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Domicile – The Effect on Immovable Property Sales:
[an extract from an Article by: Marius van Rensburg [Partner] hbgschindlers attorneys – 15 October 2024]
INTRODUCTION
When dealing with the sale and transfer of immovable property it is important to establish how the parties are married and which country’s laws apply to the marriage as this has a direct impact on their contractual capacity.
Their marital regime determines whether they are able to contract alone (if married in accordance with South African law out of community of property having entered into an antenuptial contract) alternatively whether they can only contract together with their spouse (if married in accordance with South African law in community of property) or alternatively whether they need to be assisted by their spouse (if married in accordance with the laws of a foreign country).
DOMICILE
In order to answer the above question it is important to establish the “domicile” of the husband inasmuch as it is the domicile of the husband at the time that the marriage was concluded that determines which country’s laws apply to the marriage between the parties.
In other words, the laws of the country in which the husband was domiciled at the time the marriage was concluded will apply to that marriage. The domicile of the wife is not taken into account as in our law the wife follows the domicile of the husband.
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