Frankel's Estate & Another v the Master & Another

• Jurisdiction: South Africa
• Judge: Watermeyer CJ, Centlivres JA, Greenberg JA, Schreiner JA, and Van Den Heever JA
• Judgment Date: 16 November 1949
• Hearing Date: 04 October 1949
• Court: Appellate Division

Watermeyer, C.J.:

The facts of this case are set out in the judgment of my Brother VAN DEN HEEVER and I agree with him that the appeal must be dismissed.

It is almost unnecessary to add any further reasons to those given by BROOME, J., in the trial Court, but because of the wide diversity of views expressed by writers upon the subject of conflict of laws, as to the principles which should be applied in deciding problems similar to the one presented by this case, I think it is advisable to state my reasons quite shortly.

Appellants claimed that Lenke Frankel was entitled to a half

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share of the estate left by her husband on his death, and this claim was based upon the proposition that the proprietary rights of her husband and herself, vis-à-vis one another, were, throughout their married life, regulated and determined by the law which a South African Court would apply to a husband and wife domiciled at the time of their marriage and throughout their married life in South Africa.

The question immediately presents itself how can it have come to pass that the reciprocal proprietary rights of the spouses during marriage and its termination were regulated and determined as if they had been domiciled throughout their married life in South Africa ? Neither of the spouses was domiciled in South Africa at the time of their marriage and it was not contended that their post-nuptial migration to South Africa had the effect of equating their reciprocal proprietary rights to those of spouses who were domiciled in South Africa at the time of their marriage. Furthermore there was no express agreement between the spouses, either ante-nuptial or post-nuptial, that their rights should be determined as if they had been domiciled South Africans married in South Africa. What factors then could have had the effect of putting them on the same legal footing?

The only ground relied upon in support of the claim is that the spouses agreed before marriage that they would emigrate to South Africa after marriage.

What is the Roman-Dutch Law in such a situation? There seems to be no direct authority among Roman-Dutch writers on the point, but that counsel for appellants had relied upon what Roman-Dutch writers say with regard to the case of a husband who abandons his own domicile and adopts that of his wife at the time of marriage and upon the opinions of several other writers (such as Story), who follow the French school of thought originated apparently by Cujacius or Molinaeus and developed by Pothier.

Among writers on the subject of Conflict of Laws there seems to be two main theories:

(a)

that the proprietary rights of the spouses after marriage vis-à-vis one another are the product of an agreement, express or implied, between them that their rights should be regulated by the rules of some particular legal system,

(b)

that they are the product of some law to which the spouses are subject as persons at the time of their marriage, and such law

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may or may not permit of an agreement relating to their post-nuptial proprietary rights.

The theory of an implied contract between the spouses is contested by many writers (see Savigny sec. 379, v. Bar secs. 181 and 182) who say that there can be no implied contract between two persons as to a legal relationship between them without a distinct consciousness of agreement between them upon the subject.

Even if the theory of an implied contract be accepted, an insuperable difficulty presents itself in arriving, in certain cases, at any sure inference as to what the parties have tacitly agreed upon with regard to their property.

The present case is an apt illustration of that difficulty. What reason is there for drawing the inference that the parties tacitly agreed that their future proprietary rights as against one another should be governed by the law of South Africa rather than that they should be governed by the law of Germany or of Czechoslovakia? When there has been no discussion of the subject between the spouses and no expression of their intention, there is no sound basis for an inference as to that intention, and a Court is necessarily left hesitating between the law of the husband's domicile, the law of the wife's domicile, the law of the place of marriage and the law of the intended matrimonial home. In such a situation there is no more reason for thinking that the spouses intended that the law of their future matrimonial home, which may be totally unfamiliar to them, should govern their proprietary rights than that some other law, with which they were familiar, should do so. In truth the theory of an implied agreement has been rejected in modern times. My Brother VAN DEN HEEVER deals with this question and I do not wish to add to what he has said beyond a reference to v Bar's discussion of the subject in sec. 182 of his book on Private International Law.

