lOMoARcPSD|8436517

PVL2601

Family Law

Summarized
Notes
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• Family Law Notes

• Chapter 1 - General and Introductory......................................................................2
• Chapter 3 - The Engagement................................................................................... 7
• Chapter 4 - Legal Requirements for Civil Marriages and Civil Unions ..........12
• Chapter 5 - The Personal Consequences of Marriage.......................................19
• Chapter 6 - An Overview Over Matrimonial Property Dispensations............... 22
• Chapter 7 - Marriage in Community of Property..................................................25
• Chapter 8 - Management of the Joint Estate....................................................... 28
• Chapter 9 - Marriage Out of Community of Property.......................................... 31
• Chapter 10 - Dissolution of Marriage.....................................................................36
• Chapter 2 - The Parent-Child Relationship.......................................................... 39

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• Chapter 1 - General and Introductory

• Family Law
- That subdivision of material law
- Which describes and regulates the origin, contents, and dissolution
- Of all legal relationships between:
- i) spouses in civil marriages, customary marriages, and civil unions
- ii) spouses in purely religious marriages that are not fully recognised by SA law
- iii) life partners
- iv) parents, guardians (and other holders of PRR) and children
- v) relatives related through blood and affinity
Material Law:
- Content of various legal rules
• Private law that apply in the legal system
- That subdivision of (state) positive law
- Containing all the legal rules and norms
- Which regulate the (conflicting) interests of legal subjects
- Through the granting and/or limitation and/or termination of rights, duties, and obligations

• Family law
- Constitutes a unique component of private law
- But not totally independent
- Often necessary to refer to other branches of the law in order to give effects to the
principles of family

• Sources of family law

• Statutory Law
- Legislation promulgated by the legislative arm of Gov. such as
- Acts of Parliament
- Provincial Acts
- Municipal by-laws Stare decisis
Hierarchy of Courts
• Case Law
- May also be referred to as ‘judicial precedent’
- Category of law created by the judicial arm of Gov.

• Common Law
- Body of law derived chiefly from Roman-Dutch law
- Referred to when there is no legislation or case law governing a particular matter
- May be necessary to develop common law to meet the needs of a changing society

• The Constitution of the Republic of South Africa, 1996

- Especially the Bill of Rights • Treaties
• Conventions
• International Law • Charters
- Contained in international instruments

• Importance of marriage and family in South African society

• Abstract from Volks NO v Robinson
- ‘Marriage and family are important social institutions in our society. Marriage has a central and
special place, and forms one of the important bases for family life in our society’

• Extract quoted from Dawood and Another v Minister of Home Affairs and Others by Volks

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- Marriage is of intense private significance to the parties, where they promise to establish and
maintain an intimate relationship where they are obliged to support one another, live together,
and be faithful to one another
- Entering into a marriage is of public significance as well

• Skelton and Carnelly pointed out

- Family unit was traditionally based on marriage and society has given marriage a central
position in the law where it receives special protections
- The viewpoint where a family is regarded as a nuclear family consisting of a mother, father,
and their biological children is outdated
- The law now makes provisions for and recognises a number of different types of families

• Development of family law in South Africa

• Developments in SA prior to 27 April 1994
- Historically, SA family law displayed a chauvinistic and ethnocentric attitude in terms of which
the RD common law marriage was regarded as superior to other forms of marriage

• Timeline
- 1580
- Political Ordinance of 1580 - still forms an important basis for the contemporary South
African law of marriage
- 1685 -
- Marriages between whites and blacks prohibited
- Adultery prohibited and punished severely
- 1804 -
- Commissioner De Mist allows for the secular conclusion of a marriage solemnised by
magistrates and heemraden
- 1806
- Sir David Baird proclaimed that civil marriages were prohibited and that all marriages had
to be solemnised by clergymen
- 1875
- Antenuptial Contracts Law Amendment Act required ANC contracts to be registered in
order to be enforceable against the creditors of either the husband or wife
- 1935
- Minimum age for the conclusion of marriage with parental permission set at 18 for boys,
and 16 for girls
- Two further grounds for divorce recognised (incurable insanity for a period of seven
years, and imprisonment for five years after declaration of habitual criminality)
- 1953
- Matrimonial Affairs Act curtailed marital power of the husband in some respects
- It brought important alterations in regards to the formalities of marriage and prohibited
degrees of affinity
- 1970
- Marriage Law Amendment Act abolished requirement that banns had to be published
- Act also lowered the statutory age for girls to marry to 15 years
- 1979
- Divorce Act repealed the common law grounds for divorce (adultery and malicious
desertion)
- In this Act, fault was replaced by ‘irretrievable breakdown of the marriage’ as the main
ground for divorce
- Judicial separation and the action for restitution of conjugal rights were also abolished
- 1984
- Matrimonial Property Act abolished the marital power with regard to all marriages
concluded after 1 November 1984
- This Act introduced the accrual system
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- S 36 remedied the potential disadvantages of economic inequality in marriages out of

COP by inserting S 7(3)-(6) of the Divorce Act
- 1993
- General Law Fourth Amendment Act abolished marital power in all marriages with
retroactive effect

• Constitution
- A written document from which a government derives its powers. It also limits the powers of a
government
- A Constitution contains the most important rules of law with regard to a country’s constitutional
system
- Is the supreme law (lex fundamentalis)

• Bill of Rights
- Consists of provisions in a Constitution that guarantee fundamental rights and regulate the
granting (and limitation) of rights and freedoms of legal subjects
- There
S 2 of the
- State may not pass laws inconsistent with the Bill of Rights
Constitution
- The courts must interpret the law in line with the Constitution
- Where necessary, courts must declare law inconsistent with the Bill of
Rights to be invalid

• In terms of section 8 of the Constitution

- The Bill of Rights enshrined in the Constitution applies to all law and also binds the State

• Section 8 (3) of the Constitution

- Determines that when a court applies a right to a natural or juristic person, it:
- Must apply, or if necessary, develop the common law to the extent that legislation does
not give effect to that right
- May develop rules of the common law in order to limit the right, provided that the
limitation is in accordance with the imitation clause (S 36(1))

• Section 39 of the Constitution

- Obliges a court to promote the values that underlie a democratic society based on human
dignity, equality, and freedom when it interprets the Bill of Rights
- When it develops the common law or interprets legislation, it must promote the spirit; purport
and objects of the Bill

• Section 172(1) of the Constitution (when a court decides a constitutional matter):

- Requires that it must declare any law or conduct that is inconsistent with the Constitution to
be invalid to the extent of the inconsistency
- However, if a court finds an Act of Parliament to be unconstitutional, said finding has no effect
until it has been confirmed by the CC. Principle does not apply to a rule of the common law

• Marriage and marriage like relationships, post Constitution

• Fourie v Minister of Home Affairs
- JA Cameron stated
- Constitution expressly enshrines equality on the ground of sexual orientation
- Homosexuals are a permanent minority, who according to the Constitution, cannot be
discriminated against
- Court found that the definition of marriage in section 30(1) of the Marriage Act was
unconstitutional
- It was decided to suspend the finding for one year, to allow Parliament to pass legislation
that would allow same-sex couples to marry

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• Civil marriage
- A voluntary union
- Entered into by one man and one woman
- Who have the necessary legal capacity and are competent to marry (and marry one another)
- Which union is legally recognised and has been concluded in terms of the Marriage Act 25 of
1961
Civil Marriage vs Civil Union:
• Civil Union Age
- Voluntary union Who can marry
- Of two persons
- Who are both 18 years of age or older
- Which is solemnised and registered by way either a marriage or a civil partnership
- In accordance with the procedures prescribed in the Civil Union Act 17 of 2006,
to the exclusion, while it lasts, of all others
1. Persons
• Civil unions who wish to formalise
- Both same-sex and opposite-sex couples can conclude a civil union their relationship
2. Enables legal
protection
Civil union
Is not a civil
marriage
Marriage Civil partnership

Section 13 of the Civil Union Act

Legal consequences of a civil marriage also apply to a
civil union
Both civil partnership and marriage

• Customary Marriage
- According to the Recognition of Customary Marriages Act 120 of 1998
- A customary marriage is a marriage that is concluded in accordance with customary law
- Customary law is the customs and usages traditionally observed by the indigenous African
peoples of South Africa and which form part of the culture of those peoples
- Customary marriages allow for polygynous marriages

• Purely religious marriages

- Marriage concluded according to the tenets and prescriptions of a particular religion
- Without also having been solemnised according to SA marriage legislation

• Notes regarding Muslim and Hindu marriages

- Both permit polygynous marriages (major reason they are considered void by SA law)
- Possible to conclude a religious marriage and a marriage according to legislation
- Marriages concluded according to religion only, are void
- SA courts and legislature are prepared to recognise them as valid marriages for certain limited
purposes

• Life partnerships (also domestic partnerships or cohabitation)

- Occur when two persons live together in a permanent, intimate relationship similar to
marriage, without:
- Having validly married one another in terms of the Marriage Act, the Recognition of
Customary Marriages Act, or the Civil Union Act
- Having entered into a civil partnership in terms of the Civil Union Act
- Having entered into a purely religious marriage

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• In SA law, life partnerships:

- Are not formally recognised and regulated
- No automatic legal consequences attached
- To secure recognition of partnerships, life partners have to regulate their respective rights and
obligations by express contractual undertakings
- In certain legislation, the distinction between marriage and life partnerships is removed (e.g.
Domestic Violence Act)
- Certain consequences of marriage have been extended on an ad hoc basis to partnerships

Marriage/Civil partnerships vs Life partnerships

Marriage/Civl partnership Life partnerships

Entering a similar relationship during Not allowed Allowed

the subsistence of their relationship

How to terminate Court order or by death Relationship can be terminated by

one/both of the partners without any
court order being obtained

Invariable consequences Attach to spouses in a valid marriage/ No such consequences attach to life
civil partnership partnerships

• Difference between marriages and life partnerships concerning invariable consequences of

marriage
- An invariable consequence of marriage is the reciprocal duty of support which arises ex lege
- There is no ex lege obligation in life partnerships
- However, life partners may enter into a contractual agreement concerning maintenance

• Intestate succession regarding marriage and life partnerships

- Intestate Succession Act 81 of 1987 allows for a surviving spouse to inherit from the
deceased’s estate
- No such provision for life partnerships
- However, CC found this to be unconstitutional
- Now same-sex life partners may inherit on intestacy
- Provided they prove that during their relationship they had contractually undertaken to
support one another

• When two people marry one another (or enter civil partnership)
- Law makes extensive provision for the regulation of their financial positions
- No similar automatic provision for life partners (they must regulate it themselves)

• PRR of children
- Both parents who are married automatically acquire full PRR over their children
- A child born of life partners is regarded as being born of unmarried parents
- Only the biological mother automatically has full PRR
- The biological father can acquire PRR if he complies with S 21(1) of the Children’s Act
- However, all biological fathers must contribute maintenance irregardless of their PRR
- If a child is born from artificial fertilisation, in the case of married spouses, both spouses are
deemed to be parents of that child (if consent was given)
- However, in a life partnership, the other life partner is not deemed to be the parent of that
child

• Similarities between marriages/civil partnerships and life partnerships

- Both may adopt children jointly and exercise guardianship over children adopted
- Both can institute a dependant’s action:
- Where the spouse/partner to someone killed by a third party in a wrongful and culpable
manner claims damages from said third party for a loss of support
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- Some statutes place spouses and life partners on equal footing

• Marriage of persons who have undergone a sex-change operation

- Previous position before Alteration of Sex Description and Sex Status Act 49 of 2003:
- Purpose of sex-change operation - relieve the patient’s symptoms, not change their sex
- Post Alteration of Sex Description and Sex Status Act 49 of 2003:
- The law will regard the person, who applies for an alteration of their sex, as being a
member of the sex they changed to

• SA marriage - a religious institution?

