAWCHC 343. The case itself highlights the complexities that can arise when a marriage spans multiple countries. The applicant was born in Colombia and educated in England, where she had established her home. Her husband was born in South Africa and later relocated to Zimbabwe. They got married in England while living in Hong Kong and subsequently lived in both the United Kingdom and South Africa, while also acquiring property in Portugal.
When the marriage broke down and divorce proceedings were instituted, a dispute arose regarding which country's law governed the proprietary consequences of the marriage. The husband argued that Zimbabwean law applied because he was domiciled in Zimbabwe when the parties got married, while the applicant contended that both spouses were domiciled in England at the time.
The applicant argued that the distinction was important because the different legal systems could produce different financial outcomes. Rather than merely asking the court to decide which country's law applied, she challenged the constitutionality of the rule itself.
The court agreed. It found that the rule was rooted in outdated patriarchal assumptions that the husband occupied a dominant position within the marriage and that there was no legitimate justification for continuing to apply his domicile as the decisive connecting factor. The court accordingly declared the rule unconstitutional and invalid.
The New Five-Tier Test
Rather than leaving uncertainty, the court developed the common law and introduced a new hierarchy for determining which legal system governs the proprietary consequences of a marriage with a foreign element. The factors must be considered in sequence, with each factor only applying where the preceding factor cannot be established:
- Choice of law: The legal system chosen by the spouses in a valid antenuptial contract, provided that the chosen legal system has a substantial connection to one or both spouses.
- Common domicile: The country in which both spouses are domiciled at the time of the marriage.
- Common habitual residence: The country in which both spouses ordinarily reside.
- Common nationality: The country of which both spouses are citizens.
- Closest connection: Failing all of the above, the legal system with which the marriage has the closest connection at the time the marriage was concluded.
Retrospective Effect, With Guardrails
The new rule applies retrospectively, but the court built in several protections: These include:
- Where spouses have already selected a governing law in an antenuptial contract, the new rule only becomes applicable two years after the date of the order, allowing sufficient time for the parties to amend their arrangements if necessary.
- The new rule will not apply where its application would result in substantial prejudice.
- Existing vested rights, transactions and legal consequences that arose under the previous rule remain protected.
- Marriages that were dissolved by death or divorce before the judgment are unaffected.
Glacier’s position
This judgment is a significant development in South African law, but it does not change how Glacier administers its products. Determining which country's law governs the proprietary consequences of a marriage is a task for the courts and the parties' legal practitioners, not for Glacier. Glacier does not determine applicable matrimonial property regimes or investigate spouses' domicile when administering products; this determination, and any dispute about it, rests with the courts and the legal practitioners involved.
What This Means for Financial Intermediaries
For intermediaries, this judgment is a useful prompt to revisit the assumptions underlying advice given to clients with a cross-border element to their marriage. The new five-tier test means that the governing law can no longer simply be assumed to follow the husband's domicile at the time of marriage, and outcomes for a given couple may now differ from what would previously have applied.
Clients who got married abroad, hold dual nationality, live cross-border lives, or have entered into an antenuptial contract with a foreign choice-of-law clause may be affected, and it is worth flagging the judgment to any such clients so they can obtain legal advice on how it applies to their circumstances. Intermediaries should note, in particular, the two-year window before the new rule applies to existing antenuptial contracts with a chosen governing law, as this may be relevant to timing conversations with affected clients.
As with the underlying legal position generally, intermediaries should not attempt to determine which country's law applies to a client's marriage or advise on the effect of the new test on a specific client's position as this remains a matter for the client's legal practitioner. However, intermediaries play a valuable role in identifying clients who may be affected and encouraging them to seek appropriate legal advice, particularly where estate planning, divorce, or antenuptial arrangements are being discussed.
That said, it remains an interesting legal development in an area of law that many people, particularly those getting married, were likely unaware existed. The judgment not only replaces a long-standing common-law rule that has formed part of South African law for more than 75 years, but also illustrates how constitutional principles continue to reshape areas of law that were historically based on very different social assumptions.
And so, after 75 years of “his home, his rules”, South African law has finally asked the more sensible question: whose marriage is it, anyway?
