LJU4804 October/November (Exam) MEMO | Due 19 October 2026

, PLEASE USE THIS DOCUMENT AS A GUIDE ONLY

 QUESTION 1

1. Upon discovering Mr Singh’s infidelity in February 2025, Mrs Singh instituted divorce
proceedings in a South African High Court. Her lawyers also advised her to claim for future
maintenance in terms of section 7 of the Divorce Act 70 of 1979 to achieve a clean break between
the parties.

1.1 Which legal system governs the material validity of the Singhs’ marriage according to the
rules of South African private international law?

The material (essential) validity of a marriage is governed by the lex loci celebrationis — the law of
the place where the marriage was celebrated.¹ Since the Singhs married in Hawaii, Hawaiian law
governs the material validity of their marriage.²

Authority for this rule is found in Friedman v Friedman's Executors 1922 43 NLR 259.³

1.2 Would your answer to 1.1 be different if it emerged that the parties got married in Hawaii to
evade the requirement of English law that parental consent is required for persons below the age
of eighteen to get married? Discuss.

Yes, the answer would differ. If the parties deliberately married in Hawaii to evade the requirement
of English law (the law of their domicile) that parental consent is required for persons below
eighteen, the doctrine of fraus legis (fraud on the law) would apply.⁴

The requirements for fraus legis are:
 At least one of the parties must be domiciled within the jurisdiction of the court seized of the
matter at the date of marriage;⁵
 The parties must have married elsewhere in order to avoid the provisions of the lex fori;⁶
 The parties must have had evasive intent.⁷

In this scenario, both parties were domiciled in England at the time of the marriage.⁸ If they married
in Hawaii specifically to evade the English law requirement of parental consent (since Mrs Singh
was only seventeen), they acted in fraudem legis.⁹ Where the doctrine applies, the lex domicilii
(English law) is applied to test the material validity of the marriage, not the lex loci celebrationis.¹⁰
This was confirmed in Pretorius v Pretorius 1948 (4) SA 144 (O).¹¹ The Zimbabwean case of Kassim
v Ghumran 1981 Zimbabwe LR 227 provides a good illustration: the parties eloped to Malawi to
evade Zimbabwean law requiring parental consent, and the court applied the doctrine of fraus legis,
applying Zimbabwean law to find the marriage invalid.¹²

Therefore: If evasive intent is proven, English law would govern material validity, and the marriage
may be found invalid for lack of parental consent.¹³
¹ LJU4804 Study Guide (2020) Study Unit 8, 8.2.3.2.
² Ibid.
³ Friedman v Friedman's Executors and Others (1922) 43 NLR 259, as cited in LJU4804 Study Guide (2020) Study Unit 8, 8.2.3.2.
⁴ LJU4804 Study Guide (2020) Study Unit 8, 8.2.3.3(i).
⁵ Ibid.
⁶ Ibid.
⁷ Ibid.
⁸ Facts: "At the time of entering into the marriage, both parties were domiciled in England."
⁹ LJU4804 Study Guide (2020) Study Unit 8, 8.2.3.3(i).
¹⁰ Ibid.
¹¹ Pretorius v Pretorius 1948 (4) SA 144 (O), as cited in LJU4804 Study Guide (2020) Study Unit 8, 8.2.3.3(i).
¹² Kassim v Ghumran and Another 1981 Zimbabwe LR 227, as cited in LJU4804 Study Guide (2020) Study Unit 8, 8.2.3.3(i).
¹³ LJU4804 Study Guide (2020) Study Unit 8, 8.2.3.3(i).

, 1.3 Which legal system applies to the formal validity of Mr and Mrs Singh’s marriage in terms
of the South African rules of private international law?

The formal validity of a marriage is governed by the lex loci celebrationis — the law of the place
where the marriage was celebrated.¹⁴ Since the marriage took place in Hawaii, Hawaiian law applies
to formal validity.¹⁵

Authority: Ngqobela v Sihele (1893) 10 SC 356; Seedat's Executors v The Master (Natal) 1917 AD
302; Ochberg v Ochberg's Estate 1941 CPD 15.¹⁶

Section 10(1) of the Marriage Act 25 of 1961 provides an exception where both parties are South
African citizens domiciled in the Republic — but that is not applicable here since both parties were
domiciled in England.¹⁷

1.4 Which legal system applies to divorce matters in terms of the rules of South African private
international law?

Divorce matters are governed by the lex fori — the law of the forum.¹⁸ Since the divorce proceedings
are instituted in a South African High Court, South African law applies to the divorce, including the
grounds for divorce and maintenance.¹⁹

Authority: Holland v Holland;²⁰ section 2(3) of the Divorce Act 70 of 1979 provides statutory
confirmation.²¹

Section 2(3) specifically states that if a court has jurisdiction over a divorce matter, it applies the law
as if the parties were domiciled in the area of jurisdiction of the court — i.e., the lex fori.²²




¹⁴ LJU4804 Study Guide (2020) Study Unit 8, 8.2.2.2.
¹⁵ Ibid.
¹⁶ Ngqobela v Sihele (1893) 10 SC 356; Seedat's Executors v The Master (Natal) 1917 AD 302; Ochberg v Ochberg's Estate 1941 CPD 15,
as cited in LJU4804 Study Guide (2020) Study Unit 8, 8.2.2.2.
¹⁷ Section 10(1) of the Marriage Act 25 of 1961, as discussed in LJU4804 Study Guide (2020) Study Unit 8, 8.2.2.3.
¹⁸ LJU4804 Study Guide (2020) Study Unit 8, 8.2.5.9(i).
¹⁹ Ibid.
²⁰ Holland v Holland, as cited in LJU4804 Study Guide (2020) Study Unit 8, 8.2.5.9(i).
²¹ Section 2(3) of the Divorce Act 70 of 1979, as discussed in LJU4804 Study Guide (2020) Study Unit 8, 8.2.4.4(i).
²² Ibid.