- Marriage law developed from the tenets of the Christian faith
- However, it is not linked to a specific religious dogma in modern SA law
- From a legal point of view, civil marriage in SA is a secular institution

• Chapter 3 - The Engagement

1. Agreement may be contracted
• Engagement orally, or in writing
- An agreement between two persons (regardless of their sex) 2. Announcement in a newspaper, or
- To marry each other, or to conclude a civil partnership an engagement ring merely serves as
- At some determined date, or within a reasonable time proof that consensus has been
reached between the parties
• Legal nature of the engagement contract
- Contract sui generis (of its own unique nature)
- Law of contact applied to determine legal requirements of this contract
- Engagement is based on a reciprocal undertaking by the parties to enter into a marriage
together on the date decided (though this date may be changed my mutual agreement)
- Is a contract uberrimae fides (a contract of the utmost good faith)

• Breach of promise
- If one party refuses to marry on the decided date, and the other party is not satisfied, the
conduct of the first party may constitute a breach of promise
- Refusal to set a marriage date also constitutes as a breach of promise

• Requirements for concluding an engagement

• Concerning engagement
- Both parties must be competent to marry each other
- Any conditions agreed to by the parties for the engagement must be fulfilled, provided they
are lawful
- The parties must not be prohibited by degrees of affinity

• The parties must be unmarried

- Void
- If an engagement/marriage is void on the ground that it contravenes a statutory
prohibition or that it is contra bonos mores
- Cannot be ratified and no legal consequences created
- Voidable
- Such engagement/marriage is valid for all purposes unless a decree of nullity is obtained
- In this case, a party can stand by the engagement/marriage or claim rescission
- Pending such election, the engagement/marriage is valid and enforceable

• If a married person makes a promise to marry a person provided that s/he first secures a
divorce, such promise is void
- If gifts are agreed to be given to secure a divorce, the court must consider public interest and
make a decision based on that particular case

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• If a married person promises to marry a person, with said person being unaware of the person’s
current marriage:
- The innocent party can institute a delictual claim of satisfaction in terms of the actio
iniuariarium because his/her fama (reputation) or dignitas (dignity) has been infringed

• Consensus
- Parties must have reached consensus
- Consensus based on two corresponding declarations of intent which are aimed at concluding
the engagement contract (an offer and acceptance of the offer)
- Engagement can be entered into expressly or tacitly (even deduced from the parties’ conduct)
- Elements of consensus
- The parties must correspond with the nature of the transaction
- The identity of the parties involved
- The content of the contract Consensus:
General consent
• Mistake (error)
- Occurs when an element of consensus is not met
- The contract becomes void ab intitio
- Error in persona
- When A thinks he concluded a contract with B, but in reality it was with C
- Error in negotio
- B thought A was joking and agreed, or B thought they were concluding a civil marriage,
but A thought the agreement was in terms of a Hindu religion marriage
- Error qualitatis
Material mistake
- Situation where party errs with regard to the personal qualities of the and thus void
other party (e.g. sterility, physical/psychological deficiencies)
- Sometimes seen as material (void) and sometimes seen as
Material - relates to the
misrepresentation (voidable)
identity of the other
- Determined on an ad hoc basis
contracting party or to the
nature/content of their
• Misrepresentation juristic act
- Occurs when a person creates a wrong impression
- With regard to certain aspects in the mind of another
- With the aim of inducing him/her to conclude a contract (and does indeed convince him/her)
- Which such party would not have concluded had the misrepresentation not occurred

• Misrepresentation can be:

- Negatively refraining from correcting an existing wrong impression (even when it is known the
person has a wrong impression)
- Omission to disclose particular facts in situations where there is an obligation to speak

• Iusta causa
- A fact or occurrence
- Which comes after the engagement has been entered into
- Which jeopardises the prospects of a successful and harmonious marriage
- Due to the fact that it is of such a nature that it might cause an ordinary decent and prudent
person to break off the engagement

• If misrepresentation is material
- The contract will be voidable and may be repudiated by the innocent party

• Schnaar v Jansen held

- A person finding out his fiancee’s family had a shady past, did not prove an iusta causa

• Van Jaarsveld v Bridges held

- No reason why a just cause could not include the lack of desire to marry the particular person
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• Two situations may arise where a iusta causa for the repudiation of engagement
- 1. Where the conduct of a party jeopardises the prospects of a normal marriage
- 2. Where a party cannot be blamed for the termination of the agreement (e.g. major illness)

• Metus (duress)
- Where a person
- By making unlawful threats Important in regards to
- Forces another to agree to an engagement claims for damages and
- Consensus has been reached satisfaction
- However, the innocent party may apply to have it set aside and may
withdraw from the relationship

• Undue influence
- Where one person secures an influence over another Voidable
- That weakens the ability of the other party to resist
- And s/he then abuses this influence in an unconscionable way
- So as to persuade the other party to agree to a detrimental transaction
- Which would not have been concluded had s/he has the normal freedom of contract

• Capacity to act
- Parties must have the necessary capacity to act

• Termination of the engagement

• Lawful termination
- No claim for damages or satisfaction exists
Guggenheim v Rosenbaum 1961
- Examples: M NO v M 1991
- Conclusion of the marriage Van Jaarsveld v Bridges 2010
- Death of either of the parties
- Mutual agreement to terminate
- Withdrawal of parental consent
- Unilateral lawful repudiation of the contract where a iusta causa exists

• Wrongful termination
- In this situation there has been a breach of promise
- Wrongful conduct by one the parties permits the innocent party to withdraw from the
engagement
- Such conduct is constituted by wrongful actions of such a serious nature it cannot
reasonably be expected the other party must proceed with the conclusion of the marriage

• Consequences of the wrongful termination of the engagement

• Damages Already suffered;
- An amount of compensation
Or to be suffered in the future
- Awarded for patrimonial loss
- Due to such wrongful termination

• Satisfaction
- Form of non-patrimonial loss Impossible to
- Awarded as a solace for wounded feelings, mental pain, or suffering enforcement specific
performance where
- Harmful impairment of the legally protected personality rights of a person
there has been a breach
- Which does not affect his/her economic position of promise, i.e. cannot
force the person to
• Two types of damages that are permitted by law to be claimed: conclude the marriage

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• Actual losses
- Where the aggrieved party incurred expenses with a view to the marriage
- In order to be recoverable, such losses must ‘have been within the contemplation of the
parties’

• Prospective losses
- Prospective loss of the patrimonial advantages of the intended marriage
- Aggrieved party sues for damages on the basis of future losses that are expected to be
incurred as a result of the breach of promise
- The court has a discretion regarding the quantum of the claim.
- Considers: the likely duration of the marriage, age of the aggrieved party, their chances of
marrying someone else

• Important to note
- A person cannot escape the consequences of a breach of promise by later declaring s/he is
prepared to enter into a marriage with the plaintiff
- An action for breach of promise prescribes within three years

• Sepheri v Scanlan Davis J intimated:

- Claims for breach of promise to marry may come under reconsideration
- Actions based on breach of promise may have to be abolished to curtail ‘gold-digging’
- The law should not countenance rights of action, the threat of which may induce people to
enter unwillingly into marriages

• Satisfaction for infringement of personality rights

• Claimed with the actio iniuriarum in terms of the law of delict
- Where the plaintiff’s dignity or reputation has been infringed One element of
- S/he can claim satisfaction as solatium (monetary consolation) from the iniuria is animus
defendant iniuriandi

• Claim will only succeed if it can be proven an iniuria has been committed
- Past: if the person’s conduct infringed the personality rights
- Modern: the manner in which the engagement was terminated was, objectively speaking,
offensive or insulting

• Amount calculated according to the court’s discretion, which accounts for, inter alia:
- The manner in which breach of promise occurred
- Social status of the parties
- Their previous experience
E.g. Engagement
Ring
• Return of engagement gifts
• Arrhae sponsalitiae
- Gifts that reflect the serious intention of the donor to enter into the marriage
- Intention that they will be forfeited should the donor commit breach of promise
- Need only be returned if the engagement is terminated without any fault on the donor’s part

• Gifts made in anticipation of the marriage

- Intention accompanying these gifts is the lasting benefit during marriage that the receiver will
gain from them
- Presumption that this includes all valuable gifts of a permanent nature given during the
existence of an engagement

• Small gifts as tokens of affection House, car,

- Small, and consumable gifts jewellery
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Same applies if
engagement terminated for a
reason not imputable to the fault
• If engagement terminated by mutual consent of one of the parties
- All gifts must be returned
- Except gifts that are consumed, alienated, or lost
- Or small gifts as tokens of affection

• If engagement wrongfully terminated

- Innocent party may recover all gifts
- Except gifts of negligible value
- Or that have been consumed, alienated, or lost
- The innocent party may also retain all gifts given to him/her, setting off their value against his/
her damages
- Also applies to gifts made in anticipation even though such gift is made on the implied
condition that marriage will follow

• If the engagement is terminated through death

- Return of the gift dependent on:
- Nature of the gift
- Intention with which it was given
- General rule that gifts made in anticipation of the marriage must be returned

• Botes v Afrikaanse Lewensverskeringsmaaatskappy

- Man taken out life insurance policy in favour of his fiancee. He died afterwards
- Court held that there could no question of recovery from his estate because there was no
donation, but rather a contract for the benefit of third party which become irrevocable once the
fiancee had accepted it

• Damages and satisfaction for seduction

• The institution of this action does not depend on the existence of an engagement
• Seduction
- Extra-marital sexual intercourse with a virgin with her consent
Rebuttable
• In order to claim for seduction presumption in our
- Woman must be able to prove she had been a virgin prior the seduction
law that an unmarried
- And that she has been enticed by the man to consent to sexual intercourse woman is a virgin

• If a woman avers that she had been a virgin before seduction

- Onus of proof shifts to the defendant to prove she wasn’t
Claassen v Van der Watt
• Action on the basis of seduction includes two claims
- 1. Claim for satisfaction because of defloration
- Basis of this claim is that the seduction negatively influences the woman’s prospects to
conclude a good marriage
- 2. If the woman became pregnant as a result of seduction
- She can claim damages (liability for the expenses concerning maintenance of the child)
- Calculation of quantum falls in the court’s discretion (takes into account social status of party)

• Joubert opines that not only a virgin may institute this action
• Heaton and Kruger opine
- Because the action of seduction can only be instituted by woman, it constitutes inequality and
thus unconstitutionality
- It also discriminates against woman because it perpetuates sexual stereotypes and is
premised on the notion that woman have diminished responsibility for their actions
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Measures exist that

protect spouses’ loyalty to
each other, and their
marriage consortium
• Chapter 4 - Legal Requirements for Civil Marriages and Civil Unions

• Introduction
• Marriage is regulated and protected by the state and law
• A spouse may bequeath assets to another spouse on the condition that the spouse forfeit the
legacy if s/he should marry again

• Differences between a marriage and a contract

- Mere consent from the parties is not sufficient to create a marriage - legal requirements
must be adhered to
Only through
- Marriage cannot be terminated by consensus (agreement) between the parties death or state
- Contract entered into with the view of creating obligations. This is not the sole assistance
purpose of a marriage
- Obligations flowing from contracts are enforced differently. Specific performance
(regarding non-financial obligations) cannot be claimed in a marriage

• Legal requirements for entering into a valid civil marriage

• Parties must have the capacity to act
• Marriage in COP
- All assets and liabilities of the spouses are merged into a joint estate
- Both spouses, irrespective of the value of their financial contributions, are tied co-owners in
undivided and indivisible half shares

• Marriage out of COP

- Usually regulated by an antenuptial contract which excludes community of property and profit
and loss
- The capacity to act and property rights of the spouses remain unaffected
- They retain their separate estates and are not liable for each other’s debts High Court is
the upper
• Minors capacity to enter a civil marriage guardian of all
- S 17 of the Children’s Act provides that a child becomes a major at the age of 18 minors in its
- A minor requires the consent of his/her parent(s) and other legal guardian(s) jurisdiction
- A minor who has entered into a valid marriage attains majority

• RD Law states
- The marriageable age is 14 for boys and 12 for girls
Retains majority
- Still forms part of our law (persons below this age are absolutely even if marriage is
incompetent to marry) dissolved

