PVL2601 2023 Latest Exam Pack (2)

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PVL2601
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PVL2601 (Updated 2023) Exam Memorandum
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family law
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PVL2601
Family Law
Where one of the spouses has been forced to consent to a civil marriage, such
*a marriage is…
[1] void
[2] Voidable
[3] Valid
[4] Putative
Explanation:
When one of the spouses has been forced to consent to a civil marriage, the
nature of such marriage would be voidable. A voidable marriage is one that is
initially valid but can be later annulled or declared void by the court due to
specific legal grounds, such as coercion or duress.
Lovelyn and Harry are married in community of property. Lovelyn intends to

withdraw R50 000 from her personal bank account? What kind of consent does
Lovelyn require from Harry?
[1] Prior written consent attested by two competent witnesses
[2] Written consent attested by to competent witnesses
[3] Oral or tacit consent
[4] No consent
Explanation:
When Lovelyn, who is married in community of property with Harry, intends

to withdraw R50 000 from her personal bank account, she generally does
not require any specific consent from Harry. In a marriage in community of
property, both spouses have equal rights to manage and dispose of the
joint estate, which includes personal bank accounts. Therefore, Lovelyn can
typically withdraw the amount without requiring any consent from Harry.
Mary and John enter into a civil marriage. Neither of the parties nor the priest
who solemnised the marriage is aware of the fact that the parties have
common ancestor within the first degree of consanguinity. What is the nature
of such marriage?
[1] void
Downloaded by: BradleyCooper12 | chikosrufa@gmail.com Want to earn

Distribution of this document is illegal R13,625 per year?
[2] voidable
[3] Valid
[4] Putative
[4]
Upon dissolution of marriage out of community of property which is subject

to the accrual system, the spouses share in the
accumulated during the subsistence of the marriage.
[1] Assets (profits)
[2] Liabilities (debts)
[3] Separate estates
[4] Joint estate

In terms of section 21(1) of the Matrimonial Property Act 88 of 1984, spouses

may jointly apply to court for leave to change the matrimonial property system
applicable to their marriage. One of three requirements to be met before the
court approve the application is that …
[1] The creditors must consent to the proposed change.
[2] All creditors’ claims must have been settled.
[3] No other person will be prejudiced by the proposed change.
[4] There is an equitable distribution of the spouses’ property.
In which of the following cases, did the Supreme Court of Appeal find that
maintenance in a lump sum could indeed be awarded by the court to a
surviving spouse in terms of the Maintenance of Surviving Spouses Act 27 of
1990.
[1] Reloomel v Ramsay
[2] Voortrekkerwinkels v Pretorious
[3] Oshry NNO v Feldman
[4] Levy v Levy
Which section of the Divorce Act 70 of 1979 creates an exception to the rule
that the court does not have the power to refuse to grant a divorce order where
it is proved that the marriage has broken down irretrievably?
[1] Section 3
[2] Section 4(1)
[3] Section 5(2)
[4] Section 5A
In which one of the following cases was it decided that the patrimonial
benefits of a marriage out of community of property which may be forfeited are
fixed at marriage by the term of parties’ antenuptial contract?
[1] Koza v Koza
[2] Persad v Persad
[3] Watt v Watt
[4] Wijker v Wijker
Which type of care is at issue if the court orders that a child must spend
substantial amounts of time, such as part of each week, or alternative weeks,
with each parent?

[1] Joint physical care

[2] Joint legal care
[3] Split divided care
[4] Structured care
In Volks v Robinson it was held that…
[1] The common-law action for loss of support can be extended to a claim by the
surviving same-sex life partner.
[2] Section 5 of the Children’s Act discriminates unfairly against same-sex life
partners on the ground of sexual orientation.
[3] The law may distinguish between married and unmarried people and accord
benefits to married which denied to unmarried people.
[4] The exclusion of same-sex life partners from intestate inheritance from each
other’s deceased estate is unconstitutional.
Which one of the following responsibilities and right does NOT fall under
“care” as defined in section 1(1) of the Children’s Act 38 of 2005…
[1] Safeguarding and promoting the child’s well-being.
[2] Administering the child’s estate.
[3] Guiding the child’s behaviour in a humane manner.
[4] Maintaining a sound relationship with the child.
John and Susan are divorced. They have a minor child, Bob, and both of them
are guardians of Bob. Susan wants to apply for passport for Bob. Who needs
to consent?
[1] Either John or Susan.
[2] Both John and Susan.
[3] The Family Advocate.
[4] No one.
Which one of the following events does NOT terminate the duty of support of a
parent towards a child?
[1] The child’s death.
[2] The child’s adoption.
[3] The child’s marriage.
[4] The child’s 18th birthday
Affinity in the direct line exist between you and your

[1] Grandfather
[2] Grandchild
[3] Sister-in-law
[4] Mother-in-law
Which of the following is a consequence of a void marriage?
[1] There is a reciprocal duty of support between the parties
[2] The children born from the marriage are born from unmarried parents
[3] The parties may inherit intestate from each other
[4] Community of property is operative between parties
Which one of the following is NOT a requirement for the duty of support
between spouses in a civil marriage?
[1] The existence of a joint household
[2] A valid civil marriage between the parties
[3] The person claiming the support must be in need of the support
[4] The person from whom the support is claimed must be able to provide it
In which of the following cases was it decide that a spouse who is married in
community of property cannot stand surety for the other spouse’s debts
because those debts are joint debts and in our law a person cannot stand
surety for his or her own debts?
[1] Amalgamated Banks of South Africa BPK v De Goede
[2] Bopape v Moloto
[3] Visser v Hull
[4] Nedbank LTD v Van Zyl
Oskido and Reeva have been married in community of property for the past
five years. Recently Reeva discovered that Oskido has been paying the
monthly instalment of R3 000 for the flat rented by his mistress, Juanita. Which
one of the following remedies (for protection of the spouses as between
themselves) is NOT provided for in terms of Matrimonial Property Act 88 of
1984?
[1] The right to adjustment upon dissolution of the joint estate
[2] Suspension of spouse's powers in respect of the joint estate
[3] Having the other spouse declared a prodigal
[4] Immediate division of the joint estate

Before their marriage, Jack and Gill agreed that they would marry out of
community of property. They signed and ante nuptial contract, but the contract
was never properly executed and registered. What must Jack and Gill do to
ensure that they are formally married out of community of property?
[1] They must bring a court application in terms of section 21(1) of the Matrimonial
Property Act 88 of 1984 for leave to change their matrimonial property system.
[2] They must bring a court application in terms of section 88 of Deeds Registries Act
47 of 1937 for permission to have the contract executed and registered after the
marriage.
[3] They must enter into a post nuptial written agreement and have it notorially
executed.
[4] They must enter into a post nuptial written agreement and have it approved by
the court
Mr and Mrs Botha are married in community of property. Which of the
following assets can be forfeited by Mr Botha if Mrs Botha succeeds with a
claim for total forfeiture of benefits against him upon divorce?
[1] The house that Mrs Botha brought into the joint estate
[2] The house that Mr Botha brought into the joint estate
[3] The car that Mr Botha bought with his salary for himself
[4] The car that Mr Botha bought with his salary for Mrs Botha
Mr and Mrs Carrim were married with complete separation of property in 1982.
Which one of the following contributions will NOT qualify for redistribution
order in favour of Mrs Carrim upon divorce?
[1] Mrs Carrim takes care of the household and children born from the marriage.
[2] Mrs Carrim manages the books of Mr Carrim’s psychology practice in her spare
time without remuneration.
[3] Mrs Carrim contributes part of her salary towards Mr Carrim’s holiday home.
[4] Mrs Carrim declines an offer to be the manager of a new business in Dubai
In Krugel v Krugel the court found that the following care order is an
appropriate order in circumstances where there is hostility between the
children’s parents…
[1] Deffered care
[2] divided care
[3] Joint care
[4] Sole care

Parties married in accordance with the Civil Union Act 17 of 2006 may legally
refer to their marriage relationship as …
[1] A civil partnership
[2] A domestic partnership
[3] A marriage or civil partnership
[4] A marriage or a domestic partnership
Which one of the following Acts regulates Muslim marriages?
[1] Marriage Act 25 of 1961
[2] Civil Union Act 17 of 2006
[3] Recognition of Customary Marriages Act 120 of 1998
[4] None of the above
Which one of the following statements regarding life partnerships is TRUE?
[1] The general consequences of a marriage are never conferred on life partners.
[2] The general consequences of a marriage are conferred on life partners whose life
partnership existed for at least 6 months
[3] The general consequences of a marriage are conferred on life partners whose life
partnership existed for at least 2 years
[4] Life partners can acquire legal protection by means of the special provisions in
the Life Partnership Act 13 of 2015
1) The child’s attainment of majority
2) The child’s adoption by other parents
3) The child’s marriage to a wealthy spouse
4) The child’s death
A customary marriage entered into after the Recognition of Customary
Marriages Act 120 of 1998 (which came into operation on 15 November 2000)
must be registered within months of the wedding date or within such a
longer period as the Minister prescribes in the Government Gazette…
[1] Three
[2] Six
[3] Nine
[4] Twelve

During the subsistence of a civil marriage, both spouses have a right to live in
the matrimonial home.
1) Regardless of whether they are married in or out of community of property, and
regardless of whether they share the expenses relating to the matrimonial home.
2) Regardless of whether they are married in or out of community of property, but
only if they share the expenses relating to the matrimonial home
3) Only if they are married out of community of property and share the expenses
relating to the matrimonial home
4) Only if they are married in community of property and share the expenses relating
to the matrimonial home.
Select the CORRECT word that is missing from the following statement. If a
bona fide third party enters into a transaction with a person who is married in
community of property and the person has not obtained the required consent
to the transaction from his or her spouse, the transaction is in
terms of section 15(9)(a) of the Matrimonial Property Act 88 of 1984.
1) Void
2) Valid
3) Voidable
4) Invalid
In which of the following court cases was it held that the denial of the statutory
right to claim maintenance does not violate a surviving life partner’s right to
dignity?
[1] Gory v Kolver (Starke Intervening)
[2] Langemaat v Minister of Safety and Security
[3] Volks v Robinson
[4] Satchwell v President of the republic of South Africa
The matrimonial property system of a monogamous or first customary
marriage concluded after 15 November 2000 without an antenuptial contract is
…
1) Regulated by customary law.
2) In community of property.
3) Out of community of property.
4) Out of community of property with the accrual.

In terms of section 7(7)(a) of the Divorce Act 70 of 1979, a spouses’s pension

interest is deemed to be part of his or her assets which can be considered in
relation to division of the spouses’ assets upon divorce. Section 7(7)(a) does
NOT apply to spouses who married…
1) In community of property
2) Out of community of property with the accrual system.
3) On or after 1 November 1984 in terms of an antenuptial contract by which
community of property, community of profit and loss and the accrual system are
excluded.
4) Before 1 November 1984 in terms of an antenuptial contract by which community
of property, community of profit and loss and the accrual system are excluded.
When does a man have to enter into a court-approved contract in terms of
section 7(6) of the Recognition of Customary Marriages Act 120 of 1998?
1) Prior to entering into any customary marriage
2) Prior to entering into a customary marriage but after concluding an antenuptial
contract
3) After entering into a lobolo agreement but prior to paying lobolo
4) Prior to entering into a second or further customary marriage.
The legal definition of a “normal marriage relationship” for purposes of
section 4(1) of the Divorce Act 70 of 1979 should be sought in the concept of
.
1) Societas universorum bonarum
2) Pactum successoriu
3) Consortium omnis vitae
4) Error in negotio
Mentally ill person can contract a valid marriage …
[1] With their curator’s consent.
[2] During a lucid intervallum.
[3] Stande matrimonio.
[4] With their guardian’s consent.

Which one of the following statements relating to the decision in RD v TD in

respect of spouses married subject to complete separation of property is
CORRECT?
1) The spouses may enter into an agreement that community of property will apply in
their marriage.
2) The spouses may enter into a societas universorum bonorum (ie, a universal
partnership relating to present and future assests, liabilities, profits and losses)
3) The spouses may enter into a societas universorum quae ex quaestu veniunt (ie,
a universal partnership that is limited to the sharing of present and future assests,
liabilities, profits and losses acquired from commercial undertakings)
4) The spouses may enter into all of the above agreements.
Which of the following in NOT a ground on which a voidable civil marriage can
be annulled?
[1] Impotence
[2] Stuprum
[3] Sterility
[4] Mental illness
In Amod (born Peer) v Multilateral Motor Vehicles Accidents Fund
(Commission of Gender Equality Intervening) the Supreme Court of Appeal
found that a dependant who is not legally married to the deceased may have
an action for compensation for the loss of support if certain requirements are
met. Choose the correct requirements from the list below…
(a) The decesaed had a legally enforceable duty to support the dependendant
(b) The duty of support arose from a marriae that was concluded in terms of the
tenets of a recognised and accepted faith.
(c) The duty of support deserves recognition and protection
(d) The duty of support is recognised in terms of the tenets of a recognised and
accepted faith
1) (a) and (d)
2) (a) and (b)
3) (a), (b) and (c)
4) (a), (b), (c) and (d)
10

Which one of the following statements is TRUE regarding civil unions

concluded in terms of the Civil Union Act 17 of 2006?
1) Minors cannot conclude a civil union
2) Only same-sex couples can marry in terms of the Civil Union Act.
3) All the requirements for a valid civil union are the same as those of a civil
marriage.
4) Parties are not allowed to conclude a lobolo agreement prior to concluding a civil
union.
If spouses are not divorced, but no longer share a joint household,
continuation of the duty of support is determined by…
[1] Guilt of the spouses
[2] Unjustified enrichment
[3] The Divorce Act
[4] The Matrimonial Property Act
The consequence of a civil marriage that can be regulated by the spouses are
generally referred to as …
[1] Invariable consequences of the marriage
[2] variable consequences of the marriage
[3] Consortium ominis vitae
[4] Accrual
The courts increasingly expect of women to take up employment after divorce
and grant employable women …
[1] Token maintenance
[2] Rehabilitative maintenance
[3] Permanent maintenance
[4] Lump-sum maintenance
A maintenance order in terms of section 7(2) of the Divorce Act 70 of 1979
comes to an end …
[1] On the remarriage of the maintenance recipient
[2] On the remarriage of the maintenance debtor
[3] On the date stipulated by the maintenance debtor
[4] On the date stipulated by the maintenance recipient
11

Which one of the following statements is correct with regard to the capacity of
parties to enter into a marriage or civil partnership in terms of the Civil Union
Act 17 of 2006?
[1] At least one of them has to be 21 years of age and the other needs consent from
his or her guardian.
[2] Both parties have to be 21 years of age
[3] Neither party need to be 18 years of age, they only need consent from their
guardians
[4] Botha parties have to be 18 years of age
2013 OCTOBER / NOVEMBER
Affinity in the direct line exists between you and you

[1] grandfather
[2] grandchild
[3] sister-in-law
[4] mother-in-law
Which one of the following is a consequence of a void marriage
[1] there is a reciprocal duty of support between the partners
[2] the children born from the marriage are children born of unmarried parents
[3] the parties may inherit intestate from each other
[4] community of property is operative between the parties
2014 MAY JUNE
Mentally ill person can contract a valid marriage …

[1]With their curator’s consent.
[2]During a lucid intervallum.
[3]Stande matrimonio.
[4]With their guardian’s consent.
Affinity in the collateral line exists between you and your

[1] grandfather
[2] grandchild
[3] sister-in-law
12

[4] mother-in-law
In Ex parte Dow the court decided that a marriage that had been solemnised in
the garden of a private dwelling is ...
[1] void.
[2] voidable.
[3] valid.
[4] putative
Which one of the following is NOT a ground on which a voidable civil marriage
can be annulled?
[1] Impotence
[2] Stuprum
[3] Sterility
[4] Mental illness
Tutorial Letter 201/1/2015
Which one of the following is NOT a requirement for a civil marriage?

[1] The marriage between the parties must be lawful.
[2] There must be agreement between the parties to enter into a civil marriage with
each other.
[3] The parties must both have attained the age of majority.
[4] The prescribed formalities must be complied with.
Which one of the following is NOT a requirement for the duty of support
between spouses in a civil marriage?
[1] A valid civil marriage must exist between the parties.

[2] The person claiming support must be in need of support.
[3] The person claiming support must be unable to obtain support from his or her
parents.
[4] The person from whom the support is claimed must be able to provide it.
community of property. They signed an antenuptial contract, but this contract
was never properly executed and registered. What must Jack and Gill now do
to ensure that they are formally married out of community of property?
[2] They must enter into a postnuptial written agreement and have it notarially
executed.
13

[3] They must bring a court application in terms of section 88 of the Deeds Registries
Act 47 of 1937 for permission to have the contract executed and registered after
the marriage.
[4] They do not have to do anything.
In which one of the following instances does a party who is married in

community of property NOT have capacity to litigate according to section 17(1)
of the Matrimonial Property Act 88 of 1984?
[1] Proceedings relating to the recovery of non-patrimonial damages
for a delict that was committed against the spouse.
[2] Proceedings with regard to the spouse’s profession, trade or
business.
[3] Proceedings relating to the spouse’s separate property.
[4] Proceedings with regard to household necessities.
Which legal legal concept is used to determine that a normal marriage
relationship no longer exists between spouses?
[1] Boni mores
[2] Animus iniuriandi
[3] Pactum successorium
[4] Consortium omnis vitae
Which one of the following sections contains guidelines which indicate

whether a marriage or civil union has broken down irretrievably?
[1] Section 4(2) of the Mediation in Certain Divorce Matters Act

[2] Section 4(2) of the Matrimonial Affairs Act
[3] Section 4(2) of the Civil Union Act
[4] Section 4(2) of the Divorce Act
Nowadays an employable woman is increasingly granted the following

maintenance award upon divorce:

[1] a civil partnership only.

[2] a domestic partnership only.
[3] a marriage or a civil partnership.
14

[4] a marriage or a domestic partnership.
Mr Khumalo married two wives in terms of customary law before the coming
into operation of the Recognition of Customary Marriages Act 120 of 1998.
Their matrimonial property system is …
[1] determined by customary law.
[2] in community of property.
[3] out of community of property with accrual.
[4] out of community of property without accrual
A parent’s duty of support in respect of a child will always terminate …

[1] when the parent is declared insolvent.
[2] when the child enters into a marriage.
[3] when the child is adopted.
[4] when the child becomes self-supporting.
A man may not enter into a civil marriage with his ex-wife’s mother because
they are related to each other by ...
[1] consanguinity (blood relationship) in the direct line.
[2] consanguinity (blood relationship) in the collateral line.
[3] affinity (relationship by marriage) in the direct line.
[4] affinity (relationship by marriage) in the collateral line.
A putative marriage is described as a ...
[1] marriage which has simply never come into existence and which has no legal
consequences of a valid marriage.
[2]marriage in which grounds are present, either before or at the time of the
wedding, on the basis of which the court can be requested to set the marriage aside.
[3]marriage in which one of the parties (or both of them) enters into a marriage while
being unaware that there is a defect which renders the marriage void.
[4]voluntary union of two persons solemnised and registered in accordance with the
Civil Union Act 17 of 2006.
[2]They must enter into a postnuptial written agreement and have it notarially
executed.
[3] They must bring a court application in terms of section 88 of the Deeds
Registries Act 47 of 1937 for permission to have the contract executed and
registered after the marriage.
[4] They do not have to do anything
15

An agreement between spouses in an antenuptial contract to the effect that the

surviving spouse will be the first-dying spouse’s sole heir is called a…
[1] donation inter vivos.

[2] pactum successorium.
[3] marriage settlement.
[4] reversion clause
Mr and Mrs Roux got married out of community of property with the accrual
system in 2000. When they married, Mr Roux had R10 000 and no debts. Mrs
Roux now sues Mr Roux for a divorce. Suppose that during the subsistence of
the marriage money depreciated to such an extent that, according to the
consumer price index, R2,00 now has the same value as R1,00 had at the
beginning of the marriage. Which one of the following amounts reflects the net
commencement value of Mr Roux’s estate at the time of the dissolution of the
marriage?
[1] R20 000
[2] R10 000
[3] R 5 000
[4] R 0
Which one of the following is NOT a requirement that needs to be considered

by the court before an application for variation of the parties’ matrimonial
property system will be granted?
[1] There are sound reasons for the proposed change.
[2] The application must be made within a reasonable time.
[3] Notice of the proposed change has been given to all the creditors of the spouses.
[4] No other person will be prejudiced by the change
In which one of the following cases did the court issue a divorce decree in
terms of the Divorce Act 70 of 1979 but order the husband, who was unwilling
to co-operate in giving a get (a divorce in terms of Jewish religious law), to pay
maintenance to his wife (who was not otherwise entitled to maintenance from
him) until such time as their marriage was terminated by the granting of a get?
[1] Levy v Levy
[2] Wijker v Wijker
[3] Amar v Amar
[4] Schwartz v Schwartz
In which one of the following cases did the court hold that, for purposes of a
decision on whether rehabilitative maintenance should be awarded to a
spouse after divorce, no notional earning capacity will be attributed to a
16

spouse who does not have the necessary skills that will enable him or her to
be trained or retrained for a job, occupation or profession after divorce?
[1] Kooverjee v Kooverjee
[2] Botha v Botha
[3] Zwiegelaar v Zwiegelaar
[4] Kroon v Kroon
Sandile married Tumi on 5 January 2011 in terms of the Recognition of

Customary Marriages Act 120 of 1998. She was 17 years of age at the time of
her marriage. She turned 18 on 1 November 2011. Sandile wants to end the
marriage and approached her parents on her birthday for assistance. Her
parents did not know that she was married. Which one of the following
statements is correct with regard to the marriage between Sandile and Tumi?
[1] Their marriage is void ab initio.
[2] Their marriage is valid and Sandile will have to divorce Tumi.
[3] Sandile can have the marriage set aside if she applies to the court on 31 January
2012.
[4] Sandile’s parents can have the marriage set aside if they apply to the court on 31
January 2012.
Mr and Mrs Khumalo married in terms of customary law before the coming into
operation of the Recognition of Customary Marriages Act 120 of 1998 without
an antenuptial contract. Mrs Khumalo is Mr Khumalo’s second wife in terms of
customary law. Their customary marriage is therefore polygynous in nature.
Their matrimonial property regime is …
[1] in community of property and profit and loss.
[2] out of community of property with accrual.
[3] out of community of property without accrual.
[4] determined by customary law.
In terms of section 8(1) of the Recognition of Customary Marriages Act 120 of

1998 a customary marriage is dissolved by divorce by ...
[1] returning the wife to her family’s homestead/family home.
[2] returning the lobolo to the husband’s family.
[3] an order of the Traditional Council.
[4] an order of the court
In which one of the following cases did the court grant a Muslim woman’s
application for maintenance pendente lite in terms of rule 43 of the Uniform
Rules of Court even though she had never entered into a civil marriage?
[1] AM v RM
[2] Ismail v Ismail
[3] Ryland v Edros
[4] Daniels v Campbell
17

In terms of the Children’s Act 38 of 2005 the consent of all the child’s
guardians is necessary for the transactions listed in section 18(3)(c). In which
one of the following instances is the consent of all the child’s guardians NOT
necessary?
[1] The child’s application for a passport
[2] The child’s antenuptial contract
[3] The child’s removal from South Africa
[4] The alienation of the child’s immovable property
In which one of the following cases did the court hold that it would not lightly
refuse the care-giving parent permission to emigrate with his or her child if the
decision to emigrate was bona fide and reasonable, since it would usually not
be in the child’s best interests to thwart the care-giving parent in his or her
endeavour to emigrate “in pursuance of a decision reasonably and genuinely
taken”?
[1] Krugel v Krugel
[2] Jackson v Jackson
[3] Van Vuuren v Van Vuuren
[4] Van der Linde v Van der Linde
Amanda is a twenty-year-old married woman. Her husband is unable to

support her as he is unemployed, seriously disabled and without any source
of income apart from his disability grant. Amanda is also unemployed and
without any source of income. As her husband is unable to support her,
Amanda wants to claim maintenance from somebody else. Which of the
following persons is NOT obliged to support her?
[1] Her parents
[2] Her grandparents
[3] Her parents-in-law
[4] Her brothers and sisters
2015 OCTOBER NOVEMBER
A spouse who does not really need maintenance at the time of the divorce but
may need maintenance in the future usually receives …
[3] No maintenance
18


Which one of the following DOES apply to a civil union?
[1] Minors may conclude a civil union.
[2] Same-sex couples may not conclude a civil union.
[3] Parties to a civil union may call their union a civil partnership.
[4] Parties of the opposite sex may not conclude a civil union.
In which of the following cases did the High Court recognise the contractual
obligations flowing from a de facto monogamous Muslim marriage?
[1] Hassam v Jacobs
[2] Ryland v Edros
[3] Hoosen v Dangor
In Volks v Robinson the Constitutional Court held that the law …
[1] May extend spousal benefits to unmarried persons,
[2] May not withhold spousal benefits from unmarried persons
[3] May justifiably distinguish between married and unmarried persons
[4] May not justifiably distinguish between married and unmarried persons
Section 28 of the Constitution of the Republic of South Africa, 1996 confers
special protection to children below the age of …
[1] 10 Years
[2] 16 Years
[3] 18 Years
[4] 21 Years
Andile and Betty are married. Betty has a child, Catherine, born from previous
marriage. Andile and Betty cannot have their own children and as a result they
get divorced. Can Andile marry Catherine?
[1] No, Andile and Catharine are blood relatives in the direct line.
[2] No, Andile is related to Catherine by way of affinity in the direct line.
[3] Yes, Andile and Catherine are not blood relatives in the direct line
[4] Yes, Andile is not related to Catherin by the way of Affinity in the direct line.
19

Sarah and Luke are married in community of property. They live on a lovely
farm in Mpumalanga. The farm is subject to usufruct. Which of the following
assets falls into their joint estate?
[1] The crops on the farm which is subject to a usufruct.
[2] The farm which is subject to a usufruct.
[3] The engagement ring that Luke bought Sarah.
[4] The disability payments that Sarah received from Sanlam after being injured in an
accident?
In which one of the following cases was it held that a wife who is married in
community of property cannot stand surety for debts of the joint estate?
[1] De Wet v Jurgens
[2] Nedbank v Van Zyl
[3] Reichmans (PTY) LTD v Ramdass
[4] Du Plessis v Pienaar
Mr and Mrs Mathe are married in community of property. What form of consent
does Mrs Mathe require from Mr Mathe to withdraw money credited to his
name in a bank account?
[1] Prior written consent attested by two competent witnesses.
[2] Written consent attested by two competent witnesses.
[3] Written consent without any further requirements.
[4] Oral consent.
Mr Singh donated a valuable painting to Miss Naidoo without permission of
his wife, Mrs Singh. Miss Naidoo knows that Mr Singh is married in community
of property. Such transaction is …
[1] Valid in terms of section 19(9)(a) of the Matrimonial Property Act 88 of 1984
[2] Void in terms of section 19(9)(a) of the Matrimonial Property Act 88 of 1984
[3] Valid in terms of the decision in Bopape v Moloto
[4] Void in terms of the decision in Bopape v Moloto
An agreement between spouses in an antenuptial contract to the effect that
the surviving spouse will be the first – dying spouse’s sole heir is called a
[2] Donation inter vivos
[3] Marriage settlement
[4] Revision clause
20

In which of the following instances will a court be empowered to make

redistribution order?
[1] The parties were married in community of property prior to the commencement of
the Matrimonial Property Act 88 of 1984.
[2] The parties were married in community of property after the commencement of
the Marriage and Matrimonial Property Law Amendment Act 3 of 1988.
[3] The parties were married subject to complete separation of property prior to the
commencement of the Matrimonial Property Act 88 of 1984.
[4] The parties were married subject to complete separation of property prior to the
commencement of the Marriage and Matrimonial Property Law Amendment Act 3 of
1988.
An order for maintenance of a spouse after divorce may include a dum caste
clause which usually provides that.
[1] The maintenance recipient will forfeit the maintenance if he or she enters the
labour market.
[2] The maintenance recipient will forfeit the maintenance if he or she leads a
unchaste life.
[3] The maintenance recipient will forfeit the maintenance when he or she becomes
unable to work.
[4] The maintenance recipient will forfeit the maintenance upon the death of the
spouse providing the maintenance.
The type of care awarded to by a court whereby a parent will get care of a
child only once that parent has satisfied the court that adequate arrangements
have been made to receive the child into his or her care is known as …
[1] Sole care
[2] Supervised care
[3] Divided care
[4] Deferred Care
Which one of the following terms is a fitting description for a legally
recognised voluntary union between two 25-year-old women?
[1] A civil marriage
[2] A customary marriage
[3] A heterosexual life partnership
[4] A civil union
Which one of the following sections contains guidelines which indicates
whether or a civil union has broken down irretrievably?
21

[1] Section 4(2) of the Mediation in Certain Divorce Matters Act 24 of 1987
[2] Section 4(2) of the Matrimonial Affairs Act 37 of 1953
[3] Section 4(2) of the Civil Union Act 17 of 2006
[4] Section 4(2) of the Divorce Act 70 of 1979
Wandile is a spouse in a customary marriage. He concludes a second

customary marriage with another woman without complying with section 7(6)
of the Recognition of Customary Marriages Act 120 of 1998. His second
marriage is …
[1] Void
[2] Voidable
[3] Putative
[4] Valid
In which of the following cases did the High Court extend the application of the
Intestate Succession Act 81 of 1987 and the Maintenance of Surviving Spouses
Act 27 of 1990 to Spouses in de facto polygynous Muslim Marriage
[1] Hassam v Jacobs
[2] Ryland v Edros
[3] Hoosein v Dangor
[4] Daniels v Campbel
Section 28(2) of the Constitution of the Republic of South Africa, 1996 provides
that a child’s best interests are of importance in every
matter concerning the child.
[1] Primary
[2] Supreme
[3] Paramount
[4] Utmost
Which one of the following is a consequence of a void marriage?

[1] There is a reciprocal duty of support between the parties.
22

[2] The children born from the marriage are children born of unmarried parents.
[3] The parties may inherit intestate from each other.
[4] Community of property operates between the parties
In which one of the following cases was it decided that a spouse who is
married in community of property cannot stand surety for the other spouse’s
debts because those debts are joint debts and in our law a person cannot
stand surety for his or her own debt?
[1] Amalgamated Banks of South Africa Bpk v De Goede
[2] Bopape v Moloto
[3] Visser v Hull
[4] Nedbank Ltd v Van Zyl
Section 4(2) of the Divorce Act 70 of 1979 contains three guidelines which may
indicate that a marriage has broken down irretrievably. Which one of the
following is NOT one of these guidelines?
[1] The parties have not lived together as husband and wife for a continuous period
of at least one year immediately prior to the date of the institution of the divorce
proceedings. [2] The defendant has committed adultery and the plaintiff finds it
irreconcilable with a continued marriage relationship.
[3] The defendant suffers from a mental illness or is continuously unconscious.
[4] The defendant has been declared a habitual criminal and has been imprisoned
as a result of the sentence
Mr and Mrs Botha are married in community of property. Which one of the
[1] The house that Mrs Botha brought into the joint estate.
[2] The house that Mr Botha brought into the joint estate.
[3] The car that Mr Botha bought with his salary for himself.
Which one of the following contributions will NOT qualify for a redistribution
[1] Mrs Carrim takes care of the household and the children born from the marriage.
[2] Mrs Carrim manages the books of Mr Carrim’s psychology practice in her spare
[3] Mrs Carrim contributes part of her salary towards Mr Carrim’s holiday home.
[4] Mrs Carrim declines an offer to be the manager of a new business in Dubai.
23

What kind of maintenance can be awarded to a spouse who does not really
need maintenance at the time of divorce, but who may need maintenance in
the future?
[1] Rehabilitative maintenance.
[2] Token maintenance.
[3] Lump-sum maintenance.
[4] [4] No maintenance.
In Krugel v Krugel the court found that the following care order is an appropriate
order in circumstances where there is hostility between the children’s parents:
[1] deferred care.
[2] divided care.
[3] joint care.
[4] sole care.
refer to their relationship as ... .
[1] a civil partnership only
[2] a domestic partnership only
[3] a marriage or a civil partnership
[4] a marriage or a domestic partnership
A customary marriage entered into after the Recognition of Customary

Marriages Act 120 of 1998 (which came into operation on 15 November 2000)
must be registered within months of the wedding date or within such longer
period as the Minister prescribes in the Government Gazette.
[1] three
[2] six
[3] nine
[4] twelve
In which one of the following court cases was it held that the denial of the
statutory right to claim maintenance does not violate a surviving life partner’s
right to dignity?
[1] Gory v Kolver (Starke Intervening)
[2] Langemaat v Minister of Safety and Security
[3] Volks v Robinson
[4] Satchwell v President of the Republic of South Africa
2016 MAY/ JUNE
Lefa and Sepati are married. Seipati has a child, Ntombi, who was born from a
previous marriage. Lefa and Seipati cannot have their own children and as a
result they get divorced. Can Lefa marry Ntombi after the divorce?
[1] No, because Lefa and Ntombi are blood relatives
24

[2] No, because Lefa and Ntombi are related by affinity in the direct line
[3]Yes, because Lefa and Ntombi are not blood relatives
[4]Yes, because Lefa and Ntombi are not related by affinity in the direct line
In Ex Parte Dow the court decided that a marriage that had been solemnised in
the garden of private dwelling is …
[1]Void
[2]Voidable
[3] Valid
[4] Putative
Mr and Mrs Jacobs are married in community of property. Which one of the
following assets forms part of the spouses’ joint estate?
[1] The house in which Mr and Mrs Jacobs are living and which is subject to a
fideicommissum.
[2] An amount of R10 000 which Mrs Jacobs received in terms of the Friendly
Societies Act 25 of 156.
[3] The grand pion which Mrs Jacobs bought herself before she and Mr Jacobs
married each other.
[4] The engagement ring which Mr Jacobs gave Mrs Jacobs before the marriage.
Mr and Mrs Smith are married in community of property. Mrs Smith was
informed by a family friend that Mr Smith is about to transfer almost all the
assets of their joint estate to his brother without Mrs Smith’s consent, because
Mr Smith suspects that she is having an extra-marital affair with the family
friend. Mrs Smith strongly denies this and wants to know if there is anything
that she can do to prevent Mr Smith from transferring the assets to his brother.
Which of the following common-law remedies will be at her disposal?
[1] The interdict
[2] The right to recourse upon dissolution of the joint estate
[3]The actio Pauliana utilis

[4]An application to have Mr Smith declared a prodigal
Mr and Mrs Mahlangu are married in community of property. For which one of
the following legal proceedings does Mr Mahlangu need Mrs Mahlangu’s
written consent in terms of section 17 of the Matrimonial Property Act 88
of1984?
25

[1] He wants to institute legal proceedings against his brother in connection with the
farm that they inherited from their father subject to the condition that the farm must
never become part of any joint estate.
[2] He wants to institute legal proceedings for the recovery of non-patrimonial loss for
a delict which was committed against him by his neighbour.
[3] He wants to institute legal proceedings for the recovery of patrimonial loss for a
delict which was committed against him by his neighbour.
[4] He wants to defend legal proceedings relating to his commercial farming business.
Which one of the following is NOT a requirement for the postnuptial execution
and registration of an antenuptial contract in terms of section 88 of Deeds
Registries Act 47 of 1937.
[1] The parties must definitely have agreed on the terms of the antenuptial contract
before entering into marriage.
[2] The parties must give good reasons for their failure to properly execute and/or
register the contract before the marriage.
[3] The application must be made within a reasonable time after it was discovered
that the agreement was not properly executed and/or registered.
[4] No other person may be prejudiced by the postnuptial execution and/or
registration of the antenuptial contract.
Mr and Mrs Abrams were married out of community of property with the
accrual system in terms of a duly executed and registered antenuptial contract
in 2000. A few years later the entered into a further written agreement which
was notarially executed but was neither registered in the deeds registry nor
authorised by the court in terms of section 21(1) of the Matrimonial Property
Act 88 of 1984. This postnuptial contract purported to exclude the accrual
system from their marriage. What is the nature of such a contract according to
the decision in Honey v Honey 1992 (3) SA 609 (W)?
[1]Unenforceable between the parties inter se as well as against third parties.
[2]Enforceable between the parties inter se, but unenforceable against third parties.
[3]Enforceable between the parties inter se as well as against third parties.
[4]Unenforceable between parties inter se, but enforceable against third parties
Section (2) of the Divorce Act 70 of 1979 contains three guidelines which may
following is NOT one of the guidelines?
[1] The defendant suffers from an incurable mental illness or is continuously
unconscious.
[2] The defendant has committed adultery and the plaintiff finds it irreconcilable with a
continued marriage relationship.
26

[3] The parties have not lived together as husband and wife for a continuous period of
at least on year immediately prior to the date of the institution of the divorce
proceedings.
[4] The court has declared the defendant a habitual criminal and the defendant had
been imprisoned as a result of the sentence.
Mr and Mrs Modise were married out of community of property with exclusion
of the accrual system on 10 December 2000. They are now involved in divorce
proceedings. With regard to Mr Modise’s pension interest in UNISA’s pension
fund, Mrs Modise …
[1] Will not be entitled to claim part of Mr Modise’s pension interests at all.
[2] Will not be entitled to claim part of my Modise’s pension interest until such time as
he retires or resign from his job at UNISA.
[3] Will be entitled to claim that part of Mr Modise’s pension. Interest is transferred
immediately to a pension fund of her choice.
[4] Will be entitled to claim that part of Mr Modise’s pension. Interest is paid
immediately and directly to her.
As far as redistribution orders are concerned, which one of the following
awards with regard to the division of the spouses’ assets was made by the
Supreme Court of Appeal in Badenhorst v Badenhorst?
[1]An equal division
[2]A 40 – 60 division
[3]A 20 – 80 division
[4]A 1/32/ 3division
2016 OCTOBER / NOVEMBER
A enters into a civil marriage with B. B has a sister, C. A and C are ...
[1] blood relations in the direct line.
[2] collateral blood relations.
[3] relations by affinity in the direct line.
[4] relations by affinity in the collateral line.
In which one of the following cases did the court hold that solemnisation of a
civil marriage in a garden does not render the marriage void?
[1] National Coalition for Gay and Lesbian Equality v Minister of Home Affairs
[2] Zulu v Zulu
[3] Bam v Bhabha
27

[4] Ex parte Dow

In Mr and Mrs Nel’s antenuptial contract, Mr Nel undertakes to transfer an
insurance policy to Mrs Nel as soon as their first child is born. This clause is
called a ...
[1]succession clause.
[2]marriage settlement.
[3]reversion clause.
[4]“clean break” clause.
Which one of the following statements is NOT a requirement that has to be met
before a court will grant an application for variation of spouses’ matrimonial
property system in terms of section 21(1) of the Matrimonial Property Act 88 of
1984?
[1] Sufficient notice of the proposed change must be given to all the creditors of the
spouses.
[2] No other person must be prejudiced by the proposed change.
[3] One of the spouses must apply to the High Court in writing for permission to
change their matrimonial property system.
[4] There must be sound reasons for the proposed change.
In which one of the following cases did the court hold that a postnuptial
contract between the spouses, which purported to exclude the accrual system
and which was not registered in the deeds registry or entered into with leave
of the court, is void and unenforceable between the parties themselves and as
against third parties?
[1]Ex parte Krös
[2]Honey v Honey
[3]Ex parte Burger
[4] Amar v Amar
Section 4(2) of the Divorce Act 70 of 1979 contains three guidelines which may
following is NOT one of these guidelines?
[1]The parties have not lived together as husband and wife for a continuous period of
at least one year immediately prior to the date of the institution of the divorce action.
[2]The defendant has committed adultery and the plaintiff finds it irreconcilable with a
[3]The defendant suffers from a mental illness or is continuously unconscious.
[4]The defendant has been declared a habitual criminal by a court and has been
imprisoned as a result of the sentence.
Which one of the following statements regarding a settlement agreement
between spouses which was not made an order of court is CORRECT?
28

[1]The court is compelled to make an order in accordance with the settlement

agreement.
[2]A party can vary the agreement unilaterally.
[3]The agreement can be enforced in the same way as an order of court.
[4]The parties can regulate the division of their assets in such an agreement.
[1]Mrs Carrim takes care of the household and the children born from the marriage.
[2]Mrs Carrim manages the books of Mr Carrim’s psychology practice in her spare
[3] Mrs Carrim contributes part of her salary towards the bond payments on Mr
Carrim’s holiday home.
[4] Mrs Carrim declines an offer to be the manager of a new business in Dubai so as
to further Mr Carrim’s psychology practice.
Which one of the following assets will NOT be considered for purposes of a
redistribution order upon divorce?
[1] The assets of a trust, which is the alter ego of Mr Carrim, and of which Mrs Carrim
is a beneficiary or with which she had transacted
[2] The assets of a trust, which is the alter ego of Mr Carrim, and of which Mrs Carrim
is not a beneficiary and with which she had not transacted
[3]A farm which Mr Carrim inherited from his father
[4]A very expensive ring which Mrs Carrim’s grandmother donated to her
Jane and Mary (both female) want to enter into a valid marriage. They will
therefore have to conclude the following:
[1]A civil marriage
[2]A universal partnership
[3]A civil union
[4]A customary marriage
Heaton states that if a marriage is concluded in terms of religious law and also
complies with the requirements for a civil marriage, it has dual validity. Which
one of the following statements is correct?
[1]A secular divorce order does not free the spouse from the bonds of the religious
marriage.
[2]A secular divorce order ends both the civil marriage and religious marriage.
[3]A secular divorce cannot be granted before a religious divorce is obtained.
[4]A civil marriage and a religious marriage cannot exist at the same time.
29

In which one of the following cases was the exclusion of same-sex life
partners from intestate inheritance from each other's deceased estate in terms
of the Intestate Succession Act 81 of 1987 declared unconstitutional?
[1]Gory v Kolver
[2]Volks v Robinson
[3]Farr v Mutual & Federal Insurance Co Ltd
[4]Satchwell v President of the Republic of South Africa
special protection on children below the age of …
[1]10 years.
[2]16 years.
[3]18 years.
[4]21 years.
In terms of the Children's Act 38 of 2005 the consent of all the child's
guardians is necessary for the transactions listed in section 18(3)(c). In
which one of the following instances is the consent of all the child's
guardians NOT necessary?
[1]The alienation of the child's immovable property
[2]The child's removal from South Africa
[3]The child's application for a passport
[4] The child's antenuptial contract
Which one of the following events does NOT terminate the duty of support of
a parent towards a child?
[1]The child’s attainment of majority
[2]The child’s adoption by other parents
[3]The child’s marriage to a wealthy spouse
[4]The child’s death
Which one of the following is NOT a requirement for a civil marriage:
[1] The marriage between the parties must be lawful.
[2] There must be agreement between the parties to enter into a civil marriage with
each other.
[3] The parties must both have attained the age of majority.
[4]The prescribed formalities must be complied with.
Which one of the following marriages is voidable:
[1] At the time of A and B’s marriage, B is pregnant with Z’s child and B fraudulently
conceals this fact from A.
[2] P, whose wife is terminally ill, concludes a marriage with Q.
30

[3] M, a 31-year-old man, concludes a marriage with N, an 11-year-old girl.

[4]R and S’s marriage was solemnised by T who is not a competent marriage officer.
Which one of the following statements is NOT a requirement for the duty of
support between spouses in a civil marriage?
[1]A valid civil marriage must exist between the parties.
[2]The person claiming support must be in need of support.
[3] The person claiming support must be unable to obtain support from his or her
parents.
[4] The person from whom the support is claimed must be able to provide it.
[1]They must bring a court application in terms of section 21(1) of the Matrimonial
[2]They must enter into a postnuptial written agreement and have it notarially
executed.
[3] They must bring a court application in terms of section 88 of the Deeds Registries
Act 47 of 1937 for permission to have the contract executed and registered after the
marriage.
Which one of the following statements is NOT correct? Section 17(1) of the
Matrimonial Property Act 88 of 1984 restricts the capacity of spouses who are
married in community of property to litigate, except in the following instances:
[1]Proceedings relating to the recovery of non-patrimonial damages for a delict that
was committed against the spouse.
[2]Proceedings with regard to the spouse’s profession, trade or business.
[3]Proceedings relating to the spouse’s separate property.
[4]Proceedings relating to household necessities.
Section 21(1) of the Matrimonial Property Act 88 of 1984 makes provision for
court-sanctioned alteration of the matrimonial property system in a civil
marriage. Which one of the following is NOT a requirement that needs to be
considered by the court before an application for alteration will be granted:
[1]No other person will be prejudiced by the proposed alteration.
[2] Sufficient notice of the proposed alteration must be given to all the creditors of the
spouses.
[3] There must be sound reasons for the proposed alteration.
31

[4] There is an equitable distribution of the spouses’ property.

In our divorce law the following legal concept is used to determine that a
normal marriage relationship no longer exists between spouses:
[1]Boni mores
[2]Animus iniuriandi
[3]Pactum successorium
[4]Consortium omnis vitae
Which one of the following sections contains guidelines which indicate
whether a marriage or civil union has broken down irretrievably?
[1]Section 4(2) of the Mediation in Certain Divorce Matters Act
[2]Section 4(2) of the Matrimonial Affairs Act
[3]Section 4(2) of the Civil Union Act
[4]Section 4(2) of the Divorce Act
The pension interest is the benefit to which a spouse would have been entitled
had he or she terminated his or her membership of the fund on the date of the
divorce by resigning from his or her employment. In terms of section 1 of the
Divorce Act 70 of 1979 the above is the manner in which a spouse’s interest is
calculated in a …
[1]pension fund.
[2]retirement annuity fund.
[3]pension preservation fund.
[4]provident preservation fund.
What kind of maintenance can be awarded to a spouse who does not really
need maintenance at the time of divorce, but who may need maintenance in
the future?
[1]Rehabilitative maintenance
[2]Lump-sum maintenance
[4]No maintenance
Which type of care is at issue if the court orders that a child must spend
substantial amounts of time, such as part of each week, or alternative weeks,
with each parent?
[1]Structured care
[2]Split or divided care
[3]Joint legal care
[4]Joint physical care
[1]a civil partnership only.
32

[2]a domestic partnership only.

