, LJU4804 OCTOBER / NOVEMBER 2026 PORTFOLIO -DUE DATE: 19 OCTOBER 2026
QUESTION 1
1.1 Material validity of the marriage
The material validity of the Singhs’ marriage is governed by the law of the domicile of each
party at the time of the marriage. This is known as the lex domicilii. Since both Mr and Mrs
Singh were domiciled in England when they married, English law determines their capacity
to enter into the marriage.1
1.2 Marriage contracted to evade English law
Yes, the answer may be different if the parties deliberately married in Hawaii to avoid
English law. South African private international law generally recognises a marriage that
complies with the law of the place where it was celebrated. However, this does not mean that
parties can always avoid mandatory legal requirements simply by marrying in another
country.
The doctrine of evasion of the law may apply where the parties deliberately go abroad to
avoid a mandatory rule of their personal law. If the court finds that the Singhs married in
Hawaii solely to evade the English requirement for parental consent for a person under
eighteen, it may refuse to recognise the marriage on that basis.2
However, the mere fact that the marriage took place in Hawaii does not automatically make
it invalid. The court would have to consider the circumstances and determine whether the
conduct amounted to an improper evasion of English law. Therefore, recognition of the
marriage would depend on the application of the evasion principle to the facts.
1.3 Formal validity of the marriage
1
Forsyth Private International Law: The Modern Roman-Dutch Law Including the Jurisdiction of the High Courts 5th ed
(2012) discussion of the material validity of marriage and the lex domicilii.
2
Forsyth Private International Law discussion of evasion of the law and recognition of foreign marriages.
QUESTION 1
1.1 Material validity of the marriage
The material validity of the Singhs’ marriage is governed by the law of the domicile of each
party at the time of the marriage. This is known as the lex domicilii. Since both Mr and Mrs
Singh were domiciled in England when they married, English law determines their capacity
to enter into the marriage.1
1.2 Marriage contracted to evade English law
Yes, the answer may be different if the parties deliberately married in Hawaii to avoid
English law. South African private international law generally recognises a marriage that
complies with the law of the place where it was celebrated. However, this does not mean that
parties can always avoid mandatory legal requirements simply by marrying in another
country.
The doctrine of evasion of the law may apply where the parties deliberately go abroad to
avoid a mandatory rule of their personal law. If the court finds that the Singhs married in
Hawaii solely to evade the English requirement for parental consent for a person under
eighteen, it may refuse to recognise the marriage on that basis.2
However, the mere fact that the marriage took place in Hawaii does not automatically make
it invalid. The court would have to consider the circumstances and determine whether the
conduct amounted to an improper evasion of English law. Therefore, recognition of the
marriage would depend on the application of the evasion principle to the facts.
1.3 Formal validity of the marriage
1
Forsyth Private International Law: The Modern Roman-Dutch Law Including the Jurisdiction of the High Courts 5th ed
(2012) discussion of the material validity of marriage and the lex domicilii.
2
Forsyth Private International Law discussion of evasion of the law and recognition of foreign marriages.
