JUR5901 ASSIGNMENT 2 2026
DUE 17 AUGUST 2026
a) Summary of the Research Paper
This research paper evaluates the feasibility of the proposed section 2(5) of the
South African Divorce Act, which aims to replace the current, potentially
unconstitutional connecting factor for the proprietary consequences of marriage - lex
domicilii matrimonii interpreted as the law of the husband’s domicile at marriage. The
paper provides a comparative analysis of the connecting factors utilised in two
European Continental legal systems (Germany and Switzerland) and two Anglo-
American legal systems (England and Wales, and the state of California in the
United States). The analysis focuses exclusively on the connecting factors, not the
substantive matrimonial property regimes.
The German system employs a combination of party autonomy and habitual
residence, while Swiss law utilises the law of the spouses’ common domicile or,
failing that, the law of their common nationality. England and Wales applies the lex
fori (forum law) to all financial remedies on divorce, effectively marginalising
traditional connecting factors. California, as a leading common law jurisdiction,
applies its own law to all divorcing couples within its territory, similar to the English
approach.
, Based on this comparative study, the paper proposes a workable alternative for
South Africa. It argues for the adoption of a primary connecting factor based on the
spouses’ common habitual residence at the time of the marriage’s conclusion, with a
fallback to the law of the spouses’ common nationality if no common habitual
residence exists. This proposal engages with academic reform proposals and offers
original insights, concluding that such an alternative would be constitutional, gender-
neutral, and aligned with international best practices while remaining practically
feasible for South African courts.
b) Table of Contents for the Research Paper
Title
A Comparative Evaluation of Proposed Connecting Factors for the Proprietary
Consequences of Marriage in South African Private International Law: Learning from
European Continental and Anglo-American Systems
1. Introduction
1.1 Background: The Unconstitutionality of the Lex Domicilii Matrimonii
1.2 The South African Law Reform Commission’s Project 100E and Proposed
Section 2(5)
1.3 Research Question, Aims, and Methodology
1.4 Scope and Limitations (Distinction between Connecting Factors and Matrimonial
Property Regimes)
1.5 Structure of the Paper
DUE 17 AUGUST 2026
a) Summary of the Research Paper
This research paper evaluates the feasibility of the proposed section 2(5) of the
South African Divorce Act, which aims to replace the current, potentially
unconstitutional connecting factor for the proprietary consequences of marriage - lex
domicilii matrimonii interpreted as the law of the husband’s domicile at marriage. The
paper provides a comparative analysis of the connecting factors utilised in two
European Continental legal systems (Germany and Switzerland) and two Anglo-
American legal systems (England and Wales, and the state of California in the
United States). The analysis focuses exclusively on the connecting factors, not the
substantive matrimonial property regimes.
The German system employs a combination of party autonomy and habitual
residence, while Swiss law utilises the law of the spouses’ common domicile or,
failing that, the law of their common nationality. England and Wales applies the lex
fori (forum law) to all financial remedies on divorce, effectively marginalising
traditional connecting factors. California, as a leading common law jurisdiction,
applies its own law to all divorcing couples within its territory, similar to the English
approach.
, Based on this comparative study, the paper proposes a workable alternative for
South Africa. It argues for the adoption of a primary connecting factor based on the
spouses’ common habitual residence at the time of the marriage’s conclusion, with a
fallback to the law of the spouses’ common nationality if no common habitual
residence exists. This proposal engages with academic reform proposals and offers
original insights, concluding that such an alternative would be constitutional, gender-
neutral, and aligned with international best practices while remaining practically
feasible for South African courts.
b) Table of Contents for the Research Paper
Title
A Comparative Evaluation of Proposed Connecting Factors for the Proprietary
Consequences of Marriage in South African Private International Law: Learning from
European Continental and Anglo-American Systems
1. Introduction
1.1 Background: The Unconstitutionality of the Lex Domicilii Matrimonii
1.2 The South African Law Reform Commission’s Project 100E and Proposed
Section 2(5)
1.3 Research Question, Aims, and Methodology
1.4 Scope and Limitations (Distinction between Connecting Factors and Matrimonial
Property Regimes)
1.5 Structure of the Paper