• Consent of parents or other legal guardians

- Boys aged 14-18
- Girls aged 12-18
- Require consent from both parents (unless sole guardianship rests on only one parent/other
person)
- Consent must be given in writing (uncertain what occurs if consent not
in writing) Everyone
- Parental consent can be revoked, but such consent can be replaced by with guardianship
the High Court must consent
- Before making a decision, the person holding PRR must consider the
opinion of the minor, the minor’s age, maturity, and stage of development

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• The Minister of Home Affairs

- Practical effect os S 26 (Children’s Act) and S 17 is that:
- Boys aged 14-18 require the consent of the Minister of Home Affairs and of their parent(s) or
guardian(s) to marry
- Girls aged 12-15 require the consent of the Minister of Home Affairs and their parent(s) and
guardian(s) to marry
- Girls aged 15-18 only need the consent of their parent(s) or guardian(s) to marry
- Generally speaking, a marriage without consent of the Minister of Home Affairs is void
- However, Minster of Home Affairs may consent to the marriage with retrospective effect
- Three conditions for such ratification
- 1. The Minister must deem the marriage to be desirable and in the interests of the parties
- 2. The marriage must have in every other respect been solemnised in accordance with
the Marriage Act
- 3. No other lawful impediment to the marriage existed

• Presiding officer of the Children’s Court and the High Court Presiding officer
- May be approached for consent when either or both parent(s)/guardian(s) are:
cannot consent when
- Absent parent/guardian have
- Mentally ill refused consent
- Or incompetent to consent
- If parent/presiding officer has refused consent
- An application can be brought about in terms of S 25(4) (Marriage Act)
- Minor has the necessary capacity to litigate in this instance
- The High Court will grant the consent if:
- The refusal of consent is without adequate reason and contrary to the interests of
the minor
B v B 1983
• Marriage is voidable when:
- Marriage entered into where consent of the parent(s), legal guardian(s), or the presiding
officer of the Children’s Court was prescribed, but not obtained
- Can be made void by only the minor party
- An application may be made in this instance to set aside the marriage Court will only set it
- May be applied by the minor or the parent/guardian aside if it is deemed
to be in the minor’s
- Must be done before the minor attains majority and
best interests
- If the parent/guardian brings the application, it must be done within 6
weeks of the parent/guardian becoming aware of the marriage
- If the minor brings the application, it must done within 3 months of attaining majority

• If the marriage is set aside and dissolved (S 24, which has retrospective effect)
- The Judge may make any order it deems just when dividing the matrimonial property
- Factors taken into account when dividing:
- Contribution to the marriage
- Nature of the contributions
- Preferences of the parties and their parents/guardians
- The interests of both the minor and the other party

• If the marriage isn’t set aside

- Patrimonial consequences are the same as if the marriage was entered into by two majors

• Mental illness
- A mentally ill person cannot conclude a valid marriage (cannot reach consensus)
- The appointed curator cannot remedy this by consenting
- Can conclude a marriage during a lucidum intervallum

• The marriage must be lawful

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• Married status
- An already married person cannot conclude a further marriage until their existing marriage is
dissolved
- Unless the marriages in question are customary
Violation of monogamy
• Persons of the same sex requirement results in voidness and
- Only opposite-sex couples can conclude civil marriages may also constitute the common law
- Same-sex couples must marry in terms of the Civil Union crime of bigamy
Act

• Persons within the prohibited degrees of relationship

- These marriages are void

• Consanguinity (blood relationship)

- Blood relations or persons who have a common ancestor
- Direct line
- Person who are ascendants or descents of each other, e.g. mother and child
- May not marry each other at all
- Bilateral line
- Persons who have a common ancestor but who are not related in a direct line, e.g.
cousins
- Political Ordinance of 1580
- Brother and sister, and uncle and niece in collateral line are prohibited to marry (vice
versa)
- Cousins are not prohibited to marry
- Blood relations in collateral line are not competent to marry each other, if either of them
is related to a common ancestor in the first degree of descent

• Affinity (relationship by marriage)

- Relationships that come into existence between a person and blood relatives of his/her
spouse
- Direct line
- A husband is relative of his wife’s mother, daughter, and aunt, and vice versa
- Prohibited to marry
- Collateral line
Cannot
- Between a spouse and the blood relations of his/her spouse in the collateral line marry her actual
- Not prohibited to marry daughter
- Political Ordinance of 1580
- A stepbrother and stepsister may marry
- A divorced widow/widower may marry his wife’s step daughter since she is not
descendant of his wife
- A husband’s brother may marry his wife’s sister

• Relationship through adoption

- S 242 of the Children’s Act
- Prohibits adoptive parent from marrying his/her adopted child
- Further states an adopted child may not marry his own sister, but is competent to marry
his step sister

• The parties must have reached consensus Martens v Martens 1952

• Consensus
- General consent
- Knowing what is contained in an agreement, understanding it, and consenting to it
- Consensus must be declared in the presence of two witnesses and a marriage officer
- May be vitiated as a result of misrepresentation, undue influence, or duress
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Error in persona Error in negotio

Void Mistake regarding identity Mistake regarding nature of
of the other person the juristic act

• Mistake (error)
- Only material mistake excludes consensus
- Only error in persona and error in negotio will be form of material mistake pertains to marriage
- Whether error qualitiatis is material is determined on an ad hoc basis
- Mistake regarding non-material personal characteristics (e.g. financial position of the other
party) does not result in a lack of consensus

• Misrepresentation
- Say one thing is true, when it is actually false
- Made voidable to the innocent party, within a reasonable period after discovering the
misrepresentation
- Misrepresentation must be material
- The innocent party must be able to prove that s/he had been misled and would not have
entered into the marriage if s/he had been aware of the truth

• Duress
- Forcing someone to do something through intimidation, threats etc - Material lack in
consensus
• Undue influence - Marriage is voidable
- Using one’s influence to convince someone to perform an act that they
would not normally intend to do
- A person might use their position of power to influence the person
Rebuttable presumption in SA
• Compliance with the prescribed formalities that formalities pertaining to a
juristic act have been adhered to
• Marriage Act
- Prescribes certain formalities to observe to conclude a valid civil
marriage

• Marriage officers
- Only a competent marriage officer may solemnise a marriage
- In terms of S 2(1) and (2) as S 3 the following are marriage officers:
- Ex officio every magistrate, special justice of the peace, and Commissioner within the
area in respect of which they hold office
- Other officers/employees in the public service or the diplomatic or consular service of
RSA that the Minister of Home Affairs has designated as ex officio marriage officers
- Ministers of religion
- If the marriage officer is not competent to solemnise the marriage
- Marriage is void
- But the marriage may be ratified by the Minister of Home Affairs if there was genuine
belief by the parties that the marriage officer was competent

• Marriage procedure: prerequisites and procedure

- Marriage officer may not solemnise a marriage unless:
- Identity documents have been produced; or
- Each of the parties have produced the prescribed affidavit
- Any objections to the marriage must be in writing and lodged with the marriage officer
- Upon receipt of any objection, the grounds of the objection must inquired upon
- Marriage is solemnised If the marriage officer is satisfied there is no lawful impediment
- Consent for minors
- Must be furnished in writing to the marriage officer

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- If the marriage officer suspects one of the parties is a minor No obligation for the
(without consent), s/he may refuse to solemnise the marriage marriage officer to
solemnise between the
- When a marriage can be solemnised hours of 8:00-16:00
- Any time of any day of the week
- Where a marriage must solemnised
- In a church or any other building used for religious service
- In a public office or private dwelling with open doors and in the presence of the parties
themselves and at least two competent witnesses
- Permitted to use other places if the it is necessitated by ill-health of one of the parties
- Default formula for solemnising (parties must reply in the affirmative)
Ex Parte Dow 1987
- If any part of the formula is not strictly complied with due to (S 30 (3))
- An error, omission, or oversight committed in good faith by: the marriage
officer, or by the parties owing to the physical disability of one or both of the parties
- Marriage shall be valid and binding as if the provisions had been strictly complied with

‘Do you, A.B, declare that as far as you know there is Parties give each other the right hand and the Or any other formula observed
now lawful impediment to your proposed marriage with marriage officer declares the marriage by his/her religious
C.D. here present, and that you call all here present to solemnised in the following words: ‘I declare denomination, if such formula
witness that you take C.D. as your lawful wife (or that A.B. and C.D. here present have been has been approved by the
husband)?’ lawfully married’ Minister

• Registration of the marriage (S 29A)

- The marriage must be registered immediately after the solemnisation of the marriage
- This register must then be transferred to a regional or district representative who has
been designated at such under the Identification Act 72 of 1986
- Copy of entry in registry/marriage certificate serves as prima facie proof of marriage
- Marriage may still be proved invalid
- If two persons have partaken in a marriage ceremony and lived together as
husband and wife: Non-compliance
- Rebuttable presumption that the legal requirements for the valid marriage with registration
requirements does
have been complied with
not affect validity of
marriage
• Non-compliance with the requirements for a valid civil marriage
• Annulment vs Divorce
- Annulment
- Voidable grounds must have already existed before or at the time of marriage
- Cannot make an order for maintenance of a spouse
- Divorce
- Grounds for irretrievable breakdown developed after conclusion of the marriage
- Can make order for maintenance of a spouse

• Void marriages Ngubane v Ngubane 1983

- Legally no marriage comes into existence
- Legal status of parties is as if there was no marriage
- Not necessary to obtain an order for termination (can be done for the sake of legal certainty)
- Formal requirements that if not complied with render marriage void:
- No ID or affidavit
- No witnesses But can
- No competent marriage officer ratify
- Boys under 18 and girls under 15 with no consent from Minister of Home Affairs
- Material requirements

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- One party already in a civil marriage/customary marriage/civil union

- Parties are of the same gender (civil marriage)
- One/both parties have not reach the age of puberty
- Parties have not reached consensus due to material mistake
- One/both parties mentally ill at time of conclusion of the marriage

• Voidable marriages
- May be set aside on the basis of certain deficiencies that were already present at the
conclusion of the marriage
- Must bring application within a reasonable time
- Material misrepresentation or duress
- Absence of parental consent/consent of guardian/Children’s Court
- Impotence, sterility, stuprum
- Effect of a decree of annulment is retroactive (as if it never existed). Two exceptions exist:
- Section 39(1) of the Children’s Act provides that the status of a child conceived/born of a
voidable marriage is not affect by the annulment of the marriage
- Transactions that married parties entered into with third parties before the annulment
remain valid
- Effects of a decree of annulment
- Benefits bestowed must be returned
- Property transferred - restitutio in integrum must take place

• Impotence
- Spouse’s incapacity to have sexual intercourse
- Joshua v Joshua: marriage has a biological foundation and sexual intercourse serves to
guarantee the unity of marriage
- However, does not apply if it was reasonably foreseen (due to age, state of health, etc)

• Sterility
- Inability to have children is not of such serious nature that it should render the marriage
voidable, unless it was fraudulently concealed

• Stuprum (bride is pregnant with child of another man at conclusion of the marriage)
- Marriage is voidable if the husband unaware of this fact at the conclusion

• Putative marriages
- Where one/both parties bona fides but mistakenly believe the marriage to be a valid marriage
- Is void
- Common law requirements
- One/both parties bona fide unaware of the defect that rendered their marriage void
- All formalities must have been complied with at the solemnisation of the marriage
- Moola v Aulsebrook NO: Must be some formal and solemn ceremony (not a clandestine
union)

• Children born of a putative marriage

- Children are regarded as having been born from married parents
- Court asks for a declaratory order (that the children are born of married parents) at the same
time as a declaratory order for annulment
- Means both parents have full PRR

• Patrimonial consequences of a putative marriage

- Both parties were bona fide and no ANC:
- Marriage in COP
- One party was bona fide
- Marriage in COP to benefit of innocent party
- If entered into ANC in terms of which COP was excluded
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- No COP if this is to the benefit of the innocent spouse

- Innocent party may enforce any benefits due in terms of ANC and the mala fide party
must return any such benefits

