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LJU4804 October November PORTFOLIO Semester 2 DUE 18 October 2024 R52,89   Add to cart
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LJU4804 October November PORTFOLIO Semester 2 DUE 18 October 2024
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QUESTION 1 Instructions: Read the set of facts below and answer the questions that follow. LJU4804 OCT NOV 2024 3 John and Mary Smith got married in Hawaii in December 1983. At that time, they were British citizens and Mary was domiciled in London, while John was working in New York on a two-...

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  • October 15, 2024
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LJU4804

October November

PORTFOLIO

Semester 2

DUE 18 October 2024

, Question 1: Marriage, Divorce, and Domicile in Private International Law

1.1 Legal System Governing Formal Validity

The legal system that governs the formal validity of John and Mary’s marriage in South
African private international law is determined by the lex loci celebrationis (law of the
place where the marriage was celebrated). Since the marriage took place in Hawaii,
Hawaiian law would apply to the formal validity of their marriage (Forsyth, 2012).



1.2 Determination of John’s Domicile at Marriage

To determine John’s domicile in December 1983, a South African court would evaluate
his intention and factual residence based on animus manendi (intention to remain) and
factum (physical presence). Although John was working in New York, he had initiated
negotiations for a permanent position in South Africa. If these negotiations were
advanced enough to establish a clear intention to settle permanently in South Africa, the
court might consider South Africa as his domicile of choice at the time of marriage
(Forsyth, 2012).



1.3 Prospects for Applying South African Law to Proprietary Consequences



Mary’s legal team may argue that South African law should govern the proprietary
consequences of the marriage as South Africa was the intended matrimonial domicile.
In Sadiku v Sadiku 30498/06 (unreported), the court considered the intended domicile
when determining proprietary rights, recognizing that if parties relocate with the intention
to establish a permanent home, the laws of that new domicile may apply. Further, Neels
and Wethmar-Lemmer (2008) discuss that matrimonial property regimes should reflect
the domicile of the parties at the time of marriage, where intent and permanent
settlement are determinative factors.

This argument has moderate prospects of success. South African courts would weigh
both parties' intent at the time of marriage and the subsequent domicile. If intent to
permanently settle in South Africa can be substantiated, the court may apply South
African matrimonial property law.

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