LJU4804 PORTFOLIO ANSWERS( FOOTNOTES AND BLIBLIOGRAPHY PROVIDED) , Due date: 17 MAY 2024
QUESTION 1
Instructions: Read the set of facts below and answer the questions that follow.
Mr Sibanda and his first wife, Jane, obtained a divorce order in the Caymen Islands in 1998 while Jane was domicil...
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,QUESTION 1
1.1. Which legal system applies to the material validity of Mr and
Mrs Sibanda’s marriage in terms of the South African rules
of private international law? (2)
In terms of South African rules of private international law, the material validity of Mr
and Mrs Sibanda's marriage would be governed by the lex loci celebrationis which
means the law of the place where the marriage was celebrated. 1 Since they got
married in Zanzibar, the material validity of their marriage would be determined by
the laws of Zanzibar.
1.2. Explain what the doctrine of fraus legis entails and how it impacts on
the legal system applicable to the material validity of a marriage. (5)
The doctrine of fraus legis, also known as the doctrine of the abuse of legal rights,
entails that a person cannot rely on the strict letter of the law to achieve an outcome
that is contrary to the true intentions or spirit of the law. 2 It essentially prevents
individuals from using legal mechanisms to circumvent the purpose or policy behind
a particular law. Fraus legis requires at least one party to be domiciled within the
court's jurisdiction at the date of marriage, have married elsewhere to avoid the
provisions of the lex fori, and have had evasive intent.3
According to the doctrine of fraus legis, if it is proven that the parties to a marriage
intentionally celebrated their marriage in a different location to avoid the requirement
of parental consent, they are considered to have acted in fraudem legis4. As a result,
the validity of their marriage will be determined by the local law of their domicile,
known as the lex domicilii.
The Kassim decision ruled that a minor's marriage must have the consent of her
legal guardians for it to be valid. The court reiterated that if parents refuse to give
consent, the marriage between Kassim and Ghumran is invalid 5. If the application of
1
Ngqobela v Sihele (10 SC 346) 1893, 354.
2
Dadoo v Krugersdorp Municipal Council 1920 AD 530.
3
Page 69 of the study guide
4
Kassim v Ghumran and Another 1981 Zimbabwe LR 227.
5
Page 69 of the study guide
, lex loci celebration is conflicts with public policy principles, the forum will not
recognize the law of the place of celebration.
In the case of Mr. and Mrs. Sibanda, if they entered into their marriage in Zanzibar
with the intention of circumventing the stricter requirements of marriage in their home
jurisdiction of Malawi or in South Africa, the doctrine of fraus legis could potentially
impact the determination of the material validity of their marriage.
1.3. Where was Mr Sibanda domiciled at the time of entering into the
marriage with Mary according to the relevant principes of South African
law? (4)
The Domicile Act does not define domicile, but Mason v Mason (1885) 4 EDC 330
provides a good description, stating that domicile refers to the place or country
considered a person's permanent home by law. 6 Section 1(1) of the Act allows
individuals over 18 years old and minors under 18 to acquire a domicile of choice,
regardless of sex or marital status. 7 Section 1(2) of the Act outlines the criteria for
establishing a domicile of choice, which a person can acquire when they are legally
present in a specific location and intend to stay there for an indefinite period. 8
At the time of entering into the marriage with Mary, Mr. Sibanda was working and
residing in London, England, on a two-year fixed-term contract. However, there is no
indication that Mr. Sibanda had taken any steps to establish a domicile of choice in
England. Domicile, in South African law, is typically determined by an individual's
permanent home or the place where they have their most substantial connections,
including their intention to reside there indefinitely.
Given that Mr. Sibanda did not seem to have an intention to remain in England
indefinitely and the fact that his first wife, Jane, was domiciled in the Cayman Islands
during their divorce, it is reasonable to infer that Mr. Sibanda's domicile remained in
his home country, Malawi, at the time of his marriage to Mary. Therefore, according
to the relevant principles of South African law, Mr. Sibanda was domiciled in Malawi
at the time of entering into the marriage with Mary.
1.4. Assume for purposes of this question that Mr Sibanda was domiciled in
England at the time of entering into the marriage. Would Mrs Sibanda be
successful in obtaining a redistribution order in terms of s 7(3) of the
6
Study page 61
7
Section 1(1) of Domicile Act 3 of 1992
8
Section 1(2) of Domicile Act 3 of 1992
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