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LJU4804 October November PORTFOLIO (COMPLETE ANSWERS) Semester 2 2024 - DUE 18 October 2024; 100% TRUSTED Complete, trusted solutions and explanations.R46,22
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LJU4804 October November PORTFOLIO (COMPLETE ANSWERS) Semester 2 2024 - DUE 18 October 2024; 100% TRUSTED Complete, trusted solutions and explanations.
LJU4804 October November PORTFOLIO (COMPLETE ANSWERS) Semester 2 2024 - DUE 18 October 2024; 100% TRUSTED Complete, trusted solutions and explanations.
LJU4804 October November
PORTFOLIO (COMPLETE ANSWERS)
Semester 2 2024 - DUE 18 October 2024
.
,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-year fixed term contract with the
possibility of further renewal. However, just before the marriage, John was offered a
very senior permanent position with a South African retail brand and he had entered into
negotiations with the company at that stage. They relocated to Johannesburg, South
Africa shortly after getting married and established a domicile there. Two children were
born from the marriage and Mary stayed at home to look after them full-time. In 2022,
Mary filed for divorce in the South Gauteng High Court. She also applied for a
redistribution of assets.
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.
1.3.
The lex domicilii matrimonii rule states that the proprietary consequences of a marriage
are governed by the law of the husband's domicile at the time of marriage.
This rule was affirmed in several South African cases and has roots in Roman-Dutch law.
The key question in this case is whether South African law applies because Johnnand
Mary later established a domicile in South Africa after their marriage.
At the time of the marriage in Hawaii in 1983, John was domiciled in New York as he
was working on a fixed-term contract in the United States, and Mary was domiciled in
London. Under traditional principles, the proprietary consequences of the marriage
would have been governed by the law of the husband's domicile at that time (likely New
York law). However, the couple later relocated to South Africa, and Mary is now arguing
that their intended matrimonial domicile was South Africa, given John’s negotiations for
a permanent position with a South African company before the marriage.
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