Last week, an American woman in Saudi Arabia lost a custody battle for her daughter, even though she was able to prove her now ex-husband’s drug and verbal abuse. Bethany Vierra, according to the Saudi court, had no witnesses to back her up.
Her husband convinced the judge that she was an unfit mother because she wore fitness wear, which is forbidden in his country. And because Vierra operates her yoga studio (in Riyadh), she wouldn’t have time to devote to their child.
“It’s videos versus male witnesses,” Vierra told the Times. “They wouldn’t, in some cases, even look at the evidence that I had. It was just disregarded because he ‘swore to God’. It’s all been infuriating.”
Last year, Vierra’s case first gained attention when it was reported her ex-husband had used Saudi Arabia’s guardianship laws to trap her in the country. He allowed her residency permit to expire, which froze her out of her bank account and left her unable to leave.
The guardianship system might seem outrageous, but South Africa’s antiquated patriarchal laws presume a woman’s home is automatically with her husband’s. When they get married, she is bound by the laws of his permanent domicile - the country he treats as his home.
Practically, this means if a South African woman marries a foreigner and the marriage is dissolved for whatever reason, she is bound by his country’s marital regime.
Whose laws apply?
Marteen Michau, the head of fiduciary and tax at Sanlam Private Wealth, says many people don’t realise that getting married in a foreign jurisdiction could have unintended legal consequences.
“When a couple decides to jet off to an exotic location to take their vows, the most important thing to consider is which country’s laws will apply to the marriage.
“Say a South African couple decides to tie the knot in Mauritius, for example, the parties will be married in accordance with the laws of South Africa” - if the husband lives in South Africa.
Michau says the crucial consideration is parties must enter into an antenuptial contract before leaving the country. If they don’t, by default they’ll be married in community of property. And if they later wish to amend this, they’ll have to apply to the courts, which costs in excess of R30 000.
She says even if a woman marries a man domiciled in the UK in South Africa, without entering into an antenuptial contract, she may be in for a rude surprise.
“She might believe she’s getting married in community of property, but the applicable marital regime will be determined by English law, which is normally in these circumstances out of community of property.”
South Africa’s law governing marriage is antiquated and needs challenging, says Michelle Dommisse, a conveyancing attorney.
“The law governing marriage is governed by the domicile of the male spouse. I await the challenge when you have two men with different domiciles getting married. Or, when two female spouses challenge it. The laws governing civil unions are the same governing marriage.
“Domicile is a slippery concept but in layman’s terms, it’s where you live. And so if somebody gets married in South Africa, but they’re domiciled in America, American laws will apply. A lot of people think that if they get married abroad, that country’s laws will apply.”
The default here is in community of property, meaning all the assets and debts from before the marriage are shared in a joint estate between the spouses.
“And any assets, debts and liabilities acquired by either spouse after their marriage will then also be added to the joint estate, which is risky because it holds them jointly and severally liable.
“They also have to consent or co-sign whenever one party wants to sell an asset or open a bank account. It’s a very cumbersome and risky way of being married.”
Dommisse says in countries like the UK, couples are automatically married out of community of property with accrual, because that is the fairest method.
“Most people don’t have an ANC because there’s a stigma around it. But it’s just good financial planning. You’re protecting each other from the risks of joint and several liability and enabling your partner to continue operating independently.
“It’s a deferred gain, only kicking in at the end of your marriage, but marriage doesn’t only end in divorce. It also ends in death and incapacity.”
Antenuptual contracts also take preference in a will, she says, so if you leave everything to the SPCA and have a contract with accrual, your spouse will get their accrual portion first. The rest goes in accordance with the will.
* Georgina Crouth is a consumer watchdog with serious bite. Write to her at [email protected], tweet her @georginacrouth and follow her on Facebook.