• Legal requirements for entering a valid civil union

• Capacity to act Civil Union
- Voluntary union
No provisions - Of two persons
• Age for minors
- Must be 18 - Who are both 18 years of age or older
- Which is solemnised and registered by way
• Mental capacity either a marriage or a civil partnership
- Rules of Civil Marriage apply - In accordance with the procedures prescribed
in the Civil Union Act 17 of 2006, to the
exclusion, while it lasts, of all others
• Lawfulness
• Monogamy
- Must be monogamous
- A person in a marriage in the Civil Union Act cannot conclude a Civil or Customary Marriage
(and vice versa)

• Sex of parties E.g. no

- Same-sex or opposite sex prohibited degrees of
relationship

• Other legal impediments

- S 8(6)
- The prospective parties must, apart from being of the same sex, be eligible for a
Customary or Civil marriage

• Consensus
- Rules of civil marriage apply

• Marriage officers
- All persons who are ex officio marriage officers
- Persons who have been designated as such in terms of S 2 of the Marriage Act
- Persons who are ministers of religion, etc
- Must specifically apply to be designated as marriage officer
- Any marriage officer who objects to the marriage on the grounds of conscience, religion, and
belief to solemnising a civil union between a same-sex couple are not compelled to do so

• Ceremony: Perquisites and Procedure

• Previously married persons
- Must present a certified copy of divorce or death certificate of former spouse
- The marriage officer may not proceed otherwise Same as Civil Marriage:
ID documents/Prescribed
affidavits needed
• When and where
- Any time of any day of the week
- But marriage officer not obliged unless between 8:00-16:00 Due to
- Must be solemnised in: ill health, the solemnisation
- Public office can take place in other
- Private dwelling-house places
- The premises used for such purpose by the marriage officers
- Location must have open doors
- In the presence of the parties themselves and at least two competent witnesses

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• Procedure
- Marriage officer must ask of the parties if they wish to conclude a marriage/civil partnership
- Same formula as Civil Marriage
- If an error, oversight, omission occurred during this procedure, same rules as Civil Marriage
apply

• S 12
- Both prospective partners must individually declare their willingness to enter the civil union in
writing and then sign the document in the presence of two witnesses
- The marriage officer and two witnesses must sign the prescribed document
- Certifying the declaration made by the parties

• Registration certificate
- Marriage officer issues this, which states the parties have entered into a civil union
- Serves as prima facie proof of a valid marriage/civil partnership
- Marriage officer must keep record of civil unions solemnised by him/her
- The records must be transferred to an official in the public service who is responsible for
the population register

• Non-compliance with the requirements for a valid civil union

Consequences the
same as for civil
• Void civil unions
- One of the parties already married marriages
- Parties related to each in prohibited degrees of relationship
- One/both parties not reached the age of 18
- Parties have not, due to a material mistake, reached consensus
- One/both parties mentally ill when the civil union was concluded
- Parties did not submit ID document/prescribed affidavit to the marriage officer
- No competent witnesses were present at the solemnisation
- Civil union wasn’t concluded by a competent marriage officer

• Voidable civil unions

- Material misrepresentation or duress
- (Where relevant) impotence, sterility, or struprum

• Putative civil unions

- One or both parties bona fide but mistakenly believe it to be a valid civil union

• Chapter 5 - The Personal Consequences of Marriage

• Status of the spouses

• Consequences of marriage
- Relationship with blood relations of spouse (new impediments to marriage created)
- No longer competent to conclude a further marriage
- Minors become majors (retained even if marriage dissolved)
- A prodigal is not released from guardianship by marriage
- A right of intestate succession is created between the spouses
- Change in family name
- Wife may assume her husband’s surname but is not obliged to do so
- May create a double barrel surname
- Husband does not have the same choices Has to first
- Unmarried biological father acquires full PRR acquire consent from
- Both parents acquire full PRR of children born of the marriage the Director-General of
- In terms of common law, the husband is head of the family Home Affairs
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Head of family gave husband

decisive say in matters concerning
the common life of the spouses
- Marital power has since been abolished
- Both spouses are entitled stante matrimonio to live in the matrimonial home and use the
matrimonial assets
- Right is of a distinctive nature
- An invariable consequence of marriage

• Consortium omnis vitae Peter v Minister of Law and Order 1990

• Special relationship created by marriage

- T v T held that consortium embraces three components
- Eros (passion) Flowing from consortium are the duties of:
- Philia (companionship) 1. Cohabitation
- Agape (self giving, brotherly love) 2. Mutual assistance and support
- Peter v Minister of Law and Order held that the contents of 3. Fidelity and loyalty
consortium are seen as:
- Intangibles (affection, concern etc)
- Material needs of life (physical care, financial support, running the household etc)

• If consortium is infringed
- Only remedy action available is divorce
- Loss of consortium or an infringement of the right to consortium serves as a proof of the
irretrievable breakdown of the marriage
- Divorce protects not only the spouses rights regarding consortium, but also other rights
- E.g. physical or mental abuse indicates the marital relationship is no longer normal

• Protection of the consortium omnis vitae against third parties

• Adultery
- Common law actions could be instituted against a third party who interfered with the marriage
relationship (e.g. adultery)
- However, in DH v RH 2015 the CC overturned the common law position of the innocent
spouse’s delictual action for adultery
- Held that marriage is an important institution
- But modern-day idea is that the sacrosanctity of marriage and its protection by the law
has changed
- Delictual action for adultery thus judged as obsolete DE v RH 2015

• Spouse killed by a third party

- Actio legis Aquiliae provides a remedy for a person who’s spouse was killed by a wrongful or
negligent of a third party
- Damages are claimed for patrimonial loss Harbouring:
- No satisfaction can be recovered for loss of comfort and society Harbouring a spouse with the
- Not an action for loss of consortium, but for loss of support intention to sever the marriage

• Reciprocal maintenance Reciprocal duty of support comes into

existence from the date of marriage and is
• Common law only dissolved when the marriage is
- This duty takes precedence over the duties of support terminated upon death/divorce. As it is a
owed to a spouse by his/her blood relations consequence of marriage it is not dependant
on the existence of a joint household
• Support entails
- Provision of accommodation, clothing, food, medical services etc Reciprocal meaning both
- Extent is determined by: parties must contribute pro rata
- Social status of the spouses to their financial means to the
- Their respective means and income costs associated with the
- The cost of living upkeep of the matrimonial
property home
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• Liability against third parties

- Third party cannot hold the spouse of their client contractually liable
- However, can be held on two other grounds:
- Negotiorum gestio
- Third party (gestor) must prove they had the intention to promote of the interests of
another (dominus) without the consent of the latter
- If the gestor acted in a reasonable manner and can render an account expenses incurred
— the claim should succeed
- Unjustified enrichment
- Non-contracting spouse who has the duty to support is enriched at the expense of the
trader that supplied the good/serve to the needy spouse

• Termination of maintenance upon divorce Court has discretion

- Reciprocal duty of support terminated upon divorce to make an order for
- Duty of support not terminated when spouses are living apart maintenance against one of
- If a spouse deserts the other the spouses
- Deserted retains the right to maintenance
- Deserter forfeits the right to be supported

• Terminated upon death of the spouse

- Surviving spouse has a claim for maintenance against the estate of the deceased
- Can claim until his/her death or remarriage Maintenance of
- Preference (in respect of other claims) the same as a dependent child Surviving Spouses
Act 27 of 1990
- S (2)(d) shows the executor of the deceased spouse’s estate is empowered
to enter an agreement with surviving spouse, heirs, and legatees
- There factors considered in determining reasonable maintenance needs:
- Amount available in the deceased spouse’s estate for distribution to heirs and legatees
- Existing and expected means, earning capacity, and financial needs/obligations of the
survivor and the duration of the marriage
- The standard of living of the surviving spouse during the subsistence of the marriage,
and his/her age at the death of the deceased spouse

• According to the Maintenance Act 99 of 1998

- Spouse entitled to support
- Can obtain a court order to enforce the duty of support
- Maintenance orders can be amended (even retroactively)
- Failure/refusal to comply with the order constitutes an offence (fine or imprisonment)

• Household necessaries
• Purchasing of household necessaries
- Invariable consequence of marriage
- Modern law says spouses are regarded as equal and thus have same powers for purchasing
household necessaries
- Jointly and severally liable for household necessaries
- Debts incurred for purchasing household necessaries regarded as joint debt
- If marriage is dissolved with outstanding debt
- Trader can claim in full from original debtor or from the non-contracting spouse
- Or half from the original debtor and half from the non-contracting spouse
- Each spouse is liable to contribute to household necessaries pro rata
according to his/her financial means If one spouse paid amount
- Many overlaps in duty to support and household necessaries in full, s/he has recourse
- There are instances where overlaps do not occur for what was paid (debt
was a joint liability)
• Requirements for the capacity to purchase household necessaries
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- A valid marriage
- The existence of a joint household
- Joint household does not necessarily come into existence upon marriage
- The services contracted must be household necessaries
- In order to determine if the contract is reasonable, following considered:
- 1. Financial position of the spouses or the family
- 2. The social status of the spouse or the family
- 3. The standard of living of the spouses or family in the past
- 4. The practices and customs in the area Reloomal v Ramsay held that where a
- Litigation is not a household necessary joint household no longer exists
(spouses living apart):
- Traders should not be prejudiced by domestic arrangements Husband (a non-contracting spouse)
(e.g. allowances) can be held liable based on negotiourm
gestio for accommodation, food, and
• Termination of the power of one spouse to bind the other clothing provided on credit to his wife
- Power is terminated in the following ways:
- When the marriage is dissolved through death/divorce
- When the joint household comes to an end
- S 16(2) of the Matrimonial Property Act permits the court
An established
- To suspend the power a spouse exercises in connection common household does not
with the joint estate merely end due to a spouse’s
- If the court is satisfied it is essential for the protection of the temporary absence
interests of a spouse in the joint estate
- Only applies to in COP
- If married out of COP
- Common law allows an interdict to be granted which restrains a spouse from binding the
other’s credit

• Donations between spouses

• Before commencement of Matrimonial Property Act 88 of 1984
- Spouses married out of COP prohibited from making donations to each other

• Post Matrimonial Property Act (section 22)

- Transactions before or after commencement of the act are valid (not void or voidable)
- Revisionary clause not affected
- Revisionary clause
- An agreement between spouses that a donation will revert to the donor in a particular
event (e.g. beneficiary dying/marriage dissolved by divorce). This is enforceable

Regulated primarily by
• Chapter 6 - An Overview Over Matrimonial Property Dispensations
statutes, but some
aspects still regulated by
• Matrimonial property law common law
• Matrimonial property law
- That part of family law
- Which determines the patrimonial (financial) consequences Regulates
- Of the conclusion and dissolution of marriage financial relationship between
spouses, but also relationship
• Variable consequences between spouses and third
parties
• Patrimonial consequences of marriage
- Are variable consequences
- Parties have some degree of freedom of choice with regard to the matrimonial property
system that applies to their marriage
- Choice is limited (parties choose between possibilities offered by law)
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- Some patrimonial consequences cannot be altered by the parties

• Historical overview
• Common law
- Rebuttable presumption that marriages are in COP

• Prior Matrimonial Property Act 88 of 1984

- Parties could choose between
- In COP
- Out of COP excluding community of profit and loss, excluding the husband’s marital
power over his wife

• Matrimonial Property Act 88 of 1984 By

- Abolished marital power of husbands in COP marriages
entering into and
- No retrospective effect registering a notarial
- Introduced accrual system to marriages out of COP contract

• Abolishment of marital power

- Means spouses now have equal control over management of the joint estate
- Marriages concluded prior 1984 (and thus still regulated by marital power system) given a
transitional period where they could be converted to a system of equal control (S 25(2))
- Section 29 of the General Law Fourth Amendment Act 132 of 1993
- Completely abolished marital power with retrospective effect
- However, legal consequences of juristic acts performed prior this abolishment were not
influenced

• Introduction of accrual system Need to

- Option given to spouses who choose out of COP purposely exclude
- S 2 of Matrimonial Property Act accrual
- Presumption marriage out of COP has accrual system

• Overview of available matrimonial property systems Advantages:

