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Family Law Study notes

Jan – June 2017

Initial Sections (Chapter’s 1-3):

 Concepts – Huber’s ‘perfect’ family – hegemonic, heterosexual,

monogamous, sexist (discriminatory)
 Legislation – Recognition of Customary Marriages Act 120 of 1998
(ROCMA) – Civil Union Act 17 of 2006 (CUA)
 Types of families – Single Mothers/Fathers – Extended Families
(Grandmother) – Polygynous Families (One man and one woman NOT
to the exclusion of all other’s; many wives) – Unmarried Families (no
married couple at core) – Same-sex Families – Child Headed
Households – Diverse Families
 Legislation – United Nations Convention on the Rights of the Child –
African Union Charter on Human and Peoples Rights – RSA
Constitution s 28 (Rights of Children) – Children’s Act 38 of 2005; s 18-
23 PR+R (See workbook) Care (custody + wellbeing/fare, religion,
school), Guardianship (administrative affairs), Contact (access),
Maintenance (support as a duty); s 28(2) Best Interest’s of the Child
Standard.
 Case Law – Du Preez v Conradie 1990; Chastisement, moderate and
reasonable, step-parents included, allowed; Martins v Martins, Gold v
Gold, Butcher v Butcher; Duty of Support; Gordon v Barnard; Test for
PR + R (Extent and content of parental powers, reasonably exercised),
H v I, L v H; All three being applications of restraint to prevent access
to daughter; Government of SA v Grootboom; Duty of Support for
primary responsibilities (Food, Shelter, Healthcare).
 Further Case Law – YM v LB 2010, Disputed Paternity, Blood or DNA
evidence not to be tested if paternity shown on BOP, as this is likely in
the best interests of the child? ; KLVC v SDI & Another – Dispute over

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 PR + R (Satisfaction of s 21 of Children’s Act 38; Seetal v Pravitha –
not in best interest of child to scientifically prove if parent is already
presumed to be such.
 Children’s Act 38 of 2005 continued - s 7 – Relates to the
implementation of the Child’s Best Interest’s, s 9 relates to the
paramouncy clause, s 18 relates to PR + R and independent decision
making for multiple guardians, again, s 18 – 23 relates to PR + R in
general and s 28(2) relates to best interest standard itself.

NB Chptrs 1-3 require further attention and refresh. Family Law

Continued in detail…

Chapter 4: Engagements

See Van Jaarsveld v Bridges 2010 (4) SA 558 (SCA) for question of whether
engagement should enjoy any form of legal status.

Under what branches of law does engagement fall?

Engagements fall under the common law in South Africa, in terms of civil
marriage.

What is an engagement? An engagement IS a legally binding agreement, in

the nature of a reciprocal promise or contract between competent man and
woman (common law definition, same principles subject to other forms of
marriages under, for example the Civil Union Act 17 of 2006). This
engagement agreement is a promise to marry in the future either on a specific
date or an undetermined date in the future but within a reasonable period.
Implied in this agreement is that the parties will not become intimately
involved with other people, and in general will not conduct themselves in a
manner that will threaten the prospect of a happy future marriage.

What are the requirements for a valid engagement in terms of civil law? The
validation of an engagement is subject to the adequate fitting of the definition
above, as well as certain capacity. In general, capacity to become engaged or

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conclude an engagement contract matches capacity to marry. Capacity can
be stripped away subject to being too closely related (see following chapter,
civil marriages), or already being married, as well as the general capacity to
perform juristic acts. Mentally ill people, children (girls below 12, boys
below 14) have no capacity to marry – all below these ages is void. Minors
who match or are older than this age require the consent of guardian to
conclude an engagement contract. Withdrawal of this consent terminates the
contract. Furthermore, girls below 15 and boys below 18 require the
permission of the minister of home affairs to marry as well as their
guardians.
Unless the necessary ministerial consent has been acquired, the engagement
is not binding.

How is an engagement terminated in civil law and what are the legal
consequences of this termination? As with any contract, the obligations
arising from an engagement contract may be terminated in several ordinary
contractual ways:
(1) Fulfillment of the contract through the conclusion of a marriage, (2)
Agreement and release: Parties may mutually agree to no longer be bound
by the agreement, so they would mutually release one another from their
respective performances, or (3) supervening impossibility entailing the
death of one or both of the parties – this will terminate the contract as well as
withdraw the need for consent by parents or guardians.

The last two of the above will usually have no further consequences for the
parties involved in the termination, other than the return of engagement gifts.
Unilateral but justified termination based on iusta causa (a fact or occurrence
which renders the prospect of a successful marriage unlikely) may result in
lawful termination by one party even if the other wishes to get married. For
example, one party may terminate if the other has an affair, becomes sterile,
develops a chronic disease, becomes a criminal, a drug addict, etc.

Breach of contract of engagement:

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What is a breach of promise? When a party decides to withdraw from the
engagement contract without a reason traditionally termed iusta causa. In
other words, a breach is constituted by good reason alone. The party whose
conduct results in the impossibility of performance may be liable for breach of
contract. People will also be liable for breach of contract if they have sex with
someone else, ill-treat their betrothed, break off engagement without iusta
causa.

In other words, if one gets cold feet, stops loving the other, falls in love with
another, or just decides they don’t want to get married they are potentially
liable for contractual and delictual damages. NB Van Jaarsveld v Bridges
for counter-argument by SCA, ‘these traditional views on engagement are
outdated and do not recognize the ores of our time’

Ordinarily, a person is liable under contract (ex contractu) and another can
claim specific performance and damages on the basis of positive interesse –
that is, the damages, which put the wronged party in the same position he or
she would have been in had the damages not occurred (had their been full
and faultless performance).

However, the contract of engagement is regarded as sui generis (of its own
kind), without a specific remedy or performance required or forcing the
marriage as was done in the early 18h00s through Roman-Dutch law. This is
practically understandable. To force a marriage is contra bonos mores.

What actions are available after a breach of promise?

1. Positive interesse (hypothetical): These are very difficult to allocate
as the court has to try predicting future benefits, or lacking thereof in
claims. See Guggenheim v Rosenbaum, where the court suggested
that the couple would have likely executed an antenuptial contract and
would have been married out of community of property.
2. Claims for actual losses (negative interesse): This is easier to
determine, as held and supported in the Van Jaarsveld case by Harms
DP. For example, costs of wedding preparations and dresses, leaving

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 one’s job, etc. Or, when in the Guggenheim case, Ms. Guggenheim
was awarded costs for travel and packaging of moving from NYC to
Johannesburg. However, in breach of marriage contracts, courts
usually award positive interesse and not negative interesse. But in
engagement contracts courts award both, another feature that makes
this a sui generis kind of claim.
3. Delictual damages: The Actio Iniuriarum: In Guggenheim v
Rosenbaum the court held that a jilted fiancée could also bring a
delictual claim under the actio iniuriarum, to claim a solatium
(monetary compensation) for the infringement of personality rights.
The Actio mentioned above is a delictual remedy used to recover
non-patrimonial damages (pain, suffering) for the intentional
injury of personality rights. In Van Jaarsveld v Bridges the court held
that the plaintiff could only bring the actio iniuriarium successfully if the
wedding had been called off in an objectively humiliating and insulting
manner. The SMS revealed that this was not the case.

It is strange to see any liability stem from breach of an engagement contract.

If the purpose is to see whether marriage will be successful (as claimed by
the SCA in Van Jaarsveld v Bridges) then surely an engagement has been
successfully achieved in that an unsuccessful marriage has been avoided?

Punishment seems illogical and unfair. Fault is not a requirement in divorce or

a breach of engagement, one must be sure, as stated by Harms DP, not to
attach more serious consequences than one should, in such a case.

See Sepheri v Scalan 2008 (1) SCA 322 (C) Couple living in a domestic
partnership, methods of recovery available in the future if the Domestic
Partnerships Bill is passed?

Return of the Engagement Gifts

The wedding ring and all sorts of engagement gifts are customary but not
legally necessary. These gifts are traditionally grouped into three categories.
The fate of these gifts is regulated if the causa for them has ceased to exist

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(e.g. calling off the engagement). If the losses suffered by breach are only
related to the engagement gifts, then RSA common law generally
governs and settles the matter. Unlike in marriages, there is no
legislation that directly governs the proprietary aspect of engagements.

If the engagement is terminated by iusta causa (mutual agreement), then all

gifts except small tokens of affection should be returned by both parties.
When one party is guilty (the cause of the breach) and the other is
innocent:

1. Gift type – sponsolatia largitas – a gift like an appliance used in the

marital home, say, furniture – innocent party retains same, guilty party
has to return same; can be set off against any damages claim.
2. Gift type – arrhae sponsolatiae – a gift like a wedding ring, symbolic
of the earnest obligations of the promise – innocent party retains same,
guilty party returns same; can be set off against any damages claim.
3. Inconsequential gifts/small tokens of affection – for example,
chocolates, flowers, books – non-returnable.

The fate of children: Children born during an engagement that is

subsequently called off is the same of all other children born to unmarried
parents. The PR + R of unmarried parents are set out in sections 19-22 of the
Children’s Act (see above).

