Marie and Phillippe Lenferna married each other in June 1983 in Mauritius. They moved to South Africa a month later and continued to live here until their divorce in November 2011.
Marie commenced divorce proceedings in 2006, stating that the marriage relationship between her and Phillippe had irretrievably broken down.
Marie contended that the proprietary consequences of Mauritian law were applicable as Phillippe was domiciled in Mauritius at the time of their marriage. In the alternative, she alleged that the parties were married to each other in Mauritius according to the laws of South Africa and that the proprietary consequences of the marriage are accordingly governed by the law of South Africa.
On either basis, Marie alleged that she had contributed to the maintenance and/or increase of Phillippe’s estate during the marriage and thus, should be entitled to a half share thereof.
Phillippe disagreed and pleaded that Marie and he had agreed that their matrimonial regime would be governed by Mauritian law, particularly by ‘the regime legal de separation de biens’, which means the separation of goods.
Phillippe contended that, at the time of the marriage, it was not his intention to make South Africa his permanent home but to return back to Mauritius. Prior to his marriage, he applied for residency in South Africa because he was offered a job at SABC; which offer was subject to him obtaining permanent residence permit. Arguably, he would have remained and worked in Mauritius if his application for permanent residency permit was denied.
The court a quo held that Phillippe had intended to move to South Africa permanently, even before the marriage and that Marie was entitled to 50% of the value of his estate.
In terms of common law, in the absence of express agreement, the proprietary rights of spouses are governed by the law of the husband’s domicile at the time of marriage (lex domicilii matrimonii). This rule assumes that the parties intended to establish their matrimonial home in the country where the husband was domiciled, at the time of the marriage, and therefore to submit themselves to the matrimonial regime obtaining in that country.
The court a quo found that Phillippe intended to establish permanent residence in South Africa. However, the SCA held that this was incorrect. The fact that he had applied for, and obtained, a South African permanent residence permit did not indicate that he had abandoned his domicile of origin. It is unlikely that before Phillippe settled into a career in South Africa, became secure financially and had finally adapted to this country, that he formed the intention to remain in South Africa permanently even before taking up employment here.
Concluding, the SCA held that both parties’ domicile, at the time of entering the marriage, was Mauritius and that Mauritian law, accordingly applied to the proprietary consequences of the marriage. Each party retains its separate estate during the marriage and on dissolution and neither party has a claim against the estate of the other party. Therefore, Marie was not entitled to a share in the estate of Phillippe.
The appeal succeeded with costs.
This judgment shows how the Court determined which country’s laws applied where the couple got married outside South Africa in the country where they resided at the time and thereafter immediately left for South Africa, where they lived until their divorce.
Written by Jordan Dias and Celeste Frank