[3]a marriage or a civil partnership.
[4]a marriage or a domestic partnership.
Mr Khumalo married two wives in terms of customary law before the coming
into operation of the Recognition of Customary Marriages Act 120 of 1998.
Their matrimonial property system is …
[1]determined by customary law.
[2]in community of property.
[3]out of community of property with accrual.
[4]out of community of property without accrual.
A parent’s duty of support in respect of a child does not necessarily end when
the child …
[1]dies.
[2]marries.
[3]is adopted.
[4]becomes self-supporting.
special protection on children below the age of
[1]10 years
[2]16 years
[3]18 years
[4]21 years
X and Y are married. Y has a daughter, Q, from a previous marriage. In which

category of relationship do X and Q fall?
[1] Blood relationship in the direct line
[2] Blood relationship in the collateral line
[3] Affinity in the direct line
[4] Affinity in the collateral line
In which one of the following cases did the Constitutional Court hold that
contempt proceedings in the High Court to secure the enforcement of a
maintenance debt are appropriate constitutional relief for the enforcement of a
claim for the maintenance of children?
[1] Fose v Minister of Safety and Security
33

[3] Voortrekkerwinkels (Ko-operatief) Bpk v Pretorius

[4] Bannatyne v Bannatyne
Sarah and Luke are married in community of property. They live on a lovely
farm in Mpumalanga. Which one of the following assets falls into their joint
estate?
[1] The crops on the farm which is subject to a usufruct.
[2] The farm which is subject to a usufruct.
[3] The engagement ring that Luke bought Sarah.
[4] The disability payments that Sarah receives from Old Mutual after being injured.
Which one of the following cases does NOT deal with postnuptial change of
spouses’ matrimonial property system?
[1] Ex parte Oosthuizen

[2] Ex parte Dow
[3] Ex parte Burger
[4] Ex parte Krös
Which one of the following legal concepts is used in our divorce law to
determine that a normal marriage relationship no longer exists between
spouses?
[2] Boni mores
[1] The house that Mrs Botha brought into the joint estate.
[2] The house that Mr Botha brought into the joint estate.
[3] The car that Mr Botha bought with his salary for himself.
In Kooverjee v Kooverjee the order for maintenance in favour of the wife inter
alia provided for rehabilitative maintenance for a period of ...
[1] 6 months
[2] 18 months
[3] 3 years
[4] 10 years
Jane and Mary (both female) want to enter into a valid marriage. They will be
able to conclude a ...
[1] civil marriage.
[2] universal partnership.
34

[3] civil partnership.

[4] customary marriage.
The court’s power to redistribute property upon the dissolution of a customary

marriage by divorce applies ...
[1] only to customary marriages concluded in community of property.
[2] only to customary marriages concluded out of community of property before 1
November 1984.
[3] only to customary marriages concluded out of community of property after 1
November 1984.
[4] to all customary marriages regardless of when the marriage was concluded and
regardless of how the marriage was concluded
Timothy, currently 10 years old, was born of Janet and Tom’s marriage which
was recently dissolved by divorce. Care of Timothy was awarded to Janet.
Which one of the following actions in respect of Timothy may Janet do on her
own, without Tom’s consent?
[1] Applying for Timothy for a passport.
[2] Taking Timothy on a holiday to Australia.
[3] Selling the flat Timothy inherited from her father.
[4] Raising Timothy as a Jehovah’s witness
X and Y are married. They have a son, M. Y also has a daughter, Q, from a
previous marriage. M and Q are related to each other as follows:
[1] They are blood relatives in the direct line.
[2] They are collateral blood relatives.
[3] They are relatives by affinity in the direct line.
[4] They are relatives by affinity in the collateral line
In Ex parte Dow the court decided that a marriage that had been solemnised in
the garden of a private dwelling is ...
[4] void.
[5] Voidable
[6] valid.
[4] putative
In which case was the concept consortium omnis vitae described as a broad,
indefinable concept that nevertheless has a well-understood meaning?
[1] Wiese v Moolman
[2] Grobbelaar v Havenga
[3] Peter v Minister of Law and Order
[4] Excell v Douglas
35

Which one of the following acts does NOT require written consent of both
spouses, attested by two competent witnesses, in respect of each transaction
separately?
[1] Receiving credit under a credit agreement as defined in the National Credit
Act 34 of 2005
[2] Entering into a contract to alienate, burden with a mortgage or servitude, or
confer a real right in immovable property which forms part of the joint estate
[3] Alienating or pledging assets held mainly as investments and which form part
of the joint estate
[4] Purchasing immovable property under a contract of sale as defined in the
Alienation of Land Act 68 of 1981
Which one of the following is NOT a requirement that needs to be considered

by the court before an application for variation of the parties’ matrimonial
property system will be granted?
[1] There are sound reasons for the proposed change.

[2] The application must be made within a reasonable time.
[3] Notice of the proposed change has been given to all the creditors of the spouse.
[4] [4No other person will be prejudiced by the change
Which one of the following is NOT a way in which a civil marriage is
dissolved?
[1] The death of one or both of the spouses
[2] The annulment of a voidable marriage
[3] Divorce
[4] Extra-judicial separation
Which elements do the test that the courts use upon divorce to determine
whether the consortium between the parties has been terminated or seriously
violated consist of?
[1] Objective elements
[2] Subjective elements
[3] Objective and subjective elements
[4] Objective or subjective elements
To which one of the following marriages will the provisions of the Divorce Act
70 of 1979 regarding pension interests NOT apply?
[1] A marriage with complete separation of property concluded before 1 November
1984
[2] A marriage with complete separation of property concluded on or after 1
November 1984
[3] A marriage in community of property concluded on or after 1 November 1984
36

[4] A marriage with application of the accrual system concluded on or after 1

November 1984
Which one of the following criteria does the court have to take into account
when considering an order for the forfeiture of patrimonial benefits against a
spouse in terms of section 9 of the Divorce Act 70 of 1979?
[1] Undue benefit of the spouse

[2] The principle of fairness
[3] The one-third rule
[4] The yardstick of equality
Which provision affords every child who is of such an age, maturity and stage
of development as to be able to participate in any matter concerning him or
her, the right to participate in an appropriate way and to have due
consideration given to his or her views?
[1] Section 10 of the Children’s Act 38 of 2005
[2] Section 28 of the Constitution of the Republic of South Africa, 1996
[3] Section 6 of the Divorce Act 70 of 1979
[4] Section 4 of the Mediation in Certain Divorce Matters Act 24 of 1987
Which one of the following requirements does NOT apply to a civil union?
[1] Both parties must have capacity to act.

[2] Both parties must agree to enter into a civil union with one another.
[3] Both parties must be of the same sex.
[4] The civil union between the parties must be lawful.
In Gumede v The President of the Republic of South Africa the Constitutional

Court removed the differentiation between the patrimonial consequences of
………… entered into before and after the Recognition of Customary Marriages
Act 120 of 1998:
[1] monogamous customary marriages

[2] a minor’s customary marriage
[3] polygynous customary marriages
[4] civil unions
In which one of the following circumstances would a child be considered

adoptable?
[1] The child performs poorly at school.
[2] The child is constantly fighting with his or her siblings.
[3] The child has been abandoned.
[4] The child wants to move to another city
37

In which one of the following ways can a person acquire parental

responsibilities and rights in respect of a child?
[1] Entering into a permanent life partnership with the child’s biological mother after
the child’s birth
[2] Entering into a civil marriage with the child’s mother but divorcing her before the
child is conceived
[3] Giving birth to the child
[4] Paying a sum of money to the court to acquire such responsibilities and rights

special protection on children below the age of …….. .
[1] 21 years
[2] 18 years
[3] 16 years
[4] 10 years
2018 May/June
Where one of the parties has been persuaded to enter into a civil marriage as a
result of undue influence, the marriage is
[1] Valid
[2] Void
[3] Voidable
[4] Putative
Affinity in the direct line exists between you and you
[1] Stepchildren
[2] Adopted Child
[3] Grandparents
[4] Parents
Which one of the following is NOT a Requirement for the existence of the
spousal duty of support in a civil marriage?
[1] There must be a valid civil marriage between the parties
[2] There must be a joint household between the parties
[3] The Party who claims support must be in need of support
38

[4] The party from whom support is claimed must be able to provide support
Mr and Mrs Mabata are married in community of property. For which one of the
following transactions does Mr Mabata need Mrs Mabata’s prior written
consent, attested by two competent witnesses?
[1] Mr Mabata wants to sell the spouses’ kitchen table and washing machine
[2] Mr Mabata wants to enter into a suretyship agreement in respect of his
brother’s business loans
[3] Mr Mabata wants to institute legal proceedings against someone who owe
money to him
[4] Mr Mabata wants to buy a motor vehicle in terms of credit agreement
In terms of section 21(1) of Matrimonial Property Act 88 of 1984, spouses may
jointly apply to court for leave to change the matrimonial property system
applicable to their marriage. One of the three requirements to be met before
the court will approve the application is that
[1] The creditors must consent to the proposed change
[2] all creditors’ claims must have been settled
[3] no other person will be prejudiced by the proposed change
[4] there is an equitable distribution of the spouse’s property
A civil marriage is dissolved in one of the following three ways, namely
[1] The death of one or both of the spouses, the annulment of a voidable
marriage, and the irretrievable breakdown of the marriage
[2] the death of one or both of the spouses, the irretrievable breakdown of the
marriage and extra-judicial separation
[3] the death of one or both of the spouses, the annulment of a voidable
marriage, and divorce
[4] The death of a one or both of the spouses, divorce and the conclusion of a
polygamous marriage
Which one of the following statements regarding the maintenance claim of a
surviving spouse in terms of the maintenance of Surviving Spouse Act 27 of
1990 is CORRECT?
[1] The Maintenance claim arises regardless of the surviving spouse’s ability to
provide for his or her reasonable maintenance needs from his or her own means and
earnings.
[2] Voluntary contributions made to the surviving spouse’s maintenance by his or
her children are taken into account when determining his or her means and earnings
39

[3] The maintenance claim of the surviving spouse arises only if the marriage
was in community of property or out od community of property with application of the
accrual system
[4] The surviving spouse’s claim for maintenance must be proved and disposed
of in accordance with the provisions of the Administration of Estates Act 66 of 1965
The test or method used by the courts to determine whether the consortium
between the spouses has been terminated or seriously violated involves
[1] Subjective and Objective Elements
[2] Subjective or Objective Elements
[3] Subjective Elements
[4] Objective Elements
Currently, the remedy of a judicial redistribution of assets upon divorce
contained in section 7(3) of the Divorce Act 70 of 1979 is applicable to
[1] All Civil Marriage
[2] All Civil Unions
[3] All Customary Marriage
[4] All Muslim Marriage
Which one of the following cases did NOT deal with the position where a trust
is regarded as the alter ego of one spouse?
[1] Beira v Beira
[2] Badenhorst v Badenhorst
[3] Jordaan v Jordaan
[4] WT v KT
Which of the following parties will be able to conclude a civil union?
[1] A 17-Year-Old Boy and a 22-Year-Old Woman
[2] A 17-Year-Old Girl and A 22-Year-Old Man
[3] Two 17-Year-Old Boys
[4] Two 22-Year-Old Woman
Muslim Marriages
[1] are recognized in South African Law under the Divorce Act 70 of 1979
[2] are recognized in South African law under the Recognition of Customary
Marriages Act 120 of 1998
40

[3] are recognized in South African Law under the Civil Union Act 17 of 2006
[4] are not recognized as valid marriages in South African law
As a general rule, a permanent life parentship
[1] can be regarded as a civil partnership
[2] can be regarded as a common law marriage
[3] does not confer the consequences of a valid marriage
[4] does not exempt donations between the partners from donations tax
Section 28(2) of the Constitution of the Republic of South Africa, 1996 provides
that a child’s best interests are of paramount importance in every matter
concerning the child. Which one of the following statements concerning this
section is False?
[1] Section 28(2) imposes as stricter requirement than that which applies in terms
of the United Nations Convention on the rights of the child
[2] Section 28(2) imposes a stricter requirement that that which applies in terms
of the African Charter on the Rights and Welfare of the child
[3] Section28(2) elevates the child’s best interests of the supreme issue in any
matter concerning the child
[4] Section 28(2) implies that limitations of a child best interests are
impermissible
Jane and Jake, both majors, are the biological parents of Gill, an 11-Months-
Old baby Jane and Jake only met once on the day that Gill was conceived Jane
married Grant in a Civil Marriage after Gill was born. Who will automatically
obtain parental responsibilities and rights of Gill?
[1] Jane
[2] Jane and Jake
[3] Jane and Grant
[4] Jane. Jake and Grant
2018 October/November
Whose consent is required for a boy below the age of 18 years and a girl below
the age of 15 years to enter into a valid civil marriage?
[1] Consent of the Minister of Home Affairs
[2] Consent of the parent(s) or legal guardian(s)
41

[3] Both consent of the Minister of Home Affairs and the Court
[4] Both consent of the Minister of Home Affairs and Parent(s)/Legal Guardian(s)
Aaron and Buhle are married to each other. They are unable to conceived a
child and adopt a girl, Olga. Upon the death of Buhle, Can Aaron and Olga
marry each other?
[1] Yes, they are not blood relatives in the direct line
[2] Yes, an adoptive parent may marry his adopted child
[3] No, they are relatives by affinity in the direct line
[4] No, an adoptive parent may not marry his adopted child
A voidable marriage is described as a marriage
[1] Which has never come into existence and has none of the legal
consequences of a valid marriage
[2] in which grounds are present, either before or at the time of the wedding, on
the basis of which the court can be requested to set the marriage aside
[3] in which one of the parties (or both) enters into a marriage while being
unaware that there is a defect which renders the marriage void
[4] which remains in force until it is dissolved by a court through a decree of
divorce
Which one of the following is NOT a requirement for the capacity to incur
debts for household necessaries in a civil marriage?
[1] The existence of a valid civil marriage
[2] the existence of a joint household
[3] the transaction must relate to household necessaries
[4] The household necessaries must be within the spouses’ standard of living
Before their marriage, Sipho and Nozipho agreed that they would marry out of
was never properly executed and registered. What must Sipho and Nozipho
now do to ensure that they are formally married out of community of property?
[2] They must bring a court application in terms of section 21(1) of the
Matrimonial Property Act 88 of 1984 for leave to change their matrimonial property
system.
[3] They must enter into a written postnuptial agreement and have it notarially
executed
42

[4] They do not have to do anything as the contract is deemed to be valid and
binding
Which one of the following in NOT a way in which a civil marriage is
dissolved?
[1] The death of one or both of the spouses
[2] The annulment of a voidable marriage
[3] Divorce
[4] Extra-Judicial Separation
In terms of Section 5(2) of Divorce Act 70 of 1979 a defendant’s continuous
unconsciousness may constitute a ground for divorce if inter alia the
unconscious state has lasted for a continuous period of a t least
immediately prior to the institution of the divorce
action .
[1] Two Years
[2] One Year
[3] Six Months
[4] Three Months
Which one of the following provisions may NOT be included in a deed of
settlement or consent paper upon divorce?
[1] A provision that each spouse will simply retain his or her own assets where
the marriage is subject to the accrual system.
[2] A provision that one of the spouses may never marry again
[3] A provision that one of the spouses will pay maintenance to the other until the
latter’s remarriage
[4] A provision that one spouses will solely be responsible for the costs of the
divorce proceedings
Which one of the following occurrences would always terminate a post-divorce
spousal maintenance order in terms of section 7(1) of the Divorce Act 70 of
1979?
[1] The remarriage of the maintenance debtor
[2] The remarriage of the maintenance recipient
[3] The Death of the maintenance debtor
[4] The Death of the maintenance recipient
Which provision affords every child who is of such an age, maturity and stage
of development as to be able to participate in any matter concerning him or
43

her, the right to participate in an appropriate way and to have due

consideration given to his or her views?
[1] Section 10 of the Children’s Act 38 of 2005
[2] Section 28 of the Constitution of the Republic of South Africa, 1996
[3] Section 6 of the Divorce Act 70 of 1979
[4] Section 4 of the Mediation in Certain Divorce Matters Act24 of 1987
Which one of the following parties CANNOT conclude a civil union?
[1] Spouses in a Muslim Marriage
[2] Same-Sex Couples
[3] Hetero-Sexual Couple
[4] Minors
Which one of the following Acts Regulates Muslim Marriages?
[1] Marriage Act 25 of 1961
[2] Civil Union Act 17 of 2006
[3] Recognition of Customary Marriages Act 120 of 1998
[4] None of the above
Which one of the following statements regarding life partnerships are TRUE?
[1] The general consequences of a marriage are never conferred on life partners
[2] The general consequences of a marriage are conferred on life partners whose
life partnership existed for at least 6 months
[3] The general consequences of a marriage are conferred on life partners whose
life partnership existed for at least 2 years
[4] Life partners can acquire legal protection by means of the special provisions
in the life partnership Act 13 of 2015
In terms of the Children’s Act 38 of 2005 the consent of all the child’s
guardians is necessary for the transactions listed in section 18(3)(c). Which
one of the following is NOT a transaction listed in Section 18(3)(c)?
[1] The alienation of the child’s immovable property
[2] The child’s antenuptual contract
[3] The child’s application for a passport
[4] The child’s removal from South Africa
44

[1] The child’s attainment of majority

[2] The child’s adoption by other parents
[3] The child’s marriage to a wealthy spouse
[4] The child’s death
2019 May/June
A and B are married. They have a daughter, Mary. B also has a son, Quintin,
from a previous marriage. Marry and Quintin are related to each other as follow
[1] They are collateral blood relatives
[2] They are blood relatives in the direct line
[3] They are relatives by affinity in the direct line
[4] They are relatives by affinity in the collateral line
Which one of the following is a common requirement for the spouse’s
reciprocal duty of support and the capacity to incur debts for household
necessaries in a civil marriage?
[1] The existence of a valid civil marriage
[2] The existence of a joint household
[3] The transaction must relate to household necessaries
[4] The person from whom the support is claimed must be able to provide it
A debtor wants to claim a delictual debt that Zille incurred during het marriage
in community of property with Julius. Zille and Julius are now divorced.
Against whom can the debtor institute the claim for delictual debt?
[1] Only Julius
[2] Only Zille
[3] Either Julius or Zille
[4] Julius and Zille together
Mr Naicker, the sole member of a close corporation, bound himself as surety
for the close corporation’s loan from AB Bank. Mr Naicker did so without Mrs
Naicker’s consent with whom he is married in community of property. He did,
however, conclude the suretyship in the ordinary course of his profession,
trade or business. The transaction is therefore
[1] valid in terms of section 15(9)(a) of the Matrimonial Property Act of 1984
[2] void in terms of section 15(9)(a) of the Matrimonial Property Act of 1984
45

[3] void in terms of section 15(6) of the Matrimonial Property Act of 1984
[4] valid in terms of section 15(6) of the Matrimonial Property Act of 1984
At the time of their marriage, Mandla and Khanyi were ignorant of the
consequences of their marriage in community of property. It is only now that
they realise separation of property would have suited their circumstances
much better. What must Mandla and Khanyi now do to ensure that they are
formally married out of community of property?
Registries Act of 1937 for leave to change their matrimonial property system
system
[3] They must enter into a written postnuptial agreement and have it notarially
executed
[4] They must obtain a decree of divorce before changing their matrimonial
property system
Which section of the Divorce Act 70 of 1979 creates and exception to the rule
[1] Section 3
[2] Section 4(1)
[3] Section 5(2)
[4] Section 5A
Mr and Mrs Modise were married with complete separation of property of
property on 10 December 2000. They are now involved in divorce proceedings.
With regard to Mr Modise’s pension interest in UNISA’s pension fund, Mrs
Modise
[1] will not be entitled to claim part of Mr Modise’s pension interest at all
[2] will be entitled to claim that part of Mr Modise’s pension interest must
immediately be paid to het directly
[3] Will be entitled to claim that part of Mr Modise’s pension interest must
immediately be transferred to a pension fund of her choice
[4] will not be entitled to claim part of Mr Modise’s pension interest until such time
as he retires or resigns from his job as UNISA
46

order in favour of Mrs Carrim upon divorce in term of our legislation and case
law?
[1] Mrs Carrim takes care of the household and the children born from the
marriage
[2] Mrs Carrim manages the books of Mr Carrim’s psychology practice in her
spare time without remuneration
[3] Mrs Carrim decline an offer to be the manager of a new business in Dubai as
it would have been detrimental to Mr Carrim’s psychology practice
[4] Mrs Carrim contributes part of her salary towards Mr Carrim’s holiday home
What kind of maintenance can be awarded to a wife who needs maintenance at
the time of divorce, but whose former husband will only be able to meet her
existing maintenance needs at some stage in the future?
[2] Token Maintenance
[3] Lump-Sum Maintenance
[4] No Maintenance
Paul and Mary are involved in divorce litigation. They have a son, aged 6 and a
daughter, aged 1. Ion which one of the scenarios, according to the case Van
Vuuren v Van Vuuren, does the family advocate NOT need to apply for an order
authorising an enquiry in terms of the Mediation in Certain Divorce Matters Act
24 of 1987?
[1] Paul and Mary agree that Mary will be the care-giving parent of the children
after the divorce
[2] Paul and Mary agree that Paul will be the care-giving parent of the children
after the divorce
[3] Paul and Mary agree that Paul will be the care-giving parent of their son and
Mare will be the care-giving parent of their daughter after the divorce
[4] Paul and Mary agree that care of the children should be awarded to Paul’s
parents after the divorce
Which one of the following requirements does NOT apply to a civil union?
[1] Both parties must have capacity to act
[2] Both parties must agree to enter into a civil union with one another
[3] Both parties must be of the same sex
[4] The civil union between the parties must be lawful
In Gumede v The President of the Republic of South Africa, the Constitutional
Court removed the differentiation between the patrimonial consequences of
47

entered into before and after the Recognition of Customary Marriage Act 120 of
1998?
[1] Monogamous Customary Marriages
[2] Minors’ Customary Marriages
[3] Polygynous Customary Marriages
[4] Civil Unions
In which one of the following circumstances would a child be considered
adoptable?
[1] The child performs poorly at school
[2] The child is constantly fighting with his or her siblings
[3] The child has been abandoned
[4] the child wants to move to another city
In which one of the following ways can a person acquire parental
responsibilities and rights in respect of a child?
[1] Entering into a permanent life partnership with the child’s biological mother
after the child’s birth
[2] Entering into a civil marriage with the child’s mother but divorcing her before
the child is conceived
[3] Giving birth to the child
[4] Paying a sum of money to the court to acquire such responsibilities and rights
special protection on children below the age of
[1] 21 Years
[2] 18 Years
[3] 16 Years
[4] 10 Years
2019 October/November
In which one of the following cases did the Constitutional Court Hold that
contempt proceedings in the high court to secure the enforcement of a
maintenance debt are appropriate connotational relief for the enforcement of a
[1] Soller v Maintenance Magistrate, Wynberg
48

[2] Burger v Burger

[3] Mngadi v Beacon Sweets & Chocolates Provident Fund
[4] Bannatyne v Bannatyne (Commission for Gender Equality, as Amicus Curiae)
During the subsistence of a civil marriage, both spouses have as right to live
in the matrimonial home
[1] regardless of whether they are married in or out of community of property, and
regardless of whether they share the expenses relating to the matrimonial home
[2] regardless of whether they are married in or out of community of property, but
only if they share the expenses relating to the matrimonial home
[3] only if they married out of community of property and share the expenses
[4] only if they are married in community of property and share the expenses
Mr and Mrs Naidoo are married in community of property. What form of
consent does Mrs Naidoo require from Mr Naidoo to sell an expensive painting
that forms part of their joint estate and that they bought as an investment?
[1] written consent without any further requirements
[2] Written consent, attested by two competent witnesses
[3] Prior written consent, attested by two competent witnesses
[4] Oral consent
Select the CORRECT word that is missing from the following statement. If a
bona fide third party enters into a transaction with a person who is married in
community of property and the person has not obtained the required consent
to the transaction from his or her spouse, the transaction is in
terms of section 15(9)(a) of the Matrimonial Property Act 88 of 1984 .
[1] Void
[2] Valid
[3] Voidable
[4] Invalid
Which one of the following statements relating to the decision in RD v TD in
respect of spouses married subject to complete separation of property in
CORRECT?
[1] The spouse may enter into an agreement that community of property will
apply in their marriage
[2] The spouses may enter into a societas universorum bonorum (i.e., a universal
partnership relating to present and future assets, liabilities, profits and losses)
49

[3] The spouses may enter into a societas universorum quae ex quaestu veniunt
(i.e, a universal partnership that is limited to the sharing of present and future assets,
liabilities, profit and losses acquired from commercial undertaking)
[4] The spouses may enter into all of the above agreements
What is an agreement between married parties to live apart called?
[1] Judicial Separation
[2] Extra-Judicial Separation
[3] Non- Cohabitation
[4] Divorce
The legal definition of a “normal marriages relationship” for purposes of
section 4(1) of the Divorce Act 70 of 1979 should be sought in the concept of
.
[1] Societas Universorum Bonorum
[2] Pactum Successorium
[3] Consortium Omnis Vitae
[4] Error in Negotio
[1] Section 3
[2] Section 4(1)
[3] Section 5(2)
[4] Section 5A
In terms of section 7(7)(a) of the Divorce Act 70 of 1979, a Spouse’s pension
interest is deemed to be part of his or her assets which can be considered in
relation to division of the spouses’ assets upon divorce. Section 7(7)(a) does
NOT apply to spouses who married ….
[1] in community of property
[2] out of community of property with the accrual system
[3] on or after 1 November 1984 in terms of an antenuptial contract by which
excluded.
[4] before 1 November 1984 in terms of an antenuptial contract by which
excluded.
50

Which one of the following criteria does the have to take into account when
considering an order for the forfeiture of patrimonial benefits against a spouse
in terms of section 9 of the Divorce Act 70 of 1979?
[1] Undue benefit of the spouse
[2] The Principle of fairness
[4] The Yardstick of equality
Which one of the following statements is TRUE regarding civil unions
concluded in terms of the Civil Union Act 17 of 2006?
[1] Minors cannot conclude a civil union
[2] Only same-sex couples can marry in terms of the civil union act
[3] All the requirements for a valid civil union are the same as those of a civil
marriage [4] Parties are not allowed to conclude a lobolo agreement prior to
concluding a civil union.
A customary marriage that is not registered in terms of the Recognition of

Customary Marriages Act 120 of 1998 is
[1] void
[2] voidable
[3] Valid
[4] Putative
The matrimonial property system of a monogamous or first customary
marriage concluded after 15 November 2000 without an antenuptial contract is
….
[1] Regulated by customary law
[3] out of community of property
[4] out of community of property with the accrual
When does a man have to enter into a court-approved contract in terms of
section 7(6) of the recognition of Customary Marriage Act 120 of 1998?
[1] Prior to entering into any customary marriages
[2] Prior to entering into a customary marriage but after concluding an antenuptial
contract
[3] After entering into a lobola agreement but prior to paying lobolo
51

[4] Prior to entering into a second or further customary marriage

In Arnod (born Peer) v Multilateral Motor Vehicles Accidents Fund
(Commission of Gender Equality Intervening) the Supreme court of Appeal
found that a dependant who is not legally married to the deceased may have
an action got compensation for the loss of support if certain requirements are
met. Choose the correct requirements from the list below:
a) The deceased had a legally enforceable duty to support the dependant
b) The duty of support arose from a marriage that was concluded in terms of the
tenets of a recognised and accepted faith.
c) The duty of support deserves recognition and protection.
d) The duty of support is recognised in terms of the tenets if a recognised and
accepted faith.
[1] (a) and (d)
[2] (a) and (b)
[3] (a), (b) and (c)
[4] (a), (b), (c) and (d)
2020 MAY/ JUNE
Which one of the following is NOT a requirement for a valid civil marriage?
[1] The parties must have capacity to act.
[2] The parties must be engaged to each other.
[3] The marriage must be lawful.
[4] The marriage must be concluded with the prescribed formalities.
A woman may not enter into a civil marriage with her ex-husband’s father
because they are related to each other by ...
[1] affinity in the direct line.
[2] affinity in the collateral line.
[3] consanguinity in the direct line.
[4] consanguinity in the collateral line.
Aaron and Buhle are married to each other. They are unable to conceive a
child and adopt a girl, Olga. Upon the death of Buhle, can Aaron and Olga
marry each other?
52

[1] Yes, they are not blood relatives in the direct line.
[2] Yes, an adoptive parent may marry his adopted child.
[3] No, they are relatives by affinity in the direct line.
[4] No, an adoptive parent may not marry his adopted child.
A voidable marriage is a …
[1] marriage which has none of the legal consequences of a valid marriage.
[2] marriage in which one or both of the parties was unaware that there is a
defect which renders the marriage void.
[3] marriage where there are grounds on the basis of which the court can be
asked to set the marriage aside.
[4] simulated marriage or marriage of convenience.
Tebogo and Sipho married a year ago. When the parties married, Tebogo knew
that Sipho had been married before, but she did not know that Sipho’s
previous marriage had not yet been dissolved by divorce. Tebogo and Sipho’s
marriage is ...
[1] valid and unchallengeable.
[2] valid but voidable.
[3] void ab initio.
[4] void but putative.
As against third parties, spouses who are married out of community of
property are liable for debts for household necessaries.
[1] jointly
[2] jointly and severally
[3] on a pro rata basis
[4] proportionately
In which one of the following instances would a married woman lose her right
to claim maintenance from her husband?
[1] The spouses agree to live apart because they no longer love each other.
[2] The wife moves out of the matrimonial home because her husband beats her.
[3] The wife moves out of the matrimonial home because she is having an affair
with her boss.
[4] The husband moves out of the matrimonial home because he is having an
affair with his boss.
53

In which one of the following cases did the Constitutional Court hold that
maintenance debt are appropriate constitutional relief for the enforcement of a
Themba and Stella married in community of property on 20 March 2020. Which
[1] Stella will become co-owner of the movable property Themba owned before
the marriage once each of the properties is transferred to her by way of delivery.
[2] Themba will become co-owner of the immovable property Stella owned
before the marriage when the property is registered in both spouses’ names in the
Deeds Office.
[3] The spouses will only become co-owners of the property each of them owned
before the marriage if they agreed that they would become co owners after the
marriage.
[4] When they married, the spouses automatically became co-owners of the
property each of them owned before the marriage.
Mr and Mrs Kruger are married in community of property. Which one of the
[1] Their matrimonial home, which is subject to a fideicommissum
[2] An amount of R150 000 Mrs Kruger received in terms of the Friendly
Societies Act 25 of 1956 during the marriage
[3] The motor vehicle Mrs Kruger bought before she married Mr Kruger
[4] The diamond ring Mr Kruger gave to Mrs Kruger when the couple got
engaged
.Mr and Mrs Silver are married in community of property. They have a farm that
is subject to a usufruct. Which one of the following assets falls into their joint
estate?
[1] The crops on the farm that is subject to the usufruct
[2] The farm that is subject to the usufruct
[3] The beach cottage Mr Silver inherited from his father subject to the proviso
that Mr Silver’s son must inherit the cottage on Mr Silver’s death
54

[4] The disability payments Mrs Silver received after being injured when she fell
off a stage at a music concert
A debtor wants to claim a delictual debt that Beauty incurred during her
marriage in community of property with Solomon. Beauty and Solomon are
now divorced. Against whom can the debtor institute the claim for the delictual
debt?
[1] Only Solomon
[2] Only Beauty
[3] Either Solomon or Beauty
[4] Solomon and Beauty together
Dumisani is the sole member of a close corporation. In the ordinary course of
business, Dumisani bound himself as surety for the close corporation’s loan
from Standard Bank. Dumisani did so without the consent of Lebo, to whom he
is married in community of property. The transaction is …
[1] valid in terms of section 15(9)(a) of the Matrimonial Property Act 88 of 1984.
[2] void in terms of section 15(9)(a) of the Matrimonial Property Act 88 of 1984.
[3] valid in terms of section 15(6) of the Matrimonial Property Act 88 of 1984.
[4] void in terms of section 15(6) of the Matrimonial Property Act 88 of 1984.
Mr and Mrs Smith are married in community of property. Mrs Smith has
discovered that Mr Smith is planning to transfer almost all the assets of the
joint estate to his brother without her consent. Which one of the following
common-law remedies can Mrs Smith invoke to prevent her husband from
transferring the assets to his brother?
[1] An interdict
[3] The actio Pauliana utilis
[4] An application to have Mr Smith declared a prodigal
Mr and Mrs Mahlangu are married in community of property. For which one of
written consent in terms of section 17 of the Matrimonial Property Act 88 of
1984?
[1] Instituting legal proceedings against his brother in connection with the farm
the brothers inherited from their father subject to the condition that the farm must
never become part of any joint estate
[2] Instituting legal proceedings for the recovery of non-patrimonial loss for a
delict his neighbour committed against him
55

[3] Instituting legal proceedings for the recovery of patrimonial loss for a delict his
neighbour committed against him
[4] Instituting legal proceedings against a client who supplies packaging material
to the farm he and his brother inherited from their father subject to the condition that
the farm must never become part of any joint estate
system.
[4] They must enter into a postnuptial written agreement and have it notarially
executed.
In Mr and Mrs Khumalo’s antenuptial contract Mr Khumalo undertakes to
transfer an insurance policy to Mrs Khumalo as soon as their first child is
born. This clause is called a …
[1] succession clause.
[2] “clean break” clause.
[4] reversion clause.
Mr and Mrs Nkosi are married subject to the accrual system. When they
married, Mrs Nkosi had no debts and owned a house which was valued at
R100 000. Suppose that during the subsistence of the marriage money
depreciated to such an extent, that according to the consumer price index, R2
now has the same value as R1 at the beginning of the marriage. Which one of
the following amounts reflects the initial value of Mrs Nkosi’s estate?
[1] R0
[2] R50 000
[3] R100 000
[4] R200 000
Mr and Mrs Malamo are married subject to the accrual system. Some months
ago, Mr Malamo’s neighbour falsely accused Mr Malamo of being a child
56

molester. This accusation was made in front of many people who live in the
same street as the Malamos. The neighbour also severely assaulted Mr
Malamo with an axe. As a result of the axe attack, Mr Malamo spent several
months in hospital, had several operations, could not work for five months,
and has been left with a permanent limp. Mr Malamo received compensation
from his neighbour as a result of the attack. He also successfully sued his
neighbour for compensation for defamation. Select the one type of
compensation from the list below that forms part of the accrual in Mr Malamo’s
estate.
[1] Compensation for bodily injuries
[2] Compensation for pain and suffering
[3] Compensation for loss of income
[4] Compensation for defamation
Mr and Mrs Tsholo are married subject to the accrual system. They are getting
divorced. During the marriage, Mrs Tsholo inherited R100 000 from her mother,
received R100 000 for loss of income and R100 000 for pain and suffering, and
received a donation of R100 000 from her uncle. Which one of the following
amounts reflects the value of the assets that do not form part of the accrual in
Mrs Tsholo’s estate?
[1] R100 000
[2] R200 000
[3] R300 000
[4] R400 000
Mr and Mrs Smith are married subject to the accrual system. Mr Smith died last
week. At the time of his death, the accrual in his estate was R500 000 and the
accrual in Mrs Smith’s estate was R100 000. Which one of the following
amounts reflects the amount of the accrual claim Mrs Smith has against Mr
Smith’s estate?
[1] R200 000
[2] R250 000
[3] R300 000
[4] R400 000
In terms of the decision in Brookstein v Brookstein 20808/14 [2016] ZASCA 40
(24 March 2016) (reported as AB v JB 2016 (5) SA 211 (SCA)), the value of a
divorcing spouse’s estate for purposes of determining the accrual must be
determined ...
[1] on the date when the divorce action is initiated by the plaintiff.
57

[2] at litis contestatio.

[3] on the date when the divorce trial starts.
[4] on the date when the divorce order is made.
Which one of the following statements regarding the dissolution of a civil
marriage by the death of one of the spouses is correct?
[1] If a civil marriage in community of property is terminated by the death of one
of the spouses, the surviving spouse pays all the debts owed by the joint estate and
claims all debts owed to the joint estate.
[2] If a civil marriage out of community of property is terminated by the death of
one of the spouses, the antenuptial contract is automatically terminated.
[3] The surviving spouse in a civil marriage may claim maintenance from the
estate of his or her deceased spouse if the death occurred after 1 December 2000.
[4] If a surviving spouse in a civil marriage has a claim for maintenance from the
estate of his or her deceased spouse, the claim must be proved and disposed of in
terms of the Administration of Estates Act 66 of 1965.
[1] Section 3
[2] Section 4(1)
[3] Section 4(2)
[4] Section 5A
In terms of section 5(2) of the Divorce Act 70 of 1979, a defendant’s continuous
unconsciousness may constitute a ground for divorce if, inter alia, the
unconscious state has lasted for a continuous period of at least
immediately prior to the institution of the divorce action.
[1] two years
[2] one year
[3] six months
[4] three months
In terms of the Divorce Act 70 of 1979, a spouse’s pension interest is excluded
from his or her estate upon divorce if he or she married on or after 1 November
1984 in terms of an antenuptial contract which ...
[1] excludes community of property, community of profit and loss and the accrual
system.
58

[2] excludes community of property and community of profit and loss, and
includes the accrual system.
[3] includes community of property and community of profit and loss, but
excludes the accrual system.
[4] includes community of property, but excludes community of profit and loss.
In which of the following cases did the court hold that because section 7(7)(a)
of the Divorce Act 70 of 1979 unequivocally states that a pension interest is
deemed to be part of a spouse’s assets when determining the patrimonial
benefits to which divorcing spouses may be entitled, the value of the pension
interest is included in the joint estate of spouses married in community of
property even if the divorce order does not refer to the pension interest?
[1] Botha v Botha
[2] GN v JN (also reported as Ndaba v Ndaba)
[3] Wijker v Wijker
[4] REM v VM (also reported as Mills v Mills)
Which one of the following criteria does the court have to take into account
[1] Undue benefit
In which of the following cases did the court hold that when considering a
forfeiture order in terms of section 9 of the Divorce Act 70 of 1979, the first
step is to determine whether or not the party against whom the order is sought
will in fact be benefitted?
[1] Botha v Botha
[3] Wijker v Wijker
[1] The house Mrs Botha owned before the spouses married
[2] The house Mr Botha owned before the spouses married
59

[3] The car Mr Botha bought for himself during the marriage with money he
derived from his business
[4] The car Mr Botha bought for Mrs Botha’s personal use during the marriage
with money he derived from his business
Mr and Mrs Brown are married in community of property. Mrs Brown brought a
third of the joint estate into the marriage. If the court awards total forfeiture in
terms of section 9(1) of the Divorce Act 70 of 1979 against Mr Brown, what will
Mrs Brown receive?
[1] Half of the joint estate
[2] Half of what Mr Brown brought into the marriage
[3] A third of the joint estate
[4] A third of what Mr Brown brought into the marriage
In a civil marriage, the court’s power to redistribute property upon divorce

applies if the spouses married before 2 December 1988 in terms of section
22(6) of the Black Administration Act 38 of 1927 or married ...
[1] on or after 1 November 1984 in terms of an antenuptial contract which
excludes community of property, community of profit and loss and the accrual
system.
includes community of property and community of profit and loss, but excludes the
accrual system.
[3] before 1 November 1984 in terms of an antenuptial contract which includes
community of property and community of profit and loss, but excludes the accrual
system.
[4] before 1 November 1984 in terms of an antenuptial contract which excludes
community of property and community of profit and loss and the accrual system.
Select the one correct option from the statements below about redistribution
of assets in terms of the Divorce Act 70 of 1979.
[1] Determining whether one spouse has made a contribution to the maintenance
or increase of the other spouse’s estate is not a factual matter and is left entirely to
the discretion of the court.
[2] An asset a spouse inherited or received as a donation during the marriage
may be taken into account for purposes of a redistribution order.
[3] When it considers redistribution, the court adopts a liberal approach to taking
the misconduct of the spouses into account.
[4] The court may make a redistribution order against a spouse even if the
spouse is insolvent.
60

Mr and Mrs Pillay are getting divorced. Mrs Pillay has never worked outside
the home. Mr Pillay offers to pay post-divorce maintenance to Mrs Pillay, but
insists that the maintenance must be subject to a dum casta clause. This
means that Mrs Pillay will forfeit maintenance if ...
[1] she gets a job.
[2] she leads an unchaste life.
[3] Mr Pillay loses his job.
[4] Mr Pillay becomes disabled.
Nowadays an employable woman is increasingly granted the following
What kind of maintenance can be awarded to a wife who needs maintenance at
the time of divorce, but whose former husband will only be able to meet her
[4] No maintenance
In Kooverjee v Kooverjee, a rehabilitative maintenance award was made in
favour of the wife for a substantial period. The maintenance amount was,
however, to be decreased every two years by an amount of …
[1] R1 000.
[2] R2 000.
[3] R3 000.
[4] R4 000.
The type of care in terms of which a parent will get care of a child only once
that parent has satisfied the court that adequate arrangements have been
made to receive the child into his or her care is known as …
[1] sole care.
[2] supervised care.
[3] divided care.
61

[4] deferred care.

Paul and Mary are involved in divorce litigation. They have a son, aged 6 and a
daughter, aged 1. In which one of the following scenarios does the family
advocate, according to the decision in Van Vuuren v Van Vuuren, NOT need to
apply for an order authorising an enquiry in terms of the Mediation in Certain
Divorce Matters Act 24 of 1987?
[1] Paul and Mary agree that Mary will be the care-giving parent of the children
after the divorce.
[2] Paul and Mary agree that Paul will be the care-giving parent of the children
after the divorce.
[3] Paul and Mary agree that Paul will be the care-giving parent of their son and
Mary will be the care-giving parent of their daughter after the divorce.
[4] Paul and Mary agree that care of the children should be awarded to Paul’s
parents after the divorce.
When Mr and Mrs Botha divorced, the court awarded guardianship of their
minor child to Mrs Botha only and excluded Mr Botha from exercising
guardianship over the child. The type of guardianship the court awarded to
Mrs Botha is called ...
[1] single guardianship.
[2] guardianship simpliciter.
[3] sole guardianship.
[4] concurrent guardianship.
In terms of section 8(1) of the Recognition of Customary Marriages Act 120 of
1998, a customary marriage is dissolved by divorce by…
[1] an order of the court.
The Minister of Home Affairs has extended the date for registration of
customary marriages to ...
[1] 30 August 2020.
[2] 1 January 2021.
[3] 30 May 2024.
[4] 30 June 2024.
62

As a result of the decision of the Constitutional Court in

all monogamous customary marriages are in community of property unless
the spouses enter into an antenuptial contract.
[1] Gumede v President of the Republic of South Africa
[2] MM v MN
[3] Holomisa v Holomisa
[4] Ramuhovhi v President of the Republic of South Africa
The court’s power to redistribute property upon the dissolution of a customary
[1] only to customary marriages concluded subject to complete separation of
property.
[2] only to customary marriages concluded subject to complete separation of
property before 2 December 1988.
[3] in no customary marriage at all.
[4] to all customary marriages.
In the Constitutional Court held that a surviving spouse in
a monogamous Muslim marriage qualifies as a “spouse” and “survivor” in
terms of the Intestate Succession Act 81 of 1987 and the Maintenance of
Surviving Spouses Act 27 of 1990.
[1] Hassam v Jacobs
[3] Ryland v Edros
As a general rule, a permanent life partnership……
[1] can be regarded as a civil partnership.
[2] can be regarded as a common law marriage.
[3] does not confer the consequences of a valid marriage.
[4] does not exempt donations between the partners from donations tax.
Section 28(1)(c) of the Constitution of the Republic of South Africa, 1996
entitles every child to basic…
[1] family life, nationality, family care or parental care.
[2] nutrition, shelter, love and education.
[3] shelter and health care.
[4] nutrition, shelter, basic health care and social services.
63

Timothy, currently 10 years old, was born of Janet and Tom’s marriage which
Which one of the following actions may Janet take without Tom’s consent?
[1] Apply for a passport for Timothy
[2] Take Timothy on holiday to Zimbabwe
[3] Raise Timothy as a Jehovah’s witness
[4] Sell the flat Timothy inherited from his grandfather
For a parental responsibilities and rights agreement relating to guardianship to
become enforceable, it must be made an order of court by ...
[1] the Family Advocate.
[2] the High Court.
[3] a Divorce Court in a divorce matter.
[4] the Children’s Court.
2021 TELEGRAM QUIZES
Jessica,a 17 year old student,wants to conclude a civil marriage with Ben who
is 25.Jessica’s mother who has sole guardianship of Jessica,refuses to
consent to the wedding .Which one of the following persons/authorities should
Jessica consult to proceed?
[1] High court
[2] Minister of Home Affairs
[3] Jessica’s father
[4] The presiding officer of the children’s court
If Cindy is pregnant with John’s child when she marries Peter,and Peter is
blissfully unaware the marriage is
[1] valid but unchangeable
64

[2] valid but voidable

[3]void ab initio
[4]void but putative
Which one of the following is not a invariable consequence of a civil marriage?
[1] the spouse who owns the family home may eject the other spouse from the family
home at anytime
[2] a righ of intestate succession is created between the spouses
[3] spouses have capacity to incur debts for household necessaties
[4] the husband is the head of the family
65

1 Which one of the following is NOT a requirement for a valid civil marriage?
[1] The parties must have capacity to act.

[2] The parties must be engaged to each other.
[3] The marriage must be lawful.
[4] The marriage must be concluded with the prescribed formalities.
(2)
2 A woman may not enter into a civil marriage with her ex-husband’s father
because they are related to each other by ...
[1] affinity in the direct line.

