A Zimbabwean national Thandi, who is 14 years of age, goes on holiday to Australia
where she meets a South African national Katlego, who is 21 years old. They fall in love
and decide to get married 4 months later in Mauritius. At the time of the marriage.
Katlego was domiciled and habitually resident in South Africa while Thandi was
domiciled and habitually resident in Kenya. After the marriage Thandi & Katlego decide
to live in South Africa and make it their permanent home. The parties live in South
Africa for 4 years until their marriage relationship irretrievably breaks down. The parties
separate, but do not obtain a divorce. 2 years later Thandi meets Bradley who she
wishes to marry and now wants to know whether she needs to obtain a divorce from
Katlego. The need to obtain a divorce, depends on whether her marriage to Katlego
was valid?
According to South African private international law the marriage is governed by the lex
loci celebrationis which is Mauritius. The internal (domestic law) of Mauritius regards the
marriage between Thandi & Katlego to be valid as the legal minimum age for marriage
is 14. However according to the private international law of Mauritius the lex domicili of
the husband at the time of the marriage determines the validity of the marriage, which is
South Africa. Therefore, the private international law of Mauritius refers to the law
of South Africa. In terms of South African law, the marriage would not be regarded as
valid, as no girl under the age of 15 can marry without the necessary permission (s26(1)
of the Marriages Act 1961).
1. The above set of facts illustrates which type of renvoi?
2. The law of which country would be applicable if the partial renvoi approach were
followed?
3. The law of which country would be applicable if no renvoi were applied?
4. The law of which country would be applicable if the total renvoi approach were
followed? In your answer you must discuss how the court would reach a decision in
this instance.
5. Determine whether Thandi and Katlego’s marriage would valid be in the following
instances;
5.1If the no renvoi approach is followed?
5.2If the partial renvoi approach is followed?
6. For the next questions assume that according to South African private international
law the marriage between Thandi and Katlego is governed by the lex loci
celebrationis which is Mauritius. However according to the private international law
of Mauritius the nationality of the party whose capacity is in question determines the
validity of the marriage, which is Zimbabwe (being Thandi’s nationality). According to
the law of Zimbabwe Thandi’s marriage is also regarded as invalid.
6.1The above facts illustrates which type of renvoi?
6.2The law of which country would be applicable if no renvoi were applied?
6.3The law of which country would be applicable if the partial renvoi approach were
applied?
6.4Determine whether Thandi and Katlego’s marriage would be valid in the following
instances;
i. If the no renvoi approach is followed?
ii. If the partial renvoi approach is followed?
iii. If the total renvoi approach is followed?
6.5Would Thandi need to obtain a divorce from Katlego in order to marry Bradley if;
i. The total renvoi approach were followed?
ii. If the no renvoi approach were followed?
1. The above set of facts illustrates a renvoi situation.
2. If the partial renvoi approach were followed, the law of Zimbabwe would be applicable since Thandi's nationality is Zimbabwean.
3. If no renvoi were applied, the law of Mauritius would be applicable as it is the lex loci celebrationis.
4. If the total renvoi approach were followed, the law of South Africa would be applicable. In this instance, the court would look at the private international law of Mauritius which refers to the law of South Africa. Therefore, South African law would be applicable.
5.1 If the no renvoi approach is followed, the marriage would be considered valid under Mauritian law.
5.2 If the partial renvoi approach is followed, the marriage would be considered invalid under South African law due to Thandi's age.
6.1 The above facts illustrate a renvoi situation.
6.2 If no renvoi were applied, the law of Zimbabwe would be applicable.
6.3 If the partial renvoi approach were applied, the law of South Africa would be applicable.
6.4
i. If the no renvoi approach is followed, the marriage would be considered invalid under Zimbabwean law.
ii. If the partial renvoi approach is followed, the marriage would be considered invalid under South African law.
6.5
i. If the total renvoi approach were followed, Thandi would need to obtain a divorce from Katlego in order to marry Bradley.
ii. If the no renvoi approach were followed, Thandi would not necessarily need to obtain a divorce as the marriage would be considered invalid under Zimbabwean law.