with each and every aspect raised. It is not necessary to agree with each view expressed in the reasoning process leading up to the learned statement judge’s in the so-called throwaway line. His view is in any event in agreement with the following statement in of par 441: LAWSA, ‘Conflict Laws’, Vol 2, First re-issue, the absence of an antenuptial contract expressing a contrary intention, the ‘In proprietary consequences of a foreign marriage must be determined in accordance with the lex domicilii matrimonii, that is the domiciliary law of the husband at the time of the marriage.’ [26] Mr Heathcote further submitted that regard should only be had to the antenuptial contract and that the parties have clearly turned their backs on section 7(3) of the SA Divorce Act and in effect a said, ‘We don’t want that’, choice which any court seized with the matter should respect. However, I agree with Mr Vos that the parties did not reject section 7(3). At the time section 7(3) did not even exist. They also did not reject something similar to or resembling section 7(3) or its import. The only election they made was to state that should any legislation by the Government of the Republic of South Africa come into force by which the so-called shall become applicable to the estates of ‘accrual system’ the parties, then such system cannot be enforced by the parties against one another. The accrual system is not synonymous with the relief provided for by section 7(3). [27] Having regard to the contract it is clear that the parties did not expressly elect the law of any country to govern their property rights. I do not agree with Mr Vos that, by stating what part of South African law should not apply, they selected South African law. However, I do agree that they accepted that they were subject to the laws of South Africa and therefore specifically formulated the exclusion to be effective inter se in anticipation of future legislative changes which they expected would apply to them. [28] In conclusion, my view is that for the reasons set out above, the first ground for the first exception raised is not good and is dismissed. The second ground of the exception against claim 1
with each and every aspect raised. It is not necessary to agree with each view expressed in the reasoning process leading up to the learned judge’s statement in the so-called throwaway line. His view is in any event in agreement with the following statement in LAWSA, ‘Conflict of Laws’, Vol 2, First re-issue, par 441: ‘In the absence of an antenuptial contract expressing a contrary intention, the proprietary consequences of a foreign marriage must be determined in accordance with the lex domicilii matrimonii, that is the domiciliary law of the husband at the time of the marriage.’ [26] Mr Heathcote further submitted that regard should only be had to the antenuptial contract and that the parties have clearly turned their backs on section 7(3) of the SA Divorce Act and in effect said, ‘We don’t want that’, a choice which any court seized with the matter should respect. However, I agree with Mr Vos that the parties did not reject section 7(3). At the time section 7(3) did not even exist. They also did not reject something similar to or resembling section 7(3) or its import. The only election they made was to state that should any legislation by the Government of the Republic of South Africa come into force by which the so-called ‘accrual system’ shall become applicable to the estates of the parties, then such system cannot be enforced by the parties against one another. The accrual system is not synonymous with the relief provided for by section 7(3). [27] Having regard to the contract it is clear that the parties did not expressly elect the law of any country to govern their property rights. I do not agree with Mr Vos that, by stating what part of South African law should not apply, they selected South African law. However, I do agree that they accepted that they were subject to the laws of South Africa and therefore specifically formulated the exclusion to be effective inter se in anticipation of future legislative changes which they expected would apply to them. [28] In conclusion, my view is that for the reasons set out above, the first ground for the first exception raised is not good and is dismissed. The second ground of the exception against claim 1