PORTFOLIO EXAMINATION OF LJU4804/ PRIVATE INTERNATIONAL
LAW 2022- DUE ON THE 14TH OF OCTOBER
NAME:
STUDENT NUMBER:
SUBJECT: PRIVATE INTERNATIONAL LAW
MODULE CODE: LJU4804
DUE DATE: 14 OCTOBER 2022
ASSIGNMENT NUMBER: 03 OR PORTFOLIO EXAMINATION
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QUESTION 1
1.1 Which legal system applies to the inherent validity of the parties’
marriage in terms of the South African rules of private international law?
When regard is had to the rules of private international law the material validity
of marriage is governed by the lex loci celebrationis which is the law of
marriage celebration. The law of marriage celebration refers to the place where
the marriage was celebrated. By the nature of the given set of facts the
marriage was concluded in Botswana meaning. The legal system would then
be the Botswana law.1
1
Friedman v Friedman’s Executors and Others 1922 43 NLR 259.
, As indicated above that material validity of a marriage is governed by the lex
loci celebrationis. However this general rule has two exceptions which are
doctrine of fraus legis and the principle of public policy. Our main focus is on the
former since it is the most relevant to our hypothetical case. 2
1.2 Assume that Maria was 17 years old at the time of entering into the marriage
and that the parties went to Botswana to evade the rules of Namibian law that
required parental consent for a minor to enter into a marriage. Would your
answer to question 1.1 be the same? (5)
In terms of the principle of fraus legis if it is established that parties to marriage
deliberately celebrated their marriage somewhere else to avoid the parental
consent requirement they are consequently held to have acted in fraudem legis and
consequently the validity of their marriage will then be tested by the local law as the
lex domicilii.
In the Kassim decision the court held that since Kassim was a minor she
needed the consent of her legal guardians (parents in this regard) for the
marriage to be valid. The court further reiterated that since the parents refused to
give consent it renders the marriage concluded between Kassim and Ghumran
invalid.3
2
M. M. Wethmar “Private International law” only study guide for LJU4804.
3
M. M. Wethmar “Private International law” only study guide for LJU4804.
, If the application of the lex loci celebrationis is in conflict with the principles of public
policy of the forum, the forum will not recognise the law of the place of
celebration of the marriage.
For instance, a South African court will not recognise an incestuous marriage.
For many years, (foreign) polygamous marriages were regarded as contrary to South
African public policy and, therefore, not recognised as valid. In this regard, refer to
Seedat’s Executors v The Master (Natal) 1917 AD 302. With the dawn of the
constitutional dispensation in South Africa, this rule in respect of polygamous
marriages was also reformed.
Firstly, the courts recognised de facto monogamous marriages – see Ryland v Edros
1997 (2) SA 690 (C). Secondly, in the case of Hassam v Jacobs NO and Others
2009 (5) SA 572 (CC), polygamous marriages were recognised by the Constitutional
Court. Although this case did not have a foreign element, this approach should extend
to future conflict cases involving foreign polygamous marriages.
1.3 Assume that redistribution of assets is classified as a divorce matter in English law
and that divorce matters are also governed by the law of the forum in terms of the
rules of English private international law. As you know, redistribution is classified as
a proprietary consequence of marriage under South African law.
Which legal system should be applied to the redistribution of the parties’ assets if
via media classification is followed? (Note: you have to explain what via media
classification is; provide the classification tables and reach a conclusion as to the
applicable law).
In this question, the constitutionality of section 7(3) of the Divorce Act5 will be
considered, specifically with reference to the date of the conclusion of the marriage and
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