Questions to note for study: What is an engagement? How can one

terminate an engagement without incurring liability? What sort of damages
would one be liable for as a consequence of termination of an engagement?
Can you keep the ring if the engagement is called off? Is the law surrounding
engagement sensible and practical?

Requirements for Civil Marriage (Chapter 5)

A civil marriage is a marriage in terms of the Marriage Act 25 of 1961, or the

Civil Union Act 17 of 2006. Marriage was traditionally defined as the ‘legally

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recognized voluntary union for life of one man and one woman to the
exclusion of all others’ Civil Marriages are now permitted between same-sex
couples, and thus civil marriage must be redefined as, “the legally
recognized voluntary union for life of two people to the exclusion of all
others.”

Modern civil marriage is highly regulated by statute, like the Matrimonial

Property Act 88 of 1984 and the Divorce Act 70 of 1979. Civil marriage is
thus different to common law (traditional and unwritten) marriage, as well as
distinct from customary law marriage or religious marriage.

Civil Partnerships (see Civil Union Act mentioned above) have identical legal
standing and consequences to Civil Marriages in terms of the Marriage Act
of Civil Union Act. The only difference between civil partnerships and civil
marriages is terminological. People can choose which they would like to use.
Some choose to be civilly married; others choose to be civilly partnered. No
legal significance to this distinction, purely subjective and emotional.

There are three requirements for civil marriage:

1. Capacity: the parties must have capacity to marry;

2. Consensus: the parties must consent to marry each other;
3. Formalities: the wedding must conform to the prescribed formalities.

Capacity entails the spouses having (1) capacity to marry, known as

absolute capacity and (2) capacity to marry each other, known as relative
capacity.

Absolute capacity entails a person being able to give a valid expression of

their will and is able to understand the legal nature and consequences of his
or her acts (marriage an important juristic act, person’s legal status must be
valid). People’s capacity to marry may be restricted on grounds such as age,
or an existing marriage.

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People are mentally ill if they are unable to understand the legal nature and
consequences of their acts or if they are motivated to perform the acts by
delusions caused by mental illness. People who are mentally ill have no
capacity to perform juristic acts and thus have no capacity to marry. The
marriage, should it take place, shall be declared void and have no legal effect.

Children below the age of puberty (12 for girls and 14 for boys) have no
capacity to marry. Minors over the age of puberty may conclude a civil
marriage in terms of the Marriage Act if they have the permission of their
Guardians. Boys also require consent of the Minister of Home Affairs, as
do girls under the age of 15. See notes above. Note: The Marriage Act
allows minors to marry but the Civil Union Act does not allow minors to
marry.

Mindlessly drunken marriages are not legally possible. But the onus will be
on the party alleging incapacity to prove this.

People, who are already married to someone else, or even their existing
marriage partner, may not re-marry (say, to change matrimonial property
regime). If the previous marriage has not been terminated. Customary
Marriages might allow for polygamous marriage, but cannot become civil
marriages, then.

Some people have full absolute capacity to marry but relative incapacity
to marry each other. The only legal impediment preventing people from
capacity to marry each other, in RSA law, is if they are related within the
prohibited degrees of relationships.

People who are too closely related to each other may not marry each other.
The law distinguishes between blood relationships (consanguinity
relations) and relationships created by marriage (relationships of
affinity). Further, the law distinguishes between direct lines of descent and
collateral lines. People are related in the direct line if they are ancestors or
descendants of each other (grandparents, parents). People are collaterals if

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they have a common ancestor but are not related in the direct line (siblings,
cousins, aunts, nephews). Counting the number of generational steps
between one of the collaterals and the common ancestor, and adding them to
the other collateral calculate the degrees of relationship. Siblings from the
same parent are thus collaterals to the second degree (the closest relation).
Cousins are fourth degree relations – their parents are siblings, they share a
common grandparent. See textbook page 237.

Relationships without blood or marriage can still be connected through affinity.

Affinity relations can be in the direct line or the collateral line.

Prohibited degrees of blood relationship (Consanguinity):

People may not marry anyone to whom they are related by blood in the direct
line. It is thus never permissible for people to marry their parents, children,
grandparents or grandchildren. People may, however, marry their collateral
blood relatives, provided that there are four or more degrees of relationship
between them. Blood collaterals in the second degree (siblings) may never
marry. Nor may blood collaterals in the third degree (e.g. an uncle may not
marry his niece or nephew).

Prohibited degrees of relationship by marriage (affinity): People may not

marry anyone to whom their spouse is related by blood in the direct line. This
prohibition remains even if the marriage ends, whether by divorce or death.
Request clarification on this: There are no prohibitions on marriage to
collaterals of a former spouse. Can marry siblings of former spouse??

Adopted Children: Children who are adopted may not marry anyone whom
they would not have been permitted to marry if they had not been adopted
(biological parent). Likewise, adopted children may not marry their adoptive
parent/s. But an adoptive child CAN marry anyone in their adoptive family
besides their adoptive parents.

Opposite-sex and same-sex marriage: In the Fourie case, the

Constitutional Court determined that the common law rule of only being

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allowed to marry someone of the opposite sex was unconstitutional. The Civil
Union Act was thus passed by Parliament, allowing same-sex couples to
marry. However, the Marriage Act was not changed or amended and so
same-sex couples can only marry in terms of the Civil Union Act, but not the
Marriage Act.

Consensus: Voluntary Informed Consent

A civil marriage is a voluntary union. This entails voluntary consent, which

must also be informed. Material aspects of the marriage must be understood.
If this consensus is not fulfilled, the marriage will be void. People will not give
voluntary, informed consent if:

1. They are unable to do so because they lack capacity;

2. They were forced into the marriage under duress or intimidation;
3. Or their consent was based under material mistake.

Mentally ill, or severely intoxicated people, as well as those discussed in

consent above, are unable to give valid consent to marry.

Metus (duress or intimidation): constituted by a fear sufficiently serious to

invalidate consent, fear being reasonable, fear arising from circumstances for
which the party is not responsible.

See Smith v Smith, wherein the court identified what was meant by
‘sufficiently serious’ or ‘reasonable fear’. Mr. Smith engaged young girl who
fell in love with Mr. McConnell before her wedding. She was afraid to tell her
parents or fiancée because her father was a determined man of violent
temper and of whom she stood in great fear. So she delayed informing her
parents until after wedding invitations has been sent out. In response to the
news, her parents and fiancée threatened both the girl and her new lover,
insisted that the wedding continue as planned, and they assaulted her more
than once. She went through the marriage ceremony in a dazed and acutely
distressed condition. Afterward, she remained in her room and declined to

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take part in the celebrations. The judge held that the young girl (Mrs.
Smith) was reasonably scared and her fear was sufficiently serious to
invalidate her consent. The marriage was therefore voidable on the
grounds of duress. Note: it is not necessary for the spouse to be the creator
of the fear; abstract or conditional things could be the cause for this. However,
fear of hurting a parent’s feelings, or fear of being disinherited will not be
sufficient to invalidate consent.

Material Mistake or Fraud: A marriage will be voidable if one or both of the

spouses made a material mistake. It is a requirement for a valid marriage that
the spouses give voluntary consent to (a) marry, and (b) to marry each
other. Mistakes on either of these issues are deemed material.
A mistake about the nature of the juristic act is an error in negotio, this would
occur if one or both of the spouses did not know they were in fact concluding
a marriage, but perhaps rather something like a formal betrothal. A mistake as
to the identity of the other party is the error in personam, but this is very rare
as physical presence of the spouse is required for a valid marriage to take
place, and unless the spouses have never met before, they would likely be
able to identify one another. Indeed, there is no South African case law for
this matter.

Grounds for annulment are not found in mistakes about beauty, riches,
nobility, name, age, religion, race, nationality, previous marital status, etc. A
marriage may be voidable, or liable to annulment, if one of the spouses
has misrepresented certain important facts that go to the heart of the
marriage, such as being pregnant by another man, or knowingly concealing
their sterility.

For the validity of a sham marriage or marriage of convenience, see Martens

v Martens, where one friend married another’s girlfriend as a favour to that
friend. Despite intentions, decree of nullity was denied and the marriage was
upheld as valid.

The prescribed formalities:

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A marriage must be undertaken in (1) a public and formal way. See
Minister of Home Affairs v Fourie. Valid civil marriages require that the
prescribed formalities set out in the Marriage Act are followed, or likewise for
the Civil Union Act. The formalities are almost identical.

(2) A marriage must be solemnized by a duly appropriate marriage officer

[Marriage Act s 11(2)] and the only exception to this is when the Minister of
Home Affairs validates a marriage under special circumstances. Some people
are marriage officers ex officio, such as magistrates and special justices of the
peace (Marriage Act s 2). Furthermore, likewise for the Minister of Home
Affairs, who can designate and entitle certain employees and others, such as
religious figureheads, to be marriage officers.

(3) Objections: Both the Marriage Act and the Civil Union Act make provision
for lodging of objections with the marriage officer to the marriage.

(4) Proof of Age and Identity: The parties to the marriage must present their
identity documents or the prescribed affidavit to the marriage officer or they
cannot be married.