[2] affinity in the collateral line.
[3] consanguinity in the direct line.
[4] consanguinity in the collateral line.
(2)
3 Aaron and Buhle are married to each other. They are unable to conceive a
child and adopt a girl, Olga. Upon the death of Buhle, can Aaron and Olga
marry each other?
[1] Yes, they are not blood relatives in the direct line.
[2] Yes, an adoptive parent may marry his adopted child.
[3] No, they are relatives by affinity in the direct line.
[4] No, an adoptive parent may not marry his adopted child.
(2)
4 A voidable marriage is a …
[1] marriage which has none of the legal consequences of a valid

marriage.
[2] marriage in which one or both of the parties was unaware that there is
a defect which renders the marriage void.
[3] marriage where there are grounds on the basis of which the court can
be asked to set the marriage aside.
[4] simulated marriage or marriage of convenience.
(2)
5 Tebogo and Sipho married a year ago. When the parties married, Tebogo
knew that Sipho had been married before, but she did not know that Sipho’s
previous marriage had not yet been dissolved by divorce. Tebogo and Sipho’s
marriage is ...
[1] valid and unchallengeable.

[2] valid but voidable.
[3] void ab initio.
[4] void but putative.
(2)

PVL2601
Page 2 May/June 2020
6 As against third parties, spouses who are married out of community of

property are ________________ liable for debts for household necessaries.
[1] jointly
[2] jointly and severally
[3] on a pro rata basis
[4] proportionately
(2)
7 In which one of the following instances would a married woman lose her right
to claim maintenance from her husband?
[1] The spouses agree to live apart because they no longer love each
other.
[2] The wife moves out of the matrimonial home because her husband
beats her.
[3] The wife moves out of the matrimonial home because she is having an
affair with her boss.
[4] The husband moves out of the matrimonial home because he is having
an affair with his boss.
(2)
8 In which one of the following cases did the Constitutional Court hold that
maintenance debt are appropriate constitutional relief for the enforcement of
a claim for the maintenance of children?

(2)
9 Themba and Stella married in community of property on 20 March 2020.

Which one of the following statements is correct?
[1] Stella will become co-owner of the movable property Themba owned
before the marriage once each of the properties is transferred to her by
way of delivery.
[2] Themba will become co-owner of the immovable property Stella owned
before the marriage when the property is registered in both spouses’
names in the Deeds Office.
[3] The spouses will only become co-owners of the property each of them
owned before the marriage if they agreed that they would become co-
owners after the marriage.
[4] When they married, the spouses automatically became co-owners of
the property each of them owned before the marriage.
(2)
[TURN OVER]

PVL2601
10 Mr and Mrs Kruger are married in community of property. Which one of the
[1] Their matrimonial home, which is subject to a fideicommissum

[2] An amount of R150 000 Mrs Kruger received in terms of the Friendly
Societies Act 25 of 1956 during the marriage
[3] The motor vehicle Mrs Kruger bought before she married Mr Kruger
[4] The diamond ring Mr Kruger gave to Mrs Kruger when the couple got
engaged
(2)
11 Mr and Mrs Silver are married in community of property. They have a farm
that is subject to a usufruct. Which one of the following assets falls into their
joint estate?
[1] The crops on the farm that is subject to the usufruct

[2] The farm that is subject to the usufruct
[3] The beach cottage Mr Silver inherited from his father subject to the
proviso that Mr Silver’s son must inherit the cottage on Mr Silver’s
death
[4] The disability payments Mrs Silver received after being injured when
she fell off a stage at a music concert
(2)
12 A debtor wants to claim a delictual debt that Beauty incurred during her
marriage in community of property with Solomon. Beauty and Solomon are
now divorced. Against whom can the debtor institute the claim for the delictual
debt?
[1] Only Solomon

[2] Only Beauty
[3] Either Solomon or Beauty
[4] Solomon and Beauty together
(2)
13 Dumisani is the sole member of a close corporation. In the ordinary course of

business, Dumisani bound himself as surety for the close corporation’s loan
from Standard Bank. Dumisani did so without the consent of Lebo, to whom
he is married in community of property. The transaction is …
[1] valid in terms of section 15(9)(a) of the Matrimonial Property Act 88 of

1984.
[2] void in terms of section 15(9)(a) of the Matrimonial Property Act 88 of
1984.
[3] valid in terms of section 15(6) of the Matrimonial Property Act 88 of
1984.
[TURN OVER]

PVL2601
[4] void in terms of section 15(6) of the Matrimonial Property Act 88 of

1984.
(2)
[TURN OVER]

PVL2601
14 Mr and Mrs Smith are married in community of property. Mrs Smith has
discovered that Mr Smith is planning to transfer almost all the assets of the
joint estate to his brother without her consent. Which one of the following
common-law remedies can Mrs Smith invoke to prevent her husband from
transferring the assets to his brother?
[1] An interdict
[3] The actio Pauliana utilis
[4] An application to have Mr Smith declared a prodigal
(2)
15 Mr and Mrs Mahlangu are married in community of property. For which one of
written consent in terms of section 17 of the Matrimonial Property Act 88 of
1984?
[1] Instituting legal proceedings against his brother in connection with the
farm the brothers inherited from their father subject to the condition that
the farm must never become part of any joint estate
[2] Instituting legal proceedings for the recovery of non-patrimonial loss for
a delict his neighbour committed against him
[3] Instituting legal proceedings for the recovery of patrimonial loss for a
delict his neighbour committed against him
[4] Instituting legal proceedings against a client who supplies packaging
material to the farm he and his brother inherited from their father
subject to the condition that the farm must never become part of any
joint estate
(2)
16 Before their marriage, Jack and Gill agreed that they would marry out of

Registries Act 47 of 1937 for permission to have the contract executed
and registered after the marriage.
Matrimonial Property Act 88 of 1984 for leave to change their
matrimonial property system.
[4] They must enter into a postnuptial written agreement and have it
notarially executed.
(2)
[TURN OVER]

PVL2601
17 In Mr and Mrs Khumalo’s antenuptial contract Mr Khumalo undertakes to

transfer an insurance policy to Mrs Khumalo as soon as their first child is born.
This clause is called a …
[1] succession clause.

[2] “clean break” clause.
[4] reversion clause.
(2)
18 Mr and Mrs Nkosi are married subject to the accrual system. When they
married, Mrs Nkosi had no debts and owned a house which was valued at
R100 000. Suppose that during the subsistence of the marriage money
depreciated to such an extent, that according to the consumer price index, R2
now has the same value as R1 at the beginning of the marriage. Which one of
the following amounts reflects the initial value of Mrs Nkosi’s estate?
[1] R0
[2] R50 000
[3] R100 000
[4] R200 000
(2)
19 Mr and Mrs Malamo are married subject to the accrual system. Some months
ago, Mr Malamo’s neighbour falsely accused Mr Malamo of being a child
molester. This accusation was made in front of many people who live in the
same street as the Malamos. The neighbour also severely assaulted Mr
Malamo with an axe. As a result of the axe attack, Mr Malamo spent several
months in hospital, had several operations, could not work for five months,
and has been left with a permanent limp. Mr Malamo received compensation
from his neighbour as a result of the attack. He also successfully sued his
neighbour for compensation for defamation. Select the one type of
compensation from the list below that forms part of the accrual in Mr Malamo’s
estate.
[1] Compensation for bodily injuries

[2] Compensation for pain and suffering
[3] Compensation for loss of income
[4] Compensation for defamation
(2)
[TURN OVER]

PVL2601
20 Mr and Mrs Tsholo are married subject to the accrual system. They are
getting divorced. During the marriage, Mrs Tsholo inherited R100 000 from
her mother, received R100 000 for loss of income and R100 000 for pain and
suffering, and received a donation of R100 000 from her uncle. Which one of
the following amounts reflects the value of the assets that do not form part of
the accrual in Mrs Tsholo’s estate?
[1] R100 000

[2] R200 000
[3] R300 000
[4] R400 000
(2)
21 Mr and Mrs Smith are married subject to the accrual system. Mr Smith died
last week. At the time of his death, the accrual in his estate was R500 000 and
the accrual in Mrs Smith’s estate was R100 000. Which one of the following
amounts reflects the amount of the accrual claim Mrs Smith has against Mr
Smith’s estate?
[1] R200 000

[2] R250 000
[3] R300 000
[4] R400 000
(2)
22 In terms of the decision in Brookstein v Brookstein 20808/14 [2016] ZASCA

40 (24 March 2016) (reported as AB v JB 2016 (5) SA 211 (SCA)), the value
of a divorcing spouse’s estate for purposes of determining the accrual must be
determined ...
[1] on the date when the divorce action is initiated by the plaintiff.
[2] at litis contestatio.
[3] on the date when the divorce trial starts.
[4] on the date when the divorce order is made.
(2)
[TURN OVER]

PVL2601
23 Which one of the following statements regarding the dissolution of a civil

marriage by the death of one of the spouses is correct?
[1] If a civil marriage in community of property is terminated by the death of

one of the spouses, the surviving spouse pays all the debts owed by
the joint estate and claims all debts owed to the joint estate.
[2] If a civil marriage out of community of property is terminated by the
death of one of the spouses, the antenuptial contract is automatically
terminated.
[3] The surviving spouse in a civil marriage may claim maintenance from
the estate of his or her deceased spouse if the death occurred after 1
December 2000.
[4] If a surviving spouse in a civil marriage has a claim for maintenance
from the estate of his or her deceased spouse, the claim must be
proved and disposed of in terms of the Administration of Estates Act 66
of 1965.
(2)
24 Which section of the Divorce Act 70 of 1979 creates an exception to the rule
that the court does not have the power to refuse to grant a divorce order
where it is proved that the marriage has broken down irretrievably?
[1] Section 3
[2] Section 4(1)
[3] Section 4(2)
[4] Section 5A
(2)
25 In terms of section 5(2) of the Divorce Act 70 of 1979, a defendant’s

continuous unconsciousness may constitute a ground for divorce if, inter alia,
the unconscious state has lasted for a continuous period of at least
________________ immediately prior to the institution of the divorce action.
[1] two years

[2] one year
[3] six months
[4] three months
(2)
[TURN OVER]

PVL2601
26 In terms of the Divorce Act 70 of 1979, a spouse’s pension interest is

excluded from his or her estate upon divorce if he or she married on or after 1
November 1984 in terms of an antenuptial contract which ...
[1] excludes community of property, community of profit and loss and the
accrual system.
[2] excludes community of property and community of profit and loss, and
includes the accrual system.
[3] includes community of property and community of profit and loss, but
[4] includes community of property, but excludes community of profit and
loss.
(2)
27 In which of the following cases did the court hold that because section 7(7)(a)
of the Divorce Act 70 of 1979 unequivocally states that a pension interest is
deemed to be part of a spouse’s assets when determining the patrimonial
benefits to which divorcing spouses may be entitled, the value of the pension
interest is included in the joint estate of spouses married in community of
property even if the divorce order does not refer to the pension interest?
[1] Botha v Botha

[3] Wijker v Wijker
(2)
28 Which one of the following criteria does the court have to take into account
[1] Undue benefit

(2)
29 In which of the following cases did the court hold that when considering a
forfeiture order in terms of section 9 of the Divorce Act 70 of 1979, the first
step is to determine whether or not the party against whom the order is sought
will in fact be benefitted?
[1] Botha v Botha

[3] Wijker v Wijker
(2)
[TURN OVER]

PVL2601
30 Mr and Mrs Botha are married in community of property. Which one of the
[1] The house Mrs Botha owned before the spouses married
[2] The house Mr Botha owned before the spouses married
[3] The car Mr Botha bought for himself during the marriage with money he
derived from his business
[4] The car Mr Botha bought for Mrs Botha’s personal use during the
marriage with money he derived from his business
(2)
31 Mr and Mrs Brown are married in community of property. Mrs Brown brought
a third of the joint estate into the marriage. If the court awards total forfeiture
in terms of section 9(1) of the Divorce Act 70 of 1979 against Mr Brown, what
will Mrs Brown receive?
[1] Half of the joint estate

[2] Half of what Mr Brown brought into the marriage
[3] A third of the joint estate
[4] A third of what Mr Brown brought into the marriage
(2)
32 In a civil marriage, the court’s power to redistribute property upon divorce

applies if the spouses married before 2 December 1988 in terms of section
22(6) of the Black Administration Act 38 of 1927 or married ...

excludes community of property, community of profit and loss and the
accrual system.
[2] on or after 1 November 1984 in terms of an antenuptial contract
which includes community of property and community of profit and
loss, but excludes the accrual system.
[3] before 1 November 1984 in terms of an antenuptial contract which
includes community of property and community of profit and loss, but
[4] before 1 November 1984 in terms of an antenuptial contract which
excludes community of property and community of profit and loss and
the accrual system.
(2)
[TURN OVER]

PVL2601
33 Select the one correct option from the statements below about redistribution of
assets in terms of the Divorce Act 70 of 1979.
[1] Determining whether one spouse has made a contribution to the

maintenance or increase of the other spouse’s estate is not a factual
matter and is left entirely to the discretion of the court.
[2] An asset a spouse inherited or received as a donation during the
marriage may be taken into account for purposes of a redistribution
order.
[3] When it considers redistribution, the court adopts a liberal approach to
taking the misconduct of the spouses into account.
[4] The court may make a redistribution order against a spouse even if the
spouse is insolvent.
(2)
34 Mr and Mrs Pillay are getting divorced. Mrs Pillay has never worked outside
the home. Mr Pillay offers to pay post-divorce maintenance to Mrs Pillay, but
insists that the maintenance must be subject to a dum casta clause. This
means that Mrs Pillay will forfeit maintenance if ...
[1] she gets a job.

[2] she leads an unchaste life.
[3] Mr Pillay loses his job.
[4] Mr Pillay becomes disabled.
(2)
35 Nowadays an employable woman is increasingly granted the following


(2)
36 What kind of maintenance can be awarded to a wife who needs maintenance

at the time of divorce, but whose former husband will only be able to meet her

[4] No maintenance
(2)
[TURN OVER]

PVL2601
37 In Kooverjee v Kooverjee, a rehabilitative maintenance award was made in

favour of the wife for a substantial period. The maintenance amount was,
however, to be decreased every two years by an amount of …
[1] R1 000.
[2] R2 000.
[3] R3 000.
[4] R4 000.
(2)
38 The type of care in terms of which a parent will get care of a child only once
that parent has satisfied the court that adequate arrangements have been
made to receive the child into his or her care is known as …
[1] sole care.

[2] supervised care.
[3] divided care.
[4] deferred care.
(2)
39 Paul and Mary are involved in divorce litigation. They have a son, aged 6 and
a daughter, aged 1. In which one of the following scenarios does the family
advocate, according to the decision in Van Vuuren v Van Vuuren, NOT need
to apply for an order authorising an enquiry in terms of the Mediation in
Certain Divorce Matters Act 24 of 1987?
[1] Paul and Mary agree that Mary will be the care-giving parent of the
children after the divorce.
[2] Paul and Mary agree that Paul will be the care-giving parent of the
children after the divorce.
[3] Paul and Mary agree that Paul will be the care-giving parent of their
son and Mary will be the care-giving parent of their daughter after the
divorce.
[4] Paul and Mary agree that care of the children should be awarded to
Paul’s parents after the divorce.
(2)
40 When Mr and Mrs Botha divorced, the court awarded guardianship of their
minor child to Mrs Botha only and excluded Mr Botha from exercising
guardianship over the child. The type of guardianship the court awarded to
Mrs Botha is called ...
[1] single guardianship.

[2] guardianship simpliciter.
[3] sole guardianship.
[4] concurrent guardianship.
(2)
[TURN OVER]

PVL2601
41 In terms of section 8(1) of the Recognition of Customary Marriages Act 120 of

1998, a customary marriage is dissolved by divorce by…
[1] an order of the court.

(2)
42 The Minister of Home Affairs has extended the date for registration of
customary marriages to ...
[1] 30 August 2020.

[2] 1 January 2021.
[3] 30 May 2024.
[4] 30 June 2024.
(2)
43 As a result of the decision of the Constitutional Court in _________________

all monogamous customary marriages are in community of property unless
the spouses enter into an antenuptial contract.
[1] Gumede v President of the Republic of South Africa

[2] MM v MN
[3] Holomisa v Holomisa
[4] Ramuhovhi v President of the Republic of South Africa
(2)
44 The court’s power to redistribute property upon the dissolution of a customary

[1] only to customary marriages concluded subject to complete separation

of property.
[2] only to customary marriages concluded subject to complete separation
of property before 2 December 1988.
[3] in no customary marriage at all.
[4] to all customary marriages.
(2)
[TURN OVER]

PVL2601
45 In _________________ the Constitutional Court held that a surviving spouse

in a monogamous Muslim marriage qualifies as a “spouse” and “survivor” in
terms of the Intestate Succession Act 81 of 1987 and the Maintenance of
Surviving Spouses Act 27 of 1990.
[1] Hassam v Jacobs

[3] Ryland v Edros
(2)
46 As a general rule, a permanent life partnership……
[1] can be regarded as a civil partnership.

[2] can be regarded as a common law marriage.
[3] does not confer the consequences of a valid marriage.
[4] does not exempt donations between the partners from donations tax.
(2)
47 Section 28(1)(c) of the Constitution of the Republic of South Africa, 1996

entitles every child to basic…
[1] family life, nationality, family care or parental care.

[2] nutrition, shelter, love and education.
[3] shelter and health care.
[4] nutrition, shelter, basic health care and social services.
(2)
48 Timothy, currently 10 years old, was born of Janet and Tom’s marriage which
Which one of the following actions may Janet take without Tom’s consent?
[1] Apply for a passport for Timothy

[2] Take Timothy on holiday to Zimbabwe
[3] Raise Timothy as a Jehovah’s witness
[4] Sell the flat Timothy inherited from his grandfather
(2)
49 For a parental responsibilities and rights agreement relating to guardianship to

become enforceable, it must be made an order of court by ...
[1] the Family Advocate.

[2] the High Court.
[3] a Divorce Court in a divorce matter.
[4] the Children’s Court.
(2)
[TURN OVER]

PVL2601
[TURN OVER]

PVL2601
PVL2601
50 Which one of the following events does NOT terminate the duty of support of
a parent towards a child?

(2)
TOTAL PAPER: [100]
©
UNISA 2020
[TURN OVER]

MULTIPLE CHOICE AND TRUE/FALSE
QUESTION 1
Indicate whether the following statements are true or false:
(a) An engagement, concluded subject to a condition which is in conflict with the very nature of the
marriage, is void.
(b) On breach of promise the innocent party will be entitled to claim specific performance from the
guilty party.
(c) On breach of promise one of the parties will always have a claim for satisfaction for personality
infringement.
(d) The traditional definition of marriage is no longer appropriate for the new South Africa.
(e) In Ryland v Edros the court held that a Muslim marriage constitutes a contract between the parties
and that the appeal court decision in Ismail v Ismail no longer precludes a court from
enforcing a claim emanating from that contract as between the spouses.
(f) Because the provisions of section 29(2) of the Marriage Act 25 of 1961 are couched in imperative
language all marriages which are not solemnised in a church or building with open doors, will be
void.
(g) As the Divorce Act 70 of 1979 applies to the annulment of a voidable marriage, the court can
make an order for maintenance in respect of one of the parties, forfeiture of patrimonial benefits,
or a redistribution of assets.
(h) The right to occupy the matrimonial home and use the household assets arises because the
spouse who owns or rents the matrimonial home or the household assets, confers it on the other
spouse.
(i) The rule that a husband who wants to assume his wife's surname or add it to his own, first has to
apply to the director-general for permission to do so, may well be unconstitutional.
(j) The Prevention of Family Violence Act 133 of 1993 has already been replaced by a new Act, which
is wider in scope and protects more victims of domestic violence.
Answer
(a) True.
(b) False.
(c) False.
(d) True.
(e) True.
(f) False.
(g) False.
(h) False.
(i) True.
(j) True.
QUESTION 1
(a) According to the decision in Amod (Born Peer) v Multilateral Vehicle Accidents Fund (Commission
for Gender Equality Intervening) Muslim marriages now enjoy the same protection and recognition in
our law as civil marriages.
(b) In Jooste v Botha it was held that the father of an illegitimate child has no duty to afford the child
love, attention and affection if he does not have the custody of the child.
(c) Although most marriages are preceded by an engagement, a valid engagement is not a
prerequisite for the conclusion of a valid marriage.
(d) Persons who are blood relatives in the collateral line are not ascendants and descendants of one
another.
(e) A voidable marriage is a valid marriage although grounds arise after the conclusion of the
marriage on the basis of which the court can be requested to dissolve the marriage.
(f) Only immaterial things can be part of the objects grouped under consortium omnis vitae.
(g) Today it is generally accepted that one spouse can unilaterally, and without the intervention of the
court, revoke the other spouse‟s capacity to buy household necessaries.
(h) The new Maintenance Act 99 of 1998 applies to a contractual duty of support between persons
who are not related to each other by blood or affinity (such as cohabitants).
(i) A spouse‟s right to occupy the matrimonial home and use the household items exists ex lege and
does not arise because the other spouse confers it on him or her.

(j) In terms of the Births and Deaths Registration Act 51 of 1992 a husband may under no
circumstances assume his wife‟s surname. [10]
Answer
(a) False.
(b) True.
(c) True.
(d) True.
(e) False.
(f) False.
(g) False.
(h) True.
(i) True.
(j) False.
QUESTION 1
(a) In Amod (Born Peer) v Multilateral Motor Vehicle Accidents Fund (Commission for Gender Equality
Intervening) the Supreme Court of Appeal concluded that the boni mores of our society today equire
that the contractual duty of support which results from a Muslim marriage should be recognised and
be legally enforceable at common law.
(b) On breach of promise, the value of the gifts (sponsalitia largitas and arrhae sponsalitiae) retained
by the innocent party to the engagement is taken into account when the latter also claims damages
because of the breach of promise.
(c) Our law prohibits a marriage between a man and his step-sister.
(d) In terms of Ex parte Dow, a marriage concluded in a garden is void ab initio.
(e) The absence of two competent witnesses during the solemnisation of a marriage results in the
nullity of that marriage.
(g) In terms of the objective approach, a husband will not be liable for the payment of household items
bought by his wife if it is proved that the household already has an adequate supply of that specific
commodity.
(h) In terms of the Maintenance Act 99 of 1998, a maintenance court cannot make an order for the
payment of maintenance by way of a lump sum.
(i) A spouse‟s right to occupy the matrimonial home and use the household assets is one of the
variable consequences of marriage.
(j) The rule in terms of which the husband is regarded as the head of the family still forms part of our
law. [10]
Answer
(a) True.
(b) True.
(c) False.
(d) False.
(e) True.
(f) False.
(g) True.
(h) False.
(i) False.
(j) True.
QUESTION 1
(a) Customary marriages are now regarded as valid marriages for all purposes.
(b) Today, it is no longer a requirement that the persons who apply for the adoption of a South African
child must also be South African citizens.
(c) In Jooste v Botha the court held that the father of an illegitimate child has no legal duty to afford
the child love, attention and affection if he does not have custody of the child.
(d) An engagement contract can be concluded orally or in writing.
(e) In order to succeed with a claim for satisfaction for personality infringement occasioned by a
breach of promise, the plaintiff has to prove only animus iniuriandi (intention to injure) on the part of
the other party (ie the person who committed breach of promise).
(f) It is generally acknowledged that marriage is a contract.

(g) A 19-year-old girl whose first marriage ended in divorce needs her parents‟ consent for the
conclusion of a further marriage.
(h) In terms of our law, a marriage between a man and his ex-wife‟s sister (in other words his sister-in-
law) is prohibited.
(i) Although a marriage is null and void if it was solemnised by a person who was not a competent
marriage officer, the marriage may be ratified by the Minister of Home Affairs.
(j) A putative marriage is void ab initio.
(k) In terms of the Maintenance Act 99 of 1998 a maintenance order cannot be enforced before the
maintenance debtor is convicted of failing to make a payment in accordance with a maintenance
order.
(l) A married woman is legally obliged to assume her husband‟s surname. [12]
Answer
(a) True.
(b) True.
(c) True.
(d) True.
(e) False.
(f) False.
(g) False.
(h) False.
(i) True.
(j) True.
(k) False.
(l) False.
QUESTION 5
Answer this question by writing in each case only the number of the correct answer
in your answer script, for example: (a) 1.
(a) Mr and Mrs Koen, who are married in community of property, are currently living apart in terms of
an extra-judicial separation agreement which they concluded recently. The spouses also agreed that
for the period of time for which they would live apart, they would each have their own separate estate
and that Mr Koen would pay maintenance to Mrs Koen. Which one of the following tatements is
wrong?
[1] The extra-judicial separation agreement between the spouses remains valid only for as long as
both spouses uphold it.
[2] The arrangement in terms of which Mr and Mrs Koen each has their own separate estate for the
period of time for which they live apart, binds all third parties with whom they (Mr and Mrs Koen)
conclude transactions.
[3] Either of the spouses may approach the court to amend the maintenance agreement made
between them.
[4] Despite the existence of the extra-judicial separation agreement either of the spouses may institute
divorce proceedings. (2)
(b) Mrs Roux‟s husband died last week. Mrs Roux wishes to know from you whether she has a claim
for maintenance against her deceased husband‟s estate. Which one of the following Acts would you
use in order to advise her?
[1] The Divorce Act 70 of 1979
[2] The Maintenance Act 99 of 1998
[3] The Maintenance of Surviving Spouses Act 27 of 1990
[4] The Wills Act 7 of 1953 (2)
(c) Section 4(2) of the Divorce Act 70 of 1979 contains three examples of instances where the
probability is high that a normal marriage relationship no longer exists between spouses and that
there is no reasonable prospect of the restoration of a normal marriage relationship between them.
Which one of the following instances is not one of the examples in section 4(2)?
[1] The parties have not lived together as husband and wife for a continuous period of at least one
year immediately prior to the date of the institution of the divorce action.
[3] The defendant has committed adultery and the plaintiff finds it irreconcilable with a continued
marriage relationship.

[4] The defendant has been declared an habitual criminal in terms of a sentence of a court and is
undergoing imprisonment as a result of such sentence. (2)
(d) In terms of section 5A of the Divorce Act 70 of 1979, a court has the discretion to refuse a decree
of divorce if, as a result of religious prescriptions, one or both of them will not be able to remarry once
the court has granted a decree of divorce. Which one of the following cases is the first reported case
which dealt with the application of section 5A?
[1] Amar v Amar
[2] Smit v Smit
[3] Swart v Swart
[4] Coetzee v Coetzee (2)
(e) In terms of section 7(7)(a) of the Divorce Act 70 of 1979, the pension interest of a spouse is
deemed to be part of his or her assets for the determination of the patrimonial benefits to which the
spouses to a divorce action may be entitled. Section 7(7)(a) does not apply to spouses who got
married
[2] out of community of property subject to the accrual system.
[3] on or after 1 November 1984 in terms of an antenuptial contract by which community of property,
community of profit and loss and the accrual system are excluded.
[4] before 1 November 1984 in terms of the old standard form antenuptial contract. (2) [10]
Answer
(a) 2.(2)
(b) 3.(2)
(c) 2.(2)
(d) 1.(2)
(e) 3.(2)
QUESTION 3
Answer this question by, in each case, writing only the number of the correct answer in your
answer script, for example: (a) [1].
(a) Mr and Mrs Brink concluded a civil marriage in 2003 while they were both domiciled in South
Africa. However, they were married without an antenuptial contract and never concluded a postnuptial
contract to regulate the patrimonial consequences of their marriage. Mr and Mrs Brink‟s marriage is
therefore
[2] out of community of property with retention of profit and loss
[3] out of community of property and profit and loss
[4] out of community of property subject to the accrual system (2)
(b) Mr and Mrs Naidoo are married in community of property. Which one of the following debts which
are still outstanding when their joint estate is dissolved upon divorce, may be recovered from both
spouses?
[1] contractual debts incurred by one of the spouses before the marriage
[2] contractual debts incurred by one of the spouses during the marriage
[3] delictual debts incurred by one of the spouses before the marriage
[4] delictual debts incurred by one of the spouses during the marriage (2)
(c) Mr and Mrs Venter are married in community of property. Which one of the following assets or
amounts indeed forms part of their joint estate? [1] R10 000 which Mrs Venter recovered as damages
after her neighbour, Mr X, crashed into her motor vehicle
[2] R8 000 which Mrs Venter recovered as satisfaction from Mr X as a result of the pain and suffering
she suffered after the accident
[3] Mr and Mrs Venter‟s matrimonial home which Mrs Venter inherited from her father on condition
that it should go to her son upon her death
[4] the engagement ring which Mr Venter gave to Mrs Venter before their marriage (2)
(d) Mr and Mrs Mathe are married in community of property. What form of consent does Mrs Mathe
require from Mr Mathe to withdraw money credited to Mr Mathe‟s name in a bank account?
[1] prior written consent attested by two competent witnesses
[2] written consent attested by two competent witnesses
[4] oral consent (2)

(e) In which one of the following cases did the court hold that the words “cannot reasonably know” in
section 15(9)(a) of the Matrimonial Property Act 88 of 1984 should be interpreted in light of what the
reasonable person should have known?
[1] Bopape and Another v Moloto
[2] Badenhorst v Bekker
[4] Distillers Corporation Ltd v Modise (2)[10]
Answer
(a) [1].(2)
(b) [2].(2)
(c) [1].(2)
(d) [3].(2)
(e) [4].(2)
QUESTION 5
Answer this question by writing only the number of the correct answer in your answer script, for
example: (a) 1.
(a) In terms of the Maintenance of Surviving Spouses Act 27 of 1990, the surviving spouse in a
marriage which is dissolved by death has a claim for maintenance against the estate of his or her
deceased spouse. Which one of the following statements is false?
[1] The Maintenance of Surviving Spouses Act 27 of 1990 bestows a maintenance claim upon each
and every surviving spouse regardless of the date the marriage was dissolved by death.
[2] The maintenance claim may arise regardless of the matrimonial property system which operated in
the marriage.
[3] The maintenance claim arises only in so far as the surviving spouse is unble to provide for his or
her reasonable maintenance needs from his or her own means and earnings.
[4] The maintenance claim terminates when the surviving spouse dies or remarries. (2)
(b) Section 4(2) of the Divorce Act 70 of 1979 contains guidelines on when a marriage is regarded as
having broken down irretrievably. Which one of the following instances is not one of the guidelines in
section 4(2)?
[2] The defendant suffers from an incurable mental illness or is continuously unconscious.
[4] The defendant has been declared an habitual criminal in terms of a sentence of a court and is
(c) In which one of the following court cases did the court issue a divorce decree in terms of the
Divorce Act 70 of 1979 while ordering the husband, who refused to grant his wife a Jewish religious
divorce, to maintain his wife until such time as their marriage was terminated by the granting of a get?
[1] Levy v Levy
[2] Amar v Amar
(d) In order to establish when a marriage can be considered as having broken down irretrievably, our
courts use the subjective and the objective approach to determine whether the consortium has been
terminated or seriously violated. Which one of the statements is false?
[1] A purely objective approach means that the court pays attention to the facts and circumstances of
the marriage in question, taking into consideration the reasons why the plaintiff is suing for a divorce.
[2] A purely subjective approach means that the court only considers the fact that the plaintiff is suing
for divorce, without taking either the history of the marriage or the present state of the marriage into
account.
[3] A purely subjective approach will result in a marriage being regarded as having broken down
irretrievably when the plaintiff sues for divorce.
[4] A purely objective approach means that the court only pays attention to the facts and
circumstances of the marriage in question, without taking into consideration the reasons why the
plaintiff is suing for divorce. (2)

(e) In terms of section 7(7)(a) of the Divorce Act 70 of 1979, the pension interest of a spouse is
deemed to be part of his or her assets upon divorce. Section 7(7)(a) does not apply to a white couple
who were married [1] in community of property before 1 November 1984.
[2] out of community of property subject to the accrual system on or after 1 November 1984.
[3] on or after 1 November 1984 in terms of an antenuptial contract which excludes community of
property, community of profit and loss and the accrual system.
[4] before 1 November 1984 in terms of an antenuptial contract which excludes community of
property, community of profit and loss and the accrual system. (2) [10]
QUESTION 5
(a) 1.(2)
(b) 2.(2)
(c) 2.(2)
(d) 1.(2)
(e) 3.(2)
QUESTION 1
(a) The courts are entitled to order specific performance of an engagement contract.
(b) Although marriage is a voluntary union based on agreement, it is generally acknowledged that it
(marriage) is not a contract.
(c) A person who has been declared mentally ill can conclude a perfectly valid marriage during a clear
moment (lucidum intervallum).
(d) If the parents of a minor refuse to consent to the minor‟s marriage, the commissioner of child
welfare may grant the required consent.
(e) If a minor marries without the required parental consent, the parents may apply for the annulment
of the marriage before the minor attains majority, provided that the application is made within six
months from the date on which they became aware of the existence of the marriage.
(f) An adoptive parent may not marry his or her adopted child.
(g) A civil marriage between cousins is absolutely forbidden.
(h) A man may conclude a civil marriage with his former wife‟s sister.
(i) If a voidable marriage is not set aside by a court order, it remains a valid marriage.
(j) A spouse who is a minor when he or she marries, attains majority and retains it even if the
marriage is dissolved before he or she turns 21.
(k) The reciprocal duty of support that exists between spouses terminates automatically when the
spouses live apart while they are married.
(l) Legally the husband is no longer the head of the family.
[12]
QUESTION 1
(a) False.
(b) True.
(c) True.
(d) False.
(e) False.
(f) True.
(g) False.
(h) True.
(i) True.
(j) True.
(k) False.
(l) False.
QUESTION 6
answer script, for example: (a) 1.
(a) Mr and Mrs Koen, who are married in community of property, are currently living apart in terms of
an extra-judicial separation agreement which they recently concluded. The spouses also agreed that

for the period of time for which they would live apart, they would each have their own separate estate.
Which one of the following statements is wrong?
[1]In terms of our law, spouses are allowed to conclude extra-judicial separation agreements.
[2]The extra-judicial separation agreement remains valid only for as long as both spouses uphold it.
[3]The arrangement in terms of which Mr and Mrs Koen each has their own separate estate for the
period of time for which they live apart, also binds all third parties.
[4]Despite the existence of the extra-judicial separation agreement, either of the spouses may institute
for maintenance against her deceased husband‟s estate. On which one of the following Acts would
you rely in order to advise her?
[1] Divorce Act 70 of 1979
[2] Maintenance Act 99 of 1998
[3] Maintenance of Surviving Spouses Act 27 of 1990
[4] Wills Act 7 of 1953 (2)
(c) Section 4(2) of the Divorce Act 70 of 1979 contains three examples of instances where the
there is no reasonable prospect of the restoration of a normal marriage relationship between them.
Which one of the following instances is not one of the examples in section 4?
[4] The defendant has been declared a habitual criminal in terms of a sentence of a court and is
(d) In terms of section 7(7)(a) of the Divorce Act 70 of 1979, the pension interest of a spouse is
deemed to be part of his or her assets for the determination of the patrimonial benefits to which the
spouses to a divorce action may be entitled. Section 7(7)(a) does not apply to white couples who got
married.
[2] out of community of property subject to the accrual system
[3] before 1 November 1984 in terms of the old standard-form antenuptial contract
[4] on or after 1 November 1984 in terms of the old standard-form antenuptial contract (2)
(e) Which one of the following statements regarding forfeiture of patrimonial benefits as contemplated
in section 9 of the Divorce Act 70 of 1979 is correct?
[1] An order for forfeiture of benefits is granted only if the court is satisfied that in the absence of the
order, one spouse will be unduly benefited in relation to the other.
[2] In terms of a forfeiture order the party against whom the order is granted forfeits not only the claim
he or she has to the assets of the other spouse, but also loses his or her own assets.
[3] In terms of Wijker v Wijker the factors in section 9 of the Divorce Act 70 of 1979 must all be
present before a spouse would be entitled to a forfeiture order.
[4] When considering a request for a forfeiture order, the court may consider fairness and justness to
deviate from the matrimonial property system selected by the spouses when they were married.
(2)[10]
Answer
(a) [3].(2)
(b) [3].(2)
(c) [2].(2)
(d) [4].(2)
(e) [1].(2)
QUESTION 1

(a) There is no legal duty on the parties to a cohabitation relationship to maintain each other unless
they have contractually agreed to do so.
(b) A person who foresees that his or her spouse will die soon, may in the meantime (while his or her
spouse is still alive), conclude a valid engagement with another person.
(c) The continued refusal of a party to an engagement to agree to a wedding date within a reasonable
period of time constitutes breach of promise.
(d) A person is related by affinity in the direct line to his or her grandparents.
(e) A person is related by affinity in the collateral line to his or her spouse‟s children born of a previous
marriage.
(f) The absence of at least two competent witnesses at the solemnisation of a wedding results in the
nullity of that marriage.
(g) An impotent spouse may apply for the annulment of his or her marriage on the basis of his or her
own impotence, despite the fact that he or she was aware of the condition at the time of contracting
the marriage.
(h) Although a putative marriage is void, the children born of such a marriage are legitimate.
(i) Only immaterial things can be part of the objects grouped under the consortium omnis vitae (which
marriage creates between spouses).
(j) In terms of the Maintenance Act 99 of 1998, a maintenance court may grant an order for the
payment of maintenance by way of a lump sum. [10]
Answer
(a) True.
(b) False.
(c) True.
(d) False.
(e) False.
(f) True.
(g) False.
(h) True.
(i) False.
(j) True.
Question 1
(a) According to our law, a promise by a married person to marry after obtaining a divorce or after his
or her spouse's death is completely valid.
(b) CronjeÂ and Heaton hold the view that the simple realisation by one of the parties to an
engagement that he or she no longer loves the other party to the engagement ought to be a justa
causa for cancelling the engagement.
(c) From the decision in Guggenheim v Rosenbaum it appears that the general rule of awarding
positive interest when breach of contract occurs does not apply to breach of promise to marry.
(d) Blood relations in the collateral line may not marry each other if either of them is related to the
common ancestor within the second degree.
(e) In South Africa it is possible to conclude a valid marriage through another person acting as your
representative.
(f) A voidable marriage is a valid marriage although grounds arise after the conclusion of the marriage
on the basis of which the court can be requested to dissolve the marriage.
(g) Material as well as immaterial things can be part of the objects grouped under consortium omnis
vitae.
(h) A spouse's capacity to buy household necessaries is not based on a mandate from the other
spouse, but comes into being by operation of the law the moment a valid marriage and a joint
household come into existence between the spouses.
(i) Marriage imposes an obligation on a woman to assume her husband's surname.
(j) The rule that the husband is the head of the family still forms part of our law. [10]
Answer
(a) False.
(b) True.

(c) True.
(d) False.
(e) False.
(f) False.
(g) True.
(h) True.
(i) False.
(j) True.
Question 1
(a) According to our law, a promise by a married person to marry after obtaining a divorce or after his
or her spouse‟s death is completely valid.
(b) Cronjé and Heaton hold the view that the simple realisation by one of the parties to an
engagement that he or she no longer loves the other party to the engagement ought to be a justa
causa for cancelling the engagement.
(c) From the decision in Guggenheim v Rosenbaum it appears that the general rule of awarding
positive interest when breach of contract occurs does not apply to breach of promise to marry.
(d) On breach of promise the “innocent” party will always have a claim for satisfaction for personality
infringement.
(e) If the parties to an engagement mutually agree to terminate the engagement, there is no need for
them to return all the engagement gifts (sponsalitia largitas and arrhae sponsalitiae).
(f) Persons who are blood relations in the collateral line may not marry each other if either of them is
related to the common ancestor within the second degree or generation.
(g) In South Africa it is possible to conclude a valid marriage through another person acting as your
representative.
(h) In terms of section 6 of the Children‟s Status Act 82 of 1987 the status of a child conceived or born
of a voidable marriage is affected by the annulment of the marriage and such child is therefore
illegitimate.
(i) The validity of a marriage is not affected where an extra-marital child was born as a result of
stuprum before that marriage.
(j) In terms of the Maintenance Act 99 of 1998 an order of the maintenance court has the same effect
as an order made in a civil action. [10]
Answer
(a) False.
(b) True.
(c) True.
(d) False.
(e) False.
(f) The statement in question 1(f) is ambiguous. The reason for this is the following: The general rule
states that blood relations in the collateral line may not marry each other if either of them is related to
the common ancestor within the first degree or generation. In terms of the statement in question 1(f)
one of the parties is related to the common ancestor within the second degree. The problem therefore

10
is that we do not know within which degree the other party is related to the common ancestor. You
should therefore replace the word “either” with the word “both”. Question 1(f) should then read as
follows: Persons who are blood relations in the collateral line may not marry each other if both of them
are related to the common ancestor within the second degree or generation. Due to the fact that the
amended statement is incorrect, the answer to question 1(f) is “False”.
(g) False.
(h) False.
(i) True.
(j) True.
Question 1
(a) In Ryland v Edros it was held that the contractual obligations flowing from a de facto monogamous
Muslim marriage can be recognised and enforced as between the parties in spite of the fact that the
marriage is potentially polygynous.
(b) Owing to the fact that the parties to an engagement need not be in each other‟s presence when
the engagement contract is concluded, the contract can be concluded by a representative on their
behalf.
(c) If the parties to an engagement mutually agree to terminate the engagement, the gifts made to
each other with a view to the marriage (sponsalitia largitas), as well as the gifts presented to show the
seriousness of the promise (arrhae sponsalitiae) need not be returned by them.
(d) It is generally accepted that marriage is a contract.
(e) In terms of our law, a man may marry his step-daughter.
(f) A marriage is null and void if it is not registered in terms of the provisions of section 29A of the
Marriage Act 25 of 1961.
(g) Material as well as immaterial things forms part of the objects grouped under consortium omnis
vitae.
(h) In terms of the subjective approach, a husband will be liable for the payment of household items
bought by his wife despite the fact that the dealer from whom the goods were bought was aware of
the fact that the household already had an adequate supply of that specific commodity.
(i) In terms of the Maintenance Act 99 of 1998, a maintenance court may grant an order for the
(j) A married woman is legally obliged to assume her husband‟s surname. [10]
Answer
(a) True.
(b) True.
(c) False.
(d) False.
(e) False.

11
(f) False.
(g) True.
(h) False.
(i) True.
(j) False.
Question 8
(a) Despite the fact that a wife in a customary marriage which was concluded before the Recognition
of Customary Marriages Act 120 of 1998 came into operation has the same status as her husband,
the husband remains the family head who controls all family property.
(b) A customary marriage that is not registered is void.
(c) The Maintenance of Surviving Spouses Act 27 of 1990 does not apply to Muslim spouses and
Muslim surviving spouses in de facto monogamous Muslim marriages.
(d) Life partners do not automatically have the right to share in each other‟s property during the
subsistence of the life partnership or upon its termination.
(e) Internationally, the focus of the private-law rules regarding the parent-child relationship is
increasingly shifting from the rights and powers of parents towards the rights and entitlements of
children.
(f) Section 28 of the Constitution of the Republic of South Africa, 1996 affords special protection to
children below the age of 21 years.
(g) Only a child below the age of 16 years can be adopted.
(h) A child cannot be adopted by an unmarried person.
(i) Regardless of his or her age, a self-supporting child cannot claim maintenance from his or her
parents.
(j) The duty of a parent to support his or her child is terminated by the parent‟s death. [10]
Answer
(a) True.
(b) False.
(c) False.
(d) True.
(e) True.
(f) False.
(g) False.
(h) False.

12
(i) True.
(j) False.
Question 3
Answer this question by writing only the number of the correct answer in your assignment answer
scrip, for example (a) [1].
(a) Mr and Mrs Venter are married in community of property. Which one of the following assets or
amounts forms part of their joint estate?
[1] R10 000 which Mrs Venter recovered as damages after her neighbour, Mr X, crashed into her car
(which forms part of the joint estate)
[2] R8 000 which Mrs Venter recovered as satisfaction from Mr X as a result of the pain and suffering
she suffered after the accident
[3] Mr and Mrs Venter‟s matrimonial home which Mrs Venter inherited from her father on condition
that it should go to her son upon her death
[4] the engagement ring Mr Venter gave to Mrs Venter before their marriage (2)
(b) Which one of the following statements is true?
[1] In Du Plessis v Pienaar it was held that creditors of spouses who are married in community of
property can look to the estates of both spouses for recovery of a joint debt.
[2] When a spouse who is married in community of property is liable for patrimonial delictual
damages, the damages cannot under any circumstances be recovered from the joint estate.
[3] A spouse who is married in community of property is not allowed to claim damages from his or her
spouse for non-patrimonial loss in respect of bodily injuries that spouse inflicted on him or her.
[4] All antenuptial debts of both a husband and a wife who are married in community of property
remain the respective spouse‟s separate debts during the subsistence of the marriage. (2)
(c) Mr and Mrs Naidoo are married in community of property. Which one of the following debts, which
are still outstanding when their joint estate is dissolved upon divorce, may be recovered from both
spouses?
require from Mr Mathe to withdraw money credited to his name in a bank account?

13
(e) In which one of the following cases did the court hold that the words “cannot reasonably know” in
section 15(9)(a) of the Matrimonial Property Act 88 of 1984 should be interpreted in the light of what
the reasonable person whould have known?
[1] Bopape v Moloto
[2] Reis v Executors of Gilloway
[4] Distillers Corporation Ltd v Modise [10]
Answer
(a) [1].
(b) [1].
(c) [2].
(d) [3].
(e) [4].
Tim wishes to conclude an engagement with Susan. Which one of the following statements on an
engagement is false?
[1] Because an engagement is a contract, it is concluded by offer and acceptance.
[2] Tim and Susan do not have to be in each other‟s presence when the engagement is concluded,
and a representative can therefore conclude the engagement contract on their behalf with their
consent.
[3] If Tim is under the impression that he is concluding an engagement with Susan while Susan
regards the promise merely as a joke, the engagement is voidable.
[4] If Tim is married, but promises Susan that he will marry her after obtaining a divorce, no
engagement comes into being.
[3]
2 In which one of the following court cases did the court hold that the “innocent” party who claims
damages upon breach of promise is entitled to part of the positive interest and part of the negative
interest?
[1] Schnaar v Jansen
[2] Thelemann v Von Geyso
[3] Friedman v Harris
[4] Guggenheim v Rosenbaum
[4]
3 Certain rules regarding the return of engagement gifts operate when breach of promise occurs.
Which one of the following statements does not form part of these rules?
[1] The “innocent” party is entitled to the sponsalitia largitas and the arrhae sponsalitiae he or she
gave to the “guilty” party.