Share in financial prosperity
• Marriage in COP
- Joint estate comes into existence at conclusion of the marriage Disadvantages:
- All assets and liabilities prior to and after entering the marriage Share in financial misfortune
- Managed through a system of equal control Little protection against an
- Spouses may require consent to conclude certain juristic acts irresponsible spouse
Capacity to act limited (due to
• Marriage out of COP without accrual system system of equal control)
- Separate estates are retained by both spouses
- All assets and liabilities obtained before and after marriage
- Spouse has full capacity to act regarding his/her estate

Advantages: Disadvantages
Full capacity to act (regarding estate) Spouses don’t share in financial gain
Not liable for each other’s debts Economically inactive spouse could be severely
prejudiced at the termination of the marriage

• Marriage out of COP with accrual system

- Same as normal out of COP
- Accrual system
- Spouse whose estate had smaller accrual
- Shares in the growth of the other spouse’s estate
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- Accrual system only comes into effect at termination of the marriage (death or divorce)

• Amendment of the matrimonial property system Honey v Honey 1992

• Immutability principle
- No valid way for a married couple to alter their chosen matrimonial property dispensation after
conclusion of the marriage
- Possible for spouses to change matrimonial property internally
- Amendment that would only have inter partes operation
- E.g. Spouses out of COP allowed to enter a universal partnership with each other
- E.g. Could alter or cancel stipulations of a donation agreement contained in the ANC
- Honey v Honey held:
- Informal amendment by the spouses would have no legal consequences

• Exceptions to the immutability principle

• Application for the division of the joint estate (according to common law)
- Spouses married in COP can bring a unilateral application to the court requesting an order for
immediately dividing the joint estate (boedelscheiding)
- Common law remedy now contained in S 20 of the Matrimonial Property Act
- S 20(1)
- Court will granted order if satisfied that:
- Behaviour of other spouse is prejudicing innocent spouse
- No other parties would be prejudiced by such an order
- Court can replace the matrimonial property system with any other system it sees fit
- And attach any conditions it deems suitable

• Amendment in terms of S 21 of the Matrimonial Property Act

- Legislature relaxed principle of immutability High Court in
- Now possible for spouses to amend matrimonial property system area where parties are
- By satisfying certain conditions domiciled
- And a postnuptial agreement

• Procedure
- Spouses bring a joint application before the High Court requesting permission
- Spouses set out suggest new system in a notarial contract and present it before the court

• Ex parte Lourens et Uxor set out procedure in greater detail. Gave following guidelines
- Parties must prove they have given sufficient notice of their intention to all interest parties
- Notice given at least two weeks prior the hearing (delivered by registered post)
- Notice must be published in Government Gazette and in two local newspapers
- Date of the hearing must be included in the notice
- Registrar of deeds must receive notice accompanied by a copy of the draft notarial
contract
- Parties must prove that no third party will be adversely affected
- Court must make an assessment using sufficient info regarding assets and liabilities
given by the parties
- Notarial contract must include a clause protecting the rights of current creditors
- Spouses must prove there are acceptable reasons for the proposed change
- Done on an ad hoc basis
- Not interpreted very strictly

• Retrospective application
- Conflicting case law on if the amendment of the matrimonial property system is with
retrospective effect
- Ex parte Krös:
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- Marriage in COP, wanting to change to out of COP

- Retrospective order can be given
- Heaton agreed, stating this was a more accurate reflection of the intention of the
legislature
- Ex parte Oosthuizen
- Marriage in COP, wanting to change to out of COP
- Court does not have authority to given an amendment with a retrospective application
- Technically correct as S 21 of the Act states ‘future matrimonial property system’
- Ex parte Burger:
- Parties married out of COP and wanted to include accrual system
- Court found accrual would be calculated with retrospective effect from the
commencement of the marriage
- Ex parte Menzies et Uxor
- Court remarked that where COP is replaced by a dispensation of out of COP in terms of
S 21:
- It is not the co-ownership of the spouses that dissolves
- But the tie restricting that ownership
- Direct change from co-ownership to free co-ownership by the spouses in all the
assets of the self-same equal shares

• Chapter 7 - Marriage in Community of Property

• Marriage in COP
- Regarded as primary marital system of South Africa
- Rebuttable presumption that all marriages are concluded in COP

• Rebut this presumption when one of the following is proven

- Existence of an ANC contract that excludes COP and community of profit and loss
- Subsequent the conclusion of the marriage, the parties amended their matrimonial property
system validly, and excluded COP and community of profit and loss
- According to the lex loci matrimonii the marriage is out of COP
- A minor entered a marriage without the required consent after which the marriage was
annulled by a court. Court has discretion to divide the matrimonial property as it sees just
- Black persons who were married prior the commencement of the Marriage and Matrimonial
Property Amendment Act 3 of 1988 are presumed to be married out of COP
- Parties could amend this by issuing a joint written statement before a magistrate, a
commissioner, or a marriage officer within one month prior to marriage’s conclusion
- Act amended altered this position (no distinction between black and other persons)

• Legal nature of marriage in community of property

• Legal nature of the joint estate
- Creation of the joint estate similar to the conclusion of a universal partnership
- However, different as the motive for a universal partnership must be to make a profit and
partners must have their own separate estates
- Joint estate is not a separate/independent legal entity
- But a unification of the financial rights and obligations of the two parties
- In older decisions
- Husband was the sole owner of the joint estate
- Wife only had a personal right for half the estate upon the dissolution of the marriage
- In Estate Sayle v CIR 1945 (AD)
- Each spouse has an undivided and indivisible half share of the joint estate
- Thus are tied co-owners of the joint estate
- Neither of the spouses can alienate his or her share in the joint estate

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- Two sections of the estate are indivisibly joined to each other and one part cannot be
sold, donated, or burdened independently from the other

• Assets of the joint estate

• General rule
- All the assets that spouses had prior to the conclusion of the marriage
- As well as all the assets that they accumulate after entering into the marriage
- Fall into the joint estate
E.g. delivery of movable
• Ownership of assets property, registration of
- Pass automatically (ex lege) to the joint estate immovable property or
- Normal rules as to the passing of rights do not apply cession of rights

• Excluded assets
• Possibility that spouses married in COP may still retain a separate or private estate
- Certain exceptions to the general rule (that all assets form part of the joint estate)

• Assets specified in the ANC

- ANC typically contains provisions excluding certain assets from fall into the joint estate
- However, income from these assets will fall into the joint estate
- Unless also explicitly excluded in the ANC If the asset is sold, the
money will form part of
• Assets excluded in a will or donation agreement the separate estate
- Third persons can bequest a donation to one spouse’s separate state only
- The income from this asset will fall into the joint estate
- Unless explicitly excluded

• Assets subject to a fideicommissum or usufruct

- Common law states ficeicomissary property is excluded from the joint estate
- If fideicommissum becomes impossible the asset falls into the joint estate
- Income from the fideicomissary property falls into the joint estate
- Property subject to a usufruct does not fall into the joint estate of the owner with limited
ownership rights
- The income from this asset does not from part of the joint estate of the usufructuary (as it is a
personal right)

• Small gifts (joclia)

- Common law states gifts between spouses fall into the separate estate

• Friendly Societies Act 25 of 1956

- Any benefit granted to a wife in terms of this Act will not fall into the joint estate

• Cost of matrimonial proceedings

- Cost of proceedings from matrimonial litigation (if the marriage does not subsequently
dissolve):
- Paid from the separate estate of the spouse against whom costs were awarded
- If s/he disposes of such separate estate
- Or the joint estate if the separate estate cannot satisfy such claim for costs
- The costs fall into the separate estate of the spouse who favour the costs order was granted

• Non-patrimonial compensation (Matrimonial Property Act)

- S 18 - All non-patrimonial compensation a spouse receives falls into the separate estate
- From delicts, including satisfaction for an infringement of the spouse’s personality rights
- S 18(b) - Possible for spouse to claim non-patrimonial compensation from each other
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- This compensation will come form the separate estate of the spouse who committed the
delict
- Or the joint estate if the separate estate is too small to satisfy the claim
- Van der Merwe v Road Accident Fund (CC) found:
- S 18(b) discriminated against spouses married in COP
- The words ‘other than damages for patrimonial loss’ were inconsistent
with the Constitution and therefore invalid Du Plessis v Pienaar 2003
Van der Merwe v RAF
• Replacing assets
- Assets that replace assets in the separate estate will fall not fall into the joint
estate

• Liabilities of the joint estate Not legally possible for

spouses to agree there will be
• General rule a community of assets but no
- Liabilities incurred before or after the marriage ceremony community of liabilities
- By either of the spouses
- Are regarded as being liabilities of the joint estate

• Pre-nuptial liabilities
- Contractual debts, delictual debts, antenuptial maintenance duties towards a child/ex-spouse
from a previous marriage, maintenance of a child of unmarried biological parents

• Post-nuptial liabilities
• Post-nuptial liabilities System of equal control:
- Debts incurred stante matrimonio Both spouses have capacity to
bind the joint estate. However, in
• Contractual debts certain circumstances, it is
- If the spouse who performed the juristic act required that a spouse obtains
- Had the authority to do so the consent of the other spouse
- It is a valid contractual debt that must be paid from the joint estate before a valid juristic act can be
- Creditor can claim from the joint estate performed
- Or separate estate of the spouse who incurred the debt

• Delictual debts
- S 19 of the Matrimonial Property Act
- Where a spouse married in COP incurs delictual liability
- The creditor must first claim compensation from the separate estate of the guilty spouse
- Where the guilty spouse does not have a separate estate (or it is too small)
- The compensation amount/part not paid, can be claimed for the joint estate
- Where the compensation has been claimed from the joint estate
- Adjustment in favour of the innocent spouse must take place
- At the time of the dissolution of the joint estate

• Criticisms of S 19
- Infringes on fundamental principle of poenae suos tenent auctores (No one should be
punished for the unlawful conduct of another)

• Spouses married in COP unable to institute delictual actions against one another
- As patrimonial damages would be paid from the joint estate into the joint estate
- S 18(b) of the Matrimonial Property Act provides an exception from this rule
- Spouses are allowed to claim non-patrimonial damages from each other where it
originates from physical injury caused totally or partially be the other spouse

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- Van der Merwe v Road Accident Fund (CC) held S 18(b) is unconstitutional as
there is no legitimate governmental purpose for differentiation between
spouses married in and out of COP Where
spouse has the intention
• Position of third parties of binding his/her own
separate estate
• When a creditor is claiming a private debt
- May claim to the private estate of the contracting spouse
- If the private estate is insufficient, the creditor may lay claim to the assets in the joint estate

• Where one spouse incurred debt on behalf of the joint estate

- Creditor can claim for the joint estate
- Separate estate of contracting spouse
- Question of if the creditor can claim from the separate estate of the non-contracting spouse is
complicated
- See Badenhorst v Bekker 1994 (N)

• Chapter 8 - Management of the Joint Estate

• Section 14 of the Matrimonial Property Act 88 of 1984

- A wife in a marriage in COP
- Has the same powers regarding the assets and liabilities of the joint estate
- As the husband

• Independent management
• General point of departure
- Spouses may perform all juristic acts independently without any mutual consent
- And that these juristic acts will bind the joint estate

• Special mentions
- No consent is required for transactions on the stock exchange concerning listed securities
- No consent required for contacts forming part of the ordinary course of his/her business
- No consent required to make donations to third parties (but must not be unreasonably
prejudicial)
- One spouse can independently form a close corporation, company, or buy or sell a business
- No consent required for transactions concerning banking deposits by the spouse in whose
name the bank account is

• Joint management
• Three categories of juristic acts which need spousal consent
• Informal consent
- Consent without any further formal requirements
- Oral or tacit consent sufficient
- Possible to ratify juristic act

• Transactions which require informal consent

- Alienation/burdening of any effects of the common household that from part of the joint estate
- Receiving money that is due to the other spouse. E.g. from:
- Renumeration, earnings, bonus, allowance, pension, by virtue of the other spouse’s
business etc
- Inheritance, legacy, donation, prize, bursary in monetary form etc
- Income derived from the separate property of the other spouse
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- Dividends or interest on the proceeds of shares or investments in other spouse’s name

