LJU4804
PORTFOLIO Semester 2 2024
Unique Number:
Due Date: 18 October 2024
QUESTION 1
1.1.
In terms of South African private international law, the legal system that applies to the formal
validity of a marriage is determined by the law of the place where the marriage was
celebrated (lex loci celebrationis). Since John and Mary were married in Hawaii in December
1983, the law of Hawaii would govern the formal validity of their marriage. Thus, Hawaiian
law applies to the formal requirements of their marriage, such as whether the marriage was
properly solemnized according to the legal standards in Hawaii.
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QUESTION 1
1.1.
In terms of South African private international law, the legal system that applies to the
formal validity of a marriage is determined by the law of the place where the marriage
was celebrated (lex loci celebrationis). Since John and Mary were married in Hawaii
in December 1983, the law of Hawaii would govern the formal validity of their marriage.
Thus, Hawaiian law applies to the formal requirements of their marriage, such as
whether the marriage was properly solemnized according to the legal standards in
Hawaii.
1.2.
In private international law, domicile is determined by both physical presence and the
intention to remain in a particular place indefinitely. At the time of entering into the
marriage in December 1983, the South African court would need to assess John's
domicile by considering two key factors:
1. Physical Presence: The court would examine where John was physically
present before and during the marriage. In this case, John was working in New
York on a fixed-term contract at the time of the marriage.
2. Intention to Settle: The court would also look at John’s intention regarding
where he intended to make his permanent home. Although John was living in
New York temporarily, he was in negotiations for a permanent position in South
Africa before the marriage. If John intended to settle in South Africa
permanently once he secured the job, his domicile at the time of marriage would
be South Africa. However, if his intention at the time was to remain in New York
indefinitely, that could indicate domicile in New York.
The court will assess whether John had formed a fixed intention to reside permanently
in South Africa by considering his negotiations for the job and other relevant factors.
Since domicile is determined by a combination of physical presence and intent, the
court would ultimately make a fact-based determination on whether John had an
intention to remain in South Africa at the time of marriage.
