, JUR5901 ASSIGNMENT 3
DUE DATE: 28 SEPTEMBER 2026
The South African Law Reform Commission’s Project 100E: Comparative Research
and the Proposed Section 2(5) of the Divorce Act
1. Background to Project 100E and the Existing Connecting Factor
Project 100E of the South African Law Reform Commission (SALRC) concerns the review
of aspects of South African matrimonial property law. An important issue considered in the
project is the connecting factor used to determine which legal system governs the
proprietary consequences of a marriage where the spouses have connections with more
than one country. Traditionally, South African private international law has applied the lex
domicilii matrimonii rule. In terms of this rule, the proprietary consequences of a marriage
are determined by the law of the husband's domicile at the time of the marriage. This
principle was confirmed in cases such as Frankel's Estate v The Master and Sperling v
Sperling.1
Although the rule provided a relatively clear connecting factor, its continued application has
become problematic in the modern constitutional and social context. The rule is based on
the assumption that the husband's domicile should determine the matrimonial property
regime of both spouses. This is difficult to reconcile with the constitutional commitment to
equality and the modern legal position of spouses, where neither spouse automatically has
a superior legal status because of gender. The problem is also particularly evident in
marriages where the traditional distinction between a husband and wife does not apply.2
The SALRC therefore undertook extensive comparative research to identify alternative
connecting factors that could replace the existing rule. The research considered
approaches followed in other jurisdictions and international instruments dealing with
matrimonial property. The purpose was to identify a system that would provide greater
1
Frankel's Estate v The Master 1950 (1) SA 220 (A); Sperling v Sperling 1975 (3) SA 707 (A).
2
South African Law Reform Commission, Review of Aspects of Matrimonial Property Law Discussion Paper
160, Project 100E (2023) paras 3.3–3.4.
DUE DATE: 28 SEPTEMBER 2026
The South African Law Reform Commission’s Project 100E: Comparative Research
and the Proposed Section 2(5) of the Divorce Act
1. Background to Project 100E and the Existing Connecting Factor
Project 100E of the South African Law Reform Commission (SALRC) concerns the review
of aspects of South African matrimonial property law. An important issue considered in the
project is the connecting factor used to determine which legal system governs the
proprietary consequences of a marriage where the spouses have connections with more
than one country. Traditionally, South African private international law has applied the lex
domicilii matrimonii rule. In terms of this rule, the proprietary consequences of a marriage
are determined by the law of the husband's domicile at the time of the marriage. This
principle was confirmed in cases such as Frankel's Estate v The Master and Sperling v
Sperling.1
Although the rule provided a relatively clear connecting factor, its continued application has
become problematic in the modern constitutional and social context. The rule is based on
the assumption that the husband's domicile should determine the matrimonial property
regime of both spouses. This is difficult to reconcile with the constitutional commitment to
equality and the modern legal position of spouses, where neither spouse automatically has
a superior legal status because of gender. The problem is also particularly evident in
marriages where the traditional distinction between a husband and wife does not apply.2
The SALRC therefore undertook extensive comparative research to identify alternative
connecting factors that could replace the existing rule. The research considered
approaches followed in other jurisdictions and international instruments dealing with
matrimonial property. The purpose was to identify a system that would provide greater
1
Frankel's Estate v The Master 1950 (1) SA 220 (A); Sperling v Sperling 1975 (3) SA 707 (A).
2
South African Law Reform Commission, Review of Aspects of Matrimonial Property Law Discussion Paper
160, Project 100E (2023) paras 3.3–3.4.