(5) The Marriage Formula S30 of the Marriage Act / S11 of the Civil Union
Act: A civil marriage will only be valid if the format of the wedding ceremony
and the minister has approved vows exchanged. This is according to both the
civil union and marriage act. Religious formulae can also be used if approved
by the minister. The crucial aspect of the marriage is that the couple must
publically agree to marry each other. They must also both the present when
the vows are exchanged. Right hand must then be held and marriage officer
must declare them married.

‘Do you, X, declare that as far as you know there is no lawful impediment to
your proposed marriage with X, here present, and that you call all here
present to witness that you take X as your lawful (husband if Marriage
Act/Spouse if C;ivil Union Act)”

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(6) Witnesses: A civil marriage will only be valid if there are at least two
competent witnesses – prevention of clandestine marriages.

(7) Place and time of wedding, Marriage Act s 29(2) / Civil Union Act s
10(2): The marriage must be solemnized in a public office or private swelling
house, with open doors.

See Ex Parte Dow, wherein MR Dow argued that his marriage be declared
void because it took place in the garden rather than inside the house. But
because the primary purpose of s 29(2) MA and s 10(2) CUA is to prevent
clandestine marriage, the court held that the garden would suffice. Marriage
officers may solemnize at any time or day of the week, but are not obliged to
do so between any other times than 8AM-4PM.

(8) Registration of the Marriage: The marriage officer, the parties to the
marriage and two competent witnesses must sign the marriage register or
other prescribed documents and forward these to the public official
responsible for the population register.

Chapter 6: Void, Voidable and Putative Marriages: A void marriage is not

a marriage at all. Null and void ab initio; in principle none of the legal
consequences attached to marriage apply to it. A void marriage is thus one
that never even comes into existence in the eyes of the law. A void marriage
is always void, regardless of whether of not the court makes a declaration to
this effect. However, for the sake of legal certainty an application for a
declaration of nullity is usually made to a court (see Ex parte Oxton).

A void marriage has no existence and so it is as if the couple never married.

Thus none of the usual legal consequences exist. Each of the parties remains
unmarried in status. The grounds for nullity of marriage are based on the
requirements (see above) for civil marriage.

Void if the parties do not have the capacity to marry (absolute or relative). For
example, being below the age of puberty, being mentally ill, within the

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prohibited degrees of relationship, being already married. Furthermore, a
marriage will be void if it does not comply with important formal
requirements as set out in the Civil Union Act and Marriage Act (for
example if the marriage was solemnized by someone who is not a competent
marriage officer, or two competent witnesses are not present). However,
some formalities are less important than others, and can or may be regarded
as immaterial. For example see Ex parte Dow.

A voidable marriage IS a marriage (unlike a void marriage, which is not). A

voidable marriage is valid for all purposes unless and until the court grants a
decree of nullity o the grounds of a defect that preexisted at the time of the
marriage ceremony. A void marriage suffers from a critical defect
preventing its existence, but a voidable marriage suffers from a less
important defect at the time it was entered into. The defect suffered by a
voidable marriage is not critical enough to render it void, but because of the
defect one or both parties, and even third parties in some cases, can apply to
the court to have the marriage annulled (set aside).

Until the marriage is annulled, a voidable marriage continues as a valid

marriage and has all the usual consequences of a valid civil marriage. If it is
not set aside, it remains and continues as valid with all the usual legal
consequences.

The difference between annulment and divorce is that when a court sets
aside a voidable marriage it annuls the marriage with retrospective effect and
the parties must be returned to the same position that they would have been
in if they had never married; the parties DO NOT share any marital
assests. However, when a court grants a decree of divorce, the Divorce Act
70 of 1979 applies to the termination of the marriage. The court can order
transfer of assests from one spouse to the other, or order a forfeiture of
patrimonial benefits. Furthermore, common law and statutory rules (in comm.
Of prop or out comm. Of prop or accrual system) can apply to the marriage.
These systems provide for the sharing of martial assests between the
spouses.

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An annulment is based on circumstances that existed at the time of the
marriage, whereas a divorce is based on circumstances that arose
during the marriage.

Legal Consequences of voidable marriages:

A voidable marriage is a valid marriage in all respects until the court sets it
aside. If neither parties apply for annulment, the marriage will remain in force
and have all the legal consequences of a valid civil marriage. For example, if
one of the spouses dies intestate, the other spouse will be able to inherit
intestate. If the parties to not have an antenuptial contract, the marriage
is deemed to be in community of property.

If and when the court issues a decree of annulment, the marriage is effectively
cancelled. The decree of annulment is retrospective. So, even if a voidable
marriage was treated as an in community of property marriage during its
existence, these economic consequences of marriage are voided and
the parties are returned to the same financial position that they would
have been in if they had never married. There is no sharing of marital
property. However, the rights of third parties who entered into legal
transactions with the parties to a voidable marriage are protected. However,
Bona fide reliance on its validity is required. The status of children born to
a voidable marriage is not altered if the marriage is annulled; hey are
regarded as the children of married parents in the eyes of the law.

Unassailable marriages are no longer voidable due to the renouncement

of the rights to annul.

Grounds for voidability: (1) Section 24A(1) of the Marriage Act provides for
the voidability of a marriage based on minority and consent from guardians.
(2) Material mistake, error in personam or error in negotio. (3) Duress (4)
Concealed existing pregnancy. (5) Impotence, being the inability to have
sexual intercourse. However, if (4) or (5) or (6) are condoned, then these
grounds cannot be applied for. Finally (6) sterility; being the inability to
procreate (also known as infertility).

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See Venter v Venter or Van Niekerk v Van Niekerk (page 251 of textbook).

A putative marriage is a void marriage. It suffers from one of the critical

defects that I identified in the section on void marriages above. A putative
marriage cannot be saved or transformed into a valid marriage. However, the
marriage may be deemed a putative marriage if one or both of the parties to
the marriage were unaware of the critical defect rendering the marriage void
at the time of the wedding. If the parties to a void ‘marriage’ went through
the appearance of a marriage ceremony and one or both of them did so
in the bona fide belief that they were entering into a valid marriage, the
relationship between them is a putative marriage.

Requirements for a putative marriage: a void marriage will only be treated

as putative if one or both of the parties believed in good faith that they were
entering into a valid civil marriage. One or both of the parties must be
sincerely unaware of the defect which rendered their marriage void. In
contrast to common law, modern law suggests that a marriage can still be
deemed putative even if the formal requirements are not strictly complied with.
However, the marriage must have been contracted openly and in accordance
with rituals and ceremonies not inconsistent with our law. They must be in
accordance with Wille’s Principles.

A putative marriage remains a void marriage, and the court has no discretion
to declare it valid. However, certain legal consequences will nevertheless
arise from the marriage.

Property rights of the parties: The most important difference between an

ordinary void marriage and a void marriage that is deemed to be putative is
the effect on the spouse’s marital property. This will depend on which of the
spouses were bona fide, and whether or not the spouses concluded an
antenuptial contract.

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Rules:
Where both parties acted in good faith:
If the spouses did not conclude an antenuptial contact, the marriage is
deemed to have been in community of property and therefore the (putative)
joint estate is divided equally between them.
If the spouses did conclude an antenuptial contract, either of the spouses
may enforce any obligations due under the contract.

If only one of the spouses acted bona fide (see Wells v Dean-Willocks):
If the spouses did not conclude an ANC, the marriage will be deemed to be
in community of property if this favours the innocent party (as it did for Wells).
If the spouses did conclude an ANC, the innocent party can choose to
enforce the terms of the contract.

Where there are TWO innocent parties: see Zulu v Zulu 2008 (4) SA 12 (D).

Chapter 7: Personal Consequences of Civil Marriage

The most important invariable consequence of civil marriage is the creation

of the consortium omnis vitae. ‘Consortium omnis vitae’ means, ‘a
partnership in all of life.’ It encompasses physical, moral and spiritual
community, entails reciprocal duties between spouses to live together, be
loyal to each other and faithful to one another, and to assist and support each
other, and to have sexual intercourse with each other.

In Grobbelaar v Havenga, Judge Harcourt defined the consortium along

similar lines to the above definition. He further defined it as the totality of the
number of rights, duties and advantages accruing to spouses of a marriage.
Judge O’Reagan for CC in Dawood v Minister of Home Affairs also
described the consortium along these lines and also included intercourse in
her description.

These descriptions of the consortium omnis vitae accord with the

contemporary social understandings of a ‘good marriage.’ Note that it remains

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an abstraction of reality; it is just a legal concept, comprising legally binding
rights and duties that spouses cannot avoid. An agreement between spouses
that they will not fulfill their consortium duties will be invalid on the grounds
that it is against public policy.

The COV (consortium omnis vitae) comprises unchangeable legal rights

and duties. It enjoys LEGAL PROTECTION. The law provides for remedies
for loss of and damage to the consortium, and further the law also actively
protects it from being threatened with interference.

