, PLEASE USE THIS DOCUMENT AS A GUIDE ONLY
a) A summary of 300 words of your research paper
The South African connecting factor for the proprietary consequences of marriage—the lex domicilii
matrimonii interpreted as the law of the husband's domicile at the time of marriage—is
constitutionally problematic under section 9 of the Constitution, 1996.¹ The South African Law
Reform Commission's Project 100E, through Discussion Paper 160, has proposed a draft section 2(5)
of the Divorce Act to address this defect.² This research paper conducts a comparative analysis of
connecting factors utilised in two European Continental legal systems (Germany and France) and
two Anglo-American legal systems (England and Wales, and the United States) to evaluate the
feasibility of proposed reforms.
Germany employs a flexible system prioritising the spouses' common habitual residence or common
nationality, with party autonomy permitted.³ France, since the implementation of EU Regulation
2016/1103, applies a hierarchy of connecting factors: first common habitual residence after marriage,
failing which common nationality, and finally the closest connection.⁴ England and Wales applies
the lex fori in divorce proceedings, while Scotland adopts the lex situs for immovable property and
domicile for movables.⁵ The United States applies the lex loci celebrationis for movables and lex
situs for immovables, though some states apply the lex domicilii of the husband.
Based on this comparative analysis, this paper proposes that South Africa adopt a flexible hierarchy
prioritising the spouses' first common habitual residence, followed by common nationality, with a
residual closest connection test, while eliminating gender discrimination and accommodating
same-sex marriages.
¹ South African Law Reform Commission, Project 100E: Review of Aspects of Matrimonial Property Law: Discussion Paper 160 (2023) ;
Stewart K, 'Same-sex marriage and domicile law in South Africa' (2025) GoLegal .
² South African Law Reform Commission (2023) .
³ German Act on the Reform of Private International Law (EGBGB) 1986, art 15(1) ; Basedow J, 'The Reform of German Private
International Law' (1986) 34 American Journal of Comparative Law 445.
⁴ EU Council Regulation (EU) 2016/1103 of 24 June 2016, art 26 ; 'Which Law Applies to Matrimonial Property Regimes in France in the
Absence of a Marriage Contract?' (2025) EXPATS by CM&A .
⁵ Family Law (Scotland) Act 2006, s 39 ; Radmacher v Granatino [2010] UKSC 42 .
⁶ Doss v Campbell, 21 Ala. 624 (1852) ; Taintor CW, 'Marriage in the Conflict of Laws' (1957) 10 Vanderbilt Law Review 607 .
a) A summary of 300 words of your research paper
The South African connecting factor for the proprietary consequences of marriage—the lex domicilii
matrimonii interpreted as the law of the husband's domicile at the time of marriage—is
constitutionally problematic under section 9 of the Constitution, 1996.¹ The South African Law
Reform Commission's Project 100E, through Discussion Paper 160, has proposed a draft section 2(5)
of the Divorce Act to address this defect.² This research paper conducts a comparative analysis of
connecting factors utilised in two European Continental legal systems (Germany and France) and
two Anglo-American legal systems (England and Wales, and the United States) to evaluate the
feasibility of proposed reforms.
Germany employs a flexible system prioritising the spouses' common habitual residence or common
nationality, with party autonomy permitted.³ France, since the implementation of EU Regulation
2016/1103, applies a hierarchy of connecting factors: first common habitual residence after marriage,
failing which common nationality, and finally the closest connection.⁴ England and Wales applies
the lex fori in divorce proceedings, while Scotland adopts the lex situs for immovable property and
domicile for movables.⁵ The United States applies the lex loci celebrationis for movables and lex
situs for immovables, though some states apply the lex domicilii of the husband.
Based on this comparative analysis, this paper proposes that South Africa adopt a flexible hierarchy
prioritising the spouses' first common habitual residence, followed by common nationality, with a
residual closest connection test, while eliminating gender discrimination and accommodating
same-sex marriages.
¹ South African Law Reform Commission, Project 100E: Review of Aspects of Matrimonial Property Law: Discussion Paper 160 (2023) ;
Stewart K, 'Same-sex marriage and domicile law in South Africa' (2025) GoLegal .
² South African Law Reform Commission (2023) .
³ German Act on the Reform of Private International Law (EGBGB) 1986, art 15(1) ; Basedow J, 'The Reform of German Private
International Law' (1986) 34 American Journal of Comparative Law 445.
⁴ EU Council Regulation (EU) 2016/1103 of 24 June 2016, art 26 ; 'Which Law Applies to Matrimonial Property Regimes in France in the
Absence of a Marriage Contract?' (2025) EXPATS by CM&A .
⁵ Family Law (Scotland) Act 2006, s 39 ; Radmacher v Granatino [2010] UKSC 42 .
⁶ Doss v Campbell, 21 Ala. 624 (1852) ; Taintor CW, 'Marriage in the Conflict of Laws' (1957) 10 Vanderbilt Law Review 607 .
