Case Update: Choice of Law for the division of marital property
The case of Mbatha v. Cutting reads like a law school version of Cliff's Notes, summarizing the potential choice of law options for the equitable distribution of Mr. Mbatha and Ms. Cutting's marital assets in a Georgia divorce proceeding.
The couple met while Ms. Cutting was on a trip to South Africa, where Mr. Mbatha resides. They married quite quickly in New York, where Ms. Cutting lived and worked, and, while on their honeymoon in Europe, things began to sour and they ultimately separated shortly thereafter. Ms. Cutting, while pregnant with their child, left South Africa and moved to her parents' house in Georgia. A divorce action was initiated. The key focus of the Court of Appeals matter related to which law applies when defining marital assets and deciding how to divide them between the spouses.
During the parties' trial, the Wife argued South African law should apply to the property division (as the parties' only marital domicile and because Georgia has no real interest in the marriage or asset division). The Husband argued that Georgia law should apply (as the law of the forum and because its interest was greater than that of South Africa). The trial court concluded that South African law would apply because they "contracted" their marriage in New York, and New York's conflict of laws approach says the law of the "center of gravity" would apply, i.e., South Africa. (Center of gravity equating to the most significant connection - met in South Africa, lived there, negotiated the terms of their marriage there, performed the marriage contract there).
The Georgia Court of Appeals found that Georgia courts have not clarified its choice of law for property division. It reviewed 3 other approaches adopted by other states.
1. The law of the jurisdiction where the property is located; for personal property, it is determined under the law of the owner's domicile at the time the property was acquired.
2. The law of the most significant relationship; for real property, the law of the situs of the property, which is usually the local law. (Restatement 2nd)
3. The law of the forum.
The Court of Appeals concluded that the trial court was wrong to apply NY's law simply because the marriage was contracted there. Georgia should apply its own conflict of law analysis. Therefore, Georgia should apply the first approach. But, because the trial court never actually identified the marital property at issue, the Court of Appeals remanded for the trial court to determine the property and apply the correct law.