LJU4804
OCT/NOV PORTFOLIO 2025
UNIQUE NO.
DUE DATE: 17 OCTOBER 2025
, Private International Law
QUESTION 1: Patrick and Ruth Mulenga
1.1 Legal system relevant to material validity of marriage
In terms of South African private international law, the substantive validity of a marriage
(capacity and consent) is governed by the lex domicilii of the two parties at the time of
the marriage — i.e., the law of the domicile of the two spouses immediately before the
marriage (Frankel's Estate v The Master 1950 (1) SA 220 (A); Sperling v Sperling 1975
(3) SA 707 (A)).
Both Ruth and Patrick were domiciled in Zambia at the time of the marriage.
Zambian law thus governs the material validity of the marriage.
1.2 Evasion of Zambian law requirements
Where it appears that the parties have contracted the marriage in Zanzibar for the
purpose of evading mandatory Zambian requirements (e.g. parental consent for a
minor), the South African court will not deem the marriage valid.
The general rule:
Acts done abroad to evade mandatory rules of domicile are invalid if they contravene
cogent public policy of the domicile (Frankel's Estate v The Master supra; Wormser v
Commissioner of Inland Revenue 1997 (3) SA 120 (SCA)).
The fraus legis doctrine applies: where parties intentionally change the place of
contracting to evade their domicile's legal restrictions, South African courts will still apply
the law of the domicile if evasion is blatant and deliberate.
Thus, if they went to Zanzibar for the purpose of avoiding Zambian parental-consent
law, the South African court would hold Zambian law to remain applicable to their
capacity and refuse to recognize the marriage as valid due to fraus legis.
OCT/NOV PORTFOLIO 2025
UNIQUE NO.
DUE DATE: 17 OCTOBER 2025
, Private International Law
QUESTION 1: Patrick and Ruth Mulenga
1.1 Legal system relevant to material validity of marriage
In terms of South African private international law, the substantive validity of a marriage
(capacity and consent) is governed by the lex domicilii of the two parties at the time of
the marriage — i.e., the law of the domicile of the two spouses immediately before the
marriage (Frankel's Estate v The Master 1950 (1) SA 220 (A); Sperling v Sperling 1975
(3) SA 707 (A)).
Both Ruth and Patrick were domiciled in Zambia at the time of the marriage.
Zambian law thus governs the material validity of the marriage.
1.2 Evasion of Zambian law requirements
Where it appears that the parties have contracted the marriage in Zanzibar for the
purpose of evading mandatory Zambian requirements (e.g. parental consent for a
minor), the South African court will not deem the marriage valid.
The general rule:
Acts done abroad to evade mandatory rules of domicile are invalid if they contravene
cogent public policy of the domicile (Frankel's Estate v The Master supra; Wormser v
Commissioner of Inland Revenue 1997 (3) SA 120 (SCA)).
The fraus legis doctrine applies: where parties intentionally change the place of
contracting to evade their domicile's legal restrictions, South African courts will still apply
the law of the domicile if evasion is blatant and deliberate.
Thus, if they went to Zanzibar for the purpose of avoiding Zambian parental-consent
law, the South African court would hold Zambian law to remain applicable to their
capacity and refuse to recognize the marriage as valid due to fraus legis.