14
[2] The “innocent” party may retain the sponsalitia largitas and the arrhae sponsalitiae he or she
received.
[3] The “guilty” party may retain all small, unconditional gifts he or she received.
[4] If the “innocent” party also claims damages, the value of the gifts retained need not be set off
against the damages claimed.
[4]
4 Two years ago, John, a man who has already reached majority, was appointed as Susan‟s guardian
after both Susan‟s parents died in a motor vehicle accident. Susan, currently 19 years old, now wants
to conclude a civil marriage with John. Who of the following persons/authorities should Susan ask for
permission to proceed with the marriage?
[1] John
[2] the high court
[3] the commissioner of child welfare
[4] the Minister of Home Affairs
[2]
5 In which one of the following court cases did the court hold that simulated marriages or so-called
“marriages of convenience” are perfectly valid?
[1] W v W
[2] Ex parte Dow
[3] Martens v Martens
[4] Venter v Venter
[3]
6 Which one of the following statements on civil marriages between persons who are within the
prohibited degrees of relationship is false?
[1] A woman may not marry her deceased husband‟s brother.
[2] Cousins (of the opposite sex) may marry each other.
[3] A woman may not marry her deceased husband‟s father.
[4] A man may not marry his sister‟s daughter.
[1]
7 Four examples of instances in which a marriage is void are provided below. In which one of those
cases is the Minister of Home Affairs entitled to ratify the “marriage”?
[1] where the parties fall within the prohibited degrees of relationship
[2] where the “marriage” was solemnised by a person who is not a competent marriage officer
[3] where one of the parties has not yet reached the age of puberty
[4] where no witnesses were present at the solemnisation of the marriage
[2]

15
8 Which one of the following is not an invariable consequence of a civil marriage?
[1] The spouse who owns the family home may eject the other spouse from the family home at any
time.
[2] A right of intestate succession is created between the spouses.
[3] Spouses have the capacity to incur debts for household necessaries.
[4] The husband is the head of the family.
[1]
9 Which one of the following statements on the concept “consortium omnis vitae” which marriage
imposes on spouses, is false?
[1] In Grobbelaar v Havenga it was held that the consortium omnis vitae is “an abstraction comprising
the totality of a number of rights, duties and advantages accruing to the spouses of a marriage”.
[2] In Peter v Minister of Law and Order it was held that “consortium” is used “as an umbrella word for
all the legal rights of one spouse to the company, affection, services and support of the other”.
[3] The concept includes immaterial things only.
[4] The concept does not lend itself to a precise definition, as virtually all the objects of all the rights
emanating from marriage can be grouped under it.
[3]
10 Which one of the following statements is true?
[1] In Voortrekkerwinkels (Ko-operatief) v Pretorius the court used the subjective test to determine
whether the particular items were household necessaries.
[2] In Reloomel v Ramsay the court used the objective test to determine whether the particular items
were household necessaries.
[3] The Maintenance Act 99 of 1998 covers only the duty of support between persons who are related
to each other by blood or marriage.
[4] In Bannatyne v Bannatyne it was held that contempt proceedings in the high court to secure the
enforcement of a maintenance debt are “appropriate constitutional relief for the enforcement of a
claim for the maintenance of children”.
[4]
In Guggenheim v Rosenbaum the court decided that in the event of breach of promise the “innocent
party” is entitled to:
[1] positive interest only
[2] part of the positive interest and part of the negative interest
[3] all positive interest and all negative interest
[4] negative interest only
[2]
2 Mr and Mrs Viljoen concluded a civil marriage in 2003 while they were both domiciled in South
Africa. However, they were married without an antenuptial contract and never concluded a postnuptial

16
contract to regulate the patrimonial consequences of their marriage. Mr and Mrs Viljoen‟s marriage is
therefore
[2] out of community of property
[4] out of community of property subject to the accrual system
[1]
3 A (a man) and B (a woman) are married and have a daughter C and an adopted son D. A‟s father E
had, in addition to A, a son F. Which of the following persons may validly marry each other?
[1] C and A
[2] C and D
[3] C and E
[4] C and F
[2]
4 Mr and Mrs Mathe are married in community of property. What form of consent does Mrs Mathe
require from Mr Mathe to sell an expensive painting, which forms part of their joint estate and which
they bought as an investment?
[2] written consent, attested by two competent witnesses
[3] oral consent
[4] prior written consent, attested by two competent witnesses
[1]
5 In Mr and Mrs Nel‟s antenuptial contract Mr Nel undertakes to transfer an insurance policy to Mrs
Nel as soon as their first child is born. This is called a
[1] succession clause
[2] “clean break” clause
[4] marriage settlement
[4]
6 The accrual system can be described as a type of postponed community of profit. Which one of the
following statements is correct?
[1] Except when the protective measure provided for in section 8 of the Matrimonial Property Act is
applicable, a spouse‟s claim to share in the accrual of the other spouse‟s estate only arises at the
dissolution of the marriage.
[2] During the subsistence of the marriage the claim to share in the accrual is an asset in the estate of
the ultimate recipient.

17
[3] During the subsistence of the marriage the right to share in the other spouse‟s accrual is
transferable and liable to attachment.
[4] A spouse‟s right to share in the other spouse‟s accrual forms part of his or her insolvent estate.
[1]
7 Which one of the following may grant consent to the minor‟s marriage where either one or both
parents are incompetent to consent to their minor child‟s marriage?
[1] the High Court
[2] the commissioner of child welfare
[3] the minister of home affairs
[4] the child‟s guardian
[2]
8 In terms of section 24A of the Marriage Act, a marriage concluded by a minor without the necessary
consent is
[1] void ab initio (since its inception)
[2] valid with immediate effect
[3] voidable
[4] a putative marriage
[3]
9 In which one of the following cases was the concept consortium described as: “... an abstraction
comprising the totality of a number of rights, duties and advantages accruing to the spouses of a
marriage.”
[1] Reyneke v Reyneke
[2] Peter v Minister of Law and Order
[3] Guggenheim v Rosenbaum
[4] Grobbelaar v Havenga
[4]
10 Which one of the following cases does not deal with postnuptial change of spouses‟ matrimonial
property system?
[1] Ex parte Oosthuizen
[2] Ex parte Burger
[3] Ex parte Dow
[4] Ex parte Krös
[3]
(a) When two people marry, a rebuttable presumption arises that they are married:

18
[1] with the old standard form antenuptial contract
[2] with the new standard form antenuptial contract
[4] out of community of property with retention of profit and loss (2)
(b) The courts use two tests to determine whether a particular item is a household necessary, namely
the objective and subjective approach. In which one of the following cases did the court adopt the
subjective approach?
[1] Voortrekkerswinkels (Ko-operatief) Bpk v Pretorius
[2] Excell v Douglas
[4] Nedbank v Van Zyl (2)
(c) Which one of the following debts which are still outstanding when the joint estate is dissolved, may
be recovered from both spouses?
[1] Contractual debts incurred by one of the spouses before the marriage.
[2] Contractual debts incurred by one of the spouses during the marriage.
[3] Delictual debts incurred by one of the spouses before the marriage.
[4] Delictual debts incurred by one of the spouses during the marriage. (2)
require from Mr Mathe to sell an expensive painting, which forms part of their joint estate and which
they bought as an investment?
[2] Written consent, attested by two competent witnesses.
[3] Oral consent.
[4] Prior written consent, attested by two competent witnesses. (2)
(e) Section 23 of the Matrimonial Property Act 88 of 1984 regulates the liability of spouses married
out of community of property for household necessaries. Which one of the following statements is not
in accordance with section 23?
[1] Where third parties are concerned, the spouses are jointly and severally liable for any debts in
respect of household necessaries.
[2] Inter partes the parties are obliged to contribute to household necessaries on a pro rata basis
according to their individual financial means.
[3] In marriages entered into before the commencement of the Act, the liability of a spouse to
contribute on a pro rata basis according to his or her financial means, applies retrospectively
from the beginning of the marriage.
[4] In marriages concluded after the commencement of the Act, a spouse has an automatic right of
recourse against the other spouse in so far as he or she has contributed more than his or her pro rata
share. (2) [10]
Answer

19
(a) 3.(2) (See the prescribed textbook p 83.)
(b) 3.(2) (See the prescribed textbook p 68.)
(c) 2. (2) (See the prescribed textbook pp 92-93 and the study guide p 97.)
(d) 1.(2) (See the prescribed textbook pp 97-100.)
(e) 4.(2) (See the prescribed textbook pp 113-115.)
(a) Section 24A of the Marriage Act 25 of 1961 provides that a marriage between persons of whom
one or both are minors, is not void merely because the parents or guardian of the minor(s) or the
commissioner of child welfare has not consented thereto.
(b) The traditional definition of a marriage, namely that it is the legally recognised life-long voluntary
union between one man and one woman to the exclusion of all other persons, was recently declared
unconstitutional by the court.
(c) An engagement that is entered into subject to a condition that is in conflict with the very nature of
marriage, is void.
(d) If a minor‟s parents or guardian refuse to grant consent to the minor‟s marriage, the commissioner
of child welfare has the power to grant such consent.
(e) Because a putative marriage is void ab initio, the children born of such a marriage are llegitimate.
(f) A man may marry his adopted daughter, because they are not related to each other within the
prohibited degrees of relationship.
(g) A man is prohibited from marrying his ex-wife‟s sister.
(h) A married man who wishes to assume his wife‟s surname, must apply to the Director-General of
Home Affairs for permission to do so.
(i) In P and another v P and another the court found that guardianship and custody should not be
viewed as duties imposed on the parent, but rather as rights vesting in the parent.
(j) In Du Plessis v Pienaar the court found that, upon sequestration of the joint estate, the separate
property of a spouse married in community of property is subject to attachment to meet the claims of
joint creditors of the spouses.
(k) The right of a spouse to occupy the matrimonial home and use the household assets, is an
invariable consequence of marriage.
(l) Should the marriage of a minor be dissolved by death or divorce before the minor turns 21, the
minor‟s capacity to act bestowed by marriage is retained. [12]
Answer
(a) True. (See Cronjé DSP & Heaton J South African Family Law [prescribedtextbook] p 27.)
(b) False. (See the prescribed textbook p 21.)
(c) True. (See the prescribed textbook p 12.)
(d) False. (See the prescribed textbook p 26.)
(e) False. (See the prescribed textbook p 55.)

20
(f) False. (See the prescribed textbook p 37.)
(g) False. (See the prescribed textbook p 40.)
(h) True. (See the prescribed textbook p 80-81.)
(i) False. (See Tutorial Letter 102 p 9.)
(j) True. (See Tutorial Letter 102 p 2.)
(k) True. (See the prescribed textbook p 78.)
(l) True. (See the prescribed textbook p 58.)
Question 1
(a) A valid engagement is not a prerequisite for the conclusion of a valid civil marriage.
(b) According to Pienaar v Pienaar‟s Curator, persons who are not mentally ill but who are subject to
curatorship because they are incapable of looking after their own affairs (for example owing to a
disability), are not competent to conclude a valid marriage without the consent of their curator.
(c) Where a person has been forced to consent to a marriage by duress, the marriage is void.
(d) An adopted boy and an adopted girl who are neither related by blood nor affinity, would be able to
marry each other, despite the adoption.
(e) The Children‟s Status Act 82 of 1987 provides that the status of a child conceived or born of a
voidable marriage is not affected by the annulment of the marriage.
(f) The court is empowered to declare a putative marriage valid.
(g) The children born of a putative marriage are illegitimate.
(h) In terms of the objective approach, a husband will not be liable for the payment of household items
bought by his wife if it is proved that the household already has an adequate supply of that specific
commodity.
(i) The Maintenance Act 99 of 1998 also applies to a couple who live together as husband and wife
and who regulate their reciprocal duty of support in a contract.
(j) A married woman is obliged to assume her husband‟s surname.
[10]
Answer
(a) True.
(b) False.
(c) False.
(d) True.
(e) True.
(f) False.
(g) False.

24
(b) When a party to an engagement terminates the engagement due to a justa causa, he or she will
not be guilty of breach of promise.
(c) You are related to your grandparents by affinity in the direct line.
(d) A man is related by affinity in the collateral line to his wife‟s children from a previous marriage.
(e) In terms of Ex parte Dow, a marriage solemnised in a garden is perfectly valid.
(f) A marriage which has not been registered is void ab initio.
(g) The parents of a minor who entered into marriage without the necessary consent can apply to
have the marriage set aside before the minor attains majority and within six months from the date on
which they become aware of the marriage.
(h) The Maintenance Act 99 of 1998 applies to an unmarried couple who live together as husband
and wife and who regulate their reciprocal duty of support by means of a contract.
(i) In terms of the Maintenance Act 99 of 1998, a maintenance court may not make an order for the
(j) A spouse‟s right to occupy the matrimonial home and use the household assets is one of the
invariable consequences of marriage.
(k) A woman is not obliged to assume her husband‟s surname.
(l) The rule in terms of which the husband is regarded as the head of the family, no longer forms part
of our law. [12]
Answer
(a) True.
(b) True.
(c) False.
(d) False.
(e) True.
(f) False.
(g) False.
(h) True.
(i) False.
(j) True.
(k) True.
(l) False.
QUESTION 4
Answer this question by writing in each case only the number of the correct answer in your answer
script, for example: (a) 1.
(a) When two persons marry, a rebuttable presumption exists that they are married in the following
manner:
[1] with the old standard form antenuptial contract
[4] out of community of property with retention of profit and loss (2)
(b) Mr and Mrs Vos are married in community of property. Which one of the forms of consent
mentioned below does Mr Vos require from Mrs Vos if he wishes to donate a painting, which forms
part of their joint estate and which they hold mainly as an investment, to their neighbour?
[3] oral or tacit consent
[4] written consent without any further requirements (2)
(c) In which one of the cases mentioned below did the court hold that the words “cannot reasonably
know” in section 15(9)(a) of the Matrimonial Property Act 88 of 1984 should be interpreted in light of
what the reasonable person should have known?
[1] Distillers Corporation Ltd v Modise
[4] Bopape and Another v Moloto (2)
(d) In Mr and Mrs Nel‟s antenuptial contract Mr Nel undertakes to transfer an insurance policy to Mrs
Nel as soon as their first child is born. This clause is called a
[2] “clean break” clause

25

[4] marriage settlement (2)
(e) The accrual system can be described as a type of postponed community of profit. Which one of
the following statements is correct?
[1] Except when the protective measure provided for in section 8 of the Matrimonial Property Act 88 of
1984 is applicable, a spouse‟s claim to share in the accrual of the other spouse‟s estate only arises at
the dissolution of the marriage.
[2] During the subsistence of the marriage the claim to share in the accrual is an asset in the estate of
the ultimate recipient.
[3] During the subsistence of the marriage the right to share in the other spouse‟s accrual is
[4] A spouse‟s right to share in the other spouse‟s accrual forms
part of his or her insolvent estate. (2)
(f) Mr and Mrs Roux got married out of community of property with the accrual system in 1998. When
they married, Mr Roux had R5 000 and no debts. Mrs Roux now sues Mr Roux for a divorce. Suppose
that during the subsistence of the marriage money depreciated to such an extent that, according to
the consumer price index, R2,00 now has the same value as R1,00 had at the beginning of the
marriage. Which one of the following amounts reflects the net commencement value of Mr Roux‟s
estate at the time of the dissolution of the marriage?
[1] R10 000
[2] R5 000
[3] R0
[4] R2 500 (2)[12]
Answer
(a) [3].(2)
(b) [4].(2)
(c) [1].(2)
(d) [4].(2)
(e) [1].(2)
(f) [1].(2)
QUESTION 4
(a) Mr and Mrs Nel‟s antenuptial contract contains a clause that stipulates that the surviving spouse
will be the sole heir of the first-dying spouse. This clause is called a
[4] “clean break” clause (2)
(b) Mr and Mrs Vosloo got married out of community of property in 1990. Which one of the following
provisions contained in their antenuptial contract would be null and void?
[1] The spouse who contributes more to household necessaries than his or her pro rata share, will
have a right of recourse against the other spouse.
[2] Mr Vosloo will transfer R5 000 to Mrs Vosloo as soon as their first child is born.
[3] Mrs Vosloo will remain in Pretoria should Mr Vosloo be transferred to England permanently.
[4] On the death of the first-dying spouse, the family home will devolve upon the children born of the
marriage, while the surviving spouse will be entitled to a usufruct over the property. (2)
(c) The accrual system can be described as a type of postponed community of profit. Which one of
the following statements is incorrect?
[1] Except when the protective measure provided for in section 8 of the Matrimonial Property Act 88 of
1984 is applicable, a spouse‟s claim to share in the accrual of the other spouse‟s estate only arises at
the dissolution of the marriage.
[2] The claim to share in the accrual is not an asset in the estate of the ultimate recipient during the
subsistence of the marriage.
[3] During the subsistence of the marriage the right to share in the other spouse‟s accrual is neither
transferable, nor liable to attachment.
[4] A spouse‟s right to share in the other spouse‟s accrual forms part of his or her insolvent estate.

26
(d) Mr and Mrs Roux got married out of community of property with the accrual system in 1998. When
they married, Mr Roux had R10 000 and no debts. Mrs Roux now sues Mr Roux for a divorce.
Suppose that during the subsistence of the marriage money depreciated to such an extent that,
according to the consumer price index, R2,00 now has the same value as R1,00 at the beginning of
the marriage. Which one of the following amounts reflects the net commencement value of Mr Roux‟s
estate at the time of the dissolution of the marriage?
[1] R10 000
[2] R20 000
[3] R0
[4] R5 000 (2)
(e) The legislature relaxed the immutability principle in matrimonial property law by enacting section
21 of the Matrimonial Property Act 88 of 1984. Which one of the following statements is correct?
[1] Either of the spouses can apply to the High Court for leave to change their matrimonial property
system.
[2] The decision in Ex parte Burger implies that spouses who invoke section 21 of the Matrimonial
Property Act 88 of 1984 have a choice whether or not they want to alter their matrimonial property
system with retrospective effect.
[3] The only requirement for an application in terms of section 21 of the Matrimonial Property Act 88
of 1984 is that there must be sound reasons for the change.
[4] According to the decision in Ex parte Engelbrecht, the phrase “sound reasons” for the change of a
matrimonial property system refers to facts which are convincing, valid and anchored in reality. (2)
[10]
Answer
(a) 2.(2)
(b) 3.(2)
(c) 4.(2)
(d) 2.(2)
(e) 4.(2)
QUESTION 5
(a) Mr and Mrs Koen, who are married in community of property, have separated in terms of an extra-
judicial separation agreement which they concluded recently. The spouses also agreed that for the
duration of their separation they would each have their own separate estate and Mr Koen would
support Mrs Koen. Which one of the following statements is wrong?
[1] The extra-judicial separation agreement between the spouses remains valid only for as long as
each of the spouses upholds it.
[2] The arrangement in terms of which Mr and Mrs Koen each has their own separate estate for the
duration of their separation, binds all third parties with whom they (Mr and Mrs Koen) conclude
transactions.
[3] Either of the spouses may approach the court to amend the maintenance agreement between
them.
[4] Despite the existence of the extra-judicial separation agreement either of the spouses may institute
for maintenance against her deceased husband‟s estate. Which one of the following Acts would you
use in order to advise her?
(c) In Coetzee v Coetzee it was held that
[1] the court does not have a discretion to refuse a decree of divorce and that a divorce should be
granted when it is proved that a marriage has broken down irretrievably
[2] in cases where one of the spouses is mentally ill or unconscious a divorce can only be granted in
terms of section 5 of the Divorce Act 70 of 1979
[3] the method the courts use to determine whether the consortium between spouses has been
terminated or seriously violated, involves subjective and objective elements

27
[4] in order to be successful in a divorce action based on the irretrievable breakdown of the marriage,
it must be proved that there has been a change in the pattern of the marriage from which the
breakdown can be deduced (2)
(d) Section 4(2) of the Divorce Act 70 of 1979 contains three examples of instances where the
there is no reasonable prospect for the restoration of a normal marriage relationship between them.
Which one of the following instances is not one of the examples in section 4(2)?
[4] The defendant has in terms of a sentence of a court been declared an habitual criminal and is
(e) Which one of the following cases is the first reported case which dealt with the applicability of
section 5A of the Divorce Act 70 of 1979?
[1] Amar v Amar
[3] Smit v Smit
[4] Levy v Levy (2)
Answer
(a) 2.(2)
(b) 3.(2)
(c) 4.(2)
(d) 2.(2)
(e) 1.(2)
QUESTION 3
script, for example: (a) [1].
(a) Mr and Mrs CronjeÂ are married in community of property. Which one of the following assets or
amounts does indeed form part of their joint estate?
[1] Mrs CronjeÂ's engagement ring
[2] R20 000, which Mrs CronjeÂ received as nonpatrimonial damages by reason of a delict committed
against her
[3] a farm over which Mr CronjeÂ has a usufruct
[4] R30 000, which Mr CronjeÂ received as patrimonial damages by reason of a delict committed
against him (2)
(b) Which one of the following paraphrases from court cases dealingwith marriages in community of
property is false?
[1] In Badenhorst v Bekker it was held that the excluded assets of one spouse are subject to
attachment for joint debts incurred by the other spouse.
[2] In Nedbank v Van Zyl it was held that a wife married in community of property cannot stand surety
for debts owed by her husband.
[3] In Maury (Edms) Bpk h/a Franelle Gordyn Boutique v Erasmus the court held that contractual
debts incurred by one spouse during the marriage can be claimed after the dissolution of the marriage
from any one of the spouses in full.
[4] In De Wet v Jurgens it was held that spouses who are married in community of property are co-
debtors in respect of joint debts. (2)
(c) Mr and Mrs Naidoo are married in community of property. Which one of the forms of consent
mentioned below does Mr Naidoo require from Mrs Naidoo if he wishes to withdraw money which
is credited to the name of Mrs Naidoo from an account in a banking institution?
[2] oral or tacit consent
[4] prior written consent, attested by two competent witnesses (2)

28
(d) In Bopape and Another v Moloto the court made the following order with regard to the amounts of
money which Mr Bopape had paid to Ms Moloto:
[1] an order that Mrs Bopape has to exercise her right to claim an adjustment against Mr Bopape
upon division of the joint estate
[2] an order that Mr and Mrs Bopape may claim the money from Ms Moloto with the rei vindicatio
[3] an order for the immediate division of the joint estate of Mr and Mrs Bopape
[4] an order that Mr and Mrs Bopape may claim the money from Ms Moloto with the actio Pauliana
utilis (2)
(e) Indicate the correct statement:
[1] Either of the spouses can apply to the High Court for leave to change their matrimonial property
system.
[2] The implication of Ex parte Burger is that spouses who invoke section 21 of the Matrimonial
Property Act 88 of 1984 have a choice whether or not they want to alter their matrimonial
property system with retrospective effect.
[3] The only requirement for an application in terms of section 21 of the Matrimonial Property Act 88
of 1984 is that there must be sound reasons for the change.
[4] According to Ex parte Engelbrecht ``sound reasons'' for the change of a matrimonial property
system mean facts which are convincing, valid and anchored in reality. (2)
Answer
(a) [4].(2)
(b) [3].(2)
(c) [1].(2)
(d) [2].(2)
(e) [4].(2)
Question
John asks Sibongile to marry him provided that she moves in with him and they live together before
their marriage. Sibongile agrees to marry John, but does not move in with him. John and Sibongile‟s
engagement is …
[1] valid.
[2] void.
[3] putative.
[4] unlawful. (2)
(2) Mentally ill persons can contract a valid marriage …
[1] with their curator‟s consent.
[2] during a lucidum intervallum.
[3] stante matrimonio.
[4] with their guardian‟s consent. (2)
(3) The high court may grant permission to the marriage of a minor if the court is convinced
that the parent‟s refusal is …
[1] without adequate reason.
[2] contrary to the minor‟s interests.
[3] without adequate reason or contrary to the minor‟s interests.
[4] without adequate reason and contrary to the minor‟s interests. (2)
(4) In Martens v Martens it was held that …
[1] simulated marriages or so-called “marriages of convenience” are perfectly valid.
[2] a marriage concluded in a garden is perfectly valid.
[3] if one of the spouses was forced to consent to the marriage by duress, the marriage is voidable.
[4] an adoptive parent may not marry his or her adopted child. (2)
(5) The duty of support terminates upon dissolution of the marriage. The surviving spouse may have a
maintenance claim against the deceased spouse‟s estate in terms of …
[1] the Divorce Act.
[2] the Maintenance Act.
[3] the Matrimonial Affairs Act.
[4] the Maintenance of Surviving Spouses Act. (2)
(6) Neither Susan nor John knew that they were related to each other within the prohibited degrees of
consanguinity. Susan and John‟s marriage is …
[1] valid.
[2] void.

29
[3] voidable.
[4] putative. (2)
(7) The consequences of a civil marriage that can be regulated by the spouses are generally referred
to as …
[1] invariable consequences of marriage.
[2] variable consequences of marriage.
[3] consortium omnis vitae.
[4] accrual. (2)
(8) Mr Singh donated a valuable painting to Miss Naidoo without Mrs Singh‟s permission. Miss Naidoo
knows that Mr Singh is married in community of property. Such a transaction is …
[1] valid in terms of section 15(9)(a) of the Matrimonial Property Act 88 of 1984.
[2] void in terms of section 15(9)(a) of the Matrimonial Property Act 88 of 1984.
[3] voidable in terms of the decision in Bopape v Moloto.
[4] void in terms of the decision in Bopape v Moloto. (2)
(9) Section 4(2) of the Divorce Act 70 of 1979 contains three examples of instances of irretrievable
breakdown of a marriage. Which one of the following instances is not one of the examples in section
4(2)?
[4] The defendant has been declared a habitual criminal in terms of a sentence of a court and is
(10) In which case did the court hold that section 7(7) of the Divorce Act 70 of 1979 did not change
the rule that a pension interest is not an asset in the spouse‟s estate?
[1] Maharaj v Maharaj
[2] Matyila v Matyila
[3] Sempapalele v Sempapalele
[4] Wijker v Wijker (2)
(11) A parent‟s duty of support in respect of a child does not end when the child …
[1] becomes self-supporting.
[2] is adopted.
[3] marries.
[4] dies. (2)
(12) In terms of the Children‟s Act 38 of 2005 the term “custody” is replaced by ...
[1] contact.
[2] access.
[3] care.
[4] residence. (2)
(13) Which one of the following is a ground for divorce in terms of the Recognition of Customary
Marriages Act 120 of 1998?
[1] Incurable mental illness or continuous unconsciousness
[2] Irretrievable breakdown of the marriage
[3] Adultery which is irreconcilable with a continued marriage relationship
[4] One of the parties is undergoing imprisonment (2)
(14) In which case did the court hold that the word “spouse” in the Intestate Succession Act 81 of
1987 should include a widow married by Hindu law?
[1] Ramayee v Vandiyar
[2] Hassam v Jacobs
[3] Ryland v Edros
[4] Govender v Ragavayah (2)
(15) Someone who assists a person in litigation because the person does not have the capacity to
litigate is a(n) ...
[1] curator dative.
[2] assumed curator.
[3] curator ad litem.
[4] curator nominate. (2)
Answer
(1) [1](2)

37
(6) [3]
(7) [3]
(8) [3]
(9) [1]
(10) [2]
(11) [3]
(12) [3]
(13) [3]
(14) [2]
(15) [4]
llllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllll
lllll
Engagement
QUESTION 2
Indicate what effect each of the following conditions has on the validity of the engagement:
(a) Impossible condition (2)
(a) The engagement is valid(1) although the condition is held to be pro non scripto.(1)
(b) Unlawful condition (2)
(b) The engagement is valid(1) although the condition is held to be pro non scripto.(1)
(c) Condition contrary to the nature of the marriage (1)
(c) The engagement is invalid.(1)
Question 1
Name four grounds for the termination of an engagement. [4]
Answer
(1) The couple‟s marriage.(1)

(2) The death of either of the parties.(1)
(3) A mutual agreement to terminate the engagement.(1)
(4) Withdrawal of parental consent where one of the parties is a minor.(1)
(5) A unilateral and justified termination, based on a sound reason (a justa causa).(1)
(6) Breach of promise.(1)
VOID VOIDABLE & PUTATIVE
Question 2
(a) Explain the meaning of the term “voidable marriage”. (2)
(b) Name three grounds on which a voidable civil marriage can be set aside. (3) [5]
Answer

SECTION 2: LEGAL REQUIREMENTS FOR THE CONCLUSION OF A CIVIL MARRIAGE
“Marriage” is traditionally defined as the legally recognised life-long voluntary union between one man and
one woman to the exclusion of all other persons. This relates only to civil marriages, since customary and
Muslim marriages permit polygyny. Furthermore, with the enactment of the Civil Unions Act, a “civil union”
is defined as the voluntary union of two persons who are both 18 years of age or older, which is solemnized
and registered by way of either a marriage or a civil partnership, in accordance with the procedures
prescribed in this Act, to the exclusion, while it lasts, of all others”.
Marriage is not a contract. Because marriage is based on consensus, the parties must clearly have capacity
to act in order to be able to enter into a valid marriage.

Capacity to act
Persons who have no capacity to act, such as the mentally ill and infants (persons below 7 years of age), are
totally incapable of entering into a marriage. Others, like minors who are over the age of puberty, need
consent to supplement their limited capacity to act.
(1) Declared prodigals
The prodigal may marry without his or her curator’s consent. The weight of opinion favours the rule that the
prodigal’s advantage determines whether the marriage is in or out of community of property, otherwise, the
selection of the matrimonial property system would amount to an unauthorized disposition of the prodigal’s
property.
(2) Mentally ill persons

If someone is de facto mentally ill at the moment he or she enters into a marriage, the marriage is void as a
result of his or her incapacity to act. A person is regarded as mentally ill and consequently lacking the
necessary capacity to act, not only when he or she does not understand the nature and consequences of the
juristic act, but also when hallucinations caused by a mental illness prompt him or her to enter into the
marriage.
A marriage concluded during a lucidum intervallum is perfectly valid. The fact that someone has been
certified mentally ill however places the burden on him or her to prove that he or she is actually normal,
while in the absence of certification, it is the person who alleges mental illness who must prove the presence
of mental illness.
(3) Persons who have been placed under curatorship because they are incapable of managing their own
affairs
Competent to conclude a valid marriage without the consent of his or her curator.
(4) Minors
Minors between 7 and 21 have limited capacity to act and thus cannot conclude valid juristic acts by means
of which they incur obligations unless they have parental consent. Parental consent is therefore required for
a minor to enter into a valid marriage. Section 24(1) of the Marriage Act provides that a marriage officer
may not solemnize (conduct a marriage ceremony) a minor’s marriage, unless the consent which is legally
required for the purpose of contracting the marriage has been granted and furnished to him in writing.
Section 27 – if a marriage officer reasonably suspects that the age of a prospective spouse is such that he or
she may not marry without having obtained some other person’s consent, the marriage officer may refuse to
solemnize the marriage unless he or she is furnished with the required consent in writing.
Section 12 – a marriage officer may not solemnize a marriage unless each of the parties either produces his
or her identity document or furnishes the marriage officer with a prescribed affidavit.
(a) consent required for the marriage of a minor

(i) parents

If both parents are alive, both must consent to the marriage of their legitimate minor child, unless the court
orders otherwise or sole guardianship has been granted to one of them. If the minor was born out of
wedlock, the mother’s consent is needed as she is the child’s guardian.
(ii) legal guardian

An orphan for whom a guardian has been appointed must obtain his or her guardian’s permission to marry.
(iii) Minister of Home Affairs

Section 26(1) of the Marriage Act - a boy below the age of 18 years and a girl below the age of 15 years may
not marry without the written permission of the Minister of Home Affairs. Consent will only be granted if
the marriage is deemed ‘desirable’. Even if the Minister’s consent is obtained, all the other legal
requirements still have to be complied with, so the parents’ consent must also be obtained and the
prescribed formalities for a marriage must be met. Ministerial consent is not required if the court has
consented to the marriage. If a boy below the age of 18 years or a girl below the age of 15 years marries
without ministerial consent, the marriage is null and void, but section 26(2) empowers the Minister to ratify
the marriage if:
1. he or she considers the marriage desirable and in the interests of the parties
2. the marriage was in all other respects solemnized according to the Marriage Act’s provisions;
3. there is no other lawful impediment to the marriage.
The Minister’s power only applies to marriages of girls between 12 and 15 years of age and boys between 14
and 18 years of age.
(iv) Commissioner of child welfare

Where either of the minor’s parents, or both of them, or his or her guardian is absent, mentally ill, or in any
other way incompetent to consent to his or her marriage, or if the minor can for any other good reason not
obtain the consent of his or her parents or guardian, consent may be granted by the commissioner of child
welfare. The commissioner of child welfare must also determine whether it would be in the minor’s
interests to enter into an antenuptial contract. If so, the commissioner must assist the minor in the
execution of the antenuptial contract and his or her assistance is deemed to be the assistance of the minor’s
parent or guardian.
If the commissioner refuses to consent to the marriage, the minor may approach the high court for consent
in terms of section 25(4) of the Marriage Act. However, where application must be made to the
commissioner of child welfare in terms of section 25(1), the minor may not bypass the provisions of the
section by applying directly to the court.
(v) high court

Section 25(4) – if one or both parents, the legal guardian, or the commissioner of child welfare withholds
consent, the minor may approach the high court for permission to marry in terms of section 25(4) of the
Marriage Act. For purposes of this particular application, the minor is regarded as having capacity to litigate.
Consent will only be granted if:
1. the court is of the opinion that the refusal to consent by parents, etc. is without adequate reason; and
2. contrary to the minor’s interests – Alcock v Alcock.

B v B: these tests are complementary and must not be considered separately. The court must take all the
circumstances into account and weigh the reasons for the parents’ refusal, with due allowance for the fact
that the parents are in a better position than the court to make a decision of such a personal nature.
Even if the minor’s application is unopposed, the court will inevitably override the parent’s refusal to grant
consent. The court will then also make an order regarding the matrimonial property system which is to
apply in the marriage and if necessary, it may order that a curator be appointed to assist the minor in the
execution of an antenuptial contract.
(b) instances in which a minor requires no consent to marry

(i) a minor who has already been married
Section 24(2) – “minor” does not include a person below the age of 21 but who has previously been married
and whose marriage has been dissolved by death or divorce.
(ii) a person below 21 years of age who has been declared a major
Age of Majority Act – someone who has been declared a major in terms of this Act is deemed in all respects
to have reached the age of majority. An emancipated minor does not have capacity to marry without
consent.
(c) the effect of absence of the necessary consent

(i) the effect on the validity of the marriage
Section 24A(1) of the Marriage Act: a minor’s marriage is not void merely because his or her parents or
guardian or the commissioner of child welfare has not consented to it. However, the court may dissolve the
marriage on the ground of lack of consent. The application to have the marriage set aside may be made by:
1. the minor’s parents or guardian, before the minor attains majority and within six weeks from the date on
which they become aware of the existence of the marriage;
2. the minor himself or herself, before he or she attains majority or within three months thereafter.
The court may not set the marriage aside unless it is satisfied that the dissolution of the marriage is in the
minor’s interest.
(ii) the effect of the patrimonial consequences of the marriage
Section 24 of the Matrimonial Property Act governs the patrimonial consequences of a marriage a minor
entered into without consent.
Patrimonial consequences if the marriage is set aside
Section 24(1): the court may make an order with regard to the division of the matrimonial property of the
spouses “as it may deem just”. The court will probably have regard to factors such as the respective ages of
the parties, their financial circumstances, their wishes and whether the major spouse took advantage of the
inexperience of the minor spouse and benefited at the latter’s expense.
The patrimonial consequences if the marriage is not set aside

Section 24(2): the patrimonial consequences of the marriage are the same as if the minor were of age when
the marriage was entered into and any antenuptial contract in terms of which the accrual system is included
and which has been executed with a view to such a marriage, is deemed to have been validly executed.
2 possibilities:
1. if the parties did not enter into an antenuptial contract, the primary matrimonial property system,
namely community of property, applies;
2. if the parties entered into an antenuptial contract which includes the accrual system, the antenuptial
contract is valid even though the minor did not have the necessary consent to conclude the contract. (An
antenuptial contract which excludes the accrual system is invalid).
(iii) the effect of the Matrimonial Property Act on a marriage a minor concluded without consent before
the commencement of the Act
The marriage of a minor is not void merely because the required consent is lacking. Section 24A of the
Marriage Act therefore applies to all marriages minors entered into without consent.
With regard to section 24 of the Matrimonial Property Act, it could be argued that the wording of the section
does not rebut the presumption that the legislator only intends to regulate future cases (presumption
against retroactivity).
The person who marries a minor without the latter having first obtained the necessary consent thereto, may
never enjoy any patrimonial benefit from the marriage. Applying this rule, our courts have in the past
declared such marriages either in or out of community of property depending upon which system was in the
minor’s best interests at the time he or she entered into the marriage. Consequently, the courts judged the
circumstances as they were at the inception of the marriage and then declared that the marriage was in
community of property, out of community of property with complete separation of property, or out of
community of property with retention of community of profit and loss.
Consensus as a requirement for marriage
Consensus forms the basis of, and is the fundamental requirement for entering into a marriage. At the time
of the marriage, both parties must have the will to marry each other. Therefore, during the ceremony, the
marriage officer must expressly ask each party whether he or she accepts the other party as husband or
wife, and both parties must answer in the affirmative. Consensus could be negated due to mistake,
misrepresentation, duress or undue influence.
(1) Mistake
Only a material mistake excludes consensus. A mistake concerning the identity of the other party (error in
personam) or nature of the juristic act (error in negotio) are the only forms of material mistake recognised in
connection with marriage. In practice, only an error in negotio may occur. In such cases, the marriage
should be voidable.
(2) Misrepresentation
The marriage is voidable if the misrepresentation was of a serious nature. Prenuptial stuprum would classify
as such a case. A husband can have the marriage set aside if he can prove that at the time of entering into
the marriage, his wife concealed the fact that she was pregnant by another man and that he had been
unaware of this state of affairs. The only other instances in which a misrepresentation might possibly result

in the marriage being voidable, is the concealment by one of the parties that he or she is either impotent or
sterile.
(3) Duress
Smith v Smith: the woman was coerced to such an extent by her father and prospective husband that she
appeared completely dazed and lacked any will of her own during the wedding. The court concluded that
the duress rendered the marriage voidable and therefore set the marriage aside.
(4) Undue influence
The general principles of the law of contract apply here.
Lawfulness as a requirement for marriage
Generally, an unlawful marriage is void. Marriages between the following persons are unlawful:
(1) persons who are already married
The attempted second civil marriage is void and the person is guilty of the crime of bigamy. This second
marriage may be putative if either or both of the spouses honestly believed that the marriage was valid.
(2) adoptive parents and their adopted children
Section 20(4) of Child Care Act: an adoptive parent may not marry his or her adopted child.
(3) persons who are within the prohibited degrees of relationship
Consanguinity (blood relationship) is the relationship which is created by birth between persons with at least
one common ancestor. It is irrelevant whether the relationship arose as a result of legitimate or extra-
marital birth. Consanguinity may exist either in the direct line, (between ascendants and descendants), or
the collateral line (related through a common ancestor).
Affinity refers to the relationship that comes into being between a married person and the blood relations of
his or her spouse, as a result of the marriage. Affinity is restricted to the blood relations of the other spouse.
Thus no relationship by affinity exists between the blood relations of one spouse and the blood relations of
the other spouse. Affinity can exist in either the direct or the collateral line.
(a) Blood relations in the direct line (ascendants and descendants)
Blood relations in the direct line may not marry each other.
(b) Collateral blood relations
Specific prohibitions: neither brother and sister, nor uncle and niece, nor granduncle and grandniece are
allowed to marry each other. Marriage between cousins is permissible. Blood relations in the collateral line
may not marry each other if either is related to the common ancestor within the first degree. One degree of
consanguinity separates one generation from the generation immediately following it.

(c) Relations by affinity in the direct line
(d) Relations by affinity in the collateral line
Section 28 of Marriage Act: there is no prohibition on a marriage between a person and his or her relations
by affinity in the collateral line. One spouse only becomes related by affinity to the other spouse’s blood
relations and the blood relations of one spouse are not related to the blood relations of the other spouse.
After the dissolution of the marriage, one of the spouses may marry the relations in affinity of the other
spouse in the collateral line.
(4) Guardians and their wards
A guardian may only marry his or her minor ward with the consent of the high court, because in such
circumstances the guardian cannot consent to the marriage on behalf of his or her minor ward. The
consequences of the absence of the court’s consent are the same as those that apply if the guardian’s
consent is not obtained. The validity of the marriage would therefore be governed by section 24A of the
Marriage Act. It could also be argued that a marriage which a guardian and ward enter into without the
court’s consent is still valid.
(5) Persons who belong to different race groups

Ethnicity no longer constitutes an impediment to marriage. However, section 7 of the Immorality and
Prohibition of Mixed Marriages Amendment Act provides that the Director-General of Home Affairs may
direct in writing that a marriage which, “but for the provisions of the Prohibition of Mixed Marriages Act,
1949, would have been a valid marriage in the Republic” is valid for all purposes as from the date on which it
was concluded. Section 7(4) provides that the director-general must be satisfied that:
1. the marriage would, but for the provisions of the Prohibition of Mixed Marriages Act, have been valid;
2. the marriage has not been dissolved or declared invalid by a court on a ground other than the provisions
of the Prohibition of Mixed Marriages Act;
3. neither spouse married another person after the conclusion of the “mixed marriage” and during the life
of the other spouse.
Without the declaration of validity, the marriage remains void.
Recent developments in the law
Same sex marriages
Civil Unions Act, 2006 provides that a civil union means the voluntary union of two persons who are both 18
years of age or older, which is solemnized and registered by way of either a marriage or a civil partnership, in
accordance with the procedures prescribed in this Act.
The Alteration of Sex Description and Sex Status Act, 2003 states in section 1(1) that any person who has
undergone sexual reassignment surgery may apply to the Director-General of Home Affairs for the alteration
of the sex description which appears in the register of births. Section 2(2) provides that once the person’s
sex description has been changed on the register of births, he or she is deemed for all purposes to be a
member of their new sex.

See W vW and Simms v Simms for historical position.
Formalities for marriage
1) Marriage officers
Anyone who purports to solemnize a marriage without having the necessary authority to do so, is guilty of an
offence. This prohibition does not apply to a religious ceremony which does not purport to effect a valid
marriage.
All marriage officers, special justices of the peace, and commissioners are ex officio marriage officers for the
district or area in respect of which they hold office. The Minister of Home Affairs may also appoint other
persons as marriage officers.
2) Formalities preceding the marriage ceremony

Section 12 of the Marriage Act: a marriage officer may not solemnize a marriage unless each party furnishes
his or her identity document or the prescribed affidavit.
Section 23: anyone who wishes to raise an objection to an intended marriage must lodge that objection with
the marriage officer who is to solemnize the marriage. The marriage officer may only solemnize the
marriage if he or she is satisfied that there is no lawful impediment to it.
3) Formalities during the marriage ceremony
Both parties must be personally present at the solemnization of their marriage. A marriage may be
solemnized at any time and on any day of the week, but a marriage officer is not obliged to solemnize a
marriage at any other time than between 08:00 and 16:00.
In terms of section 29(2) of the Act, the marriage must be solemnized in a church or other building used for
religious services, or in a public office or private dwelling house with open doors and in the presence of the
parties themselves, and at least two competent witnesses.
Ex parte Dow: marriage not solemnized “in” a house. The legislator could not have intended the marriage
to be void if “the two-letter word ‘in’” was not complied with.
Marriage formula is provided in section 30(1). Once the parties have replied in the affirmative, the marriage
legally comes into existence.
4) Registration of the marriage
The marriage officer who solemnizes a marriage, the parties thereto and two competent witnesses must sign
the marriage register immediately after the marriage has been solemnized. The marriage register must then
be sent to a regional or district representative of the Department of Home Affairs. Non-fulfilment of these
requirements does not affect the validity of the marriage and registration of the marriage can be effected
postnuptially.

