LJU4804 EXAM PORTFOLIO 2026
DUE 19 OCTOBER 2026
QUESTION 1: Private International Law of Marriage, Divorce andL Wills
1.1 Material Validity of the Singhs' Marriage
The material or essential validity of a marriage concerns the capacity of the parties to
marry and the essential requirements for a valid marriage, such as the absence of
prohibited degrees of relationship and the existence of genuine consent.1 According
to the prevailing rules of South African private international law, the material validity
of a marriage is governed by the lex loci celebrationis, the law of the place where the
marriage was celebrated.2 This approach is practical: parties who marry in a
particular country should, as a general rule, be able to rely on the validity of that
ceremony under the local law.
In the present facts the marriage was celebrated in Hawaii in December 2015.
Consequently, Hawaiian law governs the material validity of the marriage. 3 The fact
that both parties were domiciled in England at the time of the marriage is not
decisive for material validity. Domicile becomes relevant primarily when determining
the proprietary consequences of the marriage (the lex domicilii matrimonii), not its
essential validity.
1.2 Evasion of English Law. The Doctrine of Fraus Legis
If it emerged that the parties deliberately chose Hawaii in order to evade the
mandatory English requirement of parental consent for a person under the age of
eighteen, the question arises whether a South African court would still recognise the
1CF Forsyth, Private International Law: The Modern Roman-Dutch Law Including the Jurisdiction of
the High Courts (5 edn Juta 2012) 268–272.
2Forsyth, Private International Law 268–272; see also the discussion in the LJU4804 study material
on the formal and material validity of marriage.
3Forsyth, Private International Law 268.
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DUE 19 OCTOBER 2026
QUESTION 1: Private International Law of Marriage, Divorce andL Wills
1.1 Material Validity of the Singhs' Marriage
The material or essential validity of a marriage concerns the capacity of the parties to
marry and the essential requirements for a valid marriage, such as the absence of
prohibited degrees of relationship and the existence of genuine consent.1 According
to the prevailing rules of South African private international law, the material validity
of a marriage is governed by the lex loci celebrationis, the law of the place where the
marriage was celebrated.2 This approach is practical: parties who marry in a
particular country should, as a general rule, be able to rely on the validity of that
ceremony under the local law.
In the present facts the marriage was celebrated in Hawaii in December 2015.
Consequently, Hawaiian law governs the material validity of the marriage. 3 The fact
that both parties were domiciled in England at the time of the marriage is not
decisive for material validity. Domicile becomes relevant primarily when determining
the proprietary consequences of the marriage (the lex domicilii matrimonii), not its
essential validity.
1.2 Evasion of English Law. The Doctrine of Fraus Legis
If it emerged that the parties deliberately chose Hawaii in order to evade the
mandatory English requirement of parental consent for a person under the age of
eighteen, the question arises whether a South African court would still recognise the
1CF Forsyth, Private International Law: The Modern Roman-Dutch Law Including the Jurisdiction of
the High Courts (5 edn Juta 2012) 268–272.
2Forsyth, Private International Law 268–272; see also the discussion in the LJU4804 study material
on the formal and material validity of marriage.
3Forsyth, Private International Law 268.
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