The second theory is by no means free from difficulties but they are less formidable than those attendant on the first. It can be accepted, I think, that a person may be subject to the laws of a state by reason of presence, or of residence, or of domicile in that country, or also, according to the law of some states, by reason of nationality. (See v. Bar sec. 41.)

When spouses enter into a contract of marriage their proprietary rights thereafter, vis-à-vis one another, if not determined by any form of agreement between them, must be determined by the laws

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of some state to which the spouses at the time of marriage were subject, because, being rights which by marriage become vested in them as persons, they can only, in the absence of an agreement, be conferred on them by some law to which they, as persons, are subject. A difficulty arises, however, when they are domiciled in different states or when the marriage takes place in a state in which either both or one of them is not domiciled. It is generally accepted in such cases, on the second theory, that the law of the place of marriage per se has no effect on those rights and, among writers, who do not accept the nationality theory, that, as between the law of the domicile of the husband and that of the wife the law of the husband's domicile governs. German writers on the other hand pay greater regard to nationality and say that the laws of the state of which the husband is a national govern. (See v. Bar, sec. 182.)

According to the second theory therefore there is no room (apart from agreement) for the introduction of the law of some state, to which the parties may intend to emigrate, as the law which regulates their proprietary rights vis-à-vis one another after marriage. My Brother VAN DEN HEEVER, has referred to numerous authorities in support of the second theory and to them I would like to add the statement of a Scottish Judge, Lord ROBERTSON, quoted in Story's Conflict of Laws, sec. 189 as follows:

"Marriage is a contract sui generis; and the rights, duties, and obligations which arise out of it are matters of so much importance to the well-being of the State, that they are regulated not by the private contract, but by the public laws of the State, which are imperative upon all who are domiciled within its territory."

The appeal will be dismissed with costs.

Judgment

Centlivres, J.A.:

I agree that the appeal should be dismissed with costs. I wish, however, to state my own reasons for coming to this conclusion.

I have considered the numerous authorities cited in the able argument of Mr. Pollak on behalf of the appellants. Whatever doubts may originally have existed on the question whether the law governing the matrimonial regime should be the law of the country where the marriage ceremony was celebrated, it is now clear that in Roman-Dutch Law it was eventually accepted that the governing factor is not the place where the marriage ceremony was performed but the domicile of the husband. A large number of

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authorities quoted by Mr. Pollak suggest that there is an exception to this rule in cases where the husband at the time of his marriage decides to assume the domicile of his wife. A greater number of the older authorities seem to be dealing with the position which arises when the marriage ceremony is performed in the domicile of the wife and the husband decides to remain in that domicile. If my reading of these authorities is correct, the so-called exception is not in law an exception to the rule that the law of the husband's domicile governs the matrimonial regime. For if an intending husband goes to the country where his bride lives in order to marry her there and decides to remain in her country permanently, he has acquired facto et animo the same domicile as his wife. In some of the authorities there appears to be some confusion of thought: having laid down that the law of the place of the marriage ceremony is irrelevant, they suggest that it is not irrelevant when the marriage takes place in the domicile of the wife and the husband decides to remain there. Cf. Cos Verhandeling over de boedelmenging deur 't huwelyk, para. 20. Such a suggestion only confuses the issue: the true position is that the law of the domicile of the husband at the time of the marriage governs the matrimonial regime and that the law of the place where the marriage is celebrated is always irrelevant.

Other authorities such as, for instance, Huber Heedendaegse Rechtsgeleertheyt, 1.3.33 and 34, seek to find a solution to the problem on the theory of a tacit contract. Huber says (I am quoting from Gane's translation):

"33. Once again, if there is full community of goods at the place where the marriage was contracted and the spouses are resident, as there is in Holland where not otherwise stipulated, then the property in Friesland, both movable and immovable, and belonging to either of the spouses, is common...