A duly signed marriage certificate serves as prima facie proof of the existence of the marriage. In the
absence of a marriage certificate, the existence of the marriage can be proved by other evidence.
VOID, VOIDABLE AND PUTATIVE CIVIL MARRIAGES
VOID VOIDABLE PUTATIVE
- where one of the basic requirements for the - there is a defect or - is a valid marriage,
validity of a marriage is not satisfied impediment which where one or both
- cannot be transformed into a valid marriage existed at the time when of the parties
- court order does not cause the marriage to be the marriage was mistakenly, but in
void contracted good faith,
- this marriage never came into existence - it does not prevent the believed that there
marriage from coming was a valid
into existence marriage
A marriage will be nullified on the following - the marriage is set aside - recognised to
ground: by a competent court on mitigate the
1. if either or both parties lacked capacity to act application by one or negative
when marriage was contracted (eg: mental both of the spouses, or consequences of a
illness) by a third party null and void
- this marriage is valid but marriage
2. if the necessary formalities regarding the can be annulled
marriage officer or marriage ceremony were not
satisfied
3. if marriage is legally prohibited or factually

impossible (eg: age)
4. if the parties have not reached consensus
Void marriages
Grounds for nullity
The court can declare a marriage null and void on the ground of non-compliance with the formal
requirements for a civil marriage, such as:
1. the marriage is solemnized by someone who is not a competent marriage officer;

2. a girl below 15 years of age or a boy below 18 years of age marries without having obtained the written
consent of the Minister of Home Affairs;
3. no witnesses are present at the marriage.
The court can declare a marriage null and void on the ground of non-compliance with the material
1. one of the parties is already married to someone else;

2. the parties are related to each other within the prohibited degrees of relationship;
3. one of the parties is below the age of puberty;

4. one of the parties is mentally ill.
Consequences of a void marriage
A void marriage has no consequences: it does not affect the status of the parties and children who are born
of the marriage are extra-marital.
Statutory qualifications of the consequences of a void marriage are contained in the Marriage Act:
1) a marriage which was solemnized by someone who was not a competent marriage officer is void, but the
Minister of Home Affairs may ratify the marriage in terms of section 6 of the Act, in which case it is
validated;
2) section 26(1) of the Act provides that a boy below the age of 18 years and a girl below the age of 15 years
may not marry without the permission of the Minister of Home Affairs. A marriage concluded without
the minister’s consent is void, but section 26(2) empowers the minister to ratify the marriage, thereby
validating it.
Voidable marriages
A voidable marriage is a marriage in which grounds are present, either before or at the time of the wedding,
on the basis of which the court can be requested to set the marriage aside.
Grounds for setting aside a voidable marriage
(a) Minority
(b) Stuprum (sexual intercourse (with a third party) and pregnancy before marriage)
Extra-marital sexual intercourse with a third party before the marriage normally does not affect the validity
of the marriage. Even if an extra-marital child is born before the marriage as a result of pre-marital sexual
intercourse, the validity of the marriage is not affected. It is only if the wife is pregnant with another man’s
child at the time of the wedding, without her husband being aware of this, that the husband can apply for
annulment of the marriage. If the husband accepts the wife’s pregnancy, and condones her actions, he loses
the remedy.
(c) Material mistake
(d) Impotence
The marriage is voidable if one spouse proves that the other spouse was impotent before the marriage and
remains impotent, and that he or she was unaware of the impotence at the time of entering into the
marriage – W v W.
(e) Sterility
Sterility refers to infertility; that is, the situation where a person is able to have sexual intercourse, but
cannot procreate. It is essential to prove fraudulent concealment of the sterility.

Consequences of a voidable marriage
A voidable marriage remains in force and has all the normal legal consequences of a valid marriage until it is
set aside by a court order. If not set aside, it remains in force.
The effect of the decree of annulment is retroactive - all the consequences of the marriage are extinguished
as from the date on which the marriage was solemnized. The status of the parties reverts back to the former
position and they are in the same position as if the marriage never took place. The interests of third parties
are however protected, and therefore the validity of transactions entered into with third parties prior to the
annulment is not affected by the decree.
The Children’s Status Act provides that the status of a child conceived or born of a voidable marriage is not
affected by the annulment of the marriage. A voidable marriage may not be annulled until the court has
enquired into and considered the safeguarding of the interests of the minor or dependent children born of
that marriage.
As the Divorce Act does not apply to the annulment of a voidable marriage, the court cannot make an order
for maintenance of one of the parties, forfeiture of patrimonial benefits, or redistribution of the assets when
it sets a voidable marriage aside.
Putative marriages
A putative marriage exists when one of the parties to the marriage marries while being unaware that there is
a defect which renders the marriage void. At the time of entering into the marriage, the particular party
believes in good faith that he or she is entering into a valid civil marriage.
Requirements for a putative marriage
1. one of the parties or both of them must be unaware of the defect which renders their marriage
void.
2. defects in form do not preclude a marriage from being putative.
Consequences of a putative marriage
Although a putative marriage is void ab initio, it has some of the legal consequences of a valid marriage for
as long as at least one of the parties is bona fide. In other words, for as long as one of the parties is, on
reasonable grounds, unaware of the defect which renders the marriage void, the marriage has some of the
legal consequences of a valid marriage. As soon as both parties become aware of the defect, the marriage
automatically ceases to be a putative marriage.
The court simply declares that the relationship was a putative marriage with the result that certain
consequences can be attached to it from the date of the wedding until the date on which both parties
became aware of the invalidity of the marriage.
(a) the legitimacy of a child born of a putative marriage

Children born of putative marriages are legitimate. When the court is approached to declare a marriage to
have been putative, an application is simultaneously made for a declaration that the children are legitimate
with the assumption being that the order is merely declaratory. Both parents have guardianship over the
children, but the court can make any order as to guardianship, custody and access that is in the children’s
best interests.
(b) the patrimonial consequences of a putative marriage
If both parties were bona fide at the time of entering into the putative marriage, and the marriage was
concluded without an antenuptial contract, the parties are treated as having been married in community of
property (or as having entered into a universal partnership). If only one party was bona fide, the marriage is
treated as having been in community of property if this is to the advantage of the bona fide party. If the
parties entered into an antenuptial contract in which community of property was excluded, the marriage is
treated as having been out of community of property if this is in the interests of the bona fide party or if both
parties were bona fide. The bona fide party may also enforce any benefit due to him or her in terms of the
antenuptial contract, but the mala fide party must return all benefits he or she received in terms of the
antenuptial contract.
SECTION 3: CONSEQUENCES OF A CIVIL MARRIAGE
Invariable consequences
These consequences come into being automatically by operation of law and cannot be excluded by the
spouses. The invariable consequences mainly relate to the personal consequences of marriage, such as the
reciprocal duty of support between spouses.
Status of spouses after marriage:
1. neither spouse may marry anyone else while the marriage subsists;
2. new impediments to marriage, which continue after the dissolution of the marriage, arise as a result of
the relationship by affinity which is created by the marriage;
3. a right of intestate succession is created between the spouses;
4. extra-marital children the couple had before marriage are legitimated post marriage;
5. spouses are the guardians of the children born of the marriage;
6. spouses’ capacity to act is restricted if they marry in community of property;
7. a spouse who is a minor when he or she marries attains majority, and retains it even if the marriage is
dissolved before he or she turns 21.
Marriage creates a consortium omnis vitae between the spouses and includes the objects of all the rights
emanating from marriage. Consortium is an umbrella word for all the legal rights of one spouse to the
company, affection, services and support of the other - Peter v Minister of Law and Order.
One spouse cannot enforce companionship, affection, etc. by means of a court order, or obtain an interdict
to prevent the other spouse from infringing the consortium, for example, by committing adultery. Nor can
the wronged spouse sue the offending spouse in delict for infringements of the consortium. Divorce is the

only remedy that can be invoked once the consortium is lost. Presently, adultery is no longer a ground for
divorce but merely a factor that may indicate that the marriage has irretrievably broken down.
A third party who infringes the consortium by committing adultery, enticing one of the spouses into
deserting the other, or harbouring one of the spouses can be sued in delict – Wassenaar v Jameson. If a
third party intentionally persuades one of the spouses to leave the other, the wronged spouse can institute
the action on the ground of enticement against the third party. However, this action may be challenged on
the ground that it violates the third party’s (and other spouse’s) constitutional right to freedom of
association.
SPOUSAL MAINTENANCE
Reciprocal duty of support between spouses
Marriage imposes a reciprocal duty of support upon the spouses, provided that the spouse who claims
maintenance is in need of maintenance and the spouse from whom it is claimed is able to provide it –
Langemaat v Minister of Safety and Security.
In Reyneke v Reyneke, the husband deliberately impoverished himself and the joint estate by spending part
of a lump sum disability payment and giving away the balance to frustrate his wife’s claim for maintenance.
His wife contended that because of his fraudulent conduct he should be deemed still to have the means to
maintain her and should be ordered to make regular maintenance payments to her even though he could
not afford them. However, her claim failed because the court rejected the argument that a wife has a right
of recourse against her husband for maladministration of the joint estate (deeming him not to have disposed
of the disability grant). Furthermore, the court confirmed that it can only make a maintenance order if it is
satisfied that the person from whom maintenance is claimed is able to pay it. The court held that it could
not extend a remedy in order to afford an otherwise remediless person relief by overlooking one of the
fundamental principles applicable to that remedy.
Maintenance includes the provision of accommodation, clothing, food, medical services and other
necessaries. The extent of the duty of support is determined by the social status of the parties, their means
or income, and the cost of living. According to the Maintenance Act, the duty of support applies to both
spouses in proportion to their means and this duty is enforceable in either the high court or the maintenance
court.
The duty of support terminates upon dissolution of the marriage (death). The surviving spouse may have a
claim for maintenance against the deceased spouse’s estate in terms of the Maintenance of Surviving
Spouses Act. Divorce also terminates the reciprocal duty of support, but the court which grants the decree
of divorce can make a maintenance order in favour of one of the spouses in terms of the Divorce Act.
If the spouses are not divorced but no longer share a joint household, matrimonial guilt determines whether
the duty of support continues. The same applies if the parties agree to live apart. However, if the separation
is due to the wife’s fault, she loses her right to maintenance – Chamani v Chamani.

Household necessaries
Although the duty of support often overlaps the duty to contribute to household necessaries, it differs in
other respects from that duty, for example, litigation costs fall within the scope of the duty of support, but
are not household necessaries. Food and veterinary services for the family’s pets are household necessaries
but do not fall within the duty of support. If the husband pays for his wife’s accommodation, food and
clothing, he is discharging not only his duty of support but also his duty to provide household necessaries.
The husband and the wife have the same rights as far as purchasing household necessaries is concerned
regardless of the matrimonial property system which operates in their marriage. In terms of section 17(5) of
the Matrimonial Property Act, spouses who are married in community of property are jointly and severally
liable for household necessaries irrespective of which spouse was the purchaser. By virtue of section 23 of
the Matrimonial Property Act, the same rule applies in marriages out of community of property. It is
therefore of practical importance to establish whether or not a specific item is a household necessary,
because if it is, the purchasing spouse binds himself or herself and the other spouse if the marriage is out of
community of property, or himself or herself and the joint estate if the marriage is in community of property.
If the item is not a household necessary, only the spouse who incurred it is liable for the debt unless the
circumstances are such that the third party can rely on negotiorum gestio or undue enrichment to found his
or her claim.
A spouse’s capacity to purchase household necessaries is dependent on (requirements):
(1) a valid marriage
Capacity to purchase household necessaries is an invariable consequence of marriage.
(2) a joint household
Capacity to conclude binding contracts for household necessaries is dependent on the existence of a joint
household. Where no joint household exists, the purchasing spouse may still bind the other spouse, but
then the basis of liability is no longer on the spouse’s capacity to bind the other in contract for household
necessaries because existence of a joint household is absent. In such event the liability depends on whether
or not the non-contracting spouse is obliged to maintain the other spouse, and this in turn depends on
matrimonial guilt. Thus, the basis of liability rests on the duty of support, which is not dependent on the
existence of a joint household.
(3) the commodities indeed being household necessaries
Household necessaries are the everyday items which are needed for running a household. In general, items
such as food, clothing, medical and dental services, food and veterinary services for the family’s pets, and so
on are household necessaries. Whether or not a specific item is necessary in a specific household is
determined inter alia by the practices and customs of the area, and the family’s social status, income and
past standard of living.
In Reloomel v Ramsay, the husband was a reasonably well-off doctor. His wife bought dress fabric for a
number of silk dresses on credit. The court found that, in view of the family’s standard of living, the dresses
were household necessaries
The courts use 2 tests to determine whether a particular item is a household necessary –

1. objective approach: court considers all the relevant facts of the case to determine whether the
purchasing spouse acted within the scope of his or her capacity. The court looks at the family’s social
background, their standard of living, and the supply of the specific commodity the family already had at
its disposal to determine whether the transaction indeed related to household necessaries.
2. subjective approach: Reloomel v Ramsay – the matter is viewed from the dealer’s point of view and
considers only the facts of which the dealer was aware or of which he or she could reasonably have been
expected to be aware. This approach affords better protection to third parties.
Revocation or limitation of a spouse’s capacity to purchase household necessaries
In terms of section 16(2) of the Matrimonial Property Act, the court can suspend the capacity of a spouse
who is married in community of property to deal with the joint estate for a definite or an indefinite period.
This results in the spouse losing their capacity to bind the joint estate for debts in respect of household
necessaries.
Whether one spouse can unilaterally and without a court order revoke the other spouse’s capacity to
purchase household necessaries is not clear. One view is that a spouse cannot revoke the other’s capacity
because capacity is not based on agency, but comes into being ex lege when a valid marriage and joint
household come into existence. According to case law, revocation is possible provided it is clearly conveyed
to third parties – Reloomel v Ramsay.
The question which arises is what effect the notice has on third parties. The test is divided into an objective
and a subjective approach:
1. objective approach: the spouse who notified the third party would, despite the notice, be liable for items
which (objectively viewed) were household necessaries.
2. subjective approach: the court looks at what the third party knew, and here the notice plays a role. The
onus is on the third party to make further enquiries about the spouse’s circumstances before supplying
one of them with goods. If no enquiries are made, the third party is deemed to know the extent of the
supply of the particular item in the household.
Can one spouse limit the other’s capacity to buy household necessaries on credit by making funds available
to him or her with which household necessaries must be bought? No – Reloomel v Ramsay. The subjective
approach was used and the facts were viewed from the dealer’s point of view. The defence probably would
have succeeded if the objective approach was used
MAINTENANCE ACT, 99 OF 1998
Preceded by the Maintenance Act 23 of 1963. Abrogated and replaced because of the ineffectiveness of its
enforcement mechanism. Still in existence is the Reciprocal Enforcement of Maintenance Orders Act 80 of
1963, which provides for the recognition in South Africa of maintenance orders issued in designated foreign
countries or territories and vice versa. Once the foreign maintenance order has been registered in South
Africa, many of the provisions of the Maintenance Act 99 of 1998 apply to it.

The duty of support extends beyond the duty of support between spouses and blood relations to a
contractual duty of support between persons not related by blood or marriage, hence section 2(1), which
provides that the Act applies irrespective of the nature of the relationship between those persons giving rise
to that duty.
Maintenance complaint and enquiry
Maintenance officers investigate complaints concerning:
- allegations that someone who is liable to maintain someone else is in default;

- good cause exists for substituting or discharging an existing maintenance order
A decision is then made whether or not to institute an enquiry in the maintenance court.
In the case of the substitution of a maintenance order, the Act provides that whenever a maintenance
court…makes an order…in substitution of a maintenance order…the maintenance order shall cease to be of
force and effect (only in so far as the order of the maintenance court expressly or by necessary implication
replaces it).
The maintenance officer has the power to locate a person who is liable to pay maintenance or who can
provide relevant information, gather information about the identification, whereabouts and financial
position of the person who is liable to pay maintenance, the financial position of the person who is entitled
to maintenance, or take statements from anyone who may be able to give relevant information. The
maintenance officer may summon a person to appear before the maintenance court to give evidence or to
produce any book, document or statement.
In terms of section 16 of the Judicial Matters Second Amendment Act 55 of 2003, the maintenance court has
the power to instruct a family advocate to carry out an investigation in terms of the Mediation in Certain
Divorce Mattes Act 24 of 1987.
Maintenance orders
A maintenance court can make an order against the maintenance debtor in favour of the maintenance
creditor. The Act empowers the maintenance court to make an order for the payment of maintenance by
way of a lump sum.
A maintenance order can include any provision the court deems fit regarding payment of medical expenses
in respect of the maintenance creditor, such as requiring the maintenance debtor to register the
maintenance creditor or his or her dependants under his or her medical aid scheme.
The 1998 Maintenance Act further empowers a court which makes or substitutes a maintenance order to
direct someone who owes the maintenance debtor periodical instalments of money because of a contract
between them, to make the periodical payments to the maintenance creditor instead of the maintenance
debtor.
The Act makes provision for orders to be made by default. If the maintenance court is satisfied that the
person against whom the maintenance complaint was made knows that he or she has been subpoenaed to
appear before the court but has failed to do so, it may call upon the maintenance complainant to adduce

evidence in support of the complaint. After considering the evidence, the maintenance court may make,
substitute or discharge a maintenance order, make any other order it considers appropriate, or decline to
make an order. In practice, a maintenance order by default can be made against a maintenance debtor who
tries to prolong or obstruct proceedings by simply not appearing before the court on the appointed date and
time.
A copy of the order by default is delivered to the person against whom it operates and that person may,
within 20 days of becoming aware of the order, apply to the court for its variation or setting aside. Both
parties will then be heard and the maintenance court may confirm, vary or set aside the order by default.
Appeals
An appeal against a maintenance order made by a maintenance court must be brought in the high court.
The lodging of the appeal does not suspend the payment of maintenance. The high court will not easily
grant a variation or discharge of a maintenance order made by the maintenance court because, generally,
the maintenance court is the proper forum for variations and discharges or such orders – Sher v Sher.
Enforcement of maintenance orders
Two methods of enforcement: civil sanctions; criminal sanctions
Civil sanctions
Any order of the maintenance court has the effect of an order in a civil action, and enforcement can take
place in the ordinary courts and not only the maintenance court.
If a maintenance debtor fails to make a payment in accordance with a maintenance order within 10 days
from the date on which the payment becomes payable, the maintenance creditor may apply for:
(1) a warrant of execution against the maintenance debtor’s movable (or if this is insufficient, immovable
property)
The amount recoverable is the amount which the maintenance debtor failed to pay, together with interest
and costs. Execution or attachment can occur against any pension, annuity, gratuity, compassionate
allowance or similar allowance or benefit. The warrant is set aside when the maintenance debtor satisfies
the maintenance court that he or she has already complied with the maintenance order.
Mngadi v Beacon Sweets & Chocolates Provident Fund: court can order a provident fund to retain the
maintenance debtor’s lump sum benefit for use in respect of the maintenance debtor’s future maintenance
payments, and that the court can furthermore order a provident fund to make monthly payments from that
benefit for the maintenance of the maintenance debtor’s dependent children while the maintenance order is
in operation.

(2) an order for the attachment of emoluments due to the maintenance debtor (attachment of his or her
remuneration for employment, such as his or her salary, wage, or allowance, regardless of whether or
not it is expressed in money)
In deciding whether to grant this application, the maintenance court considers the following factors:
1. the maintenance debtor’s existing and prospective means;

2. the financial needs and obligations of, or in respect of, the maintenance creditor;
3. the maintenance debtor’s conduct in so far as it may be relevant regarding his or her failure to comply
with the maintenance order;
4. other circumstances which should, in the court’s opinion, be taken into account.
Once such an order is made, the court must instruct the maintenance debtor’s employer to make payments
on behalf of the maintenance debtor until the amount the maintenance debtor has failed to pay, interest
and costs have been paid. If the maintenance debtor’s employer fails to make any payment, the
maintenance order can be enforced directly against the employer (s 29(4)). Furthermore, that employer
commits an offence. If the maintenance debtor leaves the service of the employer, the employer has 7 days
within which to notify the maintenance officer.
(3) an order for the attachment of any present or future debt owing or accruing to the maintenance debtor
The court must order the person who incurred the debt to make the payments specified in the order. If the
person who owes the maintenance debtor the debt fails or refuses without sufficient reason to make the
payments stipulated in the order, he or she commits an offence.
Criminal sanctions
A person who fails to pay maintenance in terms of a maintenance order can also be charged with the crime
of failing to make a payment in accordance with a maintenance order. If the accused raises the defence that
his or her failure was due to a lack of means, he or she will not be acquitted if it is proved that the failure was
due to his or her unwillingness to work or his or her misconduct. If the accused is convicted of such crime, a
fine or term of imprisonment (with or without the option of a fine) can be imposed on him or her. In
addition, the convicted maintenance defaulter’s personal particulars can be supplied to credit bureaux and
other businesses which grant credit or are involved in the credit rating of persons. Furthermore, the court
can order that the arrear maintenance, plus interest may be recovered from the convicted maintenance
debtor, and execution can be taken against his or her property.
Ignoring a maintenance order can also constitute contempt of court, for which the maintenance defaulter
can be committed to prison. In Bannatyne v Bannatyne, the constitutional court held that contempt of
court proceedings are appropriate constitutional relief for the enforcement of a claim for the maintenance
of children (if the legislative remedies are in some way deficient).
THE MATRIMONIAL HOME

During the subsistence of the marriage, both spouses are entitled to live in the matrimonial home and to use
the household assets irrespective of whether they are married in or out of community of property and
irrespective of which spouse owns or rents the matrimonial home or household assets.
The owning or renting spouse may not eject the other spouse from the matrimonial home without providing
him or her with suitable alternative accommodation. Ejectment will not easily be granted by the court as it is
an extraordinary remedy. Section 28(2) of the Constitution is important here, because it requires that the
best interests of the child be of paramount concern.
A spouse can protect his or her right to live in the matrimonial home and use the household assets without
interference by applying for an interdict. If one spouse has already ejected the other spouse or denied them
access to the home and has changed the locks or removed household assets, the prejudiced spouse can
invoke the mandament van spolie [remedy aimed at restoring control of property. Requirements: (a) proof
that applicant was in peaceful and undisturbed control of property; (b) proof that respondent took or
destroyed that control by unlawful spoliation].
PARENTAL AUTHORITY
Both parents have equal guardianship over their legitimate children, but courts may intervene and deprive
parents of their parental authority.
DONATIONS BETWEEN SPOUSES
Before the commencement of the Matrimonial Property Act on 1 November 1984, spouses who were
married out of community of property were prohibited from making donations to each other. Any donation
which was made in contravention of the prohibition was voidable at the instance of the donor. Section 22 of
the Act provides: “subject to the provisions of the Insolvency Act, 1936, no transaction effected before or
after the commencement of this Act is void or voidable merely because it amounts to a donation between
spouses”. The reason for this is that donations between spouses could seriously prejudice their creditors.
Donations which spouses made to each other before the commencement of the act are valid.
THE FAMILY NAME
Most married women still assume their husband’s surname although they need not do so. According to
section 26(1) of the Births and Deaths Registration Act, a wife may assume her husband’s surname or, after
having assumed his surname, resume a surname she bore at any prior time, or add her married surname to
any surname she bore at any prior time (double-barrel surname). A divorced or widowed woman may also
resume a surname she bore at any previous time. A husband has to apply to the Director-General of Home
Affairs for permission to assume his wife’s surname or add it to his own. This is possibly unconstitutional on
the ground that it unjustifiably violates the rights to equality and equal protection and benefit of the law.
HEADSHIP OF THE FAMILY
In common law, the husband is the head of the family. Despite the fact that this rule is unconstitutional
because it constitutes unjustifiable unfair discrimination on the ground of sex and gender, it still forms part
of our law.
Variable consequences of marriage in community of property

Some consequences can be regulated by the spouses (usually in an antenuptial contract). Variable
consequences mainly relate to the spouses’ estates (property consequences).
Prior to 1 November 1984, 2 main matrimonial property systems existed in South Africa:
- marriage in community of property (rebuttable presumption); and
- marriage out of community of property, excluding community of profit and loss. The husband’s martial
power was also excluded.
The Matrimonial Property Act, which entered into force on 1 November 1984 abolished the martial power
and introduced a third matrimonial property system, namely marriage out of community of property with
the accrual system.
HISTORICAL OVERVIEW OF MARRIAGE IN COMMUNITY OF PROPERTY
The fundamental characteristics of marriage in community of property are that upon marriage all the assets
and liabilities of both spouses are merged into a joint estate of which husband and wife each became owner
of an undivided half-share. All income earned by both spouses stante matrimonio (during the subsistence of
the marriage) falls into the joint estate and all debts are discharged from the joint estate. At the dissolution
of the marriage the joint estate is divided into two equal portions, with each spouse receiving one portion.
THE REBUTTABLE PRESUMPTION OF MARRIAGE IN COMMUNITY OF PROPERTY
The presumption that marriage is in community of property is rebutted by proving any of the following
circumstances:
1. The existence of a valid antenuptial contract in which community of property and community of profit
and loss are excluded.
2. The existence of a valid postnuptial notarial contract in which community of property and community of
profit and loss are excluded.
3. If the husband is domiciled in a country where marriage is automatically out of community of property,
the spouses are married out of community of property, unless they enter into an antenuptial contract in
which they choose community of property. This is pursuant to our law which prescribes that the
patrimonial consequences of marriage are governed by the law of the place where the husband is
domiciled at the time of the marriage (lex domicilii matrimonii).
4. In terms of section 22(6) of the Black Administration Act 38 of 1927, civil marriages entered into by
black persons before the entry into force of the Marriage and Matrimonial Property Law Amendment
Act 3 of 1988 (2 December 1988) are out of community of property, unless the spouses made a joint
written declaration before a magistrate, commissioner or marriage officer, within one month prior to
the marriage, that they wished to marry in community of property, profit and loss. The Marriage and
Matrimonial Property Law Amendment Act repealed section 22(6) of the Black Administration Act.

Black persons who married before the coming into operation of the Marriage and Matrimonial Property
Law Amendment Act could (up until 2 December 1990) cause the provisions of the Matrimonial
Property Act to apply to their civil marriage by executing and registering a notarial contract to that
effect within 2 years of the commencement of the Act and the result is that the provisions of the
Matrimonial Property Act applied from the date on which the contract was registered. Presently,
parties can alter their matrimonial property system in terms of section 21(1) of the Matrimonial
Property Act.
NATURE OF UNIVERSAL COMMUNITY OF PROPERTY
Husband and wife become tied co-owners in undivided and indivisible half-shares of all the assets and
liabilities they have at the time of their marriage as well as all the assets and liabilities they acquire during
the marriage. Upon marriage, the spouses’ separate estates are automatically merged into one joint estate
for the duration of the marriage. Upon dissolution of the marriage, all liabilities are settled from the joint
estate and the balance of the joint estate is then distributed equally between the spouses.
CONTENT OF COMMUNITY OF PROPERTY
Assets
Spouses become co-owners of everything that either of them owned prior to marriage. Transfer of
ownership takes place automatically by operation of law so that no delivery of movable property,
registration of immovable property, cession of rights, and so on, is necessary. Assets acquired by either
spouse after marriage become part of the joint estate, unless excluded.
Separate assets
1. Assets excluded in an antenuptial contract

The fruits of such assets form part of the joint estate unless excluded by antenuptial contract.
2. Assets excluded by will or deed of donation

In terms of common law, a third party can make a donation or bequest to a spouse, subject to the condition
that such asset (and possibly fruits) must not become part of the joint estate.
3. Assets subject to a fideicommissum or usufruct

These assets (including the income or proceeds derived from such property) do not fall within the joint
estate because they are the beneficiary’s personal rights which are inalienable.
4. Jocalia (engagement gifts)

Arrhae sponsalitiae (eg, engagement ring) and sponsalitia largitas (small gifts) do not become part of the
joint estate.
5. Benefits under the Friendly Societies Act 25 of 1956
In terms of section 17 of the Friendly Societies Act, benefits due to a married woman in terms of the Act do
not fall into the joint estate.

6. Non-patrimonial damages
Any amount a spouse recovers by way of non-patrimonial damages for a delict committed against him or her
does not fall into the joint estate (section 18(a) of the Matrimonial Property Act)) – Van den Berg v Van den
Berg.
7. Costs in a matrimonial action
If spouses married in community of property become involved in a matrimonial action without the marriage
being dissolved, any costs awarded to them do not fall into the joint estate.
8. Assets which replace separate assets
By virtue of the maxim pretium succedit in locum rei, res succedit in locum pretii (the price takes the place of
the asset, the asset takes the place of the price) any asset which replaces separate property also falls outside
the joint estate. For example, a spouse selling their inherited motor vehicle.
Attachment of separate assets
Du Plessis v Pienaar & Others – creditors of spouses who are married in community of property can look to
the estates of both spouses for recovery of a joint debt. Thus, even the separate assets of a spouse who is
married in community of property can be attached for joint debts. If a testator excludes property from an
heir’s joint estate, the exclusion operates only as between the spouses and not as against third parties.
Therefore, all property of both spouses fall into the insolvent estate if the spouses are sequestrated.
A spouse’s private creditors can attach his or her separate assets as well as assets belonging to the joint
estate, but if joint assets are attached, the spouse who did not incur the debt has a right of recourse when
the joint estate is terminated. One spouse’s separate assets may however not be attached for the other
spouse’s separate debts.
Liabilities
The merger of liabilities applies to antenuptial debts as well as debts incurred during the subsistence of the
marriage. The spouses are joint debtors, therefore one spouse who is married in community of property
cannot stand surety for the other spouse’s debts because those debts are joint debts, and in our law a
person cannot stand surety for his or her own debt, even if the spouse has assets falling outside of the joint
estate – Nedbank v Van Zyl.
Antenuptial debts

The rule is that marriage in community of property causes all antenuptial debts to become joint debts to be
discharged from the joint estate – this includes contractual debts as well as maintenance obligations towards
parent, siblings, children from a previous marriage, and even extra-marital children. As for antenuptial
delictual debts, section 19 of the Matrimonial Property Act could possibly apply and it provides that the
delictual debt must first be recovered from the separate property of the spouse who committed the delict,
and then from the joint estate to the extent that the spouse’s separate assets are insufficient to meet the
debt. Adjustment will be made upon dissolution of the marriage or division of the joint estate.
Debts incurred during the subsistence of the marriage
(1) Contractual debts
The question to be asked is whether the spouse had the capacity to bind the joint estate. If so, the debt
becomes a joint debt which can be recovered from the joint estate.
(2) Delictual debts
This is regulated by section 19 of the Matrimonial Property Act: when a spouse is liable for damages or a
contribution towards damages for a delict he or she committed, the creditor can recover the amount:
(a) firstly, from the separate property of the spouse who committed the delict;
(b) secondly, if there is no or insufficient separate property, from the joint estate.
Adjustment will be made upon dissolution of the marriage or division of the joint estate. However, if upon
dissolution the joint estate is too small for a total adjustment to be effect, he or she has no remedy.
Spouses who are married in community of property cannot sue each other in delict, as each spouse owns
half the joint estate and the amount recovered as damages will come from the joint estate only to return to
it – Tomlin v London and Lancashire Insurance Co.
The exception to this rule is found in section 18(b) of the Matrimonial Property Act by permitting a spouse
who is married in community of property to recover compensation for non-patrimonial loss in respect of
bodily injuries caused either wholly or partly by the other spouse. Section 18(b) restricts the exception to
the common law rule that spouses who are married in community of property cannot sue each other in
delict, to compensation for non-patrimonial loss in respect of bodily injuries (notwithstanding that the other
spouse has separate assets from which the patrimonial damages can be recovered).
In terms of section 18(a) of the Matrimonial Property Act, the amount the injured spouse receives as
compensation for pain and suffering becomes part of his or her separate estate.
(3) Other separate debts

Subject to the innocent spouse’s right of recourse upon dissolution of the joint estate, a criminal fine should
be recoverable from the joint estate if the guilty spouse has no or insufficient separate assets. The same rule
ought to apply to maintenance debts in respect of a spouse’s parent, sibling, extra-marital child, or child
from a previous marriage, for otherwise the other spouse would be compelled to contribute to the support
of someone in respect of whom he or she has no duty of support.
Section 17(1)(a) of the Matrimonial Property Act provides that a spouse has the capacity to institute legal
proceedings in connection with his or her own separate property without the other spouse’s permission.
Legal costs and debts in respect of such separate property ought also to be recovered first from the separate
property of the spouse concerned.
Debts which are outstanding at the division of the joint estate
Antenuptial contractual debts that have not yet been paid can be recovered only from the original debtor.
The original debtor has a right of recourse for half (pro semisse) of the debt against the other spouse. After
dissolution of the marriage, contractual debts which were incurred during the subsistence of the marriage
can be claimed in full from the spouse who originally incurred the debt. In the alternative, half of the debt
can be claimed from the original debt and the other half from the other spouse. If the original debtor pays
the full debt in full, he or she has a pro semisse right of recourse, as the debt was a joint liability. If one of
the spouses possesses most the assets of the former joint estate after its dissolution (for example, due to a
forfeiture order having been made against the other spouse upon divorce), the debt can be claimed in full
from him or her without the other spouse first being excussed.
(2) Delictual and other separate debts

These can only be claimed from the original debtor. If the original debtor pays the debt, he or she has no
right of recourse against his or her former spouse.
ADMINISTRATION OF THE JOINT ESTATE
The abolition of marital power
Prior to the commencement of the Matrimonial Property Act, the husband had the marital power in all
marriages in community of property. Marital power gave the husband the power to incur debts, and to buy,
sell, pledge, and burden joint assets as well as his wife’s separate assets over which his marital power had
not been excluded. From the women’s perspective, marital power was effectively a restriction on her
capacity to act as well as a personal humiliation because she was placed in a position of inferiority to her
husband. Therefore, section 11 of the Matrimonial Property Act abolished the marital power and replaced it
with a system of equal administration of the joint estate.
When the Matrimonial Property Act was enacted, it did not apply to civil marriages of black people. This
exclusion was removed by the Marriage and Matrimonial Property Law Amendment Act. Since 2 December
1988, the Matrimonial Property Act governs all civil marriages.
Finally, section 29 of the General Law Fourth Amendment Act (1993) abolished marital power completely by
replacing section 11 of the Matrimonial Property Act and further provided that the provisions of the
Matrimonial Property Act regarding equal administration of the joint estate would henceforth apply to all
marriages in community of property irrespective of the date on which they were concluded.

Equal administration of the joint estate
Section 14 of the Matrimonial Property Act provides that a wife married in community of property has the
same capacity to dispose of the assets of the joint estate, incur debts which lie against the joint estate, and
manage the joint estate as her husband. For purposes of the spouses’ interests and the interests of third
parties, the Matrimonial Property Act lays down that, in principle, either spouse can perform any juristic act
with regard to the joint estate without the consent of the other spouse, but that the other spouse’s consent
must be obtained for certain juristic acts. This restricts both spouses’ capacity to act, especially with regard
to actions which could lead to serious friction.
Acts for which consent of both spouses is required
These are listed under sections 15(2) and (3) and section 17(1) of the Matrimonial Property Act. There are 4
types of consent:
(1) prior written consent, attested by two competent witnesses, in respect of each transaction separately,
is necessary for:
(a) alienating or burdening immovable property which forms part of the joint estate, or conferring any
other real right in it
(b) suretyship
Ratification is not permitted! As consent must be granted separately, one spouse cannot grant a power of
attorney to the other to enter into such juristic acts in general.
(2) written consent, attested by two competent witnesses, in respect of each transaction separately, is
necessary for:
(a) entering into a contract to alienate, burden with a mortgage or servitude, or confer any other real right
in immovable property which forms part of the joint estate
(b) receiving credit under a credit agreement as defined in the Credit Agreements Act (which has been
superseded by the National Credit Act)
(c) purchasing immovable property under a contract of sale as defined in the Alienation of Land Act 68 of
1981.
Ratification is permitted in terms of section 15(4) of the Matrimonial Property Act and consent must be
granted separately in respect of each individual act.
(3) written consent without any further requirements (ratification permitted in respect of (a), (b) and (c)),
is necessary for:
(a) alienating, ceding or pledging shares, stock, debentures, debenture bonds, insurance policies, mortgage
bonds, fixed deposits or any similar assets or any investment by or on behalf of the other spouse in a
financial institution

(b) alienating or pledging assets held mainly as investments and which form part of the joint estate, such as
jewels, coins and paintings
(c) withdrawing money credited to the name of the other spouse in any account in a banking institution or
post office savings bank
(d) instituting or defending legal proceedings which do not relate to the spouse’s profession, trade or
business, or his or her separate property, or the recovery of non-patrimonial damages for a delict
committed against him or her.
(4) oral or tacit consent (ratification permitted), is required for:
(a) alienating or pledging furniture or “other effects of the common household” which form part of the
joint estate. Whether a specific item falls within this category is determined in light of the
circumstances of each case. Examples of items which could qualify as household effects are furniture,
curtains, crockery, cutlery, and household appliances, such as stoves, refrigerators, washing machines,
microwaves, tumble driers, etc.
(b) Receiving money which is owed to the other spouse as
1. remuneration in any form, including a bonus, pension, or gratuity for services rendered, or in respect
of his or her profession, trade, or business, or damages for loss of income from those sources;
2. income derived from his or her separate property;
3. interest and dividends on, or the proceeds of shares, investments, insurance policies or annuities;
4. an inheritance, donations, bursary or prize.
(c) donating any asset from the joint estate to a third party if this would unreasonably prejudice the other
spouse’s interests in the case. Whether such unreasonable prejudice will occur is determined in light of
the value of the donation, the reasons for making it, the parties’ standard of living and their social and
financial position, and any other factor the court considers relevant.
Acts for which the other spouse’s consent is unnecessary
No consent required for juristic acts not mentioned in the Matrimonial Property Act. Consent is not
required for the transactions listed in sections 15(2)(b), (c), (f), (g) and (h) if they are performed by a spouse
in the ordinary course of his or her profession, trade or business.
Section 15(7) exempts transactions on the stock exchange concerning listed securities, and transactions
concerning deposits at a banking institution in the name of the spouse who wishes to deal with the deposit,
from the consent requirement.
Protective measures in respect of the administration of the joint estate
Protection of third parties
Section 15(9) of the Matrimonial Property Act protects a third party who enters into a transaction with a
person who is married in community of property if the third party does not know, and cannot reasonably be
expected to know that the persons’ spouse had to consent to the transaction or that the necessary consent
was not obtained. In such a case the transaction is deemed to have been entered into with the required
consent (the transaction is valid and enforceable). This is most probably an objective test – from the
perspective of the reasonable person. A juristic act contravening the consent requirement is invalid.

Protection of the spouses inter partes (between the parties)
(1) Statutory right to adjustment upon dissolution of the joint estate
Section 15(9)(b) of the Matrimonial Property Act governs the position if a spouse enters into a transaction
with a third party while he or she knows or ought reasonably to know that his or her spouse will probably
not consent to the transaction. If the joint estate suffers a loss as a result of the transaction, an adjustment
must be effected upon division of the joint estate in favour of the spouse whose consent was not obtained.
The same applies if the spouse enters into the transaction while his or her power to deal with the joint estate
has been suspended.
(2) Dispensing with the other spouse’s consent
If consent cannot be obtained for some reason, or if a spouse unreasonably withholds consent, the court can
authorize the transaction in terms of section 16(1) of the Matrimonial Property Act. The court will only grant
consent if it is satisfied that a good reason exists for dispensing with the other spouse’s consent.
(3) Suspension of a spouse’s powers in respect of the joint estate
Section 16(2) of the Matrimonial Property Act prescribes that the high court may suspend any power a
spouse has in respect of the joint estate for a definite or indefinite period. The prejudiced spouse must
apply for the order and satisfy the court that the order is necessary for the protection of his or her interests
in the joint estate. If a spouse acts in contravention of a suspension, the consequences are the same as in
the case of juristic acts performed without the required consent.
(4) Immediate division of joint estate
If one spouse’s conduct seriously prejudices the other spouse’s interests in the joint estate, the prejudiced
spouse may apply to court in terms of section 20 of the Matrimonial Property Act for the immediate division
of the joint estate. The applicant must convince the court that:
(a) his or her interests in the joint estate are being seriously prejudiced or will probably be seriously
prejudiced by the other spouse’s conduct or proposed conduct
(b) no other person will be prejudiced by the order.
The court is empowered to replace community of property with any other matrimonial property system that
it deems fit. The court will usually order that the joint estate be divided in equal shares or any other basis.
The factors which are considered in determining the basis of the division are: the duration of the marriage,
the assets each spouse brought into the marriage, each spouse’s debts at the commencement of the
marriage, each spouse’s contribution to the joint estate during the marriage, the prejudice one spouse
suffered in respect of assets of the joint estate during the subsistence of the marriage.
(5) Interdict

The basis for this remedy is fraud (intention to prejudice the other spouse). Very heavy onus of proof. The
interdict is the remedy available if one of the spouses intends to alienate an asset of the joint estate with the
intention of prejudicing the other spouse. The interdict is intended to prevent the transaction from
proceeding. If the threatened juristic act is one for which the Matrimonial Property Act requires spousal
consent, the spouse who approaches the court for an interdict would have to prove that his or her right to
adjustment in terms of section 15(9)(b) of the Matrimonial Property Act does not offer a suitable alternative
remedy.
(6) Common law right of recourse upon dissolution of the joint estate
If one spouse has already alienated assets of the joint estate in fraud of the other spouse, the prejudiced
spouse has a right of recourse against the other spouse or his or her estate upon dissolution of the marriage.
(7) The actio Pauliana utilis [protecting creditors from fraudulent alienation of property]
Uncertain whether this action can be invoked during the subsistence of the marriage or while the joint estate
remains undivided, but this has been criticized as being illogical as the delay may impair the ability of the
spouse to recover assets of the joint estate from a third party.
(8) Having the other spouse declared a prodigal
If this is successful, all the powers that he or she enjoys in terms of the joint estate are taken out of his or her
hands. Such a declaration may unjustifiably infringe the spouse’s constitutional rights to dignity and privacy.
CAPACITY TO LITIGATE
Section 17 of the Matrimonial Property Act regulates the capacity to litigate of spouses who are married in
community of property. One spouse may not institute or defend legal proceedings without the other
spouse’s written consent, unless the proceedings relate to:
1. his or her separate property

2. the recovery of non-patrimonial damages for a delict that was committed against him or her
3. his or her profession, trade or business.
Non-fulfilment of this requirement does not affect the validity of the proceedings. The court may sanction
the non-compliance with the requirement by making a costs order against the litigating spouse. The court
exercises this discretion with due regard to the non-consenting spouse’s interests in the joint estate and the
reasons for the lack of consent.
Insolvency
[Amended] section 17(4) of the Matrimonial Property Act stipulates that applications for the surrender and
sequestration of a joint estate must be made by and against both spouses. However, it further provides that
an application for the sequestration of a debtor’s estate will not be dismissed solely on the ground that the

estate is a joint estate if the applicant satisfies the court that, despite taking reasonable steps, he or she
could not establish whether the debtor is married in community of property or the name and address of the
debtor’s spouse. If the sequestration order is granted against only one of the spouses, the order is valid and
automatically relates to both spouses.
Suing for joint debts
Section 17(5) stipulates which spouse should be sued when a debt is recoverable from the joint estate. The
general rule in respect of joint debts is that the suit must be brought either against both spouses jointly, or
against the spouse who incurred the debt. If the debt was incurred for household necessaries, the spouses
are jointly and severally liable for it.
Variable consequences of marriage out of community of property
If spouses do not wish to be married in community of property, or if they wish to deviate from the normal
consequences of community of property by excluding assets from the joint estate or excluding one spouse’s
liability for the other’s antenuptial debts, they have to enter into an antenuptial contract. The primary
purpose of an antenuptial contract is to deviate from the common law or statutory rules regarding the
matrimonial property consequences of marriage. Antenuptial contracts often include marriage settlements
(donations between spouses).
In the narrow sense, an antenuptial contract refers to the formal contract which is executed before a notary
and registered in the deeds office in terms of the Deeds Registries Act. In the wide sense it is an informal
agreement between the parties which only binds them and includes every kind of agreement between
intending spouses before marriage.
Nature of an antenuptial contract
The primary object is not to create obligations but to determine the matrimonial property system by
excluding or varying the normal patrimonial consequences of marriage.
Formalities for the creation of a valid antenuptial contract
It is only valid inter partes and not valid as against third parties. Section 86 of the Deeds Registries Act
provides that unless an antenuptial contract is registered in terms of section 87 of the Act, it is of no force or
effect as against anyone who is not a party to it. An antenuptial contract which is executed in South Africa
must be attested by a notary and registered in a deeds registry within three months of its execution or
within such extended period as the court may on application allow.
Postnuptial execution and registration of an antenuptial contract
If the spouses entered into an antenuptial contract prior to marriage, but never complied with the
formalities of notarial execution and registration, the high court may be approached in terms of section 88 of
the Deeds Registries Act for permission to have the contract formally executed and registered postnuptially.
The application can be made by either of the spouse or both of them, or even by a beneficiary under a will.

3 requirements must be met before the court will grant its consent:
1. the parties must definitely have agreed on the terms of the antenuptial contract before entering
into marriage
2. the parties must give good reasons for their failure properly to execute and/or register the
antenuptial contract
3. the application must be made within a reasonable time after it was discovered that the
agreement was not properly executed and/or registered.
Additional requirements which apply in respect of the antenuptial contract of a minor
A minor who enters into an antenuptial contract must personally sign the contract. The minor must have his
or her parent or guardian’s consent to enter into an antenuptial contract. If consent must be obtained from
the commissioner of child welfare, the commissioner must assist the minor in the execution of the
antenuptial contract. If the high court grants consent to the marriage, it may order that the minor sign the
antenuptial contract with the assistance of a court-appointed curator.
The parent, guardian, commissioner, or curator need not indicate his or her consent by signing the
antenuptial contract. However, in practice, notaries refuse to execute, and registrars of deeds refuse to
register an antenuptial contract which has not been signed by the minor’s parent or guardian or by someone
else who has been duly authorized to do so. The parent or guardian’s signature is not required.
If a minor has the consent to marry but does not have consent to enter into an antenuptial contract, the
antenuptial contract is void and cannot be ratified or registered after the marriage has taken place.
Contents of an antenuptial contract
The parties may include any provision in their antenuptial contract which is not impossible or contrary to
law, good morals, or the nature of marriage. Essentially, it is “the effect and not merely the fact of the
agreement which must be assessed”.
Matrimonial property system
Most antenuptial contracts exclude community of property and separate the property.
Right of recourse in respect of household necessaries
Section 23 of the Matrimonial Property Act governs liability for household necessaries in marriages out of
community of property. It provides that, as against third parties, the spouses are jointly and severally liable
for debts for household necessaries, irrespective of which of them originally incurred the debt. The spouses

are obliged to contribute to expenses for household necessaries on a pro rata basis (proportionately
according to their respective means). If one spouse contributed more, or has contributed more than his or
her pro rata share, he or she has a right of recourse against the other spouse if the marriage was concluded
before the coming into operation of the Matrimonial Property Act. In marriages concluded after the coming
into operation of the Matrimonial Property Act, there is no automatic right of recourse, but the spouses may
agree that they will nevertheless have a right of recourse against one another.
Succession
In their antenuptial contract, the spouses may agree on the devolution of their estates after their respective
deaths. This is called a pactum successorium and is the only pactum successorium recognised in law.
In order to amend such a succession clause, the amendment must be made by means of a will made jointly
between the spouses. If the spouses do make a will, the surviving spouse has the choice of inheriting either
in terms of the pactum successorium or the will.
Marriage settlements
A marriage settlement is a donation which one spouse makes to the other in terms of an antenuptial
contract. A marriage settlement may be subject to a time clause or condition.
A reversion clause is generally included in respect of a marriage settlement. In a reversion clause the donor
stipulates an event upon which the donation will revert to him or her, for example, if the beneficiary
predeceases the donor. The clause is enforceable, provided it does not violate the institution of marriage or
its sanctity.
In principle, a marriage settlement becomes irrevocable when the marriage takes place. However, because
the prohibition on donations between spouses has been abolished, spouses can freely agree to cancel or
amend a marriage settlement. If they cannot reach agreement, the donation specified in the antenuptial
contract must be carried out unless the court orders amendment of the marriage settlement.
Prior to the entry into force of the Matrimonial Property Act, marriage settlements were common, as they
were exempt from the prohibition on donations between spouses. Because of the abolition of the
prohibition, spousal donations need no longer be included in an antenuptial contract. The only advantage of
including a donation in the antenuptial contract is that such inclusion confers some protection on the
donation in the case of insolvency.
Interpretation of an antenuptial contract
Interpreted in exactly the same way as any other contract. The intention of the spouses must be clear.
Every legal consequence which is neither explicitly nor tacitly excluded is retained pursuant to the common
law or statute.

