Chapter 7: Personal

consequences of a civil marriage

1. The consortium omnis vitae

Grobelaar v Havenga - totality of number of rights, duties and privileges

accruing to spouses of a marriage

Dawood v Minister of Home Affairs - creates a physical, moral, and spiritual

community of life - includes reciprocal duties of cohabitation, fidelity and sexual
intercouse

legal concept that imposes legally binding rights and duties on spouses which
cannot be avoided

Protection

from unjustified state interference

Dawood case - SA citizens married to foreign citizens

constitutionality of provision of the Aliens Control Act forcing spouses to

leave their spouse

constitutional right to human dignity protects marital consortium against

state interference

Chapter 7: Personal consequences of a civil marriage 1

 legislation forcing married couples to be apart is unconstitutional

against private parties: adultery

RH v DE - SCA abolished action of instituting actio iniuriarium against

third parties for adultery as it would be impossible to prove the
‘wrongfulness’ element of the action in light of the boni mores

loss of support

spousal support = financial support and provision of services in the home

spouse who loses spousal support due to negligent or intentional act of

third party can institute the ‘dependent’s action’ against the third party to
claim patrimonial damages

Lee case - he was the breadwinner and was killed in train collision - loss of
household income

Warneke case - not for loss of companionship, but for loss of services in the
home

extended to ex lege dependents + widows entitled to maintenance in terms

of divorce order

enforcing consortium between spouses

courts do not interfere in the aspects of not being affectionate enough or not
speaking to one another

only remedy to spouse is divorce ito S4 of the Divorce Act

police and courts provide protection in cases of criminal conduct, e.g. rape
or domestic violence

2. Reciprocal duty of spousal support

duty of support arises ex lege once spouses are married

applies regardless of matrimonial property system

general principles

legal relationship between the parties

Chapter 7: Personal consequences of a civil marriage 2

 person claimed from must have the means to provide the support or make
an effort to earn enough money to provide the support

person claiming is in need of support - bare essentials + consider standard

of living of particular family

reciprocal and pro-rated

two types - financial and services in the home

scope and content

typically food, clothing, accommodation, day-to-day necessaries of life,

medical and dental expenses, litigation expenses

determined by couple’s standard of living

Gammon v McClure - spent appropriate amount of money on clothing and

board and lodging based on her “appearance and demeanour”

enforcing between spouses

spouse fails = other spouse can approach HC for order of maintenance

Maintenance Act provides for maintenance courts to make maintenance

orders and impose civil and criminal sanctions for non-compliance

cannot claim ‘arrear’ maintenance except if debt incurred to maintain

themselves

can claim arrears due ito maintenance order

termination

when the marriage ends

can claim for maintenance from a deceased estate ito Maintenance of

Surviving Spouses Act if unable to sustain themselves from own means and
earnings

divorce court may grant on-going maintenance as part of divorce order

spouse who deserted marital home cannot claim maintenance

spouse at fault in the case of misconduct has a duty to support the wronged
spouse

Chapter 7: Personal consequences of a civil marriage 3

 not affected if spouses living apart by mutual consent

liability to third parties who have provided spousal support

negotiorium gestio

when the third party is looking after the spouse’s estate on their behalf
and not for their own enrichment

only applicable when person whose affairs are being managed is

unaware and unable to consent

not available when they expressly forbade it

requirements

expenses necessary and useful

expenses incurred doing something the other party had a duty to do

done in a reasonable manner

done with intention of managing the affairs of the responsible party

responsible party was unaware and did not expressly forbid it

unjustified enrichment

defendant factually enriched and plaintiff factually impoverished

causal link between enrichment and impoverishment

no valid legal cause for the enrichment

defences against third party claims

no duty of support at all

not reasonable or falls outside of ambit of spousal support

duty already fulfilled

defences based on specific remedies

where spouses killed due to negligence or intention of third parties, third party
may be liable in delict to surviving spouse for loss of support

Chapter 7: Personal consequences of a civil marriage 4