In protecting the COV from outside interference, different threats are posed:
1. Unjustified Enrichment by the State
2. Adultery
3. Loss of Support

Protection against unjustified enrichment: in Dawood v Minister of Home

Affairs, the CC relied on the Consortium to protect marriage from state
interference. Three married couples were halved in that in each case one
spouse was an RSA citizen, whilst the other was a foreigner in RSA on a
temporary residence permit. Case primarily concerns itself with the Aliens
Control Act 96 of 1991. In this Act the dept. x HA could extend or refuse
extension of temp. Residence permits. In the case of refusal, non-RSA party
was obliged to leave the republic. Held, legislation that violates the consortium
is unconstitutional as it deprives couples of fundamental constitutional rights,
even though marriage is not expressly mentioned in the constitution.

Protection against private parties: the case of adultery

Roman-Dutch law awarded men a delictual action against other men who
committed adultery with their wives. Women could also be found guilty of this
offence in South African common law, and as a result both women and men
have delictual action against third parties who commit adultery with their
spouses. The aggrieved spouses can use the actio iniuriarium to recover
damages for hurt feelings and infringement of their honour. Delictual action for
adultery has been controversial but remains an actionable delict in post-

18
constitutional South Africa. This idea is supported in the Dawood case above,
as well as in Wiese v Moolman, where the court held that any interference
with the marital consortium was a dignity violation. However, based on the
idea of public policy, spouses cannot sue each other for adultery.

The reciprocal duty of spousal support is an important aspect of the marital

consortium. The duty of support includes financial support and provision of
services in the home. A spouse who loses spousal support through negligent
acts by a third party that result in the death of the other spouse can sue the
third party in delict using the actio legis Aquiiae. In Union Government v
Lee, Dr. Lee was killed when a train collided with his car at a level crossing.
Dr. Lee was the sole breadwinner of his family, and his wife was awarded
patrimonial damages for loss of financial support. Further, in Union
Government v Warneke, Mrs. Warneke was killed in a train accident.
Although Mrs. Warneke did not work outside the home and her husband was
not dependent on her for financial support, Mr. Warneke sued the Department
of Railways on the grounds that he had been deprived of the comfort and
society of his wife, and of her assistance in the care, clothing and upbringing
of his seven children. The court held that Mr. Warneke could not use the
actio legis Aquilae as Dr. Lee’s wife did, because these were not directly
patrimonial losses, but instead awarded Mr. Warneke money on the grounds
of patrimonial harm.

Even though the consortium is primarily concerned with the relationship

between the spouses themselves, there is often very little the law can do to
enforce aspects of the marital relationship. In Boon v Boon, Mrs. Boon came
before the Supreme Court claiming that her husband refused to talk to her
and that this constituted an illegality. However, the court held that although it
could be expected, the court could not compel her husband to communicate
with her, her only actionable legal remedy was divorce.

Another invariable consequence of civil marriage between spouses is the duty

of support, which arises ex lege as soon as the couple marries. Earlier I

19
noted that the spousal duty of support is also an important aspect of the
consortium omnis vitae. The duty of support applies in all civil marriages no
matter the matrimonial property system chosen. In practice, however, when
spouses are married in community of property, the duty of support is usually
met through the joint estate.

General Principles of the common-law duty of support: Reciprocal duties

of support arise between people when:
1. There is a particular kind of relationship between them, in this case
the marriage relation, which takes precedence over all blood
relationships. As such, a married woman cannot ask her father to
support her if her husband has the means to do so.
2. The person from whom support is claimed has the necessary means
to supply the support requested. It is impossible to ask for
something from someone who has nothing to give. People who have
legal duties of support must make the effort to earn enough money to
provide it.
3. The person who claims support must be in need of it. Duty is limited
to necessary support but this is not necessarily limited to the bare
essentials.
Duties of support are usually reciprocal. This support is given on a pro rata
basis. There are two main ways of providing support. This can be done
financially or by performance of acts.

The scope and content of the duty of support is not necessarily limited to the
bare necessities of life. It is determined by the couple’s standard of living. This
was determined in Young v Coleman. In Gammon v McClure the court held
that Mrs. Gammon had spent a proportional and thus appropriate amount on
her clothing and lodging. Her purchases were deemed in accordance with her
social status. HOWEVER, the court concluded that her spending was
unnecessary and as such the amount spent did not fall within the scope of her
husband’s duty to support her.

20
If a spouse fails to provide their owed support, the other can approach a court
for a maintenance order. The High Court has jurisdiction to order
maintenance, but most people use the cheaper and faster Maintenance Act
99 of 1998 procedure, which entitles maintenance courts to conduct these
proceedings, including both civil and criminal sanctions for non-compliance.

Spouses cannot, however, arrear maintenance from the other, because if a

spouse did indeed fail to support and the other spouse survived, it will easily
be argued that the other spouse did not in fact NEED support (need, which is
an underlying requirement of the general principles of the common-law duty of
support). But this logic falls if the spouse was obliged to incur debts for his or
her maintenance, and in this case arrears may be awarded. Arrears may also
be claimed if in the terms of a maintenance order.

Termination of the duty of support: The reciprocal duty of support is an

invariable consequence of marriage (even if the spouses live apart, except for
desertion), thus, as a general rule, when marriage ends, the common law duty
of spousal support also falls away. Since 1990, surviving spouses have a
claim against their deceased spouses estate, for provision of their reasonable
maintenance needs if they are unable to provide for themselves from their
own means and earnings. Further, a divorce court may order on going
maintenance to an ex-spouse as part of a divorce order. The duty of support
is not affected if the spouses have separated by mutual consent.

Liability to third parties who have provided spousal support: In

Gammon v McClure, Mr. Gammon sued Mr. McClure for repayment of the
money he had spent on Mrs. Gammon. This was a claim based on unjustified
enrichment. The underlying argument was that Mr. Gammon had a duty to
support his wife and was therefore liable to repay a third party who had spent
money supporting his wife when he failed to fulfill his spousal support
obligations.

21
RSA law likewise recognizes that third parties have the right to claim under
these circumstances. The claim can be based on unjustified enrichment, or
negotiorum gestio.

Negotiorum gestor is someone who acts on his or her own authority in

managing the affairs of someone else (dominus negotii). The action based
on negotiorum gestio is available when the negotiorum gestor has
incurred necessary or useful expenses in the course of looking after someone
else’s affairs in a reasonable manner and with the intention of managing the
affairs of the dominus rather than themselves. Because this action is based
on unauthorized expenditure, it is only available when the person whose
affairs are being managed (the dominus) is unaware of the situation and has
therefore been unable to give consent. However, the action is not available
when the dominus has expressly forbidden the transactions concerned.

RSA common law allows for negotiorum gestio when:

1. The expenses were necessary or useful.

2. The gestor incurred these expenses doing something that the
dominus negotii should have done.
3. It was done in a reasonable manner.
4. It was done with the intention of managing the affairs of the dominus
negotii, rather than for the benefit of the gestor.
5. The dominus negotii was unaware of the transaction, but had not
expressly forbidden it.

As such, Gammon v McClure seems to be perfect for this action, rather than
the unjustified enrichment conclusion that it came to.

Unjustified Enrichment:
One of the central elements for the negotiorum gestio suit is that the
negotiorum gestor must have been aware that he or she was managing the
affairs of someone else (see above). The remedy will not be successful where
a person supplies necessary support to another but is unaware of their

22
circumstances. This will usually be the case with strangers, like shopkeepers,
hospitals or plumbers. For example, in Excell v Douglas, Mr. and Mrs. Excell
were married, but had not lived together for many years. They had, through
mutual consent, separated. Mr. Excell was still obliged to support his wife,
even though they were living apart. Mrs. Excell bought clothes at Ms.
Douglas’s shop on several occasions during 1922 and 1923. She did not pay
for the clothes but instead put them on to her husbands account. In 1923 Ms.
Douglas sued Mr. Excell for the money owing, but she did not have a
contractual claims against him. Thus, the only grounds on which she could
sue, were those of unjustified enrichment. In general, a person will have an
action on the grounds of unjustified enrichment where one person’s estate is
enriched at the expense of another’s without legal cause. The remedy
requirements are:

1. The defendant has been factually enriched, and the plaintiff factually
impoverished.
2. There is a causal link between the defendant’s enrichment and the
plaintiff’s impoverishment (so the one has been uplifted at the other’s
expense).
3. There is no valid legal reason (cause) that justifies the enrichment of
the defendant at the plaintiff’s expense, or which justifies the retention
of the enrichment by the defendant.

If we apply these principles to the facts of Excell v Douglas, I can see that
Mr. Excell had a duty to support his wife. Part of this duty was to supply her
with clothing. She spent almost $350 on clothing at Ms. Douglas’s shop and
did not pay for anything. Ms. Douglas was thus impoverished to that amount.
In his duty to supply his wife, (as the argument went) Mr. Excell should have
spent that same figure. He did not, which meant that he was that amount
richer than he would have been otherwise. According to this argument, there
is a direct causal link between Mr. Excell’s enrichment and Ms. Douglas’s
impoverishment. Furthermore, there was no valid legal reason to justify this.
Mr. Douglas raised his own objections along the lines that he did not have a
duty of spousal support here, that he had already fulfilled this duty through

23
allowances, and that the expenses further fell outside of the ambit of the
support duty in the first place, even if his initial rejection fell through. This is a
good general defense.

The liability of a spouse to third parties based on negotiorum gestio or

unjustified enrichment is based on the duty of spousal support, as an
invariable consequence of civil marriage (see Civil Union Act or Marriage
Act).

Further defenses that may be raised in this case, despite the general defense
referred to at the top of the page, follow:

1. No duty of support at all: Duty, as an invariable consequence of civil

marriage, can only not apply if the marriage is not valid ab initio. Or, if
the marriage is valid, but the spouses live separately, the spouse at
fault loses his or her right to support and the innocent party no longer
has a duty to provide any support.
2. The expense was not reasonable and falls outside of the ambit of
support. Spouses only have the duty to provide reasonable support.
Reasonable is determined in relation to the standard of living of the
couple concerned. In Excell v Douglas, even though Mrs. Excell spent
what she did on clothing, the court held that this was extravagant and
disproportionate to their standard of living, and thus only one third of
the figure she spent fell within her husband’s duties.
3. The duty of support has already been fulfilled: In the end, Mr. Excell
didn’t even have to pay the single third that he owed. This was
because of the clothing allowance he had given his wife already, thus
he had already fulfilled this duty. His wife failed to live within her
budget, all her extra expenses were deemed extravagant.
4. Defenses based on particular remedies: Rejections to claims can be
made based on particulars and principles of remedies and actions
available.

24
Where a third party is killed through the negligent action of a third party the
third party might be liable in delict to the surviving spouse on the grounds of
loss of support. See above.

Managing the common household: Household necessities.

Spouses married in terms of the civil law share the responsibility of managing
their common household. The power to manage the joint household in South
Africa is shared: both spouses in a civil marriage have the power to bind each
other in contract for the things and services that are necessary in running the
joint household. This principle applies regardless of the matrimonial property
system held. This duty to cover or pay is determined on a pro rata basis.

Household necessaries: Items and services required in running the joint

household. This is the organized family establishment centering on a married
couple that lives together in the same home. Members include the married
couple, their children and all the other people who live with them, like elderly
parents and live-in domestic assistance, etc.

Household necessaries are the things and services that are needed by the
members of this household, or which are needed for running the household
generally. False teeth were considered a household necessary in Johnson v
Powell. However, all households are different. Necessary is a relative word,
and when determining what it equates to, courts will look at the social status
of the household, its means and its usual standard of living. Usually expensive
non-recurring items such as cars, holidays, pianos and litigation expenses are
excluded.

Regardless of the matrimonial property system, both spouses share the duty
to pay for the items and services that are necessary in running for the joint
household. In practice, this is unimportant for couples married in community of
property, because the money will usually come from the joint estate. Couples
married out of community of property must pay for the necessary expenses of
the household on a pro rata basis according to their means. Spouses who
contribute more than their pro rata share have a right of recourse against the

25
other spouse if they were married before the commencement date of the
Matrimonial Property Act (MPA) 88 of 1984. If they married after the
commencement of the MPA, they do not have rights to recourse, unless they
agreed to this in their antenuptial contract (ANC).

Spouses are jointly and severally liable to third parties for the debts that they
incur in the course of buying the items and services that are required to run
the joint household. This means that creditors can choose which spouse to
sue for repayment of the debt: creditors can sue spouses who actually
incurred the debt or they can sue the spouses jointly, or they can even sue
the non-contracting spouse, even if this spouse did not give permission for the
transaction or did not even know about it. So, even when suing the non-
contracting spouse, creditors can sue for the full amount owing on the
debt, and this spouse might or might not have the right of recourse on
the contracting spouse.

The power to bind a non-contracting spouse in contract is not based on

agency. Instead, it is an automatic incident of civil marriage, which cannot
be excluded or avoided. It is an invariable consequence of civil marriage that
a spouse becomes bound, I see it as almost as an indirect contract.

However, the spouses will only have the power to bind each other in
contract for the purchase of household necessaries if certain requirements
are met:
 A valid civil marriage must exist;
 A joint household must exist;
 The items must qualify as household necessaries.

Note: A joint household will still exist even if one of the spouses were
temporarily absent from the home. In Reloomel v Ramsay, Dr. Ramsay was
temporarily absent having gone to Europe to do ‘war work’ during the First
World War. The court held that despite this absence, the Ramsay’s still had a
joint household and Mrs. Ramsay retained the power to bind her husband, Dr.

26
Ramsay, in contract. On the contrary, in Excell v Douglas, the Excell’s had
lived apart for many years; their was no joint household and Mrs. Excell could
not bind her husband. The most important defense against a contractual claim
based on provision of household necessaries is that one or more of the core
requirements have not been satisfied. In Reloomel v Ramsay the court held
that providing a spouse with an adequate allowance was not a defense
against a contractual action based on provision of household necessaries.
Neither could the husband argue that he had forbidden the purchases
concerned – the wife’s power to bind him in contract is not based on agency
and therefore cannot be revoked by the husband, likewise for wives, of
course.

The overlap between the duty of support and the duty to provide
household necessaries obviously entails a big overlap. Very often
provision of particular items such as groceries falls under both headings.
Not all purchases fall into both headings. Obvious examples may include dog
food. Litigation services are part of the duty of support but not regarded as
household necessaries.

Third parties who supply goods or services to a spouse are in a stronger

position if the goods or services qualify as household necessaries. This
entitles them to a contractual claim for the full amount owing on the contract.
This will only be possible if the three core requirements are met (valid
marriage, joint household, household necessary). If the third party is unable
to bring a claim contractually (based on the provision of household
necessaries), they might still be able to bring a claim based on the spousal
duty of support. This can be done using the negotiorum gestio or unjustified
enrichment claim. Obviously each requirement must be met.

In the matrimonial home: Cohabitation is one of the consortium rights and

duties of married spouses. In common law, spouses are expected to set up a
joint household in their matrimonial residence, which they each have the right
to reside within as an invariable consequence of civil marriage. This applies

27
regardless of the matrimonial property system or which spouse owns the
property. This extends to the use and possession of other household effects.

If one spouse breaches this (above), the other spouse can apply for a court
interdict on the actions. They can further use the mandament von spolie as
a remedy to regain these effects or accesses. See Ross v Ross, or
Oglodzinski v Oglodzinski (textbook p.272).

The mandament von spolie (spoliation order) is a property-based remedy

protecting possession. It is available to a person who has been unlawfully
deprived of his or her possession of moveable or immoveable property.

Circumstances in which a court may order ejectment of a spouse:

In Lovell v Lovell, Mrs. Lovell applied to the court to have her husband
ejected from the home so that she could live there with her two young children
but without her husband, whom she alleged had previously assaulted her. The
court noted that ejectment of a spouse is a very drastic remedy to seek. The
circumstances, under which this is appropriate, however include domestic
violence. The court noted further that the best interests of the children must
be prioritized. In domestic violence cases a spouse may apply for protection
orders in terms of the Domestic Violence Act 116 of 1998. This may prohibit
one of the spouses from entering the matrimonial home or living in it. In terms
of the Children’s Act 38 of 2005, married parent’s acquire full PR + R in
respect of the children born of the marriage.

Other personal consequences of marriage included in the marital status

are that they cannot marry anyone else for as long as the marriage
continues. They cannot marry anyone else in terms of any other RSA
applicable law, and further, their marriage creates the right of intestate
succession between them and their spouse. If a minor marries, their
minority status is terminated and does not revive even if the marriage
ends before they turn 18. Marriage further creates relationships of
affinity between a spouse and the blood relations of their spouse.

28
Finally, if couples marry in community of property, their capacity to
perform certain juristic acts is limited.

The Births and Deaths Registration Act 51 of 1992 provides that in general
people may not change their surnames when they marry unless the Director-
General of Home Affairs has authorized the change [see s 26(1)].
BUT
This does not apply to women who marry or have been married. They do not
need official permission to assume their husband’s surnames, revert back to
their own, or create a double-barreled surname. The only exceptions to this
apply to women who were previously married or are currently married. Men,
however, must apply for permission from the director general. This seems to
be in conflict with the equality clause of s 9 of the Constitution.

Chapter 8: Marital Property

This chapter examines the three main systems regulating marital property in
South African civil law. Marital property, AKA matrimonial property, means
property owned by people who are married to each other. This includes the
family home and everything else that the couple owns, from their cars and
clothes to their furniture and household appliances, as well as the funds in
their banks accounts.

Their matrimonial property system also regulates their debts. In this analysis, I
look strictly at those couples married in terms of the civil law, under the
Marriage Act 25 of 1961 and the Civil Union Act 17 of 2006. So, this
includes civil marriages and civil partnerships.

A matrimonial property system is a set of rules, which determines who

owns the marital property, which spouse owes the debts, whether the
spouses can sell or give things to other people, and how the property should
be shared out when the marriage ends. Further, the system determines things
like who can get a credit card, and who can bring a court case.

29
There is a very big overlap between the rules of marital property and the
rules of spousal support. Married spouses always have an obligation to
support each other regardless of which matrimonial property system applies
to their marriage.

The three matrimonial property systems:

1. In community of property: The spouses share everything. They own
everything jointly.
2. Out of community of property: The spouses share no property (subject
to separate individual contracts to be joint owners of specific things).
Ownership of all property is separate: each spouse is the sole owner of
his or her own money and property.
3. The accrual system: The spouses share gains made during the
marriage. During the marriage each owns his or her property
separately, but at the end of the marriage the spouses share any
growth or increase in their property that occurred during their marriage.

The in-community-of-property-system:

This is the default matrimonial property system in South African civil law. It
also applies as default to marriages in terms of African Customary law (if
there is only one wife). As such, couples who marry in South Africa will be
automatically married in com. X. prop. Unless:

 The couple signs an antenuptial contract, which states that they do

not wish to be married in community of property, or;
 The husband is domiciled in another country where the default
matrimonial property system is out of community of property. This is
noticeably an outdated principle but it still applies in our law.

In community of property, everything is shared and so, ‘what’s yours is min

and what’s mine is yours.’ Everything they have when they marry and

30
everything they acquire whilst married automatically falls into their joint
estate. In this context, the word estate means everything a person owns as
well as everything a person owes. The estate is all their assets and all their
debts.

Note, that when a couple marries in RSA law, the invocation of marriage in
community of property is automatic. The couple does not need to sign any
documents or re-register any of the property. Note further, the spouses share
an indivisible (can’t be ‘his half’ or ‘her half’) ownership over the joint estate,
they are tied co-owners. Each spouse does not have their own half that can
be identified in any way; they have an indivisible half share of everything.
Usually, the joint estate is divided when the marriage ends, but a court can
order the division of the joint estate during the marriage according to s 20 of
the Matrimonial Property Act, and spouses can also apply to change their
matrimonial property system to divide the joint estate under s 21(1) of the
same act. Note: In community of property, when you marry your partner, you
also marry their debts.

There is a futility of economic transactions between spouses married in

community of property. The spouses cannot lend or sell things to each other,
because they own things together, so there is no point. The spouses each
own a half-share of everything at all times; transactions between them
are pointless.

When the marriage ends the joint estate is automatically divided in half, no
matter who put in what during the marriage. Although the general rule is that
all assests fall into the joint estate and become the joint property of the
couple, some exceptions to the rule apply.

Assests that do not fall into the joint estate: Sometimes assests do not fall
into the joint estate and are separate property, owned by only one of the
spouses. This can happen when:

31
 1. Assests are excluded by antenuptial contract: the spouses sign in
this contract that certain assests that they own at the time of the
wedding must be excluded from the joint estate. They can do this for
futuristic hypothetical incomes or things too. The principle pretium
succedit in locum rei and res succedit in lucm pretii, that is, ‘the
price replaces the thing and the thing replaces the money’ applies to
this separate property. So if a spouse sells an asset that they excluded
from the joint estate, the money for that asset will also remain
excluded.
2. Assests are excluded in a will or deed of donation: It is common for
people to leave property to their children in their will, with the proviso
that this property should be excluded from the joint estate if that child
happens to marry in community of property. This is known as an
exclusion clause, and it can apply to existing marriages or futuristic
marriages. These rules also apply to donations - a person making a
donation can stipulate that it should be excluded from the joint estate.
The same Latin principle above in (1) applies here too.
3. Delictual damages compensating for bodily injury inflicted by the other
spouse.
4. Other exclusions: From time to time parliament or the courts might
decide that certain kinds of assests should be excluded from the joint
estate. For example see Mazibuko v National Director of Public
Prosecutions 2009, where the court held that some of the property in
the joint estate could be rescued from forfeiture (state confiscation)
under the Prevention of Organized Crime Act 121 of 1998 and half of
this property would become the separate property of the innocent
spouse.

Liability for Debts

Debts that the couple already has when they marry become a part of the joint
estate. This principle applies to debts incurred during the marriage too.
However, an exception to this general rule and principle of sharing
burdens applies to a spouse’s liability for delictual damages if married out-of-
community-of-property. This liability of the spouses for debts incurred by the

32
other spouse can be one of the main disadvantages of the in-community-of-
property system. If one of the partners’ goes into business that results in debt,
creditors can recover all the money owed to them from the joint estate
(includes the other partner). This means that the couple could be left with
nothing. In marriages out-of-community-of-property the other partner’s
estate is protected from the bankrupt spouse’s creditors. Even after the
marriage ends, and the joint estate has been divided, a creditor can recover a
debt only from the spouse who actually incurred it.

Delicts committed by or against spouses married in community of

property:

Where a spouse pays delictual damages to a third party: If Brandon

drives negligently and crashes into John’s Bakkie, John can sue Brandon
using the actio legis Aquilae to recover patrimonial damages for the money
spent fixing the car. Assume that the court orders Brandon to pay R150K in
patrimonial damages for the damage to John’s Bakkie. If Brandon is married
in community of property, the damages will usually come from the joint estate.
The general principle of law is that no person should be held responsible for
another person’s wrongdoings. Jane and Brandon are co-owners of
everything in the joint estate in indivisible half-shares. This means that Jane
owns half the share of the 150K patrimonial damages paid to John. This does
not seem fair to Jane. Cue,

Section 19 of the Matrimonial Property Act states that where a spouse is

liable for the payment of damages by reason of a delict committed by
their self, such damages are recoverable from his or her separate
property. If he has no separate property (or it is insufficient), the
damages are recoverable from the joint estate. In this case, an
adjustment shall be effected in favour of the other spouse when the joint
estate is divided.

As a result, we can see that s 19 of the Matrimonial Property Act tries to

improve the position of innocent spouses like Jane. It provides that a guilty

33
spouse (like Brandon) must first use his separate property to pay the
delictual damages. However, if the delictual damages are paid from the joint
estate because his separate property is insufficient or there is none, there
must be an adjustment in favour of the innocent spouse when the joint estate
is divided because of this. The aim of this adjustment is thus to ensure
that the innocent spouse does not (in effect) land up paying half the
delictual damages. The innocent spouse must be put into the SAME
financial position, as he or she would have been if delictual damages had not
been paid from the joint estate.

When there is not enough money in the joint estate to establish this original
position through an adjustment using s 19, (perhaps the delictual damages
are greater than the value of the JE) the innocent spouse will get everything
there is in the JE and the guilty spouse will get nothing.

When third parties pay delictual damages to one of the spouses: S

18(a) of the Matrimonial Property Act states that when a spouse is married
in community of property, delictual damages recovered for non-patrimonial
loss do not fall into the joint estate, but become that spouse’s separate
property. Damages recovered from a third party for patrimonial losses,
however, will fall into the joint estate.

Patrimonial damages affect the joint estate, whilst non-patrimonial

damages affect the individual spouse. The latter is more personal.

Other non-patrimonial delictual damages that could be awarded to spouses

include damages claimed for infringement of personality rights using the actio
iniuriarum. This could include damages for defamation, invasion of privacy,
or adultery. These will also obviously become the spouse’s separate property.

When spouses commit delicts against each other: The common law
provided that spouses married in community of property could never sue each
other in delict. In Tomlin v London and Lancashire Insurance Co Ltd,
delictual actions between spouses were futile because anything that one

34
spouse recovers from the other comes out of the joint estate and falls back
instantly into the joint estate. As seen above in s 19 and s 18(a), in 1984 the
Matrimonial Property Act made some important changes to these
common law rules

Further, s 18(b) of the Act provided that spouses married in community of

property could sue each other for non-patrimonial damages that resulted from
bodily injuries caused by the other spouse: s 19(b) stated that, when a
spouse is married in community of property, he or she may recover delictual
damages that result from bodily injury inflicted by his or her spouse. These
damages do not fall into the joint estate, but become the separate property of
the injured spouse.

The s 18(b) provisions where expanded by an amendment to the

Matrimonial Property Act in 2008. The section now provides that
spouses may sue each other in delict for ALL damages that result from
bodily injuries caused by the other spouse: that is, spouses married in
community of property may now sue their partner in delict for both
patrimonial and non-patrimonial damages resulting from bodily injuries.
This adjustment was required by the Constitutional Court in Van der
Merwe v RAF (Women’s Legal Centre Trust as Amicus Curiae) 2006.

Administration of the Joint Estate: Section 15 of the Matrimonial

Property Act. This section regulates the administration of the JE for couples
married in comm. Of prop. See Visser v Hull 2010.

S 11 of the Matrimonial Property Act 88 of 1984 abolishes marital power.

Husbands and wives are now in the same legal position. Further, s 14 and
15(1), with the latter subject to s 15(2) and s 15(3), establish that spouses
have equal powers to administer the JE. Both spouses may perform any
juristic act with regard to the joint estate without the consent of the other, or
even informing one another, except for the activities listed in s 15(2) and s
15(3).

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Transactions that need spousal consent are listed in s 15(2) and s 15(3)
of the Act:

S15 (2) lists the most important activities. For these, spouses require
WRITTEN CONSENT of the other spouse. Some of these activities require
that the written consent is witnessed by at least two competent witnesses, and
consent must be given for every transaction separately. The other spouse can
ratify most of these activities after the transaction (consent retrospectively),
provided that this happens within a reasonable time.

The activities listed in s 15(2) include the alienation of immovable property

that forms part of the JE. A spouse cannot sell a house that forms part of the
joint estate without spousal consent as Mr. Visser purported to do in Visser v
Hull. This consent must be given before the transaction occurs, it cannot be
ratified retrospectively.

3rd Parties: Further, a spouse cannot sign surety for another person’s debts
without the written consent of his or her spouse. In the case Distillers
Corporation Ltd v Modise, Mr. Modise stood surety for the debts of a liquor
store. When the store was unable to pay its debts, Mr. Modise was found to
be married in community of property, and he did not have his wife’s consent to
sign the surety he had. Because what he stood surety for without consent was
not part of his daily business as a farmer, he violated the consent
requirements (see below).

Other activities that require written consent from the other spouse include
the alienation of shares or insurance policies held by the JE, the sale of
paintings or other valuable items in the JE held primarily as investments, or
the acquisition of expensive items on credit. See table on page 291 of
textbook as well as document handed out in class.

Section 15(3) lists further activities involving joint property for which spousal
consent is required. Section 15(3) consent is more informal than that required
in s 15(2). S 15(3) consent does not require written consent, can be given

36
after the transaction through ratification within a reasonable period (note,
contracts for suretyship cannot be ratified later). These transactions include
selling or giving away the household furniture or other household effects.

Consent here also includes dealing with money earned by the other spouse’s
efforts. For example, dealing with the other spouse’s salary, or dealing with
another spouse’s received donation or inheritance.

Spouses cannot further donate any joint assests to third parties unless this
donation does not and probably will not unreasonably prejudice the interests
of the non-consenting spouse s 15(3)(c).

S 15(8) lists the factors to be considered in determining whether a donation is

prejudicial if no consent is given. These include the value or the donation, the
reasons for it and the financial and social standard and standard of living of
the spouses, as well as any other factor deemed relevant by the court.

Both fraudulent and non-fraudulent intentions for donations can violate s 15(3)
(c).

S 15(6) provides that if spouses perform particular (not all) s 15(2) activities in
the ordinary course of their profession, a spouse does not require consent.
This is an exception to the rule provided in the Act, however it does not apply
to those activities listed in s 15(3).

The effect of these consent requirements in s 15(2) and s 15(3) is that

both spouses now have limited capacity to act in certain situations.

So, what remedies does the non-consenting spouse have?

The rei vindicatio: A spouse does not have the legal capacity to transfer
ownership in certain kinds of things without the necessary spousal consent.
Because of this, the other spouse technically still owns the transferred item,
and so they can claim using this remedy, which is a very powerful one that
owners can use to recover their property.

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Enrichment remedies: If a spouse makes a prejudicial donation of money,
the person who receives the money will become the owner through
commixtio. In this situation, the spouses might have an enrichment remedy
against the person to whom the donation was made. This specific remedy is
called condictio sine causa specialis. This remedy is based on the donor’s
lack of capacity to make the donation. This enrichment is limited to the
amount by which the third party remains enriched in the day the action is
instituted, so the full amount, if any, is not necessarily reclaimable at all.

Delictual Remedies: In the case of fraudulent donations, the non-consenting

spouse might be able to bring a delictual action against the person who
received the donations if the receiver was involved in the fraud. Perhaps the
best delictual remedy here would be the condictio ex causa furtiva, which
functions as a delictual remedy for theft in modern RSA law. This remedy
requires that the third party committed to a deliberate act of theft or was
complicit in the theft. Delictual remedies allow for the non-consenting spouse
to sue for the full amount lost. The amount recovered is patrimonial damage
and returns to the JE.

The Actio Pauliana utilis: This common law remedy is available to a wife (in
modern law, theoretically a spouse) whose husband (or spouse) has donated
property from the JE in deliberate fraud of her (or his) interests in the property.
It can be used to recover fraudulent donations.

Protecting third parties: ‘deemed consent’ ITO s 15(9)(a): When a spouse

enters into a transaction that violates sections 15(2) or 15(3) and the third
party does not know (and cannot reasonably know) that the transaction
violated these sections, then the transaction is deemed to have been entered
into with the required consent.

This means that s 15(9)(a) protects bona fide third parties.

When a non-consenting spouse is deemed to have given valid consent for the
sake of a bona fide third party in terms of s 15(9)(a), they could be seriously

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prejudiced. The JE might suffer a huge loss, therefore, s 15(9)(b) of the MPA
can be employed so that the non-consenting spouse has a remedy.

S 15(9)(b) states that when a spouse enters into a transaction that violates
section 15(2) or 15(3) and that spouse knows (or ought to reasonably know)
that he or she would probably not obtain the required spousal consent, and
the joint estate suffers a loss as a result of the transaction, the non-consenting
spouse will be entitled to an adjustment in his or her favour when the JE is
divided.

Perhaps, if separate property is available, the consenting spouse must be

forced to pay from here instead of the JE if all the requirements are met.

Note, this remedy is only available if all requirements are met and the JE
ACTUALLY suffers a loss from the transaction – if the consenting spouse
received a reasonably priced deal for the transfer, the non-consenting spouse
has not actually suffered because the JE has remained unaltered; no
patrimonial loss occurred.

Note further, s 15(9)(b) is not available unless the third party meets the
requirements of s 15(9)(a), and even hereafter it may not have an effect if
there is no actual loss suffered. It is also only really helpfully available if
the JE is divided, otherwise the non-consenting spouse shall have to
wait until the JE is divided to benefit from their adjustment. If the third
party does not meet the requirements, the non-consenting spouse can
recover using rei vindicatio. In principle, the 3rd party can recover the money
they paid for the item using an enrichment remedy, although they may be
prevented from doing so through the par delictum rule.

All that the non-consenting spouse can obtain using s 15(9)(b) is an

adjustment, which can be somewhat cheap or weak and useless to them. As
such, non-consenting spouses are not limited to this action; they can in fact
sue directly from the 3rd party (see Bopape v Moloto, giving girlfriend
money to build house).

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When a spouse cannot give or unreasonably refuses to give consent:
Spouses married in community of property require their partner’s consent to
perform the transactions listed in sections 15(2) or 15(3) of the MPA. When a
spouse cannot possibly give or unreasonably refuses to give consent, a court
can give consent instead. This is justified in Section 16 of the MPA, which
states that where a spouse refuses or is unable to consent to section 15
transactions, the court may give the other spouse permission to perform the
section 15 transactions without spousal consent. Where refusal is involved,
the court will grant permission for the transaction only if it is satisfied that the
non-consenting spouse is behaving unreasonably, and that there is a good
reason for dispensing with the consent required [s 16(1)].

When a spouse deals with the JE in an irresponsible way: Although s 15(2)

and s 15(3) protect the interests of spouses, they do not offer complete
protection. For example, a 3rd party might qualify for s 15(9)(b) protection and
the non-consenting spouse will be unable to recover his or her losses using s
15(9)(b) if there are insufficient assests in the JE. Further, section 15 does not
cover every possible transaction that spouses can perform with joint assests.
In this case, the law protects the spouse in the following ways:

If one of the spouses thinks they have, are or will be seriously prejudiced by
the actions of the other spouse, they can apply to a court for the immediate
dissolution of the joint estate. To accept and grant the application and order,
the court must be satisfied:
 The interests of the applicant spouse in the JE are being or will be
seriously prejudiced because of the actions of the other spouse, AND
 No third party will be prejudiced as a result of the immediate division of
the JE (s 20).
The division can occur in a normal 50-50 split, or by another way, through
adjustment towards the innocent spouse, for example.

After this order, the court can also order further that the couple adopts a
different matrimonial property system s 20(2).

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Suspension of a spouse’s powers in terms of s 16(2): s 14 and 15(1) of
the MPA give spouses full legal capacity to deal with the JE apart from the
exceptions listed in s 15(2) and 15(3). However, if a court is satisfied that a
spouse’s interests in the JE need protection from the other spouse’s activities,
the court may suspend a spouse’s powers to deal with the JE (likely on
application by the other spouse). If a spouse violates this order, the effect of
the transactions is the same as if the spouse had violated section 15.

Interdicts: Either spouse may apply for an interdict preventing the disposing
of JE’s in a way that prejudices their interests, provided that there is no other
suitable remedy available in the MPA.

Further, in theory, a spouse can apply to have the other spouse declared a
prodigal, resulting in this person no longer having capacity to perform certain
transactions.

Capacity to litigate when married in community of property: Section 17 of

the MPA provides in 17(1) that the capacity of both spouses to litigate is
limited. It states that spouses married in community of property require written
consent of the other spouse before they can bring or defend a court case.
There are only 3 exceptions to this:
1. In respect of separate property;
2. When suing for non-patrimonial delictual damages;
3. In respect of matters relating to his or her business, trade or
profession.

Marriages out of community of property, without accrual:

This second system of matrimonial property is marriages out of community of
property. The basic rule here is that spouses share nothing, or more
accurately, the spouses have separate estates and do not automatically share
ownership in their property. Marriage out of community of property results in
each spouse retaining their separate estate: each keeps everything they

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owned before the marriage, everything a spouse earns or acquires during the
marriage falls into their own estate, and the all the debts incurred by a spouse
lies against the estate of the spouse who incurred them. Subject to the
Divorce Act s 7(3), when the marriage ends, each spouse walks away with his
or her own estate. With regard to their property dealings, spouses married out
of community of property are almost like legal strangers to each other.

This results in far less difficulty with regards to the administration of the
estates. Spouses are free to do whatever they wish with their own money.
Consent is not required to perform transactions or conclude contracts of any
kind, however many of these couples might become co-owners of property. If
sued in delict, they must pay from their own estates. They can sue each other
in delict for all kinds of damage, both patrimonial and non-patrimonial.

However, the spouses do have mutual duties of spousal support and they do
share responsibility for the expenses of the joint household.

If spouses wish to be married out of community of property, they must

conclude an antenuptial contract (ANC). This is a notarial contract that
spouses enter into before they marry. Here, spouses agree on how their
property will be shared (or not shared) during and after their marriage. If they
wish to keep their estates completely separate they must exclude both the
accrual and in-community-of-property-system. Remember, the default system
is in community of property (sometimes not, depending on the domicile of the
husband). Since the MPA came into effect, all civil marriages out of
community of property are subject to the accrual system unless
expressly stated otherwise in their ANC.

Couples can include anything in their ANC as long as it is not impossible,

illegal, or against public policy. For example, spouses can include marriage
settlements or succession pacts. The latter functions in a similar way to a joint
will, acting as a right of recourse for money spent on household necessaries.

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Even though spouses may be married out of community of property, they are
both still obliged to provide support to each other, and they are both
responsible in the provision of household necessaries [see MPA s 23(2)].
These obligations are proportionate to their means. Note: spouses married
out of community of property are jointly and severally liable to 3 rd parties for all
debts incurred by either of them in respect of joint household necessaries
[see MPA s 23(5)].

As a result, one spouse is still able to incur contractual obligations on

behalf of the other – 3rd parties can sue either spouse for any money owed,
in respect of necessaries jointly managed in the household by the couple.

Couples married after the commencement of the MPA (based on previous

classification, 1984 for coloured, Indian, white and 1998 for black) do not
have automatic right of recourse against the other spouse if they contribute
more than their share of the household necessaries, unless they have agreed
to this in their ANC.

Although couples married out of community of property can jointly own

property such as the matrimonial home or even a bank account, their
ownership and shares ARE divisible and CAN be sold to third parties. They
are normal co-owners rather than tied in common ownership like spouses
married in community of property. Marriage out of community does not
share liability  - this is a problem avoided! A possible defect of the out of
community of property system, however, is that spouses do not automatically
share in the financial gains of the marriage. This can be resolved using the
accrual system:

Marriage Out of Community of Property Including the Accrual System:

The marital accrual (growth, increase) system is a matrimonial property
system that allows spouses to share the financial gains or growth of their
estates that accrued during the marriage (which is always an out of
community of property marriage).

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The spouse whose estate increases or grows more must share some of
this growth with the spouse whose estate grows less. This can put the
latter in a far better position than a spouse married out of community of
property without accrual.

Marriage is always a team effort, regardless of the property system adopted

and the model of marriage formed (one work, one stay-at-home partner, for
example). Both spouses have a legal obligation to contribute to the success of
the shared enterprise. Empirical surveys suggest that typically a husband
takes on the role of breadwinner and wives the role of primary caregivers. The
result of this role allocation in marriage out of community of property is that
husbands usually have far better oppourtunities to increase the value of their
estates than wives. This economic and financial disadvantage experienced by
primary caregivers can be seen as a motherhood penalty. Motherhood,
caregiving and obligations to further the human species itself have, in our
legal culture, resulted in women’s earning potential and financial freedom and
independence being undermined.

Matrimonial Property Act Section 3(1): At the end of the marriage, the
spouse whose estate shows no accrual or a smaller accrual than the
estate of the other spouse…acquires a claim against the other spouse…
for an amount equal to half of the difference between the accrual of the
respective estates of the spouses.

 Calculate how much each spouse’s estate has grown during the
marriage (if a spouse’s estate has decreased during the marriage the
accrual = 0).
 If one spouse’s estate has grown more than the other spouse’s estate,
work out how much more the larger growth is than the other.
 The spouse whose estate has grown less is entitled to half of the
amount calculated above.

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So, the partner whose estate has grown less is entitled to half the amount by
which the growth of the other spouse’s estate exceeds the others.

Note: when a spouse dies the end value of their estate is calculated before
any inheritances are taken from the estate! However, this does not
necessarily apply to the accrual. Hence, accrual and estate end values are
often different. Think about the estate value before marriage and other
excluded growths from accrual during marriage…

Complicating the calculation: exclusions from the accrual

The apparent nominal growth is not necessarily the actual growth (accrual) of
the estate. ITO the MPA Sections 4 and 5, items that must be excluded from
the accrual is listed.

These include:
 Non-patrimonial delictual damages
 Any asset excluded from the accrual in an ANC (note that the principle
pretium succedit in locum rei and res succedit in locum pretii: the
price replaces the thing and the thing replaces the money applies to
this) these assets must further also be excluded from the
commencement value of the estate.
 Any inheritance, legacy, or donation, which the spouse receives during
the marriage (unless the person making the will or giving the donation
says that it must fall into the accrual, or the spouses agree in their
antenuptial contract that these things will fall into the accrual). The
principle above applies to these assets too.
 Donations between the spouses are not taken into account when
calculating the accrual of either spouse.

Further complications: Commencement Values

The commencement value of an estate is the worth or value of the estate at
the beginning of the marriage. Accrual calculations must take into account
the changes in buying power of money. This is done by adjusting the

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commencement values of the estates in a way that accurately reflects the
effects of inflation on the inherent value and buying-power of the money.
Here, we use the weighted average of the Consumer Price Index (CPI)
published in the Government Gazette. The CPI serves as a prima facie
proof of change in the value of money.

If the nominal commencement value is R100K in 1991, and R1 in 1991

money is worth R3 in 2007 money, we must adjust the commencement
value to R300K (R100K x 3) to reflect this change and arrive at the real
value. If a spouse is in debt at the start of the marriage, his or her
commencement value will be R0 (it can never be negative or less than 0)
(see MPA s 6).

When spouses marry in terms of the accrual system, they must declare the
commencement value of their estate in their ANC. If this is not done, their
commencement value is deemed to be zero (unless the spouse can prove
otherwise).

Protecting spouses’ interests in the accrual:

When a couple is married in community of property, in terms of the MPA, they
are protected by section 15 if their spouse tries to do something
irresponsible with their property. Accrual-wed spouses do not have this
protection. During marriage they have completely separate estates and each
of them is free to do their own thing with their assets. No spousal consent
requirements are needed.

ITO the MPA section 8(1) spouses may apply for immediate division of the
accrual. If one of the partners believes that their interest will, or is being
seriously prejudiced by the actions of the other partner, they can bring an
application to court for this order. The application will be granted through
order if the court is satisfied that:
 The division is necessary to protect the interests of the applicant
because of the actions of the other spouse AND

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  No third party will be prejudiced as a result of the immediate division of
the accrual.

The court can order the division occur in the normal way or in some other
way. The court may take into account previous prejudices, and thus favour the
innocent spouse, for example. Further, after this division, the court can order
that the couple change their matrimonial property system. If the court does
not make this secondary order, the accrual system applies to the growth
of the spouses’ estates after the division in terms of Section 8(1). The
commencement values are the values of the partners’ estates after the
court has divided the accrual in terms of s 8(1) and the spouses have
received their shares.

Liability for household necessaries: spouses married with the accrual

system must provide necessaries for the joint household pro rata according to
their financial means and are jointly and severally liable to third parties who
supply these items to the joint household. These provisions operate in
identical fashion for marriages out of community of property excluding the
accrual system.

The ANC: If married out of community of property (once stated the exclusion
of community of property herein, because it is the default, rarely influenced by
the domicile of the husband) the ANC must further express the exclusion of
the accrual system (because it is the default of out of community marriage.
Note: all marriages discussed above must be valid civil marriages ITO RSA
law.

Changing the MP System during the marriage:

Section 21 of the MPA: spouses may apply to court for permission to change
their matrimonial property system. They must jointly apply. The court will grant
this application is satisfied that (1) the reasons for the proposed change
are sound, (2) the spouses have given sufficient notice of the proposed
change to all their creditors and (3) no other person is prejudice by the
proposed change.

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The court can order that the couple’s present matrimonial property system will
no longer apply to their marriage and authorize them to enter notarial contract
regulating their future matrimonial property system.

To do before exam:
Sakai summary
NB administration of the JE practice Qs.
Write answers to the ‘after this chapter you should be able to’ found at
the beginning of each chapter. Start with and pay most attention to last
two chapters.
Course outline: relevant activities.
Learn MPA sections off-hand.
Learn cases off-hand.
Past papers.

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