- A donation from the joint estate that will unreasonably prejudice the other spouse
- Whether or not reasonable: court looks at value, and reason of donation, and the social
position of the spouses
- Donation of effects of the common household also need informal consent

• Transactions which require written consent

- Where one spouse alienates, cedes or burdens shares, stocks, fixed deposits, or any other
investment in a financial institution made by or on behalf of the other spouse
- Alienation or burdening of assets belonging to the joint estate and kept for investment
purposes
- Withdrawal of money from any account held in the name of the other spouse in a banking
institution or the Post Office Savings Bank

• Written attested consent

- Means that the document containing the consent must be signed by two competent witnesses
- Separate consent for each individual juristic act is required
- General consent cannot be given advance

• Transactions which require attested consent

- Concluding a contract for the alienation of immovable property belonging to the joint estate
- Or for the burdening of such property
- Or to grant any other real right over the property
- Actual alienation or burdening of immovable property that belongs to the joint estate
- Or the actual granting of real rights over such property
- Any transaction that needs to be registered in the office of the Registrar of Deeds can
only be done with written attested consent
- Cannot be ratified
- Entering into a contract of surety
- Cannot be ratified
- Entering into a credit agreement as defined by the Credit Agreements Act 75 of 1980
- Only necessary when the spouse is entering a contract as a credit receiver (not giver)
- Concluding a contract for the purchasing of immovable property (as defined by the Alienation
of Land Act 68 of 1981)
- Act only covers transactions where the purchase price is payable in more than two
instalments over a period of more than one year

• Protection of third parties

• A juristic act performed without the requisite consent
- Is void for a lack a contractual capacity
- Third party would normally have no contractual remedies available

• S 15(9)(a) of the Matrimonial Property Act protects third parties

- Sets out certain circumstances under which a juristic act performed without required consent
can be valid as far as third parties are concerned
- Where the third party does not know
- Could not have reasonably known
- That the consent of the other spouse was required/not obtained:
- The transaction is valid and enforceable as though that consent was obtained

• Protecting spouses against each other (inter partes)

• Common law and statute provide:
- Protection for one spouse against the negligent, reckless, or even intentional behaviour of the
other
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• Statutory measures
- S 15(9)(b) of the MPA - claim for half of the damages to be repaid
- Where on spouse conclude transactions detrimental to the joint estate
- The other spouse obtains this right of recourse upon the dissolution of the marriage
- Court can be approached to confer the required consent
- Unilateral application to HC for spouse’s contractual capacity regarding the joint estate to be
suspended
- S 20 of the MPA boedelscheiding
- Court can order that the joint estate be divided and matrimonial property regime be
replaced

• Common law remedies

- Can be used by both spouses
- One spouse acted fraudulently not where spouse acted recklessly or negligently

• Situations where common law remedies are available

- Spouse threatens to alienate unlawfully
- Interdict prohibiting the act
- Alienates assets fraudulently
- Actio Paulinia utilis
- If a spouse alienates assets of the joint estate unlawful:
- Other spouse can claim such assets back using this action
- Uncertain whether it is necessary to prove that the third party also acted with fraudulent
intent
- Right of recourse against the guilty spouse or his/her estate

• Capacity to litigate
• S 17 of the MPA
- Restriction that has inter partes application
- Lack of consent will have no influence on the position of the third party
- If court makes costs order, it must come from the separate estate of that spouse (or if it is too
small: the joint estate)
- The spouse whose consent was not obtained has a right of recourse upon the dissolution of
the marriage

• Three statutory exceptions

- Where legal proceedings can be instituted/defended without consent from the other spouse
- Proceedings pertaining to the separate estate of the one spouse
- Claiming non-patrimonial damages for a delict committed against one spouse
- A matter pertaining to the occupation, trade, or business of one spouse

• Insolvency
- According to S 17(4) of the MPA
- Application for the sequestration of the joint estate
- Must be brought against both spouses
- And both spouses must apply for the voluntary surrender of the joint estate
- Procedural problem
- Often difficult for the applicant to ascertain the marital status and matrimonial property
dispensation of the debtor

• South African Law Commission recommended an alteration of S 17(4)

- Alteration incorporated in S 11 of the Insolvency Amendment Act 122 of 1993
- Position remains that both spouse should be party to insolvency proceedings

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- But if the person applying for sequestration can prove s/he took reasonable but
unsuccessful steps
- To determine matrimonial property regime of the debtor
- And to find the name and address of the other spouse
- The application for sequestration will not be turned down solely because of the existence
of a joint estate

• Claiming debts from the joint estate

- Where one spouse has contracted a debt on behalf of the joint estate
- The creditor can bring a suit against both spouses jointly
- Or the spouse who has incurred the debt
- Spouse who did not incur the debt cannot be sued alone
- If the debt was for household expenses of the common household
- Both spouses are jointly and severally liable
- Irrespective of which spouse incurred the debt
- Spouse who contracted a debt that relates solely to his/her separate estate
- Only this spouse can be sued for repayment

• Chapter 9 - Marriage Out of Community of Property

• Marriages regarded as out COP if:

- Prior conclusion of the marriage the parties entered a valid ANC where COP is excluded
- After the conclusion of marriage, the parties agree (with the court’s permission) to enter a
valid post-nuptial contract where COP is excluded
- Black persons who were married before 2 December 1988 without entering into an ANC or
making the required statement
- Where legal system of the marriage domicile directs that the marriage is out of COP

• General legal nature of a marriage out of community of property No joint estate

is formed
• Two characteristics of marriage out of COP are:
- Spouses retain their own separate estates after conclusion of the marriage
- Each spouse manages his/her own estate independently of the other spouse

• Assets acquired after the conclusion of marriage Co-owners does not mean there
- Fall into separate estate of spouse who acquired them is a joint estate. E.g. it is
- However, spouses can be co-owners of certain assets (e.g. a house) possible for spouses married out
- Will be co-owners and not tied co-owner of COP to terminate co-
ownership of property by way of
agreement stante matrimonio
• Capacity to act (regarding estate)
- Each spouse has full capacity to act where their estates are concerned
- Spouses cannot alienate each other’s assets without consent
- If this happens, the asset can be reclaimed from the third party Spouses not responsible for each
- Spouses can contract independently other’s delicts.
- Can enter into contracts with each other They can even institute delictual
- Spouses not responsible for each other’s delicts claims against each other and bring
an application for the sequestration of
the estate of the other spouse
• Contracts
- Only bind estate of spouse who concluded them
- However, debts incurred for the purchasing of household necessities can bind the other
spouse’s estate
- Spouses are jointly and severally liable for these debts
- Creditor can claim full amount from either spouse or both spouses together
- If one spouse is held responsible for whole amount, s/he may have a right of recourse
upon dissolution of the marriage
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• The antenuptial contract (ANC) Marriages out of COP but in community of

profit and loss mean that spouses retain
• Nature and purpose of the ANC their antenuptial estates, and that a third
- Can contain agreements that on certain aspects regulate the joint estate is formed, which contains all
invariable consequences of marriage the assets and liabilities acquired after the
- Regulates patrimonial consequences of the marriage conclusion of the marriage
- Is sui generis

• Requirements for an enforceable antenuptial contract

• S 87 of Deeds Registries Act 47 of 1937
- Prescribes formalities that must be adhered to for an ANC to be valid and enforceable
- Possible to enter a valid ANC without fulfilling the requirements of S 87
- However, this will only apply inter partes
In third
• According to S 87, an ANC must comply with the following: parties view, marriage
- It must be attested by a notary (notarial execution) is in COP
- If it is executed in RSA, it must be registered in the deeds registry within
three months after the date of its execution Registering an ANC in the
- If a party is a minor, S 18(4) of the Children’s Act must be kept in mind deeds registry grants it a
level of publicity, which
mitigates the danger of
• S 88 of the Deeds Registries Act outsiders being adversely
- Provides that spouses may agree on the terms of their ANC prior to affected
entering the marriage, but only comply with the formal requirements of S 87
after conclusion of the marriage
- The court can (upon application) grant permission for the post-nuptial notarial execution and
registration of an ANC (if terms were agreed before marriage)
- Application can brought by one/both spouses or even a third party, but must meet these
requirements:
- The parties must provide the court with good reasons why they had omitted to comply
with the formal requirements
- Application for post-nuptial registration must be brought within a reasonable period from
the time that the spouse became aware of the omission

• Termination of and amendment to the antenuptial contract

ANC not terminated upon
• ANC terminated if: dissolution of marriage
- All of its terms have been fulfilled
- The terms have become irrelevant or impossible
- It is terminated by an order of court

• Amendment before conclusion of marriage

- If ANC concluded, but they have not entered into the marriage, they may amend or even
cancel the ANC by informal agreement

• Amendment after conclusion of the marriage

- Some terms and conditions not affecting interests of third parties can be amended by an
informal post-nuptial agreement by the spouses
- E.g. they can agree to alter or cancel a donation clause
- However, spouses are unable to amend terms relating to the accrual system

• Section 21 of MPA
- Not meant for giving validity on a matrimonial property system that was never properly
executed or implemented

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• Ex parte Sanders et Uxor

- Spouses’ ANC was never properly executed or implemented (due to their negligent attorney)
- They applied to the court with a S 21 (MPA) application
- The court applied the section and amended the spouse’s matrimonial property regime
- However, this was an error, as the correct remedy lay in S 88 of the Deeds Registries Act 47
of 1937
- Authorises spouses who concluded an informal ANC to apply to the court to have it
formally executed and implemented post-nuptially

• Where the ANC does not reflect the spouse’s true intention
- E.g. where a clause if formulated in a way that does not reflect their actual intention
- High Court may rectify the terms and conditions of the contract, if they prove it does not reflect
their intentions

• Amending an ANC upon application by spouses and the provision of valid reasons?
- Uncertain if High Court has the general power to do this (according to common law)
- Free State has denied that the court is competent to do this
- Other provinces accepted that the court may order a general amendment under certain
circumstances
- Common law does not give courts capacity to cancel ANC
- Spouses must apply according to S 21 of the MPA

• Testamentary benefits contained in the ANC can be amended under certain conditions:
- Where the spouses have nominated each other as testamentary beneficiaries (pactum
successorium) they can amend this provision through a valid joint will
- Impossible to amend a testamentary provision contained in ANC unilaterally
- Where spouses have agreed in the ANC to benefit third party, they can amend the provision
by executing a joint will
- If third party was party to the ANC, that party’s consent is also required
- Third party’s consent also required if the third party is not a party to the agreement, but
has already accepted the benefit conferred on him/her by the ANC

• Contents of the antenuptial contract

• General rule Not allowed to
- Spouses free to include any provision they want exclude any invariable
- However it must not be consequences of marriage
- Impossible
- Illegal ANC allowed to include
- Contra bono mores clauses that would regulate
- Against the basic nature of marriage the future break up of the
marriage (but not promote
divorce or make divorce
• Four types of clauses often found in ANC proceedings easier)

1. Regulating the matrimonial property 2. Clauses pertaining to succession

system: • Spouses may have provisions for the
• Parties agree to exclude COP or community distribution of their assets after death
of profit and loss • Can include third parties
• Accrual applies automatically to ANCs • Makes ANC a contract regarding
excluding community of profit and loss succession (pactum successorium)
• ANC may state initial value of spouse’s • Such provision cannot be amended
estate, or exclude assets from accrual unilaterally (only through a joint will)

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3. Liability for household expenses 4. Benefits and donations

• If a spouse has contributed more than • May include agreement that one
his/her share towards household S 23 of MPA regulates spouse will make a donation to the
necessities, possible to include liability for household other spouse or third party
agreement that s/he can claim from the necessities • May be subject to conditions or to time
other spouse upon dissolution of the Both spouses compelled to clauses
marriage contribute pro rata their means • May include agreement that donations
• May informally agree to this after the (assets and incomes) will revert back to the donee’s estate
conclusion of marriage, or before in the case of a divorce

• ANC contracts entered into by minors

- Minor must personally sign ANC in the presence of the notary
- Must have consent and assistance from parents/guardian
- Children’s Act states only consent one of co-holder of PRR is required
- Children’s Court or the High Court has power to decide how the ANC should be handled

• Distinction between two scenarios

- Where minor had consent to enter marriage, but no consent for ANC:
- ANC is void
- Parties thus married in COP
- Can bring a S 21 (MPA) application to court
- Where minor had no consent for either the marriage or ANC
- S 24(2) of the MPA comes into operation
- Provides that patrimonial consequences of a marriage in these circumstances are
exactly the same as if the minor were already a major at the conclusion of the marriage
- ANC is valid and enforceable

• S 24(2) of MPA
- Created uncertainty, as legislature added that any contract that includes the accrual system is
regarded as valid and enforceable
- Until clarity given on this position, the accrual system reference is only an example of a valid
provision in an ANC

• The accrual system

• Through the accrual system
- Law recognised both spouses contribute directly and indirectly to the growth of each spouse’s
estate

• Marriages concluded before Act came into effect

- Marriages concluded before 1 November 1984 were not automatically amended to include
accrual
- However, spouses were given a limited period where they could make the accrual system
applicable to their marriage by the proper execution and registration of a notarial contract

• Legal nature of the accrual system

• Accrual system
- Only comes into operation upon dissolution of the marriage (death/divorce)
- During marriage, accrual system does not affect any aspects of the out of COP marriage

• How it works
- At the time of the dissolution of the marriage
- The accrual of each spouse’s estate is calculated
- Spouse with the smaller accrual has a personal right against the estate of the other spouse
- The claim amount is half of the difference between the accruals of the two estates

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• During marriage
- No spouse can cede his/her right to share in the accrual
- Creditors cannot attach such a right
- In the case of sequestration, the right to share in the accrual will not form part of the insolvent
estate

• Heaton and Kruger explain

- The right to share in the accrual already exists during the marriage
- But the accrual claim only arises at the dissolution of the marriage

• S 8(1) of the MPA

- Contains a mechanism allowing a spouse (in a marriage with the accrual system) to protect
his/her interest in the estate of other spouse
- Section allows a spouse to apply to the High Court for the immediate ‘division’ of the accrual
- If s/he can indicate that the other spouse is jeopardising his/her right to an accrual share
claim at the dissolution of marriage
- Court only grants the order if satisfied no third parties are detrimentally affected by it
- Order for division results in patrimonial consequences similar to those of a dissolution of the
marriage
- However, it is possible for the court to order an uneven division to compensate for assets
already squandered
- The court also has a discretion to replace the existing matrimonial property regime
- No order to change matrimonial property regime —> assumed spouses will remain
married out of COP with the accrual system and a new system will come into operation
on the date of the court order

• Waiving an accrual claim

- Uncertain, but according to normal legal principles —> allowed if spouse is solvent
- Insolvent spouse waiving a claim may be detrimental to creditors
- Hahlo says insolvent spouse is free to waive his/her claim
- Van Wyk says excluding the accrual from the spouse’s insolvent estate only possible
before dissolution of the marriage (before it forms part of the estate)
Right to accrual share will not
• Calculation of the accrual form part a spouse’s insolvent
estate.
• Accrual (according to S 4(1)) of the Act) Claim to accrual share is not
- Accrual of a spouse’s estate excluded from the insolvent
- Is the amount with which the net value of his estate estate (and will form part of
the insolvent spouse’s estate)
- At the time of dissolution of the marriage
- Exceeds the net value of the estate at the time of the conclusion of the
marriage

• Following must be done to calculate accrual

- 1. Determinate the net commencement value of the respective estates
- 2. Determinate the net final value of the respective estates
- 3. Determine the accrual of each spouse’s estate
- 4. Calculate the accrual claim

• 1. Determination of the net commencement value

- Spouses can declare the commencement values of their respective estates in the ANC
- May also (if they haven’t in their ANC) declare the values within a limited time in a
separate statement
- If no declaration of commencement value —> rebuttable presumption the value is 0
- MPA states that a negative commencement value is regarded as 0
- Commencement value must be calculated by taking into account the inflation rate
- Default inflation rate used —> value published in Government Gazette
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- Parties can agree in their ANC to use a different consumer price index
- Parties can also agree that inflation not be taken into account, or that it only apply to
certain assets

• 2. Determination of the net end value (S 4 of MPA)

- Must exclude all unpaid debts
- Include all amounts still due to the estate
- Statutory duty on spouse/executor of a spouse’s estate to provide full details regarding the
affairs of the estate of the other spouse —> makes calculation of final value possible

• Assets excluded from the calculation of accrual (according to MPA)

- Non-patrimonial damages received during marriage
- Inheritance, legacy, or donation received during marriage (irrespective of it was spent or not)
- Proceeds from such an asset or a replacing asset are also excluded
- Assets excluded in the ANC (proceeds and a replacing asset also excluded)
- Donations spouses have made to each other during marriage
- These do not form part of the final value of any of their respective estates

• 3. Determination of the accrual

- Net final value - net commencement value
- Where marriage dissolved through death —> accrual calculated prior the calculation of any
inheritance or mortis causa donations

• 4. Calculation of the accrual claim

- Must determine which estate has the smallest accrual
- This spouse then has claim against the other spouse In terms of S 9 of the
- For half the difference between the accruals of the respective estates Divorce Act 70 of 1979

• Satisfaction of an accrual claim

- Right to share in the accrual claim is a patrimonial benefit
- Thus the court can under certain circumstances order it to be forfeited
- In terms of S 10 of the MPA
- A party who is liable under an accrual claim
- Can apply to the court for the deferment of the satisfaction of such a claim
- The parties must first attempt to reach an agreement regarding the satisfaction of the
claim
- The court can grant a deferment order subject to any conditions that it regards as fair
given the circumstances

• Chapter 10 - Dissolution of Marriage

• South Africa - three ways to dissolve a marriage: In addition to these, a court may in terms
- By the court setting aside a voidable marriage of the Dissolution of Marriages on
Presumption of Death Act 23 of 1979
- By the death of one or both of the spouses declare that a marriage will be deemed
- Through a divorce order to be dissolved from a specific date

• Presumption of death
- Order of presumption of death (common law) does not dissolve the marriage
- A separate applicant for the dissolution of the marriage is needed
- Court order is final —> if the spouse found to be alive, marriage remains terminated

• Prior Divorce Act of 1979

- Court had authority to make a judicial separation in terms of which some marital duties of the
spouses were temporarily suspended

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- No longer possible, though spouses may reach an inter partes agreement to have
separate households
- Such agreement may also have patrimonial provisions (e.g. division of assets)

• Dissolution of marriage
- Has personal consequences (usually influence status of the spouses)
- Has patrimonial consequences (division of the states and other financial matters)

• Dissolution of marriage through divorce

• Grounds for divorce Common law:
- Currently regulated by the Divorce Act 70 of 1979 Divorce characterised by fault principle.
- Prior this Act: This meant the court had to identify an
- Adultery innocent and a guilty spouse. Guilty spouse
- Malicious desertion often suffered severe patrimonial
- Incurable mental disease disadvantages
- Habitual criminality
- Post Act (S 3):
- Irretrievable breakdown of marriage
- Mental illness or continuous unconsciousness of a party to the marriage

• Irretrievable breakdown (S 4 of Divorce Act)

- Where the marriage relationship between spouses
- Has reached such a state of disintegration Divorce Act:
Fault principle replaced. Although
- That there is no reasonable prospect of restoration of a behaviour of spouses still plays a minor role
normal marriage relationship between them when determining patrimonial
consequences of the divorce.
• Schwartz v Schwartz on the irretrievable breakdown of marriage
• Process required by S 4(1) consists of two components:
- Subjective inquiry into the breakdown of the marriage Inquire into history and
- Objective inquiry into the question where the breakdown is irretrievable circumstances surrounding
marriage relationship

• Court stated
- ‘Important to have regard to what has happened in the past, i.e. the history of
the relationship up to the date of the trial, and also to present the attitude of the parties to the
marriage relationship’

• Normal marriage relationship

- Reference common law concept of consortium
- If one part acts in such a manner that seriously undermines an aspect of consortium (e.g.
adultery), the marriage relationship can no longer be regarded as normal
Court should only grant
• Indications of the breakdown of the normal marriage relationship divorce order if satisfied
- Subjective attitude of one or both spouses no restoration of
- Namely that they want to terminate the marriage relationship consortium is possible

• Where only one spouse wants a divorce:

- Generally interpreted that S 4 provides for consensual divorce as well as divorce upon
request of one spouse
- Writers state that it is impossible to repair the marriage relationship without the cooperation of
both marriage partners

• Examples of irretrievable breakdown (provided by S 4(2))

- Parties have not lived together as husband and wife for a continuous period of at least one
year immediately prior to the date of instituting the divorce proceedings
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- The defendant has committed adultery and the plaintiff finds it irreconcilable with a continued
marriage relationship
- The defendant has been declared a habitual criminal by the court and was undergoing
imprisonment as a result of such a sentence
• S 4(2) criticised as unnecessary
• Mental illness (S 5(1)): plaintiff can obtain divorce if it can be proved and confusing.
- Other spouse admitted as a patient to an institution in terms of a • Easier for spouses to use other
reception order (Mental Health Act 18 of 1973) or is being detained as more neutral reasons.
a mentally ill convicted prisoner at an institution • Existence of the facts in the
example are not sufficient proof of
- Other spouse has not been unconditionally discharged from the irretrievable breakdown, and court
institution or place of detention for a continuous period of two years is free to find on these facts the
immediately prior to the institution of the divorce proceedings marriage has not broken down
- Other spouse is mentally ill and there is no reasonable prospect of a irretrievably
recovery

• Continuous unconsciousness (S 5(2)): plaintiff can obtain divorce if it can be proved:

- Other spouse is, on account of a physical disorder, in a condition of continuous
unconsciousness
- The unconscious condition of the other spouse has lasted for at least six moths immediately
prior to the institution of divorce proceedings
- There is no reasonable prospect that the other spouse will regain consciousness

• Protecting the mentally ill or unconscious spouse

- Aim is that these conditions should have no influence on the patrimonial consequences of
divorce
- Follow specific measures introduced by the Legislature
- Court may appoint a legal practitioner to represent the defendant at the divorce
proceedings (and also order the plaintiff to bear the costs of appointing the practitioner)
- Court can order the plaintiff to provide security for any patrimonial benefits that s/he
receive from the divorce proceedings
- Where marriage is dissolved on the basis of mental illness/continuous unconsciousness
of the defendant, the court may not make a forfeiture of benefits order against the
defendant
- However, it may be possible to bypass these measures by using S 4(1) and proving the
mental illness or unconsciousness of the spouse are grounds for irretrievable breakdown
- Many opine that S 5 should be repealed, and instead there should be special protective
measures for mentally ill or continuously unconscious spouses

• Defences against an action for divorce

• Not provisions in the Divorce Act
- Defendant would have to convince the court irretrievable breakdown has not occurred
- S 4(3) provides that the court can postpone the proceedings in order to give spouses the
opportunity to attempt to reconcile their differences

• Court has discretionary power regarding decree of divorce?

- Wording of S 4(1) suggests court can refuse a divorce order even if the grounds for divorce
are found to be present
- Smit v Smit (Free State court) accepted the existence of such a discretion
- This decision has been overturned by the Appellate Division in Schwartz v Schwartz

• In terms of S 5(A) of the Divorce Act

- Court has discretion to refuse a divorce order in some cases where the marriage is regulated
by religious law
- Where it is clear the spouse may not remarry unless the marriage is also dissolved
according to his/her religious law
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- Where the defendant has taken all reasonable steps to remove the religious law
impediment to the remarriage of the plaintiff, the court will not refuse the granting of the
divorce order

• Jewish divorce law example

- According to Jewish ecclesiastical law: divorce will only be valid where a husband has
granted his wife a divorce (so-called get)
- Should the husband refuse to, the marriage may not be dissolved according to Jewish
ecclesiastical divorce law, even where the wife has obtained a civil divorce order
- Thus the wife may not remarry according to Jewish law (still ‘married’)
- Problem often resolved by including a provision in the ketubah (Jewish pre-nuptial contract)
that the husband agrees to provide his wife with the get if she institutes divorce proceedings
in a civil court
- Question is if a court can enforce this provision
- Raik v Raik —> the court can force the husband to honour his
contractual undertaking
S 5(A) may not be constitutionally sound
- Levy v Levy —> court not prepared to enforce the agreement as it may infringe on the right to equality
as spouses married under a system of
religious law are treated differently from
• Chapter 2 - The Parent-Child Relationship spouses not married under such a
system
• Children’s Act However, some believe it to be in
- Refers to both PRR and to children having responsibilities and accordance with right to freedom of
rights religion and that it promotes gender
equality (women were disadvantaged by
Fletcher v Fletcher 1948 (A)
• The best interests of the child McCall v McCall 1994 (C)
the preceding position)

• Children’s Act S 7
- In all matters concerning the care, protection, and well-being of a child the standard that the
child’s best interests is of paramount importance, must be applied

• Annexe
- Pg 1 S 28(2) of the
Constitution
• UN Convention (UNC)
- Has a specific provision pertaining to the best interests of the child
- ‘In all actions concerning children, whether undertaken by public or private social welfare
institutions, courts of law, administrative authorities, or legislative bodies, the best
interests of the child shall be a primary consideration’

• African Charter on the Rights and Welfare of the Child (ACRWC)

- The bests interests of the child are the primary consideration

• M v S (Centre for Child Law, Amicus Curiae) 2008 (CC)

- The paramountcy principle must be applied in a meaningful way without unduly obliterating
other valuable and constitutionally protected rights

• Contents of parental responsibilities and rights Care

Contact
Maintenance
• Common law Guardianship
- Guardianship, custody, access
- Described as the sum total of rights, duties, and responsibilities of parents with
regard to their children on account of their parenthood
- And which had to be executed in the best interest of such children

• S 18(2) of the Children’s Act

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- PRR are defined to include: Common law:

- Maintaining contact with the child Parent not competent to renounce
- Acting as guardian of the child parental power in favour of the other
- Contributing to the maintenance of the child parent/third party by means of an
- A person may have full, or specific PRR in respect of a child agreement. This principle is retained and
enacted in the Children’s Act
- More than one person may hold PRR in respect of the same child

• Care
• Common law
- Consisted of that portion of parental power that implied control over the child’s day-to-day life
- Upbringing, education, and duty to provide food, clothes, accommodation etc
- Included power to decide whom the child could associate with and the power to chastise
- During the marriage, both parents were entitled to the custody of their children and shared
equal authority regarding this aspect of parental power

• Annexe
- Pg (2)

• Important decions:
- Any decision which affects contact between the child and a co-holder of PRR
- Any decision which is likely to significantly change or adversely effect the child’s living
conditions, education, health, personal relations with parents/family members, or the child’s
general well-being

• When a care-giver is making important decisions: Heaton points out it is problematic to

- They must give consideration to the child’s views and wishes, determine when a decision is likely to
bearing in mind: significantly change a child’s life
- Age
- Maturity Thus, it is possible for co-holders of PRR
to have difference of opinion and
- Stage of development consequently this can exclude a child from
the decision-making process
• Guardianship
• Common law
- Wide meaning
- Entails the capacity to administer the estate of a minor child on his/her behalf
- Assist the minor in performing jurists acts and be involved in legal proceedings
- Includes the custody of the child
- Narrow meaning
- Entails administering the child’s property Section 18(3) of
- Assisting the child to perform jurists acts Children’s Act codifies
- Supplementing the child’s limited capacity to litigate narrow meaning

• Annexe
- Pg (2)

• General rule
- Subject to juristic acts mentioned in S 18(3)
- Where more than one person has guardianship of a specific child
- Each of them is competent to exercise independently and without the consent of the other any
right or responsibility arising from such guardianship

• Important decisions
- Guardian must involve the child in making them As per the
Children’s Act
- These include:
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Parent must consider the views

and wishes expressed by the
child, taking into account:
- Decision regarding child’s adoption 1. Child’s Age
- Child’s marriage 2. Maturity
- 3. Stage of development
Child’s departure or removal from RSA
- Child’s application for a passport
- Alienation or encumbrance of any immovable property of the child
Replaces
common law concept
• Contact of access

• Contact
- Maintaining a relationship with the child if the child lives with someone else
- Communication can take place in a number of ways, e.g:
- Visiting the child If person exercises his/her right of
- Communication via post, telephone etc contact, s/he is temporarily
empowered to excursive PRR
• Duty of support associated with care

• Nature of the duty Ex jure naturae et sanguinis —> by the law of nature
- Duty of parent to support their child arises and blood
- Ex jure naturae et sanguinis Ex ratione pietatis —> from the reason of piety
- Out of a sense of dutifulness Ex officio pietatis —> piety from right of office
- Ex ratione pietatis Ex natura necessitatis —> is, by nature, of necessity
- Ex officio pietatis Nexus sanguinis —> blood links
- Ex natura necessitatis
- Out of a natural affection flowing from nexus sanguinis Duty of support not based on an
implied contract nor parental
• Requirements for the existence of a duty of support power, said to exist ex lege
- In general, parents obliged if the following are met:
- Parents have the necessary means to provide maintenance
- Child must require maintenance and must not have the necessary means to provide
maintenance for himself
- Relationship between the person entitled to maintenance and person obliged to provide it
must be of a nature that the law imposes a duty of support
Presumption: child does not have
• Duty arises the necessary means to provide
- At birth of the child maintenance for himself, and
- Continues until the child is able to support himself parents do have the means
- Possible to still exist after parental power has been terminated
(e.g. by attaining majority) A child who has attained majority:
must prove s/he cannot provide own
• Death of a parent maintenance, and that parents can
- Does not necessarily terminate duty
- Child may have clam against deceased parent’s estate
- Child who receives inheritance from a parent’s estate must first attempt to use this to
support himself
- If inheritance is insufficient, child may claim from parent’s estate

• Extent of the duty of support

- Entails food, clothing, accommodation, medical care, and education Extent of duty not limited to
- In appropriate circumstances: university and post-school education basic necessities of life

• Determining extent of the duty of support

- Social status and financial position of family considered
- Gliksman v Talekinsky
- Child entitled to necessaries of life taking into account the facts, such as the accustomed
mode of living, the position and means and position of their parents
- Child cannot claim luxuries that may have been on a previous scale of living
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• Persons who owe a duty of support

- Parents
- Have duty in accordance with their respective means
- Duty not terminated upon divorce or where a parent is deprived of custody/guardianship
- Adopted children
- Adopted child deemed to be legitimate child of adoptive parent
- Step-children and children in law
- Duty of support based on blood relationship
- Not obliged to support step-chid or child in law
- Children conceived by artificial fertilisation
- Child is legitimate if the husband gives consent for a donor’s gametes to be used to
Two inseminate the wife
ways
- No obligation between donor and child

• Enforcement of the duty of support

- Maintenance Act 99 of 1998
- Provides a simple procedure of which liability to support can be enforced
- Parent’s who fail to comply are guilty of an offence
- A fine or term of imprisonment may be imposed
- Children’s Act 38 of 2005
- Parent’s duty (and only this) can be directly enforced without needing an initial
application to court for a maintenance order
- Possible to prosecute a parent who does not comply with duty
- Any person legally liable to maintain a child is guilty of an offence if they fail to do so

• Acquisition of PRR
• PRR of a mother (S 19 of Children’s Act)
- Biological mother has full PRR in respect of her child
- If biological mother is an unmarried minor and doesn’t have guardianship of the child (nor
does the biological father), the mother’s guardians are also the guardians of the child
- S 19 does not apply if child is subject to a surrogacy agreement

• PRR of a married biological father (S 20)

- Biological father has full PRR if married to mother at time of child’s conception, birth, or any
intervening time

• PRR of an unmarried biological father Father must meet

all requirements
• Automatic (S 21)
- If, at the time of birth he is living with the mother in a permanent life-partnership
- If he, regardless of whether he has lived or is living with the mother -
- Consents to be identified or successfully applies in terms of S 26 to be identified as the
child’s father or pays damages in terms of customary law
- Contributes or has attempted bona fide to the child’s upbringing for a reasonable period
- Contributes or has attempted bona fide to contribute towards expenses connected to
maintenance of the child for a reasonable period
Any dispute in regard to
• Agreement (S 22) requirements —> matter
- Biological father without PRR can acquire these by entering into an agreement referred for mediation
with the mother
- Agreement must be registered with the family advocate
- Or when made on order of HC, divorce court, children’s court
- Agreement must be in the child’s best interests Only HC can confirm, amend,
- Agreement may be terminated or amended or terminate an agreement
relating to guardianship
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• Court order
- In terms of S 23 and 24 provision is made for the assignment of PRR by order of court

• Subsequent marriage (S 38)

- Subsequent marriage of biological father with the mother retroactively gives him full PRR

• Child conceived by artificial insemination

• Child born from gamete/s of a third person via artificial fertilisation of spouse
- Married couple acquire full PRR over that child No distinction
- Rebuttable presumption that both spouses granted the required consent between married and
unmarried woman

• S 40(2)
- Birth mother who was artificially fertilised regarded as mother of that child
- Provision subject to S 296 which governs legal position regarding artificial fertilisation of a
surrogate

• Adoption
Unless otherwise provided in
• Adoption (Chapter 15 of Children’s Act) adoption order, adopted child takes
- Terminates existing legal relationship of child with his/her birth parents adoptive parent’s surname
- Full PRR vested in adoptive parents

• Child adopted by step-parent or partner of parent

- Existing legal relationship with birth parents not terminated

• Post-adoption agreement
- Natural parents can maintain a form of contact with the adopted child
- Agreement between natural parents and adoptive parents and must be in a prescribed format
- Agreement only takes effect after confirmation from the court
- Agreement can provide:
- Communication, including visitation between child and parent/guardian
(or person stipulated in agreement) Only court may
amend/terminate this
- The provision of information (incl. medical info) about the child after adoption
agreement

• Agreement
• Agreement for granting of PRR
- Person who has PRR of child can enter an agreement with anyone who has an interest in the
care, well-being, and development of the child
- To be enforceable, agreement must comply with the formalities
- Must be registered with Family Advocate or made an order of court
- Family Advocate/Court must be satisfied it is in the child’s best interests
- Agreements relating to guardianship can only be confirmed by the HC

• Agreement can be terminated or amended on application by:

- Person who has PRR of the child
- The child, with the court’s consent Common law: HC is upper
- Any other person who acts in the child’s interest and has court’s consent guardian of all child and
may confer PRR on a
• Court order person
Person can acquire
PRR by means of a
• Assignment of contact and care by court order (S 23) court order
- Any person with an interest in the care, well-being or Children’s Act: care, contact
and guardianship may be
development of child
granted by court order
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- May apply for a court order granting care and contact

- Factors taken into account when considering the application:
- Best interests of the child
- Relationship between the applicant and the child/any other relevant person and the child
- Degree of commitment that the applicant has shown towards the child
- The extent to which the application has contributed towards expenses in connection with
the birth and maintenance of the child
- Any other fact that should, in the court’s opinion, be taken into account

• Assignment of guardianship (S 24)

- Any person having an interest in the care, well-being and development of a child
- May apply to the HC for an order granting guardianship
- Factors taken into account when considering the application (S 24(2))
- Best interests of the child
- Relationship between applicant, and any other relevant person and the child
- Any other fact that should, in the opinion of the court, be taken into account
- If the child already has a guardian
- Applicant must submit reasons as to why the existing guardian is not suitable for
guardianship

• Termination of PRR
• PRR terminated by:
- Death of a parent or other hold of PRR
- Death of the child
- Attainment of majority by the child
- Adoption of the child
- Recession of the adoption of the child
- Rescission of the adoption order and, as a consequence, the vesting of PRR in the natural
parents
- A court order

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