Cancellation and amendment of an antenuptial contract
Parties can cancel or amend their antenuptial contract right up until the wedding. Once the wedding has
taken place, the parties cannot cancel or amend the antenuptial contract (subject to the condition that
postnuptial alterations operate only as between the spouses).
Section 21(2) of the Matrimonial Property Act did make provision for a transitional period during which
spouses who married before the coming into operation of the Act with an antenuptial contract excluding
community of property and community of profit and loss could make the accrual system applicable to their
marriage, without the intervention of the court, by the mere execution and registration of a notarial contract
to that effect. The transitional period existed up until 1 November 1988.
If the spouses appoint a third party as heir or legatee in their antenuptial contract and the third party is a
party to the antenuptial contract, they cannot revoke the third party’s benefit without his or her consent. If
the third party is not a party to the antenuptial contract but has already accepted the benefit the antenuptial
contract confers on him or her, the spouses likewise cannot revoke the succession clause without the third
party’s consent. In all other cases the spouses can revoke or amend the third party’s benefit by means of a
joint will.
An antenuptial contract can also be amended (rectified) by the high court if it does not properly convey the
terms of the parties’ actual agreement.
Termination of an antenuptial contract
An antenuptial contract does not lapse on dissolution of the spouses’ marriage. The antenuptial contract
comes to an end only when all the contractual obligations have been fulfilled.
MARRIAGE OUT OF COMMUNITY OF PROPERTY AND COMMUNITY OF PROFIT AND LOSS WITHOUT THE
ACCRUAL SYSTEM (COMPLETE SEPARATION OF PROPERTY)
Since the coming into operation of the Matrimonial Property Act, a marriage which is entered into with an
antenuptial contract which excludes community of property and community of profit and loss is
automatically subject to the accrual system. If the spouses do not wish the accrual system to apply to their
marriage they therefore have to stipulate this in their antenuptial contract.
In marriages out of community of property and community of profit and loss without the accrual system, a
complete separation of property arises. In such a marriage each spouse has full capacity to act and can enter
into contract without the other’s assistance. The spouses can also freely enter into contracts with each
other. The spouses are not liable for each other’s contractual debts as each spouse binds only himself or

herself. The spouses are also not liable for each other’s delicts and can sue each other delictually. Husband
and wife have full capacity to litigate and can independently institute or defend legal proceedings.
MARRIAGE OUT OF COMMUNITY OF PROPERTY WITH RETENTION OF COMMUNITY OF PROFIT AND LOSS
Each spouse retains the assets he or she owns at the time of the wedding and remains separately liable for
his or her antenuptial debts. Donations, bequests and inheritances which are received during the
subsistence of the marriage remain the separate property of the spouse who receives them. In this regard
the position is exactly the same as in a marriage which is subject to complete separation of property.
However, because community of profit and loss is retained, all profit and loss arising during the marriage
becomes joint profit and loss and constitute a joint estate owned in an undivided half share by each spouse.
The main differences between marriage out of community of property with retention of community of profit
and loss and the accrual system are that in the case of community of profit and loss the spouses share
postnuptial gains and losses, and this sharing occurs during the subsistence of the marriage. Under the
accrual system, on the other hand, only profits are shared, and the sharing only takes place upon dissolution
of the marriage.
THE ACCRUAL SYSTEM
Prior to the commencement of the Matrimonial Property Act most antenuptial contracts provided for
complete separation of property. This matrimonial property system often proved very prejudicial to the
wife. If she was a housewife and mother who was unable to accumulate her own estate, she could find
herself in a most unfavourable financial position upon dissolution of the marriage – her husband could
completely disinherit her, she had no claim for maintenance against his estate, and so on. The accrual
system is an attempt to address this situation. The accrual system is founded on the notion that at the
dissolution of a marriage out of community of property and community of profit and loss both spouses ought
to share in the growth their estates have shown, without there having been a joint estate during the
Marriages to which the accrual system applies
Section 2 of the Matrimonial Property Act provides that the accrual system applies to all marriages which are
concluded out of community of property and community of profit and loss after the coming into operation of
the Act (on or after 1 November 1984), unless this system is expressly excluded in the couple’s antenuptial
contract.
The accrual system does not automatically apply to marriages out of community of property and community
of profit and loss which were concluded before 1 November 1984.
When and how accrual sharing takes place
The accrual system can be described as a type of postponed community of profit. During the subsistence of
the marriage, it is out of community of property and community of profit and loss. Each spouse retains and

controls his or her own estate, but upon dissolution of the marriage, the spouses share equally in the accrual
or growth their estates have shown during the subsistence of the marriage. If the marriage is dissolved by
death, the accrual of the deceased spouse’s estate is determined before effect is given to any inheritances or
donations mortis causa (upon the deceased’s death). Accrual sharing thus takes place before the deceased
spouse’s estate is distributed in terms of the rules of the law of succession.
Section 3(1) of the Matrimonial Property Act provides that accrual sharing is brought about by giving the
spouse whose estate shows the smaller accrual or no accrual at all, a claim against the other spouse or his
estate (value of estate) for an amount equal to half of the difference between the accrual of the respective
estates of the spouses.
During the marriage, the accrual claim is not an asset in the estate of the ultimate recipient. Section 3(2)
provides that during the marriage, the right of a spouse to share…in the accrual of the estate of the other
spouse is…not transferable or liable to attachment, and does not form part of the insolvent estate of a
spouse. The claim arises only upon dissolution of the marriage, but the right to share in the other spouse’s
accrual has a separate existence from the claim, and the right exists during the subsistence of the marriage.
It is a contingent right, which only becomes vested when the marriage is dissolved and if there is an accrual
claim.
(a) Renouncing the accrual claim
If the spouse who wishes to renounce his or her claim is solvent, there should be no objection to the
renunciation, as a solvent person may renounce any claim. Potential prejudice to the creditors could be
caused if the insolent spouse renounces the accrual claim as ultimately, renunciation of the claim would
amount to a disposition without value as envisaged in section 26 of the Insolvency Act.
Calculating the accrual
Section 4(1)(a) of the Matrimonial Property Act provides that the accrual of a spouse’s estate is the amount
by which the net value of his or her estate at the dissolution of the marriage exceeds the net value of his or
her estate at the commencement of the marriage. Certain assets are excluded from the accrual.
To calculate accrual, one has to deduct the net commencement value of the estate as well as the value of
the assets which do not form part of the estate’s accrual, from the net end value of the estate. The
Matrimonial Property Act imposes a reciprocal duty on spouses to provide each other with full particulars of
the value of the respective estates for the purpose of determining the accrual.
(i) Commencement value (initial value)
Methods to determine commencement value:
1. A spouse can declare the net commencement value of his or her estate in the antenuptial
contract. If this is not done, the commencement value can be declared in a separate statement
either before, or within six months of the wedding. This statement must be signed by the other
spouse, attested by a notary, and filed together with a copy of the parties’ antenuptial contract in

the protocol of the notary before whom the antenuptial contract was executed. This is prima
facie proof of the commencement value of the estate.
2. If the commencement value is not declared in either the antenuptial contract or a separate
statement, it is deemed to be nil unless the contrary is proved.
3. The net commencement value of a spouse’s estate is also deemed to be nil if the spouse’s
liabilities exceed his or her assets at the commencement of the marriage.
Due allowance has to be given to the fluctuating value of money. The weighted average of the consumer
price index (CPI) is prima facie proof of any change in the value of money. The number by which the
commencement value must be multiplied to get the adapted commencement value is calculated as follows:
CPI value for the month in which the marriage is dissolved
CPI value for the month of the wedding.
(ii) Assets which do not form part of the accrual
1. Any non-patrimonial damages a spouse receives during the marriage;

2. Assets the spouses exclude in their antenuptial contract. The proceeds of such excluded assets, and
assets which replace such excluded assets or are acquired with their proceeds, are also excluded;
3. An inheritance, legacy or donation one of the spouses receives from a third party. The proceeds of
inheritances, legacies and donations, and assets which replace, or are acquired with the proceeds of such
assets are also excluded. An inheritance, legacy or donation does form part of the accrual if the testator
or donor stipulates this, or if the parties include a clause to this effect in their antenuptial contract;
4. Donations inter vivos (between living persons) between the spouses.
Protection of a spouse’s right to share in the accrua
Because it is obvious that the spouses also have an interest in each other’s estates during the marriage, a
mechanism has been created to protect this interest. Section 8(1) of the Act provides that if, during the
subsistence of the marriage, one spouse by his or her conduct seriously prejudices or will probably seriously
prejudice the other spouse’s right to share in the accrual of his or her estate at the dissolution of the
marriage, the spouse who stands to be so prejudiced may apply to the high court for the immediate division
of the accrual. The court will only order this if no other person will be prejudiced thereby.
The court is empowered to divide the accrual on any basis it deems fit, such as 40/60 as against the usual
50/50. By making an unequal division of the accrual, the court can compensate the prejudiced spouse for
loss suffered as a result of the other spouse’s conduct.
If the court orders immediate division, it may also order that the marriage will no longer be subject to the
accrual system, and will in future be subject to complete separation of property or a new accrual system will
apply.

If a spouse who stands to be prejudiced by the conduct of the other spouse, she or he can seek an interdict
to prevent the other spouse from entering into the juristic act which will prejudice him or her. But if the
other spouse has already depleted his or her estate there is little the prejudiced spouse can do. If the assets
have been transferred to a third party, the prejudiced spouse can recover the property from the third party
with the actio Pauliana utilis, but the prejudiced spouse’s chances of success are slim. The spouse may apply
to have the other spouse declared a prodigal, although this probably amounts to an unjustifiable
infringement of the person’s constitutional rights to dignity and privacy. Moreover, a declaration that the
spouse is a prodigal would afford the prejudiced spouse any redress of the other spouse’s past conduct.
Satisfaction of the accrual claim
Section 10 of the Matrimonial Property Act provides that a court may, on the application of the spouse
against whom an accrual claim lies, order that satisfaction of the accrual claim be deferred (if the immediate
satisfaction of the claim could cause him financial prejudice). The deferment may be granted on such
conditions as the court deems just, for example, furnishing security, payment by way of instalments,
payment of interest and delivery and transfer of specified assets.
Advantages and disadvantages of the main matrimonial property systems
Advantages of marriage in community of property
1. It applies by operation of law without an antenuptial contract having to be executed and therefore
requires no effort or expense on the part of prospective spouses;
2. Each spouse automatically shares in the assets that are accumulated during the subsistence of the
marriage;
3. Antenuptial assets are also shared;
4. The credit-worthiness of husband and wife is the same during the subsistence of the marriage.
Disadvantages of marriage in community of property
1. The principle of joint liability for debts results in neither spouse being protected against the other’s
creditors. Insolvency, in particular, poses serious problems for both spouses;
2. One spouse is relatively unprotected against delictual liability the other spouse may incur as against third
parties;
3. In general, the spouses cannot recover delictual damages from each other. Consequently, they cannot
hold each other’s insurers liable either;
4. The administration of the joint estate during the subsistence of the marriage is complicated. As long as
the marriage remains happy this matters little, because under those circumstances the rules of
matrimonial property la are in any event unimportant, but in the case of marital discord the consent
requirement and breach of the consent requirement, may create problems;

5. A liquidity problem can occur if the marriage is terminated by the death of one of the spouses.
Advantage of separation of property
The absence of any form of sharing may be an advantage.
Disadvantage of separation of property
The spouses have no right to share in any part of one another’s estate. This obviously prejudices the spouse
who is financially in the weaker position at the dissolution of the marriage.
Advantages of the accrual system
1. The spouses share in the accrual of each other’s estate;
2. Whatever each spouse amassed prior to the marriage is not shared;
3. The spouses are not liable for each other’s debts, with the result that each spouse’s estate is protected
against claims by the other’s creditors, except possibly when one of them is insolvent at the dissolution
of the marriage;
4. The spouses my freely enter into contracts with each other;
5. The spouses can incur delictual liability against each other and can consequently hold each other’s
insurers liable;
6. The administration of each spouse’s estate is uncomplicated.
Disadvantages of the accrual system
1. The spouses have to enter into an antenuptial contract to apply this system to their marriage;
2. The spouses do not share in each other’s credit-worthiness, which can result in the spouse who does not
work outside the home having little credit-worthiness during the subsistence of the marriage if his or her
estate is small;
3. The calculation of the accrual upon dissolution of the marriage can be complicated.
SECTION 4: DISSOLUTION OF A CIVIL MARRIAGE – DEATH AND DIVORCE
Marriages are dissolved in 3 ways:
1. Death of one or both of the spouses;

2. Annulment of a voidable marriage;
3. Divorce.
Judicial separation

Until the Divorce Act, courts had the power to issue orders for judicial separation. This merely temporarily
suspended some of the spouses’ marital obligations, particularly the duty of cohabitation. Section 14 of the
Divorce Act deprived courts of this power and therefore, judicial separation has virtually become obsolete.
Extra-judicial separation
Extra-judicial separation rests on an agreement between the spouses that they will live apart. The spouses
can come to a matrimonial property arrangement covering the period for which they will live apart, but this
agreement is only effective as between the parties. It can determine who is to stay in the matrimonial home
and who is to leave; if there are minor children, who is to have their custody; who is t have the furniture, the
car and the dog or cat; and who is to pay maintenance to the other, and how much.
Despite the separation agreement, either spouse may institute divorce proceedings, seek an order of court in
connection with custody or guardianship of, or access to the children, or approach the court to amend the
maintenance agreement the spouses made privately.
Dissolution of a civil marriage by death
Marriage in community of property
Death of either of the spouses dissolves both the marriage and the community of property. An executor
winds up the joint estate in terms of the Administration of Estates Act. This involves paying all debts owed
by the joint estate and exacting payment for all debts owed to the joint estate. Any unpaid antenuptial
debts of either spouses are not paid from the joint estate but from the net half of the debtor, irrespective of
whether this is the deceased or surviving spouse.
Once all debts have been settled, the executor delivers half of the net balance of the joint estate to the
surviving spouse, because the surviving spouse owns this portion by virtue of the matrimonial property
system which operated in the marriage, and not because she inherits it. The other half devolves on the heirs
of the deceased spouse.
In order to meet creditors’ claims, the executor is often entitled and obliged to liquidate some of the assets
of the joint estate. This applies even in respect of immovable property because the executor may not
mortgage such property to discharge a debt. Even if there are no creditors, the surviving spouse may
experience serious problems if the heirs’ inheritances have to be paid out in cash. Often this deprives the
surviving spouse of his or her only shelter or means of income. The surviving spouse is however allowed to
buy some of the assets or even the whole joint estate in order to pay out the heirs. A further disadvantage is
that control of the joint estate is removed from the surviving spouse and vested in the executor. Without
the consent of the master of the high court, the surviving spouse may only deal with the assets of the estate
in order to preserve and protect them, to pay the deceased’s funeral expenses, and to maintain the
household and the deceased’s or his or her own dependants.
Marriage out of community of property
Antenuptial contracts are not terminated by the death of either spouse. Any outstanding settlements and
pacta successoria (agreements concerning devolution of an estate) must be implemented.

The executor winds up only the deceased spouse’s estate. The surviving spouse must institute an action
against the executor in respect of any claims he or she has against the deceased estate, including a claim for
household necessaries in terms of section 23 of the Matrimonial Property Act. If the accrual system applies
and the accrual of the surviving spouse’s estate is less than that of the deceased spouse’s estate, the
surviving spouse must lodge a claim against the deceased spouse’s estate. If the accrual of the deceased
spouse’s estate is less than that of the surviving spouse’s estate, the executor must lodge a claim against the
surviving spouse on behalf of the deceased spouse’s estate.
Maintenance of Surviving Spouses Act
The surviving spouse in a marriage which is dissolved by death after 1 July 1990 has a claim for maintenance
against the estate of his or her deceased spouse in respect of his or her reasonable maintenance needs until
death or remarriage. The claim only arises in so far as the surviving spouse is unable to provide for his or her
reasonable maintenance needs from his or her own means and earnings. The surviving spouse’s means
include any matrimonial property (such as half the joint estate or a share of the accrual of the deceased
spouse’s estate) and any inheritance from the deceased’s estate to which he or she may be entitled.
The following factors are considered in determining the surviving spouse’s reasonable maintenance needs:
1. the amount available in the deceased estate for distribution to heirs and legatees;
2. the surviving spouse’s existing and expected means, earning capacity, financial needs and obligations;
3. the duration of the marriage;
4. the surviving spouse’s standard of living during the subsistence of the marriage;
5. the surviving spouse’s age at the time of the deceased’s death;
6. any other relevant factor.
The surviving spouse’s claim for maintenance and the dependent children’s claim for maintenance has the
same order of preference as other claims against the deceased’s estate. If they compete with each other
and there are insufficient resources from which they can be met, they are reduced proportionately. The
claim must be lodged with the executor of the deceased estate. The executor has an additional power,
which is to enter into an agreement with the surviving spouse and the interested heirs and legatees in order
to settle the surviving spouse’s maintenance claim either fully or partially.
The surviving spouse does not have a right of recourse in respect of his or her maintenance claim against
anyone to whom money or property has been validly distributed in terms of the Administration of Estates
Act.
The position of surviving customary and Muslim spouses
The recognition afforded to customary marriages by the Recognition of Customary marriages act 120 of 1998
has brought surviving customary spouses within the ambit of the Act. Because the Recognition of Customary
Marriages Act affords full legal recognition to customary marriages regardless of whether or not they are de

facto polygynous or monogamous, all the surviving customary wives in a polygynous customary marriage
may lodge a claim for maintenance against their deceased husband’s estate (and would often have to be
reduced proportionately if there are insufficient resources).
In respect of monogamous Muslim marriages the constitutional court has concluded that the words
“spouse” and “survivor” in the Maintenance of Surviving Spouses Act include a Muslim spouse and a Muslim
surviving spouse in monogamous (and polygynous) Muslim marriages.
The position of surviving life partners
Excluding a permanent life partner from a maintenance claim against his or her deceased life partner’s
estate in circumstances where a spouse would have such a claim, violates the equality clause of the
Constitution and infringes the right to dignity of surviving life partners. In order to remedy the
unconstitutionality of such a situation, the definition of “marriage” in the Maintenance of Surviving Spouses
Act has been extended to deem a permanent life partner to be a spouse, and deems a surviving permanent
life partner to be a surviving spouse. [See Volks v Robinson (CC)].
Dissolution of a civil marriage by divorce
3 no-fault grounds for divorce were introduced by the Divorce Act:
1. irretrievable breakdown of the marriage (section 4);

2. mental illness of a party to the marriage (section 5);
3. continuous unconsciousness of a party to the marriage (section 3).
Irretrievable breakdown of the marriage
Section 4(1) – court may only grant a decree of divorce on the ground of the irretrievable breakdown of a
marriage if it is satisfied that the marriage relationship between the parties to the marriage has reached such
a state of disintegration that there is no reasonable prospect of the restoration of a normal marriage
relationship between them. There are thus 2 requirements:
(a) marriage relationship must no longer be normal;

(b) there must be no prospect of the restoration of a normal marriage relationship between the spouses.
The legal definition of “normal marital relationship” should be sought in the concept of consortium omnis
vitae. When either spouse or both of them behave in such a way that the consortium omnis vitae is

terminated or seriously disrupted, it can be said that a normal marriage relationship no longer exists
between the spouses.
Schwartz v Schwartz: in determining whether a marriage has reached such a state of disintegration that
there is no reasonable prospect of the restoration of a normal marriage relationship between the parties it is
important to have regard to what has happened in the past, that is, history of the relationship up to the date
of trial, and also to the present attitude of the parties to the marriage relationship as revealed by the
evidence at the trial.
Swart v Swart: a marriage has broken down if one spouse no longer wishes to continue with the marriage.
The formation of an intention to sue for divorce is the subjective element in the method of determining
marriage breakdown. However, in order to assess the probability of a successful reconciliation being
effected, the court also has to consider the reasons that prompted the plaintiff to sue for divorce, and the
parties’ conduct. Only when the court has determined that there is no reasonable prospect of reconciliation,
will it find that the marriage has broken down irretrievably and grant a decree of divorce. The court looks at
the objective scantiness and surmountability of the reasons why a divorce was applied for to ascertain
whether the marriage in question can still be saved.
Coetzee v Coetzee: in order to succeed in a divorce action based on irretrievable breakdown, the plaintiff
must prove that there has been a change in the pattern of the marriage from which breakdown can be
deduced. The inherent problem in this conception is that a divorce cannot be obtained in a marriage which
was unhappy from the start and remained unhappy throughout.
Guidelines for irretrievable breakdown of marriage (section 4(2))
The guidelines are merely examples of instances where the probability is high that a normal marriage
relationship no longer exists and that there is no reasonable prospect for the restoration of a normal
marriage relationship. However, these guidelines are not exhaustive nor conclusive.
(1) parties have not lived together as husband and wife for a continuous period of at least one year
immediately prior to the date of the institution of the divorce action
Since the legislator requires an unbroken period of at least one year, it is clear that if the period was
interrupted by periods of resumed cohabitation, the plaintiff would have to present more evidence to the
court than the mere fact that they have lived apart for a year.

The consortium between the spouses must have been terminated. Even if the spouses have continued living
together under the same roof there is no reason why the plaintiff cannot show that the consortium between
them has been terminated.
If the plaintiff wishes to rely only on the spouses having lived apart for a year without adducing any further
evidence in support of the divorce action, he or she would have to produce proof that the full period of a
year has elapsed. If the spouses still share the same dwelling, the plaintiff would have to prove the
particular point in time at which the consortium came to an end.
(2) The defendant has committed adultery and the plaintiff finds it irreconcilable with a continued marriage
relationship
The test to determine whether the plaintiff considers the defendant’s adultery irreconcilable with the
continuation of the marriage is clearly subjective. If the plaintiff alleges that he or she cannot continue with
the marriage, there is no way in which this allegation can be refuted. There is support for the contention
that it is not necessary to convince the court on a balance of probabilities that adultery was committed. The
plaintiff should however place some evidence of the adultery before the court. A mere allegation that the
defendant committed adultery would not be sufficient to ensure the success of the divorce action.
(3) A court has declared the defendant a habitual criminal and the defendant is undergoing imprisonment as
a result of that sentence
If the defendant has not been declared an habitual criminal, the plaintiff would have to adduce evidence
other than the mere fact of the defendant’s imprisonment to prove that the marriage has broken down
irretrievably. In any event, in terms of section 4(2), a plaintiff may sue for divorce after a year’s separation,
regardless of whether or not the separation resulted from imprisonment.
Incurable mental illness or continuous unconsciousness
The criteria
Section 5(1) – mental illness
1. The defendant has been admitted to an institution as a patient in terms of a reception order under
the Mental health Act, or is being detained as a state patient or mentally ill convicted prisoner at an
institution;

2. The defendant has not been unconditionally discharged from the institution or place of detention
for a continuous period of at least two years immediately prior to the institution of the divorce
action;
3. There is no reasonable prospect that the defendant will be cured of his or her mental illness. This
fact must be proved by the evidence of at least two psychiatrists, one of whom must be appointed
by the court.
Section 5(2) – continuous unconsciousness
1. The defendant must be in a state of continuous unconsciousness caused by a physical disorder;

2. The defendant’s unconscious state must have lasted for a period of at least six months immediately
prior to the institution of the divorce action;
3. There must be no reasonable prospect that the defendant will regain consciousness. This fact must
be proved by the evidence of at least two doctors, one of whom must be a neurologist or
neurosurgeon appointed by the court.
The requirements of section 5 need not be complied with in order to obtain a divorce order against a
mentally ill or unconscious spouse. A decree of divorce can be granted under section 4 if the plaintiff can
prove that the marriage has broken down irretrievably. Only in the most exceptional circumstances will a
court make a forfeiture order against a defendant whose mental illness or unconsciousness is the reason for
a divorce which is granted in terms of section 4.
Special rules which apply in terms of the Divorce Act:
(a) Section 5(3)
The court is empowered to appoint a legal practitioner to represent the defendant at the court proceedings,
and to order the plaintiff to bear the costs of the defendant’s legal representation.
(b) Section 5(4)
The court may make any order it deems ft in respect of requiring the plaintiff to furnish security for any
patrimonial benefits to which the defendant may be entitled as a result of the divorce.
(c) Section 9(2)
Forfeiture of patrimonial benefits may not be ordered against a defendant if the marriage is dissolved on the
ground of the defendant’s incurable mental illness or continuous unconsciousness.
(d) Maintenance

The plaintiff may indeed claim maintenance from the mentally ill or unconscious defendant if he or she
qualifies for maintenance in terms of section 7(2) of the Act.
Defences against an action for divorce
If a spouse rebuts allegations that the marriage has broken down irretrievably, a divorce will not be granted.
The proceedings may be postponed in terms of section 4(3) if there is the prospect of reconciliation. An
unsuccessful attempt at reconciliation does present strong evidence of irretrievable breakdown so a decree
of divorce will be granted.
The provision in section 6(1) of the Divorce Act that a decree of divorce may not be granted until the position
of the couple’s minor or dependent children has been satisfactorily arranged, does not constitute a defence
against an action for divorce. It is a complete bar to a decree of divorce.
The court’s discretion to refuse a decree of divorce
The court does not have a discretion whether or not to grant a divorce if one of the grounds for divorce has
been proven. In terms of section 5A of the Divorce Act, the court is empowered to refuse a divorce or to
make any other order it considers just if, despite the divorce, the spouses or either of them will not be free
to remarry unless the marriage is also dissolved in accordance with the prescripts of their religion or the
religion of either of them, or unless a religious barrier to remarriage is removed. The purpose of this
provision is to relieve the desperate position in which, for example, a Jewish woman finds herself if her
husband refuses to grant her a Jewish religious divorce (a get) – Raik v Raik.
Amar v Amar: Judge Goldstein issued a divorce decree in terms of the Divorce Act but ordered the husband
who was unwilling to co-operate in obtaining a get, to pay maintenance to his wife (who was not otherwise
entitled to maintenance from him) until such time as their marriage was terminated by the granting of a get.
Patrimonial consequences of divorce (division of spouses’ assets)
Settlement agreements
In South Africa it is accepted practice to regulate the consequences of divorce by means of agreement. This
deed of settlement details division of their assets, payment of maintenance, custody of, and access to their
children, and payment of the costs of the proceedings.

The parties may include any provision in their deed of settlement which is not impossible, illegal, or contra
bonos mores. The parties may agree on a division of their assets which deviates from the normal rules
regarding the matrimonial property system which operates in their marriage.
In terms of section 7(1) of the Divorce Act, the court may incorporate (the whole or parts of) the spouses’
settlement agreement into the divorce order if it is in writing. The divorce order incorporating the
settlement agreement may be amended or rescinded by mutual consent.
Patrimony of the spouses
The division of the spouses’ assets depends firstly, on the matrimonial property system in place and
secondly, on whether or not the court orders forfeiture of patrimonial benefits. In certain marriages out of
community of property, the court also has a discretion to order redistribution of assets.
If the court does not grant an order for forfeiture of benefits, the divorce order in respect of a marriage in
community of property automatically operates as an order for division of the joint estate. If the spouses
cannot reach agreement on how the estate is to be divided, the court may either order the division it deems
just or appoint a liquidator to divide the estate.
Misconduct still plays a role in respect of the patrimonial consequences of divorce, as fault is taken into
account in respect of forfeiture of benefits and redistribution of assets. It is also considered in respect of
spousal maintenance.
(1) Pension interests
Traditionally, a future pension or retirement annuity benefit was not included in a spouse’s estate upon
divorce as the right to claim the benefit only vests in the spouse when he or she retires or reaches a certain
age. However, in terms of section 7(7)(a) of the Divorce Act, a spouse’s pension interest is now deemed to
be part of his or her assets upon divorce.
In terms of the definition of “pension interest” in section 1 of the Divorce Act, the value of a spouse’s
pension interest is calculated in the following manner:

1. If the spouse is a member of a pension fund other than a retirement annuity fund, the pension
interest is the benefit to which the spouse would have been entitled had he or she terminated his
or her membership of the fund on the date of the divorce;
2. If the spouse is a member of a retirement annuity fund, the pension interest is equal to all his or
her contributions to the retirement annuity fund up to the date of the divorce, together with
annual simple interest on those contributions calculated at the rate the Minister of Justice and
Constitutional Development prescribes in terms of the Prescribed Rate of Interest Act.
Schenk v Schenk: the Act does not make provision for growth on the portion of the pension benefit which is
to be paid to the non-member spouse, nor does it provide for the payment of interest.
Spouses’ pension interests are not taken into account if they married with complete separation of property
on or after 1 November 1984.
Forfeiture of patrimonial benefits
Requirements for a forfeiture order
Section 9(1) of the Divorce Act prescribes that the following factors should be considered in determining a
total or partial forfeiture:
1) the duration of the marriage;

2) the circumstances which led to the breakdown of the marriage;
3) any substantial misconduct on the part of either spouse.
Wijker v Wijker: these factors need not all be present and need not be viewed cumulatively. The court also
held that no-fault divorce did not do away with fault as a factor in respect of forfeiture orders. Further, it is
submitted that an order for forfeiture of benefits may only be granted if the court is satisfied that in the
absence of the order, one spouse will be unduly benefited in relation to the other.
The court may not use a forfeiture order as a mechanism for deviating from the normal consequences of the
spouses’ matrimonial property system. It is clear that the mere fact that the consequences of a specific
matrimonial property system do not suit a party, does not entitled him or her to forfeiture of benefits.
Benefits which can be forfeited

Forfeiture of benefits does not mean that a spouse loses his or her own assets. It merely entails that the
spouse loses the claim he or she has to the other spouse’s assets.
In a marriage in community of property, the benefits which can be forfeited are the spouse’s share of the
assets brought into the marriage by, or acquired as a result of the other spouse’s effort.
Watt v Watt: Benefits which can be forfeited in the case of a marriage out of community of property include
the right to share in the accrual of the other spouse’s estate, benefits by virtue of a succession clause and
marriage settlements.
Botha v Botha: question of whether there would be undue benefit to one spouse if a forfeiture order is not
made, with reference to the 3 requirements in section 9(1) of the Divorce Act.
Redistribution of assets as a reformative and remedial measure
As the accrual system has no retroactive effect, the legislator inserted sections 7(3) to (6) into the Divorce
Act to assist spouses who married with complete separation of property prior to the commencement of the
Matrimonial Property Act or the Marriage and Matrimonial Property Law Amendment Act. Sections 7(3) to
(6) empower the court to make an order that the assets, or part of the assets of one spouse be transferred
to the other spouse if the court considers this to be just. These provisions introduced an entirely novel
concept (redistribution of assets upon divorce) into our law. Its purpose was to remedy the inequity which
could flow from failure of the law to recognise a right of a spouse upon divorce to claim an adjustment of a
disparity between the respective assets of the spouses which is incommensurate with their respective
contributions during the subsistence of the marriage – Beaumont v Beaumont.
Prerequisites for a redistribution order
Section 7(3) – a spouse may ask the court to transfer the other spouse’s asset, or such part of the other
spouse’s assets as the court may deem just, to him or her, if the spouses did not enter into an agreement
concerning the division of their assets and they were married:
1. prior to the commencement of the Matrimonial Property Act with an antenuptial contract which
excludes community of property, community of profit and loss, and accrual sharing in any form;
2. prior to the commencement of the Marriage and Matrimonial Property Law Amendment Act in
terms of section 22(6) of the Black Administration Act.

Lagesse v Lagesse: foreign marriage. Parties had married in terms of the law of Mauritius and had not
concluded a formal antenuptial contract but at the time of their wedding a note had been made in the
margin of their marriage certificate that they wanted their marriage to be governed by the Status of Married
Women Ordinance of 1949 (Mauritius). Under this ordinance, complete separation of property operates in
the marriage. Accordingly, the wife could invoke section 7(3) of the Divorce Act. No consideration was given
to the rule that the proprietary consequences of a marriage are governed by the lex domicilii matrimonii,
which is submitted to be erroneous.
Subsection 7(9) of the Divorce Act empowers a South African court which grants a divorce order in respect of
a marriage the patrimonial consequences of which are governed by foreign law, to order redistribution of
assets if the court of the foreign state has that power.
Requirements for a redistribution order
Section 7(4):
1. the spouse who seeks redistribution must have contributed directly or indirectly to the maintenance or
increase of the other spouse’s estate during the subsistence of the marriage [factual];
2. the court must be satisfied that, by reason of such contribution, it would be equitable and just to make a
redistribution order [discretionary].
The nature of the contribution to the maintenance or increase of the other spouse’s estate:
1. the rendering of services (eg: working in the other spouse’s business, without any compensation or for a
very small salary);
2. saving of expenses which would otherwise have been incurred (eg: by being a housewife/homemaker
and in this way saving the other spouse various expenses);
3. any other manner.
Katz v Katz: section 7(4) covers the performance of the “ordinary duties” of a wife in respect of looking after
the home and caring for the family, for in performing these duties the wife renders services and saves
expenses which necessarily contribute to the maintenance or increase of her husband’s estate. A monetary
value need not be placed on the contribution.
Other considerations the court takes into account
Section 7(5):

1. The existing means and obligations of the parties, including any obligation that a husband who entered
into a civil marriage while being married to another woman at customary law may have to that
customary wife in terms of section 22(7) of the Black Administration Act;
2. Any donation one spouse made to the other during the subsistence of the marriage, or which is still
owed in terms of the spouses’ antenuptial contract;
3. Any order for forfeiture of patrimonial benefits in terms of section 9 of the Divorce Act;
4. Any other factor which, in the opinion of the court, should be taken into account.
(a) Misconduct
The legislator expressly made fault or misconduct a relevant factor for purposes of assessing maintenance
under section 7(2) of the Divorce Act. There is no reason why misconduct cannot be taken into account
under the wide terms of subsection 7(5)(d), eventhough the courts will adopt a conservative approach in
order to ensure that justice is done between the parties – Beaumont v Beaumont.
(b) The interrelationship between sections 7(2) and 7(3) of the Divorce Act, and the
clean-break principle
A maintenance order can also be taken into account when the nature or extent of a redistribution order is to
be determined.
Beaumont v Beaumont: clean-break principle - the financial obligations between the spouses should
terminate as soon as possible after divorce. A clean break can be achieved by making only a redistribution
order in terms of section 7(3) and no maintenance order under section 7(2). Because of the obvious
advantages the principle entails, our courts would always consider the possibility of using their powers in
such a way as to achieve a complete termination of the financial dependence of the one party on the other,
if circumstances permit. The clean-break principle can be applied only if its application will not lead to
unfairness between the parties.
One philosophy is that a redistribution order under section 7(3) can serve two distinct purposes, one being
compensation of a spouse for past contributions to the maintenance or increase of the other spouse’s
estate, and the other being provision for the applicant spouse’s maintenance needs. A redistribution order
under the Divorce Act can be made in respect of foreign marriages in so far as that order provides purely for
a spouse’s maintenance needs. But the correctness of this view is disputable. However, an interrelationship
between two different orders does not mean that one becomes the other.
Criterion for establishing the extent of the redistribution

In the past the “one-third” principle was used. Presently, equality is the yardstick in redistribution orders.
The spouses’ assets are divided equally unless good reason exists for not doing so.
Bezuidenhout v Bezuidenhout: “there is no place for discrimination between husband and wife in their
respective roles”. Reference was made to the equality and interpretation clauses in the Constitution and the
Promotion of Equality and Prevention of Unfair Discrimination Act.
The form a redistribution order may take
The court may not order the party in whose favour the redistribution order operates to transfer some of his
or her own assets to the other party.
The party who seeks a redistribution order must apply for the order but need not set out the exact nature
and extent of the order in any detail. That can be left to the court. The applicant bears the onus of proof in
the identification of assets…that must be redistributed.
The court is not bound to order the transfer of a specific asset to the successful applicant – it may order that
a sum of money be transferred in lieu of the asset or assets.
A claim and a counterclaim for redistribution should generally be considered separately to ensure that each
claim get the attention it deserves.
MAINTENANCE OF A SPOUSE AFTER DIVORCE
The duty of support between spouses comes to an end when the marriage is terminated, unless a
maintenance order has been made in favour of one of the spouses, which could be incorporated into the
divorce order in terms of section 7(1). The court may alternatively make a maintenance order in terms of
section 7(2), which is not incorporated into the divorce order.
Maintenance order in terms of section 7(2)

This is a maintenance order made for any period of time until the death or remarriage of the party in whose
favour the order operates. This maintenance order is coupled with a decree of divorce, thus it cannot be
granted after the marriage has been dissolved by divorce.
Factors the court must consider:
1. the spouses’ existing or prospective means;

2. the spouses’ respective earning capacities;
3. the spouses’ financial needs and obligations;
4. each spouse’s age;
6. the spouses’ standard of living during the marriage;
7. each spouse’s conduct in so far as it may be relevant to the breakdown of the marriage;
8. any redistribution order in terms of section 7(3) of the Divorce Act;
9. any other factor which, in the court’s opinion, should be taken into account.
Grasso v Grasso: Judge Berman held that no particular stress was laid on any one or more of these factors,
and they are not listed in any particular order of importance or of greater or lesser relevance. Only
misconduct which has a bearing on the breakdown of the marriage is relevant. If the misconduct of one of
the parties was gross, and especially if the other party was prepared to attempt a reconciliation, fault
assumes greater relevance. The court also held that if the husband can afford to maintain two homes at the
same standard of living at which the common home was maintained and can afford to have his former wife
stay at home, she need not take up paid employment after the divorce, and he must see to it that she can
maintain her previous standard of living. The court additionally considered the high rate of inflation in South
Africa under the broad provision that the court may take any other factor into account.
The proper approach is to consider each case on its own merits in the light of the facts and circumstances
peculiar to it, especially with regard to the factors that are set out in section 7(2).
Pommerel v Pommerel: the courts normally accept that both spouses have to adopt a lower standard of
living after divorce. It is a question of balancing up the needs of both parties and making an equitable
distribution of the available income.
The movement away from permanent maintenance
The courts have increasingly expected women to take up paid employment after divorce and have granted
employable women rehabilitative (limited) maintenance only.

V v V: a wife who was married in community of property and who was capable of earning her own living was
awarded maintenance only for one year, as the court was of the view that that was long enough to enable
her to establish herself in her career, and for the joint estate to be divided between the spouses.
Kroon v Kroon: permanent maintenance will not be awarded to a woman who can support herself or who
can be trained or retrained to do so. The factors the court takes into account include the woman’s age, her
state of health, the duration of the marriage, the parties’ standard of living during marriage, the length of
the woman’s absence from the labour market, whether she has any marketable skills, and her commitment
to the care of young children.
Pommerel v Pommerel: no maintenance will be awarded to a wife who is able to support herself, nor can a
wife expect to enjoy after the divorce the same standard of living that she had as a married woman.
However, the mere fact that she is able to earn an income does not in itself disentitle her to maintenance.
Secondly, the court must balance up the needs of both parties and make an equitable distribution of the
available income between them.
Lump-sum maintenance
Purnell v Purnell: previously, it was argued that maintenance could only be paid in the form of periodic
payments and not a lump sum. However, the Maintenance Act provides that the court is empowered to
make an order for the payment of maintenance by way of a lump sum.
Token maintenance
If there is no reason to make a maintenance order at the time of the divorce, but it is anticipated that one of
the spouses may need maintenance at some future stage, the court may make an order for token or nominal
maintenance (eg: R1) in favour of the spouse who may need maintenance in the future. The nominal
maintenance can later be varied if necessary. It is important to note that token maintenance is important,
because if a spouse does not get a maintenance order upon divorce, he or she can never get one. The
factors in section 7(2) must further be considered in order to decide the amount that has to be paid, and the
period for which it is to be paid.
Rescission, suspension and variation of a maintenance order

Section 8(1) of the Act, with sufficient reason. The order may also be varied or rescinded in terms of the
Maintenance Act.
“Sufficient reason”
Factual question which must be answered in light of the circumstances of each specific case. Usually, it is
necessary for there to have been a material change in circumstances, but this is not a statutory prerequisite.
Reid v Reid: a maintenance order cannot be varied simply because the applicant agreed to an unjust divorce
settlement, as this could easily lead to abuse of the court process. Special circumstances must be proved
before the court will permit a party to question the justness of the existing maintenance order. If the party
who is financially worse off proves that there is sufficient reason for a variation, the maintenance order will
be varied, but the mere fact that there is financial inequality between the parties does not mean that the
order must be varied.
The mere fact that the party in whose favour the maintenance order operates lives with another person
does not constitute sufficient reason for rescission of the maintenance order, unless the maintenance order
expressly includes a dum casta clause (a dum casta clause provides that the maintenance recipient will
forfeit maintenance if he or she leads an unchaste life).
On its own, inflation does not constitute a sufficient reason to justify an increase in maintenance. However,
it is one of the factors that are taken into account when variation of a maintenance order is sought,
especially in respect of evaluating the ability of the party against whom the order operates to pay more and
the other party’s need for more maintenance.
Waiver of the right to claim rescission, suspension or variation of a maintenance order
Either party may waive his or her rights.
Termination of a maintenance order
An order in terms of section 7(1):

The obligation to pay maintenance will only terminate at the death of the liable party if the agreement so
provides. In case of doubt whether the obligation continues after the liable party’s death, the court favour
continuation.
The obligation to pay maintenance comes to an end at the time stipulated in the order, or upon the death or
remarriage of the party in whose favour the order operates, whichever even occurs first. A maintenance
order may also operate against the deceased estate of the former spouse who was obliged to pay
maintenance.
A maintenance order is also terminated if a court rescinds it. Insolvency does not terminate a maintenance
order.
SECTION 5: CUSTOMARY MARRIAGES, MUSLIM MARRIAGES, SAME-SEX MARRIAGES AND HETEROSEXUAL

LIFE PARTNERSHIPS
CUSTOMARY MARRIAGES
Prior to the entry into force of the Recognition of Customary Marriages Act, customary marriages were
recognised only for limited purposes, because they permit polygyny and are not solemnized in terms of the
Marriage Act. The Recognition of Customary Marriages Act confers full legal recognition on customary
marriages regardless of when they were concluded and regardless of how many customary wives a husband
has. The Act preserves the old customary-law requirements and consequences for customary marriages
concluded prior to the commencement of the Act, while it creates different requirements and consequences
for customary marriages entered into after its coming into operation.
Customary marriages entered into before the coming into operation of the Recognition of Customary
Marriages Act
The legal requirements for a valid customary marriage
A customary marriage which was entered into before the coming into operation of the Act is valid only if it
complies with the customary-law requirements for a valid marriage.

In KwaZulu-Natal, Zulu customary law has been partly codified. 2 differed codes apply in KwaZulu-Natal,
namely the KwaZulu Act on the Code of Zulu Law 16 of 1985 and the Natal Code of Zulu Law. These codes
are virtually identical in so far as they relate to customary marriages. The essential requirement is consent:
the bride must publicly declare to the official witness that the marriage is taking place of her own free will
and with her consent, and that if either future spouse is a minor, his or her father or guardian must also
consent to the marriage. Certain specified family members are not within the prohibited degrees of
relationship for purposes of entering into a customary marriage. In addition, lobolo (bridewealth) is
customarily delivered – it is property (livestock and/or money) given to the head of the bride’s family in
consideration of the marriage.
Outside of KwaZulu-Natal, regardless of the spouses’ ages, both of them and the bride’s guardian or family
head must consent to the marriage. If the bridegroom is a minor, his father, guardian or family head must
also consent to the marriage. The spouses must be over the age of puberty and must not be within the
prohibited degrees of relationship. The wife must leave her family and live with her husband. Lobolo is
customarily delivered. A ceremony is not a prerequisite, but it often takes place.
Registration of marriage
Customary marriages concluded before the coming into operation of the Recognition of Customary
Marriages Act had to be registered with the Department of Home Affairs before 15 November 2002.
However, non-registration does not affect the validity of the marriage.
Proprietary consequences of the marriage and control of the matrimonial property
Proprietary consequences remain unchanged since the entry into force of the Act and continue to be
governed by customary law.
Each customary marriage results in the establishment of a separate house with a specific rank. The rank is
determined by the ranking system adopted by the particular tribal group. Complex ranking is usually used.
It takes 2 main forms: firstly, each house has a relative rank according to the date of marriage, with the first
wife and her house occupying the highest rank. All other wives are ranked according to the date of
marriage. Secondly, the houses are divided into two separate sections. The first wife is the main wife and
her house forms the senior house in the first section. The second wife is the right-hand wife and her house is
the senior house in the second house. All further wives are added, in turn, to the two sections and their
ranking is determined according to the date of marriage. The husband is always the family head of all the
houses.

