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The Demise of the Lex Domicilii Matrimonii in South African Private International Law
by Sibusiso Mabaso, Lecturer in Private International Law, University of South Africa
For many years, South African private international law relied on the lex domicilii matrimonii as connecting factor to determine the legal system applicable to the proprietary consequences of a marriage. The lex domicilii matrimonii is interpreted as the husband’s domicile at the time of entering into the marriage. This rule was firmly entrenched in South African law since it was formally adopted in Frankel’s Estate v The Master & Another 1950(1) SA 220 (A) and reinforced in subsequent decisions, the latest being LE v LA 2024 (5) SA 539 (GJ). Despite the courts’ reliance on this rule, it became increasingly evident that it is not compatible with South Africa’s Constitutional commitment to equality, dignity and non-discrimination (Constitution of the Republic of South Africa, 1996). The Westen Cape High Court has finally addressed this discriminatory connecting factor in a judgment delivered on 24 June 2026 in Pringle v Minister of Justice and Constitutional Development and Others (2468 / 2024) [2026] ZAWCHC 343.
Support in cross-border transactions by Adults: Contract law vs capacity law
Thalia Kruger, University of Antwerp & Senior Research Associate, University of Johannesburg
This piece is based on a paper that I presented at the World Congress on Adults Protection, held in Amsterdam from 8 to 10 July 2026. It is still work in progress.
The World Conference focused on capacity rather than vulnerability and incapacity of Adults. This choice of theme resulted in much discussion on support for the exercise of capacity. Supported decision-making rather than replaced decision-making for an incapacitated person poses challenges for Private International Law, especially of the Von Savigny tradition. Our approach is to first characterise and then find which laws we can apply. But it is exactly this characterisation that is becoming blurry: to be fully in compliance with the UN Convention on the Rights of Persons with Disabilities people should be allowed to make decisions, i.e. conclude contracts with the help of others. There should be no boxes of capacitated and incapacitated persons. No longer can only the former conclude contracts, while the latter have to be represented by guardians or other persons with a representation function. In Adult law some concepts are phasing out, while others are being reinterpreted by legislators and courts.
Below, after briefly explaining the move towards supported decision-making in substantive family law and human rights law, I turn to the available legal framework for cross-border cases, then to the difficult question of characterisation, and lastly to cross-border recognition.
Recognition of Italian Extrajudicial Divorces in Tunisia — Between Methodological Uncertainty and the Need to Preserve Continuity of Personal Status Across Borders
I. Introduction
Recent years have witnessed a movement towards the dejudicialization of consensual divorce and the proliferation of extrajudicial divorce mechanisms notably in Europe. While this mode of “private divorce” is not, as such, a new phenomenon and extrajudicial divorce has been practised in different forms across various parts of the world (see e.g., Béligh Elbalti, “Le divorce au Japon et son accueil en Tunisie” (2026) 73 Osaka University Law Review 6), it has attracted increasing attention in recent years, given the growing number of European jurisdictions that have introduced mechanisms allowing spouses to dissolve their marriage outside the courts, as well as the complex questions that such divorces raise in terms of their recognition and circulation across borders (for a comparative view in Europe, see e.g., CJEU, Directorate for Research and Documentation, “Extrajudicial Divorce: Rules, Procedures and Cross-Border Recognition in Member States” (Research Note, February 2022) 3; Pablo Quinzá Redondo, “The Recognition of Non-Judicial Divorces in Europe” in Konrad Duden and Denise Wiedemann (eds), Changing Families, Changing Family Law in Europe (Intersentia, 2024) 23). This is particularly true of the Italian form of extrajudicial divorce, introduced by Decree-Law No. 132/2014, converted into Law No. 162/2014, which allows spouses meeting specified conditions to obtain a divorce through an agreement before the civil registrar, rather than through a court.
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Virtual Workshop (in English) on October 6, 2026: Sandrine Brachotte and María Julia Ochoa Jiménez on “Conflicts of Worldviews and Private International Law”
On Tuesday, October 6 2026, the Hamburg Max Planck Institute will host its monthly virtual workshop Current Research in Private International Law at 11:00 a.m. – 12:30 p.m. (CEST).
Sandrine Brachotte (University of Antwerp) and María Julia Ochoa Jiménez (Comillas Pontifical University) will speak, in English, about the book
“Conflicts of Worldviews and Private International Law” (Hart Publishing, 2026).
This book brings together European private international law and decolonial thinking. It examines how European courts deal with conflicts between legal frameworks and postcolonised worldviews. Through three case studies—religious arbitration, Indigenous sacred land, and sexual minorities in the Global South—it shows that these conflicts are often overlooked. This results in the inadequate protection of the claims and identities of formerly colonised peoples. The book therefore proposes a more pluralist approach to jurisdiction, choice of court, and foreign law, giving greater weight to postcolonised worldviews. Prof. Ochoa Jiménez will comment on it, while focusing on private international law.
The presentation will be followed by open discussion. All are welcome. More information and sign-up here.
If you want to be invited to these events in the future, please write to veranstaltungen@mpipriv.de.
Out now: Brachotte on ‘Conflicts of Worldviews and Private International Law’
The publisher’s blurb is as follows. Readers of the blog may use the discount code indicated below to get 20% off.
Conflicts of Worldviews and Private International Law
Sandrine Brachotte
This book develops a decolonial theory of European private international law. To do so, it begins with Western court cases involving what the author terms a ‘conflict of worldviews’: a clash between the legal frameworks governing the dispute and the worldviews of the formerly colonised parties involved, referred to here as ‘postcolonised worldviews’.
Praxis des Internationalen Privat- und Verfahrensrechts (IPRax) 5/2026: Abstracts
The latest issue of the „Praxis des Internationalen Privat- und Verfahrensrechts“ (IPRax) features the following articles: