LJU4804 PORTFOLIO EXAMINATION

1.1 Material validity of a marriage is governed by the law of marriage celebration – the lex loci celebrationis.1 In terms of the South African private international law, the laws of where the marriage was celebrated govern the validity of marriage. The answer would differ if parties got married in Malawi to evade the mandatory requirements of Botswana law in respect of parental permission for minors to enter into marriage. If persons seek to evade certain provisions of the normally applicable legal system and act in a manner intended to create (fraudulent) connecting factors with another legal system, the normally applicable legal system will be applied. An area of law in which there are several examples of the operation of the doctrine of fraus legis is marriage law. In these instances, the parties get married elsewhere in order to evade provisions of the lex fori. 2 In the Zimbabwean case of Kassim v Ghumran and Another (1981 Zimbabwe LR 227). In this matter, Kassim and Ghumran went through a marriage ceremony in Malawi. They married there to evade the provision of Zimbabwean law (Kassim was domiciled in Zimbabwe) requiring that Kassim, who was only fifteen at the time of conclusion of the marriage, had to obtain her parents’ consent to enter into marriage. Kassim’s father brought an application in the Zimbabwe High Court for an order declaring the marriage void. The judge decided the matter on the basis of fraus legis and found that “where one or both of the parties were domiciled in the area of the court and had their marriage deliberately solemnized elsewhere to escape an essential requirement of the lex domicilii (being the lex fori), they acted in fraudem legis and their marriage was tested by the local law as the lex domicilii”. Forsyth points out that, although the doctrine of fraus legis forms part of our law, the extent of its operation is not entirely clear.3 the question whether it should only be applied if the law evaded is the lex fori or whether it should also be applied where the evaded legal system is a foreign legal system. Forsyth argues that, where the doctrine operates to exclude the lex causae, the evaded law should be applied.4 1 .Wethmar-Lemmer MM Private International Law Department of Jurisprudence University of South Africa, (Pretoria ) 55. 2 . Wethmar-Lemmer MM Private International Law Department of Jurisprudence University of South Africa, (Pretoria ) 35-36. 3 . Forsyth Private International Law 126. 4 . Forsyth Private International Law 126