Assets a customary spouse acquires become either general (family) property, or house property. The
position of a person usually determined ownership of property. Anything obtained by or through a member
of a particular house belongs to that house, for example, wages earned by a particular wife and her children
and lobolo paid for her daughters belongs that wife’s house. The family head may allot property to a
particular house. The family head’s property and earnings and any unalloted property fall into the family
estate, which is used to support dependants.
In terms of the simple ranking system, each wife does not establish a separate house, but the property of the
whole group, consisting of the family head and all his wives, forms one estate. Each wife occupies a different
rank, determined by her date of marriage. The first wife is the chief wife and all other wives are ranked in
the order of their marriages. The husband is the head of the family.
Spouses who entered into a customary marriage before the coming into operation of the Recognition of
Customary Marriages Act may change their matrimonial property system with the court’s permission. The
application must be made by the spouses jointly and all other wives must be joined in the proceedings. The
court must be satisfied that:
1. There are sound reasons for the proposed change;

2. Sufficient written notice has been given to all creditors to whom the spouses owe more than
R500 (or the amount stipulated in the Government Gazette);
3. No other person will be prejudiced by the proposed change.
The wife’s status
The Act abolished the wife’s status as perpetual minor and her husband’s guardianship over her. The wife is
equal to the husband and, subject to the matrimonial property system governing the marriage, has full
status and capacity to acquire assets and to dispose of them, to enter into contracts and to litigate, in
addition to any rights and powers that she might have at customary law. However, the husband remains the
family head and he control all family property, thus the wife’s capacity to deal with property and her
capacity to act are still restricted. Despite the “equality” provision, the relative status of each wife remains
unaltered in terms of customary law, so the chief wife retains the customary rights associated with her
superior status.
Dissolution of the marriage
(a) Divorce

(i) Ground for divorce

Irretrievable breakdown of marriage. This may be determined with reference to the circumstances which
formerly constituted the customary-law grounds for divorce.
(ii) Consequences of divorce

Patrimonial consequences
The court has the powers conferred on it by sections 7, 8, 9 and 10 of the Divorce Act, 1979. Therefore, the
court has the power to incorporate a settlement agreement, make an order regarding post-divorce
maintenance of one of the spouses, redistribute assets if the marriage is subject to complete separation of
property, order forfeiture of patrimonial benefits, and make an order regarding costs. It may also
subsequently rescind, vary or suspend a maintenance order. The parties’ pension interests are deemed to
form part of their assets upon divorce.
The court’s power to order redistribution is restricted to marriages which are subject to complete separation
of property, which it is submitted customary marriages amount to as a result of the need to remedy inequity
Because the contract for the delivery of lobolo is concluded between the bridegroom and the bride’s father,
it does not relate to the spouses’ matrimonial property and is not automatically terminated by the
dissolution of the marriage. However, the high court has jurisdiction to entertain such claims.
Interests of the children of divorcing parents
The court is competent to make an order regarding the guardianship or custody of minor children of a
customary marriage. The Recognition of Customary Marriages Act applies section 6 of the Divorce Act as
well as the Mediation in Certain Divorce Matters Act 24 of 1987 to the dissolution of the marriage. This
means that a family advocate must investigate the welfare of the child and furnish the court with a report
and recommendations, which are considered in determining guardianship, custody, access and maintenance.
Maintenance
The court is specifically required to take into account any provision or arrangement that has been made in
accordance with customary law. The payment of lobolo and isondlo (delivery of an animal by a father to the
person who raised his child) probably qualifies as factors in terms of this provision.
(iii) Joinder
The court may order that any person who has a sufficient interest in the matter may be joined in the divorce
proceedings. This may include the husband’s other customary wives and the wife’s father as lobolo holder.
(iv) Jurisdiction

A divorce order must be obtained from the high court, family court, or divorce court. Customary law still
plays a prominent role in the mediation of disputes prior to divorce.
(v) Interim relief
Pending divorce, either spouse may apply for maintenance pendent elite, a contribution towards costs,
interim custody of a child, and/or interim access to a child in terms of Rule 43 of the Uniform Rules of Court.
(b) Death
With the exception of KwaZulu-Natal, customary law provides that a customary marriage is not necessarily
dissolved by a spouse’s death. The wife’s death never destroys the house created by her marriage and nor
does it necessarily end the marriage. After her death, her husband may take a “seed raiser” to produce
children for the deceased wife’s house. This custom is known as the sororate is practiced mainly if the
deceased wife is not survived by a son. The husband’s death does not terminate a customary marriage. The
custom of levirate allows the deceased husband to be replaced by one of his paternal male relatives. Any
child the woman has with this man is deemed to be her deceased husband’s child.
The Recognition of Customary Marriages Act does not deal with the issue of the dissolution of marriage by
death, hence lending credence to the sororote and levirate customs and the fact that death does not
automatically terminate a customary marriage.
Customary marriages entered into after the coming into operation of the Recognition of Customary
Marriages Act
Such a marriage is valid if the bride and groom are over 18 and both have consented to the marriage and the
marriage is negotiated and entered into or celebrated in accordance with customary law.
Despite the rule of customary law, the age of majority is the same for men and women – 21 years of age. If
either spouse is a minor, his or her parents or legal guardian must consent to the marriage. If their consent
cannot be obtained, the provisions of section 25 of the Marriage Act apply – the minor can ask the
commissioner of child welfare to consent to the marriage. If the parents or guardians or the commissioner
of child welfare withholds consent, the minor may approach the high court for consent. The high court will
only consent if it is of the opinion that the parent or guardian or commissioner’s refusal is without adequate
reason and contrary to the minor’s best interests.

If a minor marries without consent, section 24A of the Marriage Act applies to the customary marriage,
hence the marriage is voidable at the instance of the minor or the minor’s parents or guardian. The parent
or guardian must make the application to have the marriage set aside before the minor attains majority and
within 6 weeks from the date on which he or she becomes aware of the existence of the marriage. The
minor must make such an application before attaining majority or within 3 months thereafter. The order as
to dissolution must be in the interests of the minor child.
A minor below 18 years of age may only enter into a customary marriage if the Minister of Home Affairs or
the Minister’s designate considers the marriage desirable and in the parties’ interests. If ministerial consent
is granted, the prospective spouses must still comply with all the other requirements for a valid marriage,
such as obtaining consent from parents and guardians. If the marriage of a minor below 18 years of age
takes place without ministerial consent, the Minister may ratify the marriage.
The forbidden degrees of relationship for purposes of a customary marriage are determined in accordance
with customary law. Generally, marriages who may not enter into a civil marriage may not enter into a
customary marriage.
Registration of the marriage
The marriage must be registered within 3 months of the date of the wedding. Either spouse may apply for
registration and must furnish the necessary information to enable the registering officer to be satisfied that
the customary marriage exists. A certificate of registration is issued, bearing the parties’ identity, date of
their marriage, and any lobolo agreed to. The certificate is prima facie proof of the existence of the
customary marriage and other particulars contained in it.
If the spouses do not request registration, any party who has “a sufficient interest in the matter” may
request the registering officer to enquire into the existence of the marriage. If a valid marriage exists, it
must be registered and a registration certificate must be issued.
Non-registration does not affect the validity of the marriage.
(a) A customary marriage a minor entered into without consent
(i) Patrimonial consequences if the marriage is set aside

Section 24(1) of the Matrimonial Property Act governs the patrimonial consequences if the court dissolves
the marriage. The court can therefore make any order with regard to the division of the spouses’
matrimonial property that it deems just.
(ii) Patrimonial consequences if the marriage is not set aside
The issue of a minor’s unassisted customary marriage is unlikely ever to arise in practice, because it is
unheard of for the couple’s family groups not to participate in the arrangements for a customary marriage.
(b) Other customary marriages
(i) Monogamous customary marriage
If the marriage is the husband’s only marriage, the matrimonial property system is determined by the same
rules that apply to civil marriages – if no antenuptial contract is entered into, the marriage is in community of
property. If they do enter into an antenuptial contract, the provisions of the antenuptial contract determine
their matrimonial property system. If the marriage is in community of property, section 14 to 20 and section
24 of the Matrimonial Property Act apply to it. Thus, the rules which govern administration of the joint
estate, litigation by or against a spouse who is married in community of property, damages for non-
patrimonial loss that are paid or recovered by such a spouse, the spouse’s delictual liability, and the
statutory protective measures one spouse can employ against the other are exactly the same for civil and
customary marriages.
The couple should approach the court for permission to change their matrimonial property system during
the subsistence of their marriage in terms of section 21(1) of the Matrimonial Property Act.
(ii) Polygynous customary marriage
Prior to the celebration of the new marriage, the husband must obtain the court’s approval of a written
contract which will regulate the future matrimonial property system of his marriages. If the husband’s
existing customary marriage is in community of property or out of community with the accrual system, the
court must terminate the matrimonial property system and effect a division of the property. The court must
ensure that the property is equitably distributed, and take into account all relevant circumstances of the
family groups which would be affected if the application were granted. The court requires that all persons
with a sufficient interest in the matter, such as the husband’s present wife or wives and his future wife, are
to be joined in the proceedings. The Act authorizes the court to allow amendments to the proposed
contract, grant an order subject to conditions, or refuse the application.
The accrual system cannot operate in a polygynous customary marriage, due to the provisions of section 3(1)
of the Matrimonial Property Act.

Complete separation of property seems to be the only option. Application of this system would not occasion
many practical difficulties as the husband and each of his wives would simply retain their own estates. But
complete separation of property is unfair to wives who do not have an opportunity to build up their own
estates. Upon divorce, the court may make “any equitable order that it deems just”, but in the case of
death, no remedy is available to polygynous customary wives.
The wife’s status
The wife is equal to the husband. The objection that the matrimonial property system which operates in the
marriage virtually negates the wife’s power to acquire and deal with property and enter into contract does
not apply to customary marriages which are concluded after the coming into operation of the Act, as the
customary-law proprietary consequences do not operate in these marriages. Both spouses’ capacity to enter
into contract and to litigate is limited by the provisions of the Matrimonial Property Act if the marriage is in
community of property.
(a) Divorce
Irretrievable breakdown of marriage. This may be determined with reference to the circumstances which
formerly constituted the customary-law grounds for divorce.

The court has the powers conferred on it by sections 7, 8, 9 and 10 of the Divorce Act, 1979. Therefore, the
court has the power to incorporate a settlement agreement, make an order regarding post-divorce
maintenance of one of the spouses, redistribute assets if the marriage is subject to complete separation of
property, order forfeiture of patrimonial benefits, and make an order regarding costs. It may also
subsequently rescind, vary or suspend a maintenance order. The parties’ pension interests are deemed to
form part of their assets upon divorce.
The court’s power to order redistribution is restricted to marriages which are subject to complete separation
of property, which it is submitted customary marriages amount to as a result of the need to remedy inequity

Because the contract for the delivery of lobolo is concluded between the bridegroom and the bride’s father,
it does not relate to the spouses’ matrimonial property and is not automatically terminated by the
dissolution of the marriage. However, the high court has jurisdiction to entertain such claims.
Civil marriage by a spouse who is a party to a customary marriage
Section 10(4) – parties to a civil marriage are not “competent to enter into any other marriage”. A marriage
concluded in contravention of this provision is void.
Parties to a customary marriage may not later enter into a civil marriage with another person. They may
enter into a civil marriage with each other, but the husband’s other customary marriages must first be
dissolved. A subsequent civil marriage in contravention of these provisions is void.
Section 10(2) – if a couple who is married at customary law subsequently also enters into a civil marriage
with each other, their marriage is in community of properly unless they enter into an antenuptial contract.
The Recognition of Customary Marriages Act does not adequately regulate the consequences of the
interface between the couple’s customary and civil marriage. In terms of section 10(2), customary law
applies in respect of the proprietary consequences before the date of the civil marriage and the provisions of
section 10(2) apply as from the date of the civil marriage. This is because section 10(2) prescribes the
matrimonial property consequences in “the marriage” “when a marriage is concluded as contemplated in
subsection (1)” and section 10(1) governs the capacity of spouses who are married at customary law to
“contract a marriage with each other under the Marriage Act” (that is, to conclude a civil marriage). Thus all
assets acquired before the civil marriage will still be governed by the customary-law principles of family and
house property, while all assets acquired as from the date of the civil marriage will fall into the Matrimonial
Property Act. The customary marriage is terminated at the date of the civil marriage, but the termination is
not retroactive.
The Constitution and customary marriages

MUSLIM MARRIAGES
Recognition of Muslim marriages
1) Statutory recognition
Child Care Act, Births and Deaths Registration Act and Domestic Violence Act apply to religious marriages.
Further recognition is given in Civil Proceedings Evidence Act, Criminal Procedure Act, Transfer Duty Act and
Estate Duty Act.
Daniels v Campbell: a surviving spouse in a monogamous Muslim marriage qualifies as a “spouse” and
“survivor” in terms of the Intestate Succession Act and the Maintenance of Surviving Spouses Act. The
ordinary meaning of the word “spouse” encompasses a party to a Muslim marriage. However, this only
applies to spouses in monogamous Muslim marriages, although in future polygynous marriages could also
possibly apply to spouses who institute claims in terms of the Maintenance of Surviving Spouses Act.
2) Judicial recognition
Ryland v Edros: court held that contractual obligations flowing from a de facto monogamous Muslim
marriage can be recognized and enforced as between the parties despite the fact that the marriage is
potentially polygynous. The spouses are bound, as against each other, by their contractual undertakings
under Islamic law. The court rejected the 1983 decision in Ismail v Ismail, in which the appeal court had held
that a polygamous union and the contractual obligations flowing from it could not be recognized because
polygamy conflicts with public policy. In Ismail v Ismail, the court had considered only the views of one
group of our pluralistic society, which is unacceptable. The decision in Ismail v Ismail no longer precludes a
court from enforcing a claim emanating from the marriage contract between Muslim spouses.
Enforcing the contractual obligations which flow from a Muslim marriage does not mean that the marriage is
equated with a civil or customary marriage and also does not result in full legal recognition of the Muslim
marriage.
Amod v Multilateral Motor Vehicle Accidents Fund: extension of dependant’s action for loss of support to
the surviving spouse in a monogamous Muslim marriage. This was a claim for loss of support against the
Multilateral Motor Vehicle Accidents Fund and the court a quo rejected the claim. On appeal, the court held
that the decisive issue was not whether or not the plaintiff as lawfully married to the deceased but whether
or not the deceased was under a legal duty to support her in a relationship which was worthy of recognition
and protection in terms of the common law. A claim for loss of support would arise subject to the following
requirements:

(a) the deceased had a legally enforceable duty to support the dependant;
(b) that duty arose from a marriage in accordance with the tenets of a recognized and
accepted faith;
(c) that duty deserved recognition/protection for the purposes of a dependant’s claim.
Boni mores of our society require that the contractual duty of support which flows from a Muslim marriage
should be recognized and be legally enforceable at common law. The Fund was therefore ordered to
compensate the plaintiff for her loss of support.
The Muslim Marriages Bill
All Muslim marriages concluded before the coming into operation of the proposed legislation will be subject
to its provisions unless the spouses jointly elect to exclude those provisions. The provisions of the legislation
will not apply to Muslim marriages which are concluded after the coming into operation of the proposed
legislation unless the spouses elect to be bound by the legislation.
If the legislation applies to a Muslim marriage, the marriage will be recognized as a valid marriage in terms of
South African law if it meets all the requirements set by the proposed legislation. If the legislation does not
apply, the marriage will only be governed by Islamic law and will not be recognized as a valid marriage in
terms of South African law.
Legal requirements for a valid Muslim marriage
These requirements apply to marriages concluded after the coming into operation of the proposed
legislation:
1. The bride and groom must consent to the marriage. Marriage by proxy is allowed
(representative), but then the marriage officer must ascertain from the proxy whether the bride
and groom have consented to the marriage;
2. The bridge and groom must both be above the age of 18 years;
3. If either party is a minor, his or her parents or legal guardian must consent to the marriage;
4. The parties must not be within the prohibited degrees of relationship, which degrees are to be
determined in accordance with Islamic law;
5. The witnesses who are required by Islamic law must be present at the tme of the conclusion of
the marriage;
6. The marriage must be contracted in accordance with the formulae prescribed by Islamic law;
7. The marriage officer who conducts the marriage ceremony must register the marriage and
ensure that the spouses understand the registration process. He or she must also inform the

spouses that they may conclude a standard contract or a contract of their choice regulating their
marital regime, and must present the parties with examples of such a contract.
The proprietary consequences of the marriage and control of the matrimonial property
A Muslim marriage to which the legislation applies will be out of community of property without the accrual
system unless the spouses enter into an antenuptial contract. A husband will only be allowed to enter into
another Muslim marriage if he obtains court approval of the marriage as well as the proposed written
contract regulating the future matrimonial property system of his marriages.
The wife’s status
Husband and wife are equal in human dignity and have full status, capacity and financial independence,
including the capacity to own and acquire assets and dispose of them, to enter into contracts, and to litigate.
(a) Divorce
(i) Grounds for divorce
The marriage will be dissolved by way of Talãq, Faskh or Khula’. A Talãq is the immediate or later
termination of a Muslim marriage by a husband or his agent, through the use of the word Talãq or a
synonym or derivative of that word in any language. A Talãq can be revocable, in which case it does not
terminate the marriage until the ‘Iddah (mandatory waiting period during which the wife may not remarry)
has expired. After having been pronounced 3 times, the Talãq becomes irrevocable. A Faskh is a divorce
decree which is granted by a court on either spouse’s application on a ground which is permitted by Islamic
law. Divorce by way of Khula’ refers to divorce at the instance of the wife in terms of an agreement for the
transfer of property or other permissible consideration between the spouses according to Islamic law.
A court which dissolves a Muslim marriage or confirms the dissolution of a Muslim marriage will have the
powers contemplated in sections 7(1), 7(7) and 7(8) of the Divorce Act. Thus, the court will have the power
to incorporate a settlement agreement into the divorce order and to deal with the spouses’ pension
interests like it would in a civil or customary marriage.

The spouses’ assets are also to be divided equally between them if this is just and equitable. This is only
possible if one of the spouses assisted or otherwise rendered services in the operation or conduct of the
family business(es), or the spouses contributed to the maintenance or increase of each other’s estate, or the
estate of either of them to the extent that it is not practically feasible or otherwise possible to accurately
quantify the separate contributions of each spouse.
When a polygynous Muslim marriage is dissolved, the court is obliged to take all relevant factors into
consideration, such as post-nuptial alteration of the spouses’ matrimonial property system, and the court
order regarding the matrimonial property system of the polygynous marriage.
In respect of maintenance, all relevant circumstances also need to be considered, including the fact that a
husband must maintain his wife during the ‘Iddah. If the wife has custody of the minor children, the
husband must remunerate her for her services during the period for which she has custody. Such
remuneration could include the provision of a separate residence. The wife is furthermore entitled to
remuneration for a breastfeeding period of 2 years from the birth of a baby.
The court has the power to make an order regarding guardianship, custody or access. The Divorce Act and
the Mediation in Certain Divorce Matters Act apply to the dissolution of a Muslim marriage. The best
interests of the child are paramount.
(iii) Jurisdiction and appeals
Provisions governing a court’s jurisdiction to dissolve a civil marriage apply. However, because a
pronouncement in respect of a Muslim marriage by a non-Muslim judge is impermissible, the head of the
relevant court must appoint a Muslim judge or acting judge to adjudicate disputes. The court must also be
assisted by 2 Muslim assessors. Rule 43 applications may be decided by non-Muslim judges. Unopposed
proceedings and proceedings in which the spouses have concluded a settlement agreement are to be heard
by a Muslim judge sitting without assessors.
(iv) Alternative dispute resolution
Compulsory mediation is essential. The dispute must be referred to a Mediation Council before or after the
institution of legal proceedings, but prior to the adjudication of the dispute by a court. A mediation
agreement must be submitted to a high court, family court or divorce court within 30 days. If satisfied, the
court may confirm the mediation agreement. If mediation is unsuccessful, the dispute may be adjudicated
by the court.

Muslim spouses may agree to refer their dispute to an arbitrator. The decision of the arbitrator will be
binding and will not have to be confirmed by the court unless it affects the welfare of minor children or a
person’s status, upon which time it will have to be confirmed by the high court. The court may review the
arbitration award.
(b) Death
The mandatory ‘Iddah during which a widow may not remarry is 130 days if she is not pregnant at the time
of her husband’s death. If pregnant, the ‘Iddah lasts until she gives birth.
A surviving spouse may lodge a claim against the deceased spouse’s estate for any unpaid dower (money,
property or anything of value which the husband must give to the wife as an ex lege consequence of the
marriage in order to establish a family and lay the foundations for affection and companionship) or any
tangible contribution recognized by Islamic law.
Civil marriage by a Muslim spouse
A spouse who is a party to a Muslim marriage to which the proposed legislation applies will not be allowed
to enter into civil or customary marriage with the same wife or another woman.
Spouses will be allowed to convert to a civil marriage they concluded with each other prior to the entry into
force of the proposed legislation into a Muslim marriage. All provisions of the proposed legislation will
apply, except requirements for validity and registration of a Muslim marriage. Proprietary rights will remain
unaffected.
The Constitution and Muslim marriages
The two main constitutional values at issue are freedom of religion and non-discrimination on the ground of
religion, on the one hand, and sex and gender equality on the other.
Section 15(3)(b) of the Constitution provides that legislation recognising the particular marriages or system
of law must be consistent with the rights contained in section 15(3) and the other provisions of the
Constitution.
Polygyny is actually the only obstacle to the recognition of Muslim marriages. Howevever, non-recognition
of Muslim marriages most probably results in far greater inequality and indignity for Muslim women.

HETEROSEXUAL AND SAME-SEX LIFE PARTNERSHIPS
A life partnership refers to living together outside marriage in a relationship which is analogous to, or has
most of the characteristics of a marriage. Also known as domestic partnership, cohabitation, living together,
concubinage, de facto marriage, and common-law marriage.
None of the ex lege consequences of marriage automatically ensue if a couple lives together without getting
married. This is the case regardless of whether or not the life partners are legally permitted to marry each
other. Life partners do not automatically have the right to share in each other’s property during its
subsistence or upon its termination. They also do not inherit from each other in terms of the rules of
intestate succession. Through legislation and court decision, some of the consequences of marriage have
been extended to life partnerships, especially same-sex life partnerships.
The constitutional court has recognised that the family is a social institution of vital importance and that
“families come in many shapes and sizes”. Marriage between heterosexuals “represents but one form of life
partnership”.
Recognition of heterosexual life partnerships
Section 21(13) of the Insolvency Act includes a heterosexual life partner in the definition of a spouse. Thus, if
one heterosexual life partner becomes insolvent, the other’s estate also vests in the master of the high court
and thereafter in the trustee of the insolvent estate. But if the insolvent life partner is still married, it is his
or her spouse’s estate (and not the life partner’s estate) which vests in the master and the trustee. In terms
of the Compensation for Occupational Injuries and Diseases Act, a “wife or husband” is entitled to claim
compensation as the employee’s dependant if the employee was killed in the course of his or her
employment, and only if the employee did not also have a spouse.
The Estate Duty Act, Pension Funds Act and Income Tax Act, as well as the Maintenance Act, Domestic
Violence Act and Rental Housing Act all extend the same protection to heterosexual and same-sex life
partners and treat both groups as spouses and accords the relevant protection against discrimination.
Volks NO & Others v Robinson & Others: Maintenance of Surviving Spouses Act was declared
unconstitutional to the extent that it fails to include permanent life partners. This amounts to unfair
discrimination on the grounds of marital status as well as infringes the right to dignity. In effect, a
permanent life partnership is included in the definition of “marriage”, a permanent life partner is deemed to
be a spouse, and a surviving permanent life partner is deemed to be a surviving spouse.
Recognition of same-sex life partnerships

The Pension Funds Adjudicator has held that pension fund rules which exclude same-sex life partners from
benefits that are conferred on spouses and heterosexual life partners, unfairly discriminate against same-sex
life partners on the ground of their sexual orientation and such discrimination is unjustifiable.
Medical Schemes act provides that a medical scheme may not be registered if its rules unfairly discriminate
against anyone on the ground of, inter alia, sexual orientation.
Langemaat v Minister of Safety and Security challenged the constitutionality of rules and regulations of
police medical scheme, which allowed only the legal spouse, widow or widower and the child of a member
of the police force to be registered as the member’s dependent. The effect of the rules and regulations
excluded many de facto dependants of members of the police force, which amounted to discrimination. Our
courts have been willing to extend recognition to same-sex life partnership, hence Judge Roux’s statement
that “parties to a same-sex union, which has existed for years in a common home, must surely owe a duty of
support, in all senses to each other”.
MARRIAGE
Formalities regulated by the Marriage Act and apply to civil marriage concluded within South Africa. No
spouse in a marriage entered into under the Marriage Act may during such marriage enter into another
marriage.
Marriage must be concluded between a man and a woman, solemnized by a person appointed or authorized
as a marriage officer. A male of 18 years and older but under 21, and a female of 15 years and older but
under 21 needs the consent of his/her parents or guardians. If the male is 14 to 17 years of age or the
female is 12 to 14 years of age, the consent of the Minister of Home Affairs is also necessary. If consent is
refused, the High Court (as upper guardian) must be approached before a valid marriage can be entered
into.
The ceremony must be concluded in a building. However, in Ex parte Dow 1987 (3) SA 829 D, the court
found that it was never the intention of the legislature that non-compliance with these formal requirements
be punished with nullity.
Customary marriages are governed by the Recognition of Customary Marriages Act. Customary marriage is
defined as a marriage concluded in accordance with customary law, being the customs and usages
traditionally observed amongst the indigenous African peoples of South Africa and which form part of the
culture of those peoples. The Act recognizes marriages that are valid at customary law and existing before
15 November 2000 or that are customary marriages entered into after 15 November 2000 which comply
with the provisions of the Act. The Act applies to each of a person’s customary marriages where a person is
a spouse in more than one customary marriage. To be recognized as a valid customary marriage, the
prospective spouses must both be over 18 years, consent to be married to each other under customary law
and the marriage must be negotiated and entered into or celebrated in accordance with customary law. The
Marriage Act, 1961 may apply to a customary marriage if the spouses are married exclusively to each other.

Where a prospective spouse is a minor, both parents, or the legal guardian if there are no parents, must
consent to marriage, failing which Section 25 of the Marriage Act applies.
The spouses to a customary marriage must register their marriage within 3 months after the marriage. The
registering officer will issue a certificate of registration, which constitutes prima facie proof of the particulars
contained in it. Failure to register a customary marriage does not affect its validity.
Case Summaries
CASE FACTS / APPLICABLE TO
F:- Defendant concluded engagement & then

later denied all
knowledge of its existence & court

deemed such conduct iniuria
Court decided there should be a clear

distinction between:-
* Claim for damages for breach of contract
* Claim for satisfaction for iniuria

Guggenheim vs Rosenbaum
- Which may be brought in same action
# Damages to be calculated on basis of

positive & negative
interest
A:- Termination of Engagement ,

Consequences of
termination of engagement

F:- Act amended to include marriage of

same-sex couples.
Until Act is amended further – same-sex

partners who don’t
wish to have a religious marriage

Fourie vs Minister of Home Affairs ceremony, wont be able to
get married.
A:- Lawfulness of persons of the same-sex to

marry
F:- The concept of the duty to speak was

Schnaar vs Jansen discussed
A:- Requirements for a valid engagement
F:- Applicant wanted marriage declared null

& void, because the marriage took place in a
garden – The judge found nothing wrong
Ex Parte Dow with a marriage in a garden – application
failed
A:- Prescribed marriage formalities (during

ceremony)
F:- Applicant & her deceased husband went

through marriage ceremony solemnised in
accordance with Islamic rites by a priest who
was not duly appointed as a marriage officer.
(neither spouse was aware of that fact) They
had 7 children – children couldn’t inherit
from father because was seen as born from
Moola vs Aulsebrook unmarried parents. Argument was that
marriage was putative marriage even though
statutory requirements for solemnisation of
marriage had not been complied with –
Application was granted.
A:- Requirements for a putative marriage

F:- Parties entered into Muslim marriage. No

evidence that they intended to comply with
the Marriage Act / est what those req are.
They didn’t think that the priest that

solemnised their marriage was a marriage
officer. Applicant sought an order declaring
Solomons vs Abrahams that union between parties was a putative
civil marriage & that the children born
thereof was legitimate. The appellate division
stated that the declaratory orders sought by
applicant are refused.
A:- Requirements for a putative marriage
F:- Court stated that consortium between

husband & wife is an abstraction
compromising totally of number of rights,
Grobbelaar vs Havenga duties & advantages accruing to spouses
A:- Consortium omnis vitae
F:- Court stated that the word “consortium”

is used as an umbrella word for all the legal
rights of one spouse to the company,
Peter vs Minister of Law & Order affection, services & support of the other
A:- Consortium omnis vitae

F:- Deals with basis of one spouse’s liability

for goods other spouse purchased on credit
while there was no common household
between them. One spouse has capacity to
bind other & if marriage is in comm. of prop.,
the joint estate, for household goods only if 3
req are met:-
* Must be valid marriage between

partners
* Parties must share joint household

Excell vs Douglas * Transaction in Q must relate to
household necessaries
If req met – binds spouse in contractual

nature
But once joint household comes to an end –

one spouse cant bind other in contractual
nature
A:- Household necessaries – Termination of

joint household
F:- Factors which have to be taken into

account such as spouse’s standard of living
etc. Should court take subjective / objective
approach. In this case took subjective =
viewed from perspective of the dealer. Takes
into account factors of which the dealer was
aware / ought to have been aware.
Reloomel vs Ramsay (Objective approach = court takes into
account all other factors without paying
attention to what dealer knew about factors.
A:- Household necessaries – How its

determined whether something is a
household necessary

F:- After divorce, father accepted to pay

maintenance & keep children on his medical
scheme. But, failed to pay maintenance, so
went to Maint Court to reduce payment
amount. Succeeded. But still failed to make
payment & took children of his medical
scheme, refusing to pay for their medical
cover.
The constitutional court held that contempt

Bannatyne vs Bannatyne of court proceedings are appropriate
constitutional relief for the enforcement of a
claim for the maintenance of children (if the
legislative remedies are in some way
deficient)
A:- The Maintenance Act 99 of 1998

(enforcement of
maintenance orders)
F:- Supreme court of Appeal held that the

creditors of spouses married in com. of prop.
can look to estates of both spouses for
recovery of joint debt. (even separate assets
Du Plesiss vs Pienaar can be attached)
A:- Marriage in com. Of prop. – Attachment

of separate assets

F:- The merger of liabilities applies to antenup

as well
as debts incurred during the subsistence of

ge.
The spouses are joint debtors, therefore one
married in community of property cannot st

for the
Nedbank vs van Zyl
other spouse’s debts because those debts ar
and
in our law a person cannot stand surety for

n debt,
even if the spouse has assets falling outside

state
A:- Marriage in comm. of prop – Liabilities
F:- Court recognised difference between

claim & right. Also provides authority for fact
that the accrual & accrual claim rate is to the
value of the estate & not the assets in the
Reeder vs Softline estate.
A:- When & how accrual takes place –

Distinction between claim & right
F:- Judge of Appeal, Corbett = To determine

whether a marriage has reached such a state
of disintegration that there is no reasonable
prospect of restoration of a normal marriage
relationship – Its important to have regard to
what has happened in the past (history up to
trial) & also present attitude of parties to
Schwartz vs Schwartz marriage as revealed by evidence at trial.
A:- Irretrievable breakdown of the marriage

as ground for divorce – test to determine if
the consortium has been terminated /
violated

F:- Judge Flemming = Particular marriage has

broken down when one spouse no longer
wishes to continue marriage relationship, it
indicates marital breakdown.
Formation of an intention to sue for divorce

= subjective element
Court will look at scantiness &

Swart vs Swart
surmountabillity of reasons why divorce was
applied for = Objective element
A:- Irretrievable breakdown of the marriage

as ground for divorce – test to determine if
the consortium has been terminated /
violated
F:- Court was prepared to recognise

existence of the power to refuse a decree of
Smit vs Smit divorce
A:- Does court have discretion to refuse a

decree of divorce
F:- Factors prescribed in Sec 9 of Divorce Act n
present and need not be viewed cumulativ

also
held that no-fault divorce did not do away w

s a factor
in respect of forfeiture orders. Further, it is

tted that an
Wijker vs Wijker order for forfeiture of benefits may only be

ourt
is satisfied that in the absence of the order,

e will be
unduly benefited in relation to the other.
A:- Forfeiture of patrimonial benefit –

Justness & fairness is no reason to deviate
from matrimonial property system

F:- Benefits which can be forfeited in case of

marriage out of com of prop includes the
right to share in the accrual of the other
spouse’s estate, benefits by virtue of a
Watt vs Watt succession clause & marriage settlements
A:- Benefits which can be forfeited

1. F:- Appellate division held that the

wording of Sec 7(4) is wide
enough to cover the performance of the

“ordinary duties” of a
housewife
A:- Redistribution of assets – Nature of

contribution to
the maintenance / increase of other

spouse’s estate –
Ordinary Duties of a housewife

contribution
2. F:-Court held that a conservative approach

to conduct should be
adopted. Only if the breakdown of the

marriage resulted from
misconduct pf 1 party only is this a factor

that has to be taken
Beaumont vs Beaumont
into account
A:- Redistribution of assets – Other

considerations court
takes into account - Misconduct
3. F:- Court declined to accept one-third

starting point. According to
court, when the court has to decide what

amount has to be
transferred – it has to make an assessment

of what is just.
A:- Redistribution of assets – Criterion for

est the extent
of the redistribution
Page 78

F:- Appellate division stated that the only

positive act constitutes contribution . To
refrain from action doesn’t qualify as a
contribution to growth / maintenance of
other spouse’s estate
Kritzinger vs Kritzinger
contribution to the maintenance / increase
of other spouse’s estate – Contribution is a
positive act
F:- Appellate division made it clear that

contribution need not be of monetary
nature.

Katz vs Katz
contribution to the maintenance / increase
of other spouse’s estate – Contribution need
not be of monetary nature
F:- Judge Berman didn’t support the modern

trend. If a husband can afford to have his ex-
wife not work after divorce & she didn’t work
prior to divorce, & particularly if his
misconduct caused breakdown of the
marriage – he should maintain her without
her having to work. Judge said that the
Grasso vs Grasso position would be different in the case of
childless couples or where the husband
didn’t earn enough to support two separate
homes after divorce
A:- Maintenance of spouses – the move

away from permanent maintenance

F:- Held that no national earning capacity will

be attributed to a woman who doesn’t have
skills to enable her to be trained / retrained
for a job after divorce
Permanent maintenance wont be awarded to

Kroon vs Kroon a woman who can support herself. But may
be rewarded rehabilative maintenance for a
period sufficient to enable her to find a job.

F:- Courts normally accept that both spouses

have to adopt a lower standard of living after
divorce. It is a question of balancing up the
needs of both parties & making an equitable
Pommerel vs Pommerel distribution of the available income.

F:- Court provided nearly complete list of

factors to be considered in deciding what is
the best interest of the child regarding
custody
McCall vs McCall
A:- Interests of children of divorcing parents
– Criterion of “the best interests in the
child”

F:- Case contains guidelines in when a family

advocate ought to investigate the
arrangements regarding the child.
The judge indicated that a family advocate

ought to apply for an order authorising an
enquiry if it is envisaged that:-
* Custody of a young child wont be

awarded to the mother
* Siblings will be separated
Van Vuuren vs van Vuuren * Custody will be awarded to a person

other then the parent
* An arrangement regarding custody or

access will be made
which is prima facie not in the child’s

interest
A:- Statutory protection of the child’s

interest – The Mediation in Certain Divorce
Matters Act 24 of 1987
F:- As the quality of a parent’s role is not

simply determined by
gender, a father can be just a good a

“mother” as the child’s
biological mother, and conversely, the

Krugel vs Krugel mother can be just as good
a “father” as the child’s biological father
A:- Aspects regarding the position of the

children the court may regulate – Joint
custody

Daniels vs Campbell F:- A surviving spouse in a monogamous

Muslim marriage qualifies as a “spouse” &
“survivor” ito the Intestate Succession Act &
Maintenance of Surviving Spouses Act. This
only applies to spouses in monogamous
Muslim marriages although in future
polygamous marriages could also possibly
apply to spouses who institute claims ito the
A:- Muslim Marriages – Statutory

recognition
Past Exam Questions & Answers
(a) According to the decision in Amod (Born Peer) v Multilateral Vehicle Accidents Fund
(Commission for Gender Equality Intervening) Muslim marriages now enjoy the same
protection and recognition in our law as civil marriages.
(b) In Jooste v Botha it was held that the father of an illegitimate child has no duty to afford
the child love, attention and affection if he does not have the custody of the child.
(c) Although most marriages are preceded by an engagement, a valid engagement is not a
prerequisite for the conclusion of a valid marriage.
(d) Persons who are blood relatives in the collateral line are not ascendants and
descendants of one another.
(e) A voidable marriage is a valid marriage although grounds arise after the conclusion of the
marriage on the basis of which the court can be requested to dissolve the marriage.
(g) Today it is generally accepted that one spouse can unilaterally, and without the
intervention of the court, revoke the other spouse’s capacity to buy household necessaries.
(h) The new Maintenance Act 99 of 1998 applies to a contractual duty of support between
persons who are not related to each other by blood or affinity (such as cohabitants).
(i) A spouse’s right to occupy the matrimonial home and use the household items exists ex
lege and does not arise because the other spouse confers it on him or her.
(j) In terms of the Births and Deaths Registration Act 51 of 1992 a husband may under no
circumstances assume his wife’s surname. *10+

Answers
(a) False. (b) True. (c) True. (d) True. (e) False. (f) False. (g) False. (h) True. (i) True.
(j) False.
QUESTION 1
(a) In Amod (Born Peer) v Multilateral Motor Vehicle Accidents Fund (Commission for
Gender Equality Intervening) the Supreme Court of Appeal concluded that the boni mores of
our society today equire that the contractual duty of support which results from a Muslim
marriage should be recognised and be legally enforceable at common law.
(b) On breach of promise, the value of the gifts (sponsalitia largitas and arrhae sponsalitiae)
retained by the innocent party to the engagement is taken into account when the latter also
claims damages because of the breach of promise.
(c) Our law prohibits a marriage between a man and his step-sister.
(d) In terms of Ex parte Dow, a marriage concluded in a garden is void ab initio.
(e) The absence of two competent witnesses during the solemnisation of a marriage results
in the nullity of that marriage.
(g) In terms of the objective approach, a husband will not be liable for the payment of
household items bought by his wife if it is proved that the household already has an
adequate supply of that specific commodity.
(h) In terms of the Maintenance Act 99 of 1998, a maintenance court cannot make an order
for the payment of maintenance by way of a lump sum.
(i) A spouse’s right to occupy the matrimonial home and use the household assets is one of
the variable consequences of marriage.
(j) The rule in terms of which the husband is regarded as the head of the family still forms
part of our law. [10]
Answers
(a) True. (b) True. (c) False. (d) False. (e) True. (f) False. (g) True. (h) False. (i) False. (j)
True.
QUESTION 1
(a) The courts are entitled to order specific performance of an engagement contract.

(b) Although marriage is a voluntary union based on agreement, it is generally

acknowledged that it (marriage) is not a contract.
(c) A person who has been declared mentally ill can conclude a perfectly valid marriage
during a clear moment (lucidum intervallum).
(d) If the parents of a minor refuse to consent to the minor’s marriage, the
commissioner of child welfare may grant the required consent.
(e) If a minor marries without the required parental consent, the parents may apply for
the annulment of the marriage before the minor attains majority, provided that the
application is made within six months from the date on which they became aware of the
existence of the marriage.
(f) An adoptive parent may not marry his or her adopted child.
(g) A civil marriage between cousins is absolutely forbidden.
(h) A man may conclude a civil marriage with his former wife’s sister.
(i) If a voidable marriage is not set aside by a court order, it remains a valid marriage.
(j) A spouse who is a minor when he or she marries, attains majority and retains it even
if the marriage is dissolved before he or she turns 21.
(k) The reciprocal duty of support that exists between spouses terminates automatically
when the spouses live apart while they are married.
(l) Legally the husband is no longer the head of the family.
Answers (a) False. (b) True. (c) True. (d) False. (e) False. (f) True. (g) False. (h) True.
(i) True. (j) True. (k) False. (l) False.
QUESTION 5
Answer this question by writing in each case only the number of the correct answer in your
(a) Mr and Mrs Koen, who are married in community of property, they are currently living
apart in terms of an extra-judicial separation agreement which they concluded recently. The
spouses also agreed that for the period of time, for which they would live apart, they would
each have their own separate estate and that Mr Koen would pay maintenance to Mrs
Koen. Which one of the following statements is wrong?
[1] The extra-judicial separation agreement between the spouses remains valid only for as
long as both spouses uphold it.
[2] The arrangement in terms of which Mr and Mrs Koen each has their own separate estate
for the period of time for which they live apart, binds all third parties with whom they (Mr
and Mrs Koen) conclude transactions.
[3] Either of the spouses may approach the court to amend the maintenance agreement
made between them.

[4] Despite the existence of the extra-judicial separation agreement either of the spouses
may institute divorce proceedings. (2)
Answer 2
(b) Mrs Roux’s husband died last week. Mrs Roux wishes to know from you whether she has
a claim for maintenance against her deceased husband’s estate. Which one of the following
Acts would you use in order to advise her?
Answer 3
(c) Section 4(2) of the Divorce Act 70 of 1979 contains three examples of instances where
the probability is high that a normal marriage relationship no longer exists between spouses
and that there is no reasonable prospect of the restoration of a normal marriage
relationship between them. Which one of the following instances is not one of the examples
in section 4(2)?
[1] The parties have not lived together as husband and wife for a continuous period of at
least one year immediately prior to the date of the institution of the divorce action.
[4] The defendant has been declared an habitual criminal in terms of a sentence of a court
and is undergoing imprisonment as a result of such sentence. (2)
Answer 2
(d) In terms of section 5A of the Divorce Act 70 of 1979, a court has the discretion to refuse
a decree of divorce if, as a result of religious prescriptions, one or both of them will not be
able to remarry once the court has granted a decree of divorce. Which one of the following
cases is the first reported case which dealt with the application of section 5A?
[1] Amar v Amar
[2] Smit v Smit
[3] Swart v Swart

Answer 1
(e) In terms of section 7(7)(a) of the Divorce Act 70 of 1979, the pension interest of a
spouse is deemed to be part of his or her assets for the determination of the patrimonial
benefits to which the spouses to a divorce action may be entitled. Section 7(7)(a) does not
apply to spouses who got married
[2] out of community of property subject to the accrual system.
[3] on or after 1 November 1984 in terms of an antenuptial contract by which community of

property, community of profit and loss and the accrual system are excluded.
[4] before 1 November 1984 in terms of the old standard form antenuptial contract. (2) [10]
Answer 3
QUESTION 3
answer script, for example: (a) [1].
(a) Mr and Mrs Brink concluded a civil marriage in 2003 while they were both domiciled in
South Africa. However, they were married without an antenuptial contract and never
concluded a postnuptial contract to regulate the patrimonial consequences of their
marriage. Mr and Mrs Brink’s marriage is therefore
[2] out of community of property with retention of profit and loss
[4] out of community of property subject to the accrual system (2)
Answer 1
(b) Mr and Mrs Naidoo are married in community of property. Which one of the following
debts which are still outstanding when their joint estate is dissolved upon divorce, may be
recovered from both spouses?
Answer 2

(c) Mr and Mrs Venter are married in community of property. Which one of the following
assets or amounts indeed forms part of their joint estate? [1] R10 000 which Mrs Venter
recovered as damages after her neighbour, Mr X, crashed into her motor vehicle
[2] R8 000 which Mrs Venter recovered as satisfaction from Mr X as a result of the pain and
suffering she suffered after the accident
*3+ Mr and Mrs Venter’s matrimonial home which Mrs Venter inherited from her father on
condition that it should go to her son upon her death
[4] the engagement ring which Mr Venter gave to Mrs Venter before their marriage (2)
Answer 1
(d) Mr and Mrs Mathe are married in community of property. What form of consent does
Mrs Mathe require from Mr Mathe to withdraw money credited to Mr Mathe’s name in a
bank account?
Answer 3
(e) In which one of the following cases did the court hold that the words “cannot reasonably
know” in section 15(9)(a) of the Matrimonial Property Act 88 of 1984 should be interpreted
in light of what the reasonable person should have known?
[1] Bopape and Another v Moloto
[4] Distillers Corporation Ltd v Modise (2)[10]
Answer 4
QUESTION 5
Answer this question by writing only the number of the correct answer in your answer
(a) In terms of the Maintenance of Surviving Spouses Act 27 of 1990, the surviving spouse in
a marriage which is dissolved by death has a claim for maintenance against the estate of his
or her deceased spouse. Which one of the following statements is false?

[1] The Maintenance of Surviving Spouses Act 27 of 1990 bestows a maintenance claim
upon each and every surviving spouse regardless of the date the marriage was dissolved by
death.
[2] The maintenance claim may arise regardless of the matrimonial property system which
operated in the marriage.
[3] The maintenance claim arises only in so far as the surviving spouse is unble to provide
for his or her reasonable maintenance needs from his or her own means and earnings.
[4] The maintenance claim terminates when the surviving spouse dies or remarries. (2)
Answer 1
(b) Section 4(2) of the Divorce Act 70 of 1979 contains guidelines on when a marriage is
regarded as having broken down irretrievably. Which one of the following instances is not
one of the guidelines in section 4(2)?
[1] The parties have not lived together as husband and wife for a continuous period of at
least one year immediately prior to the date of the institution of the divorce action.
[4] The defendant has been declared an habitual criminal in terms of a sentence of a court
and is undergoing imprisonment as a result of such sentence. (2)
Answer 2
(c) In which one of the following court cases did the court issue a divorce decree in terms of
the Divorce Act 70 of 1979 while ordering the husband, who refused to grant his wife a
Jewish religious divorce, to maintain his wife until such time as their marriage was
terminated by the granting of a get?
[1] Levy v Levy
[2] Amar v Amar
Answer 2
(d) In order to establish when a marriage can be considered as having broken down
irretrievably, our courts use the subjective and the objective approach to determine
whether the consortium has been terminated or seriously violated. Which one of the
statements is false?

[1] A purely objective approach means that the court pays attention to the facts and
circumstances of the marriage in question, taking into consideration the reasons why the
plaintiff is suing for a divorce.
[2] A purely subjective approach means that the court only considers the fact that the
plaintiff is suing for divorce, without taking either the history of the marriage or the present
state of the marriage into account.
[3] A purely subjective approach will result in a marriage being regarded as having broken
down irretrievably when the plaintiff sues for divorce.
[4] A purely objective approach means that the court only pays attention to the facts and
circumstances of the marriage in question, without taking into consideration the reasons
why the plaintiff is suing for divorce. (2)
Answer 1
(e) In terms of section 7(7)(a) of the Divorce Act 70 of 1979, the pension interest of a spouse
is deemed to be part of his or her assets upon divorce. Section 7(7)(a) does not apply to a
white couple who were married [1] in community of property before 1 November 1984.
[2] out of community of property subject to the accrual system on or after 1 November
1984.
[3] on or after 1 November 1984 in terms of an antenuptial contract which excludes

community of property, community of profit and loss and the accrual system.
[4] before 1 November 1984 in terms of an antenuptial contract which excludes community
of property, community of profit and loss and the accrual system. (2) [10]
Answer 3
Question 3
Answer this question by writing only the number of the correct answer in your assignment
answer scrip, for example (a) [1].
(a) Mr and Mrs Venter are married in community of property. Which one of the following
assets or amounts forms part of their joint estate?
[1] R10 000 which Mrs Venter recovered as damages after her neighbour, Mr X, crashed into
her car (which forms part of the joint estate)
[3+ Mr and Mrs Venter’s matrimonial home which Mrs Venter inherited from her father on
[4] the engagement ring Mr Venter gave to Mrs Venter before their marriage (2)
(b) Which one of the following statements is true?

[1] In Du Plessis v Pienaar it was held that creditors of spouses who are married in
community of property can look to the estates of both spouses for recovery of a joint debt.
[2] When a spouse who is married in community of property is liable for patrimonial
delictual damages, the damages cannot under any circumstances be recovered from the
joint estate.
[3] A spouse who is married in community of property is not allowed to claim damages
from his or her spouse for non-patrimonial loss in respect of bodily injuries that spouse
inflicted on him or her.
[4] All antenuptial debts of both a husband and a wife who are married in community of
property remain the respective spouse’s separate debts during the subsistence of the
marriage. (2)
(c) Mr and Mrs Naidoo are married in community of property. Which one of the following
debts, which are still outstanding when their joint estate is dissolved upon divorce, may be
recovered from both spouses?
(d) Mr and Mrs Mathe are married in community of property. What form of consent does
Mrs Mathe require from Mr Mathe to withdraw money credited to his name in a bank
account?
(e) In which one of the following cases did the court hold that the words “cannot reasonably
know” in section 15(9)(a) of the Matrimonial Property Act 88 of 1984 should be interpreted
in the light of what the reasonable person whould have known?
[1] Bopape v Moloto
[2] Reis v Executors of Gilloway
[4] Distillers Corporation Ltd v Modise [10]

Answers (a) [1]. (b) [1]. (c) [2]. (d) [3]. (e) [4].
8 Which one of the following is not an invariable consequence of a civil marriage?
[1] The spouse who owns the family home may eject the other spouse from the family home
at any time.
[2] A right of intestate succession is created between the spouses.
[3] Spouses have the capacity to incur debts for household necessaries.
[4] The husband is the head of the family.
[1]
9 Which one of the following statements on the concept “consortium omnis vitae” which
marriage imposes on spouses, is false?
[1] In Grobbelaar v Havenga it was held that the consortium omnis vitae is “an abstraction
comprising the totality of a number of rights, duties and advantages accruing to the spouses
of a marriage”.
*2+ In Peter v Minister of Law and Order it was held that “consortium” is used “as an
umbrella word for all the legal rights of one spouse to the company, affection, services and
support of the other”.
[3] The concept includes immaterial things only.
[4] The concept does not lend itself to a precise definition, as virtually all the objects of all
the rights emanating from marriage can be grouped under it.
[3]
4 Mr and Mrs Mathe are married in community of property. What form of consent does Mrs
Mathe require from Mr Mathe to sell an expensive painting, which forms part of their joint
estate and which they bought as an investment?
[3] oral consent
[1]
5 In Mr and Mrs Nel’s antenuptial contract Mr Nel undertakes to transfer an insurance

policy to Mrs Nel as soon as their first child is born. This is called a

*2+ “clean break” clause
[4]
6 The accrual system can be described as a type of postponed community of profit. Which
[1] Except when the protective measure provided for in section 8 of the Matrimonial
Property Act is applicable, a spouse’s claim to share in the accrual of the other spouse’s
estate only arises at the dissolution of the marriage.
[2] During the subsistence of the marriage the claim to share in the accrual is an asset in the
estate of the ultimate recipient.
[3] During the subsistence of the marriage the right to share in the other spouse’s accrual is
*4+ A spouse’s right to share in the other spouse’s accrual forms part of his or her insolvent
estate.
[1]
QUESTION 4
Answer this question by writing in each case only the number of the correct answer in your
(a) Mr and Mrs Nel’s antenuptial contract contains a clause that stipulates that the surviving
spouse will be the sole heir of the first-dying spouse. This clause is called a
*4+ “clean break” clause (2)
(b) Mr and Mrs Vosloo got married out of community of property in 1990. Which one of the
following provisions contained in their antenuptial contract would be null and void?
[1] The spouse who contributes more to household necessaries than his or her pro rata
share, will have a right of recourse against the other spouse.
[2] Mr Vosloo will transfer R5 000 to Mrs Vosloo as soon as their first child is born.
[3] Mrs Vosloo will remain in Pretoria should Mr Vosloo be transferred to England
permanently.

[4] On the death of the first-dying spouse, the family home will devolve upon the children
born of the marriage, while the surviving spouse will be entitled to a usufruct over the
property. (2)
(c) The accrual system can be described as a type of postponed community of profit. Which
one of the following statements is incorrect?
[1] Except when the protective measure provided for in section 8 of the Matrimonial
Property Act 88 of 1984 is applicable, a spouse’s claim to share in the accrual of the other
spouse’s estate only arises at the dissolution of the marriage.
[2] The claim to share in the accrual is not an asset in the estate of the ultimate recipient
during the subsistence of the marriage.
*3+ During the subsistence of the marriage the right to share in the other spouse’s accrual is
neither transferable, nor liable to attachment.
*4+ A spouse’s right to share in the other spouse’s accrual forms part of his or her insolvent
estate.
(d) Mr and Mrs Roux got married out of community of property with the accrual system in
1998. When they married, Mr Roux had R10 000 and no debts. Mrs Roux now sues Mr Roux
for a divorce. Suppose that during the subsistence of the marriage money depreciated to
such an extent that, according to the consumer price index, R2,00 now has the same value
as R1,00 at the beginning of the marriage. Which one of the following amounts reflects the
net commencement value of Mr Roux’s estate at the time of the dissolution of the
marriage?
[1] R10 000
[2] R20 000
[3] R0
[4] R5 000 (2)
(e) The legislature relaxed the immutability principle in matrimonial property law by
enacting section 21 of the Matrimonial Property Act 88 of 1984. Which one of the following
statements is correct?
[1] Either of the spouses can apply to the High Court for leave to change their matrimonial
property system.
[2] The decision in Ex parte Burger implies that spouses who invoke section 21 of the
Matrimonial Property Act 88 of 1984 have a choice whether or not they want to alter their
matrimonial property system with retrospective effect.
[3] The only requirement for an application in terms of section 21 of the Matrimonial
Property Act 88 of 1984 is that there must be sound reasons for the change.

*4+ According to the decision in Ex parte Engelbrecht, the phrase “sound reasons” for the
change of a matrimonial property system refers to facts which are convincing, valid and
anchored in reality. (2) [10]
Answers (a) 2.(2) (b) 3.(2) (c) 4.(2) (d) 2.(2) (e) 4.(2)
QUESTION 1 – multiple choice questions and answers 2010
(b) Mary and David married 15 years ago. When David died Mary discovered that he had
also been married to June, and that this marriage had not been dissolved. Mary would like
the children born from her and David’s marriage to be legitimate; therefore she would have
to argue that their marriage was …
[1] void.
[2] putative.
[3] valid.
[4] voidable. (2)
(b) [2]
(c) In Reloomel v Ramsay the court used the following approach to determine whether a
particular item is a household necessary:
[1] The subjective approach by looking at the facts of which the dealer was indeed aware or
should reasonably have been expected to be aware.
[2] The objective approach by considering all relevant facts, without paying any attention to
what the dealer really knew.
[3] Both the objective and subjective approach by considering all the relevant facts of the
case to determine whether the purchasing spouse acted within the scope of his or her
capacity.
*4+ Neither the objective nor the subjective approach by only considering the family’s social
background and their standard of living. (2)
(c) [1]
(d) Mr and Mrs Venter are married in community of property. Which one of the following
assets or amounts indeed forms part of their joint estate?
[1] R10 000 which Mrs Venter recovered as damages after her neighbour, Mr X, had crashed
into her and Mr Venter’s motor vehicle
*3+ Mr and Mrs Venter’s matrimonial home which Mrs Venter inherited from her father on

[4] The engagement ring which Mr Venter gave to Mrs Venter before their marriage (2)
(d) [1]
(e) Freddie and Patricia are married in community of property. Freddie now wants to enter
into a contract of sale with Mr Chester to purchase his farm. What kind of consent does
Freddie need from Patricia?
[1] Prior written consent, attested by two competent witnesses, in respect of each
transaction separately
[2] Written consent, attested by two competent witnesses, in respect of each transaction
[3] Written consent without any further requirements
[4] Oral or tacit consent (2)
(e) [2]
(f) Mr and Mrs Sithole are married in community of property. Which remedy is available to
Mrs Sithole if Mr Sithole, without her knowledge, sold her expensive jewellery below their
market value in an effort to gather enough money to pay the parties’ bond instalment in
respect of the matrimonial home?
[1] The common law interdict during the subsistence of the marriage in terms of the
common law
[2] The common law right of recourse upon dissolution of the joint estate
[3] The statutory right to adjustment in terms of section 15(9)(b) of the Matrimonial
Property Act 88 of 1984 upon dissolution of the joint estate
[4] The actio Pauliana utilis in terms of the common law (2)
(f) [3]
(g) In terms of the Maintenance of the Surviving Spouses Act 27 of 1990, the surviving
spouse in a marriage which is dissolved by death after 1 July 1990 has a claim for
maintenance against the estate of his or her deceased spouse …
[1] regardless of whether the surviving spouse will inherit from the deceased spouse, but
only if the marriage is in community of property.
[2] regardless of whether the surviving spouse will inherit from the deceased spouse or not,
and regardless of the matrimonial property system.
[3] only if the surviving spouse will inherit from the deceased spouse.
[4] only if the surviving spouse will not inherit form the deceased spouse. (2)
(g) [2]

(h) In our divorce law the following legal concept is used to determine whether a normal
marriage relationship exists between spouses:
[2] Boni mores
[4] Pactum successorium (2)
(h) [3]
(i) In terms of section 7(7)(a) of the Divorce Act 70 of 1979, a spouse’s pension interest is
deemed to be part of his or her assets which can be considered upon divorce in connection
with division of the spouses’ assets. Section 7(7)(a) does NOT apply to spouses who married
…
[2] out of community of property with the accrual system.
[3] before 1 November 1984 in terms of an antenuptial contract by which community of

[4] after 1 November 1984 in terms of an antenuptial contract by which community of

(i) [4]
(j) In which one of the following cases did the court decide that all three factors mentioned
in section 9 of the Divorce Act 70 of 1979 must be present before a forfeiture order can be
granted and, particularly, that substantial misconduct is a prerequisite for the making of a
forfeiture order?
[1] Klerck v Klerck
[2] Matyila v Matyila
[3] Binda v Binda
[4] Wijker v Wijker (2)
(j) [2]
(k) An application for the payment of maintenance pendente lite is brought in terms of ... [1]
rule 43 of the Uniform Rules of Court.
[2] section 7(1) of the Divorce Act 70 of 1979.
[3] section 7(2) of the Divorce Act 70 of 1979.
[4] section 8 of the Divorce Act 70 of 1979. (2)

(k) [1]
(l) Temba concluded a customary marriage with Julia in terms of the Recognition of
Customary Marriages Act 120 of 1998 on 15 December 2000. This marriage is Temba’s only
marriage. Temba and Julia did not enter into an antenuptial contract. The proprietary
consequences of their customary marriage are therefore as follows:
[1] They are married in community of property.
[2] They are married with complete separation of property.
[3] They are married out of community of property with application of the accrual system.
[4] The proprietary consequences of the marriage are regulated by a court approved
contract. (2)
(l) [1]
(m) In which one of the following cases did the constitutional court hold that a surviving
spouse in a monogamous Muslim marriage qualifies as a “spouse” and “survivor” in terms of
the Intestate Succession Act 81 of 1987 and the Maintenance of Surviving Spouses Act 27 of
1990?
[1] Amod (Born Peer) v Multilateral Motor Vehicle Accidents Fund
[2] Ismail v Ismail
[3] Ryland v Edros
[4] Daniels v Campbell (2)
(m) [4]
(n) The Children’s Act 38 of 2005 replaced the term “custody” with the following term:
[1] Residence
[2] Care
[3] Contact
[4] Control (2)
(n) [2]
(o) A tutor dative is a guardian who is appointed for a minor by …
[1] a testamentary guardian.
[2] an assumed tutor.
[3] the master of the high court.
[4] the commissioner of child welfare. (2)

(o) [3]
Question 1 multiple choice questions and answers 2009
(1) In Guggenheim v Rosenbaum the court awarded the innocent party for breach of
promise the following:
[1] Compensation for all her prospective loss.
[2] Compensation for all her expenditure incurred.
[3] Compensation for all her prospective loss and all her expenditure incurred.
[4] Compensation for part of her prospective loss and all her expenditure incurred. (2)
(2) Affinity in the collateral line exists between you and your …
[1] parents
[2] children from a previous marriage
[3] adopted child
*4+ spouse’s sister (2)
(3) After George and Susan had been married for 15 years George discovered that Susan
had not divorced her previous husband. The marriage between George and Susan is …
[1] valid
[2] putative
[3] void
[4] voidable (2)
(4) In 1980 Mr and Mrs Smith were married out of community of property. Last year Mr
Smithdonated a car to Mrs Smith. In terms of section 22 of the Matrimonial Property Act 88
of
1984 the donation is …
[1] valid subject to the provisions of the Insolvency Act
[2] voidable subject to the provisions of the Insolvency Act
[3] valid subject to the provisions of the Matrimonial Property Act

[4] voidable subject to the provisions of the Matrimonial Property Act (2)
(5) There is a rebuttable presumption in our law that if two persons entered into a civil
marriage, they are married according to the following matrimonial property system …
[3] out of community of property and community of profit and loss
[4] out of community of property with retention of community of profit and loss (2)
(6) The patrimonial consequences of a marriage is determined by …
[1] the lex loci domicilii of the wife at the time of the marriage
[2] the law of the country where the parties choose to reside after the wedding
[3] the lex loci domicilii of the husband at the time of the marriage
[4] the law of the country where the wedding is concluded (2)
(7) Vincent and Thumi are married in community of property. Vincent now wants to sell the
couple’s valuable paintings that form part of their joint estate so that he can pay for his
studies. Which form of consent does he need to perform this juristic act?
[1] Prior written consent, attested by two competent witnesses, in respect of each
transaction separately.
[2] Written consent, attested by two competent witnesses, in respect of each transaction
separately.
[4] Oral or tacit consent. (2)
(8) In Honey v Honey the court held that …
[1] retroactive alteration of the matrimonial property system is impermissible
[2] retroactive alteration of the matrimonial property system is permissible
[3] spouses cannot alter their matrimonial property system informally
[4] spouses can alter their matrimonial property system informally (2)

(9) Which one of the following is not a way in which a marriage is dissolved?
[1] By the annulment of a void marriage.
[2] By the death of both of the spouses.
[3] By the death of one of the spouses.
[4] By divorce. (2)
(10) In terms of the Maintenance of Surviving Spouses Act 27 of 1990, the surviving spouse
in a marriage which is dissolved by death after 1 July 1990 has a claim for maintenance
against the estate of his or her deceased spouse …
[1] regardless of whether the surviving spouse will inherit from the deceased spouse,but
only if the marriage is in community of property
[2] regardless of whether the surviving spouse will inherit from the deceased spouse or not
[3] only if the surviving spouse will inherit from the deceased spouse
[4] only if the surviving spouse will not inherit from the deceased spouse (2)
(11) Which one of the following is not a ground for divorce?
[1] Continuous unconsciousness as contemplated in section 5 of the Divorce Act.
[2] Mental illness as contemplated in section 5 of the Divorce Act.
[3] Imprisonment as contemplated in section 5 of the Divorce Act.
[4] Irretrievable breakdown of the marriage as contemplated in section 4 of theDivorce Act.

(2)
(12) Which method or test will the court use to determine whether the consortium between
spouses has been terminated or seriously violated in order to establish whether the
marriage has indeed broken down irretrievably?
[1] A subjective test.
[2] An objective test.
[3] Both a subjective and objective test.
[4] Either a subjective or objective test. (2)

(13) It was held in Beaumont v Beaumont that in making a redistribution order in terms of
section 7(3) of the Divorce Act the court has to …
[1] apply the one third rule
[2] apply the principle of equal division
[3] make an assessment of what is just
[4] make an assessment of what the monetary value of the contribution is (2)
(14) In which case was it held that the contractual obligations flowing from a de facto
monogamous Muslim marriage can be recognised and enforced between the parties
despite the fact that the marriage is potentially polygynous?
[2] Ryland v Edros
[3] Amod v Multilateral Motor Vehicle Accidents Fund
[4] Ismail v Ismail (2)
(15) In terms of the Children’s Act, consent of all the child’s guardians is necessary for the
transactions listed in section 18(3)(c). In which one of the following instances is the
consent of all the child’s guardians not necessary?
[1] The alienation of immovable property of the child.
*2+ The child’s adoption.
*3+ The child’s marriage.
*4+ The child’s engagement. (2)
Answers (1)[4](2) [4](3) [2](4) [1](5) [2](6) [3](7) [3](8) [3](9) [1](10) [2](11) [3] (12) [3](13)
[3](14) [2](15) [4]
Question 2
(a) Explain the meaning of the term “voidable marriage”. (2)
(b) Name three grounds on which a voidable civil marriage can be set aside. (3) [5]

Answer
(a) A voidable marriage is a marriage in which grounds are present, either before or at the
time of the wedding,(1) on the basis of which the court can be requested to set the
marriage aside.(1)
(b) Any three of the following:
❖ Minority
❖ Stuprum (sexual intercourse before marriage)
❖ Material mistake
❖ Impotence
❖ Sterility
❖ Serious misrepresentation
❖ Duress
QUESTION 2
(a) How does a void marriage differ from a voidable marriage? Answer this question by
stating two differences between a void marriage and a voidable marriage. (In your answer
you should not refer to the grounds for a void and a voidable marriage.) (4)
(b) Which two conflicting opinions exist in our case law regarding sterility as a ground for
the voidability of a marriage? In your answer you have to mention the names of the two
relevant court cases and indicate which viewpoint each court case represents. You should
also indicate which viewpoint Cronjé and Heaton prefer. (5)
(c) What is understood by the term “putative marriage”? Explain briefly. (2)*11+
Answers
Void marriage Voidable marriage
A void marriage is one which has simply A voidable marriage remains in force and
never come into existence and the position has all the normal consequences of a valid
is thus exactly as it would have been had marriage until it is dissolved by a court
the “marriage” never been contracted. order.
Status of the parties: unmarried Status of the parties: married.

Status of the children: illegitimate Status of the children: legitimate
For purposes of legal certainty a void A voidable marriage must be annulled by a

marriage should be declared void by the court order. The decree is compulsory
court. The order is merely declaratory.
A void marriage does not have the legal A voidable marriage has all the normal
consequences of a valid marriage. consequences of a valid marriage.
(b) In Van Niekerk v Van Niekerk (1959 (4) SA 658 (GW)) it was held that the mere fact of
sterility renders the marriage voidable, regardless of whether or not it was fraudulently
concealed .
In Venter v Venter (1949 (4) SA 123 (W)) it was held that it is not the mere presence of
sterility which renders the marriage voidable, but the fraudulent concealment thereof .
Cronjé and Heaton prefer the approach in the Venter-case.
(c) A putative marriage exists when one or both parties are unaware at the time of
concluding the marriage of the defect which renders their marriage void , and believe in
good faith that they are lawfully married .
Question 1
Three months ago, Susan’s very wealthy boyfriend, Mark, asked her to marry him. Because
Susan was so excited about the wedding she immediately bought a wedding dress. Mark,
who has been having an intimate relationship with another woman for the past two weeks,
is now refusing to marry Susan. Susan is very upset about this and consults you for advice.
(a) Indicate, with reference to the relevant case law, whether Susan can claim anything
from Mark
(i) in respect of the costs she incurred for the wedding dress and
(ii) on the ground of the fact that she will no longer be marrying a wealthy man.
Your answer must include an explanation of how damages are calculated in the case
of breach of promise. (7)
(b) Mention the two things Susan needs to prove to succeed with an action for satisfaction
for personality infringement occasioned by breach of promise. (2)
Answer
(a) In Guggenheim v Rosenbaum(1) the court allowed the “innocent party” to claim not
only prospective loss(1) but also expenses incurred.(1) The court therefore awarded the
plaintiff both positive interest and negative interest.(1)

(i) In terms of the wedding dress – negative interest(1) means placing the “innocent party”
in the financial position she would have been in if the contract of engagement had never
been entered into.(1) Susan will be able to claim the cost of the wedding dress. (1)
(ii) In terms of the fact that Susan will no longer be marrying a wealthy man – positive
interest(1) means that the damages are calculated in such a way that the “innocent party”
is placed in the financial position she would have been if the marriage had taken place.(1)
Susan will in principle be able to claim compensation for the fact that she will no longer be
marrying a wealthy man.(1)
In Guggenheim v Rosenbaum the court, however, placed the plaintiff only partially in the
position she would have been in if the marriage had taken place (positive interest) and
partially in the position she would have been in if the contract of engagement had never
been entered into (negative interest).(1)
(b) Susan will have to prove infringement of her personality rights (honour/dignity -
iniuria)(1) and that Mark had the intention to infringe her personality rights these rights
(honour/dignity - animus iniuriandi).(1)
Question 2
Deon and Jane got married in 2003. Their marriage was solemnised by Deon’s brother, Tim,
who was not a competent marriage officer at that stage. At the time of the conclusion of the
marriage, Tim and Deon were aware of the fact that Tim was not competent to solemnise
the marriage, while Jane was unaware of it. Jane only discovered last week that Tim was not
competent to solemnise their marriage. (Note that the Minister of Home Affairs did not
ratify Deon and Jane’s marriage at any stage in terms of s 6 of the Marriage Act 25 of 1961.)
Indicate, with reference to authority (case law and the opinion of Cronjé and Heaton),
whether a putative marriage has come into being between Deon and Jane, by fully
discussing the requirements for the existence of a putative marriage. [9]
Answer
The first requirement for the existence of a putative marriage is that one or both parties
to the marriage must, in good faith, be unaware of the defect which renders their
marriage void. The defect which renders the marriage void in this case is the fact that the
marriage officer who solemnised Deon and Jane’s marriage was incompetent (due
solemnisation is a requirement for a valid marriage). Because Jane acted in good faith and
was unaware of this defect, the requirement of good faith has been met. At common law
it was further required that all the formalities had to have been complied with at the
solemnisation of the void marriage before it could be a putative marriage. It is not clear
whether the requirement of due solemnisation still forms part of our law. In Bam v
Bhabha this question was left open although the appellate division (now the supreme

court of appeal) implied that it viewed due solemnisation as a requirement . In Ngubane v

Ngubane a full bench of the Transvaal high court seems to have accepted the common-
law position that a putative marriage cannot come into existence in the absence of “a
marriage ceremony performed by a marriage officer” .
In Solomons v Abrams the court not only considered itself bound by the decision in
Ngubane but also thought the approach in Ngubane to be the better one .
In Moola v Aulsebrook it was decided that as long as the marriage was contracted
“openly and in accordance with rituals and ceremonies not inconsistent with our law” it
can be putative .
Heaton submit that the viewpoint in Moola v Aulsebrook should be followed. Hence,
nowadays due solemnisation no longer appears to be a requirement. Consequently, a
putative marriage has come into being between Deon and Jane.
Question 4
Mr and Mrs Nkosi were married out of community of property in 1988. They did not
expressly exclude the accrual system in their antenuptial contract. Neither Mr nor Mrs Nkosi
had any assets at the time of the conclusion of their marriage. Mr Nkosi died last week.
Mr Nkosi’s net estate at the time of his death is valued at R100 000 and includes inter alia
the following:
• R10 000 which he inherited intestate from his father.
• R15 000 which he received as compensation for the loss of income he sustained while he
was in hospital after an accident.
• R20 000 which he received as compensation for the damages caused to his motor vehicle
during the accident.
• R55 000 which he earned on his own as an attorney.
Mrs Nkosi’s net estate at the time of Mr Nkosi’s death is valued at R30 000 and includes
interalia the following:
• A painting worth R2 000 which she excluded from the accrual in the antenuptial contract.
• R8 000 which she inherited intestate from her father.
Indicate by doing the necessary calculations whether Mrs Nkosi has an accrual claim against
Mr
Nkosi’s estate. Discuss your answer by substantiating your calculations. *13+

Answer
Because Mr and Mrs Nkosi were married out of community of property and community of
property and loss after 1 November 1984 their marriage is automatically subject to the
accrual
system.(1) If the spouses do not want the accrual system to apply they have to exclude it
expressly.(1) Because Mrs Nkosi’s estate shows the smaller accrual, she has a claim
against Mr
Nkosi’s estate. Her accrual is calculated as follows:
Net value on dissolution(1) R30 000(½)
Minus net commencement value(1) -R 0(½)
Minus assets excluded from the accrual:(1) -R10 000(½)
The painting which she excluded from the accrual R2 000(½)
Intestate inheritance R8 000(½)
R10 000
Accrual R20 000(1)
The accrual in Mr Nkosi’s estate is calculated as follows:
Minus net commencement value(1) -R 0(½)
Minus assets excluded from the accrual:(1) -R10 000(½)
Inheritance from his father R10 000
Accrual R90 000(1)
(Damages in the amount of R15 000 for loss of income (½) and R 20 000 for damages to
motor
vehicle(½) are NOT EXCLUDED because they are damages for patrimonial loss.(1))
The accrual of Mr Nkosi’s estate is calculated as follows:
Mrs Nkosi’s accrual claim = ½(R90 000 – R20 000)(1)
= ½(R70 000)(1)
Mrs Nkosi is therefore entitled to R35 000.(1)

QUESTION 4
Mr and Mrs Taylor were married out of community of property on 1 June 1991. They did not
expressly exclude the accrual system in their antenuptial contract. Mr Taylor had no assets
at the time of the conclusion of their marriage, while Mrs Taylor had expensive jewellery to
the value of R10 000. Mr Taylor died last month.
Mr Taylor’s net estate at the time of his death is worth R100 000 and consists of the
following:
• R20 000 which he inherited intestate from his father.
• R20 000 which he received as compensation for loss of income he sustained while hewas
in hospital after an accident.
• R15 000 which he received as a donation from his mother.
• R45 000 which he earned on his own as a teacher.
Mrs Taylor’s net estate at the time of Mr Taylor’s death is worth R80 000 and includes inter
alia the following:
• R20 000 which she inherited intestate from her father.
• R10 000 which she received as satisfaction for pain and suffering after being in a motor
vehicle accident.
Suppose that during the subsistence of the marriage, money depreciated to such an extent
that, in terms of the consumer price index, R2,00 now has the same value as R1,00 at the
beginning of the marriage. Indicate, by doing the necessary calculations, whether Mrs Taylor
has an accrual claim against Mr Taylor’s estate. Discuss your answer by substantiating your
calculations. (15)
Answer
Because Mr and Mrs Taylor married out of community of property and community of
profit and loss after 1 November 1984, their marriage is automatically subject to the
accrual system.(1) If spouses do not want the accrual to apply they have to exclude it
expressly.(1)
The accrual in Mr Taylor’s estate is calculated as follows:
Minus net commencement value(1) -R0(½)

Minus assets excluded from accrual:
Intestate inheritance(1) R20 000(½)
Donation he received from his mother(1) R15 000(½)
(Compensation for loss of income in the R35 000 -R35 000(½)
amount of R20 000 NOT EXCLUDED,
because it constitutes damages for patrimonial loss.)(1)
Accrual R65 000(1)
Mrs Taylor’s accrual is calculated as follows:
Minus net commencement value(1)
Adapt commencement value with CPI(1)
Accept that money was worth twice as
much at the commencement of the marriage
as at its dissolution. Thus R10 000 then
adjusted to R20 000 now -R20 000(1)
Minus assets excluded from the accrual:
Intestate inheritance(1) R20 000(½)
Satisfaction for pain and suffering(1) R10 000(½)
R30 000 -R30 000
-R50 000(½)
Accrual R30 000(1)

Because Mrs Taylor’s estate shows the smaller accrual, she has a claim against Mr
Taylor’s estate.
Mrs Taylor’s accrual claim is ½(1) (R65 000 – R30 000)(1)
=½(R35 000)
=R17500
Mrs Taylor is therefore entitled to R17500.(1)
Question 4
Mr and Mrs Botha were married out of community of property in 2000. The spouses did not
expressly exclude the accrual system in their antenuptial contract. Mr Botha had debts of R5
000 and no assets at the time of the conclusion of the marriage. Mrs Botha declared that
she had assets to the value of R1 000 at the time of the conclusion of the marriage. Mr
Botha died last week.
Mrs Botha’s net estate at the time of Mr Botha’s death is valued at R20 000 and includes,
inter alia, the following:
• R5 000 which she inherited intestate from her mother.
• R3 000 which she received for pain and suffering after being injured in a car accident.
• R2 000 which she received as compensation for loss of income when she was unable to
work due to injuries sustained in a car accident.
• R5 000 which she earned on her own.
Mr Botha’s net estate at the time of his death is valued at R50 000 and includes, inter alia,
the following:
• R20 000 which Mr Botha inherited from his father.
• R10 000 which Mr Botha received as a donation from Mrs Botha during the subsistence of
their marriage.
Suppose that during the subsistence of the marriage, money depreciated to such an extent
that, in terms of the consumer price index, R2,00 now has the same value as R1,00 at the
beginning of the marriage. Indicate by doing the necessary calculations whether Mrs Botha
has an accrual claim against the executor of Mr Botha’s estate. Discuss your answer by
substantiating your calculations.
(15)

Answer
Because Mr and Mrs Botha married out of community of property and community of
profit and loss after 1 November 1984 their marriage is automatically subject to the
accrual system.(1) If the spouses do not want the accrual system to apply they have to
exclude it expressly.(1)
The accrual in Mrs Botha’s estate is calculated as follows:
Net value on dissolution(1) R20

000(½)
Minus net commencement value(1) R 1 000(½)
Adapt the commencement value with
CPI(1)
Money was worth twice as much at the
commencement of the marriage than at
its dissolution. Thus R1 000 then adjusted
R2 000 now. -R2000(½)
Minus assets excluded from the accrual:(1)
Intestate inheritance(1) R 5 000(½)
Non-patrimonial damages/
Satisfaction for pain and suffering(1) R 3 000(½)
R 8 000 -R8000(½)
(Compensation for loss of income in the
amount of R2 000 NOT EXCLUDED,
because it constitutes damages for
patrimonial loss.) (1)
Accrual R10 000(1)

The accrual in Mr Botha’s estate is calculated as follows:
Net value on dissolution(1) R50

000(½)
Minus net commencement value -R

0(½)
Debts exceeded assets at the time of
commencement of marriage(1)
Minus assets excluded from the accrual:
Inheritance from his father(1) R20 000(½)
Donation from Mrs Botha(1) R10 000(½)
R30 000 -R30

000(½)
Accrual R20
000(1)
The accrual of Mr Botha’s estate is calculated as follows:
Mrs Botha’s accrual claim = ½ (R20 000 – R10 000)(1)
= ½ (R10 000)(1)
= R5 000
Mrs Botha is therefore entitled to R5 000.(1)
QUESTION 2

Henk, currently 19 years of age, and Gerda, currently 18 years of age, were the only two
survivors of a motor vehicle accident. Henk’s wife and both Gerda’s parents were killed in
the accident. Since the death of her parents, Gerda has been living with her grandmother,
who was appointed as her guardian by the court. In the meantime, Henk and Gerda have
fallen in love with each other and plan to conclude a civil marriage soon.
(a) Indicate which person(s) and/or authority/authorities Henk and Gerda, respectively,
must approach for permission to their proposed marriage. (2)
(b) If Henk and Gerda conclude a marriage without the required consent (referred to in
subquestion (a)), their marriage is not void merely because of the lack of consent, but
voidable. Indicate who the persons are who may apply to the court for the dissolution of
their marriage, as well as the periods within which the applications should be made. (6)
(c) Suppose Henk and Gerda conclude a marriage without the required consent (referred to
in subquestion (a)). Explain, with reference to legislation, what the patrimonial
consequences of their marriage would be if their marriage were indeed dissolved by a court
because of the lack of consent.(4) [12]
Answer
(a) Gerda requires her (guardian) grandmother’s consent while Henk does not require
anybody’s consent.
(b) A competent court may dissolve the marriage on the ground of want of consent where
application in this regard is made by:
(i) The minor’s parent or guardian (Gerda’s grandmother). The parents or guardian must
make the application before the minor attains majority and within six weeks from the
date on which the guardian (Gerda’s grandmother) became aware of the existence of the
marriage .
(ii) The minor herself (Gerda in this case). The minor must make the application before he
or she attains majority, or within three months thereafter.
(c) Section 24 (½) of the Matrimonial Property Act (88 of 1984)(½) governs the patrimonial
consequences of the marriage of a minor which is dissolved due to lack of consent. This
section provides that the court may make an order with regard to the division of the
matrimonial property of the spouses “as it may deem just”. The court has a very wide
discretion in terms of section 24 and can order any arrangement it considers suitable
concerning the division of the spouses’ assets. Section 24 contains no guidelines for the
exercise of this judicial discretion. The court will probably have regard to factors such as
the respective ages of the parties,(½) their financial circumstances,(½) their wishes(½) and
whether the major spouse took advantage of the inexperience of the minor spouse and
benefited at the latter’s expense(½).
Question 9

Mr and Mrs Viljoen, who are very well-off, have a 21-year-old son, Marius, who is currently
earning no income because he is a full-time student. Marius and his girlfriend, Susan, have
an extramarital son, Dewald.
(a) Mr and Mrs Viljoen are not sure whether they are still legally obliged to support Marius
now that he has reached majority. Advise them whether they still have a maintenance
obligation towards him. In your answer you should also state the requirements for the
existence of the duty of support between parents and children and refer to authority if
necessary. (6)
(b) Since Marius earns no income he cannot assist Susan in making a contribution towards
Dewald's maintenance. Mr and Mrs Viljoen wish to know from you whether it is their
responsibility to take
this obligation (to support Dewald) upon themselves. Explain to them, with reference to
authority, what the legal position is in this regard, and also refer to CronjeÂ and Heaton's
point of view on the
constitutionality of the current position. (7)[13]
Answer
(a) In order to establish whether Mr and Mrs Viljoen are legally obliged to support Marius
it should first be determined whether the requirements for the existence of the obligation
are complied with. The requirements are the following:
. In the first place, the maintenance debtor (Mr and Mrs Viljoen in this case) should be
able to provide the maintenance.
. Secondly, the maintenance creditor (Marius in this case) should be unable to support
himself or herself.
. Thirdly, there should be some relationship between the maintenance debtor and the
maintenance creditor on the basis of which the law imposes a duty of support.
It is clear from the facts that the above-mentioned requirements are complied with. Mr
and Mrs Viljoen are therefore legally obliged to support Marius.
According to Gliksman v Talekinsky , a parent's duty to support his or her child continues
for as long as that child is unable to support himself or herself and the duty does not
necessarily come to an end when the child reaches the age of majority./The mere fact that
Marius reached majority is therefore irrelevant.
(b) If the parents of an extramarital child cannot support that child the liability passes to
the child's maternal grandparents but, according to Motan v Joosub , not to the child's
paternal randparents . According to Motan v Joosub Mr and Mrs Viljoen are therefore not
legally obliged to support Dewald.
Heaton submit that the distinction between the duty of support towards legitimate and
extramarital children clearly violates the extramarital child's constitutional right to
equality before the law and equal protection and benefit of the law , constitutes unfair

discrimination on the ground of birth and conflicts with the provision in the children's
rights clause, which makes the child's best interests the paramount concern in all matters
relating to the child . They further submit that the violation of the child's constitutional
rights is unreasonable and unjustifiable and therefore unconstitutional.
QUESTION 3
Answer the following questions on the obligation of spouses to contribute to the purchase
of household necessaries:
(a) When does a spouse’s duty of support (towards his or her spouse) overlap with his or her
duty to contribute to the purchase of household necessaries? Explain with reference to one
example.
(b) Which two tests are used to determine whether a certain item is a household necessary?
Name these two tests and briefly explain what each entails. (6)
(c) May a spouse’s capacity to purchase household necessaries unilaterally and without a
court order be revoked by the other spouse? Briefly explain. (3) [10]
Answer
(a) When a husband pays for his wife’s accommodation, food and clothing, he is
discharging not only his duty of support in respect of his wife but also his duty to provide
household necessaries.
(b) The courts use the following two tests/approaches to determine whether a particular
item is a household necessary: The objective test/approach :
In terms of this test/approach, the court weighs up all the relevant facts of the case to
determine whether the purchasing spouse acted within the scope of his or her capacity.
The court looks at the family’s social background, their standard of living, and the supply
of the specific commodity that the family already has at its disposal to determine whether
the transaction indeed relates to household necessaries. If, for example, the household
already has an adequate supply of the item, the other spouse will not be liable as the item
will not be considered a household necessary.
The objective test/approach was applied in Voortrekkerwinkels (Ko-operatief) Bpk v

Pretorius (1951 SA 730 (T)).
The subjective test/approach: In terms of the subjective test/approach the matter is

viewed from the dealer’s point of view and only the facts of which the dealer was aware
or of which he or she could reasonably have been expected to have been aware are taken
into consideration . If the court adopts the subjective test/approach and a spouse
purchases a specific commodity, a dealer who is unaware of he existing supply can still

hold the other spouse liable because the court will not take the existing supply into
consideration.
The subjective test/approach was applied in Reloomel v Ramsay (1920 TPD 371). Students
can earn bonus marks for the following: The concept “household necessaries” can be
limited or extended by the necessity or otherwise of a particular item. Whether or not a
specific item is a necessary in a specific household, is determined by the following factors:
the practices and customs in the area; the social status of the family; the income and the
past standard of living of the family. From this it follows that what might be household
necessaries for one family might be luxury items for another.
(c) The question of whether a spouse can unilaterally and without a court order revoke
the other spouse’s capacity to purchase household necessaries, has not been finally
settled. In a number of obiter dicta the courts have stated that a spouse is competent to
do so and that such revocation must merely be made clearly known to third parties . In a
number of other cases the opposite has been held. However, the generally accepted view
among modern authors is that one spouse cannot unilaterally, and without the
intervention of the court, revoke the other spouse’s capacity because the capacity to buy
household necessaries is not based on agency, but comes into being by operation of the
law (ex lege) when a valid marriage and a joint household come into existence
Question 3
Mr and Mrs Naidoo entered into an antenuptial contract prior to their marriage. Now, a
year after their marriage, they discovered that their attorney did not comply with the
formalities of notarial execution and registration of the contract. They approach you for
advice. Advise them fully, with reference to the relevant legislation, on what they can do to
rectify this. (5) [5]
Answer
Mr and Mrs Naidoo may approach the high court(1) in terms of section 88 of the Deeds
Registries Act(1) for permission to have the contract formally executed and registered
postnuptially.(1) Either Mr or Mrs Naidoo or both Mr and Mrs Naidoo, may make the
application.(1)
There are three requirements that have to be met before the court will grant its consent:
(1) The parties must definitely have agreed on the terms of the antenuptial contract
before entering into marriage.(1)
(2) The parties must give good reasons for their failure properly to execute and/or register
the antenuptial contract.(1)
(3) The application must be made within a reasonable time after it was discovered that
the agreement was not properly executed and/or registered.(1)
If the court authorises postnuptial execution and registration, the contract has the same
effect as a duly executed and registered antenuptial contract.(1)

The court may impose whatever conditions it deems suitable in respect of the execution
of the contract,(1) and may specify the period within which the executed contract must be
registered in the deeds registry.(1)
Question 4
Name the requirements for granting an application in terms of section 20 of the

Matrimonial Property Act 88 of 1984 for the immediate division of the joint estate. [2]
Answer
The requirements for an application in terms of section 20 of the Matrimonial Property

Act 88 of 1984 for immediate division of the joint estate are the following:
The court should be convinced that the interests in the joint estate, of the spouse who
apllies for it, are being seriously prejudiced or will probably be seriously prejudiced by the
conduct or
QUESTION 5
Read the quotation from South African Family Law below and then answer the following
questions:
``In an ordinary divorce case the court ... does not have discretion whether or not to grant a
divorce. However, in terms of section 5A of the Divorce Act the court is empowered to
refuse a decree of divorce or to make any other decree it considers just ...''
(a) Under which circumstances in terms of section 5A does the court have the power to
refuse a decree of divorce? (3)
(b) What is the purpose of section 5A?
(c) Name the first reported case which dealt with section 5A and very briefly discuss the
court's decision in that case. (3)
(d) Would you say that the provisions of section 5A violate the constitutional right to
equality because it treat spouses in religious marriages differently from spouses whose
marriages are not governed by a system of religious law? Explain your answer. (5)
(e) Which other constitutional right may possibly be violated by the provisions of section
5A?
Answer
(a) If it appears that, despite the granting of the divorce decree, the spouses or either of
them will, by reason of the prescripts of their religion or the religion of either of them ,
not be free to remarry unless the marriage is also dissolved in accordance with those
religious prescripts or unless a religious barrier to remarriage is removed .

(b) The purpose of section 5A is to relieve the desperate position in which, for example,
a Jewish woman finds herself if her husband refuses to grant her a Jewish religious
divorce(a get).
(c) Amar v Amar. The court issued a divorce order in terms of the Divorce Act , but
ordered the husband, who was unwilling to co-operate in obtaining a Jewish divorce (a
get), to pay maintenance to his wife until such time as their marriage was also terminated
by means of a Jewish divorce (a get).
(d) No.
Equality does not mean that all people should be treated alike. It requires that those
people who are different should be treated differently and those who are alike should be
treated alike. Real equality actually demands that spouses whose marriages are
governed by a system of religious law, which could be used to prejudice one of them,
should be treated differently from spouses whose marriages are not so governed.
Furthermore, because it is usually the husband who exploits the religious prescripts, the
object of section 5A is also to achieve real sex equality between the spouses. Therefore it
would appear as if, instead of offending the equality clause, section 5A conforms to it.
QUESTION 6
Mr and Mrs Brink got married in community of property in 1997. Mrs Brink has been
addicted to drugs since 1998, which resulted in her losing her job as an attorney in January
2000. Since then Mr Brink has been the sole breadwinner while Mrs Brink has consistently
refused to receive treatment for her drug problem or to find another job. Mrs Brink has also
seriously assaulted Mr Brink on various occasions. Mr Brink has always been very
sympathetic towards his wife and has tried everything to help her to overcome her
problem. Last week Mr Brink discovered that his wife was having an affair with the
neighbour. Mr Brink considers his wife’s adultery irreconcilable with a continued marriage
relationship and now sues her for a divorce. Mr Brink also requests a forfeiture order in
terms of section 9 of the Divorce Act 70 of 1979 since, according to him, it would be unfair
and unjust if Mrs Brink were to share upon divorce in the joint estate of R50 000, of which
she only contributed R10 000. The spouses cannot reach an agreement regarding the
payment of maintenance by Mr Brink to Mrs Brink: Mrs Brink claims permanent
maintenance which Mr Brink refuses to pay.
(a) What is the underlying principle governing the forfeiture of patrimonial benefits (as
contemplated in s 9 of the Divorce Act 70 of 1979)? (2)
(b) Explain how forfeiture of benefits works by indicating what Mrs Brink would forfeit in
this case (in other words, where the marriage is in community of property) should the court
grant a total forfeiture order against her. (2)

(c) What role does Mrs Brink’s conduct play in the granting of a forfeiture order against her?
Answer this question with reference to authority. (Note that this question does not deal
with the issue of whether the three factors in s 9 of the Divorce Act 70 of 1979 should be
considered cumulatively.)(4)
(d) Can the court, when considering Mr Brink’s request for forfeiture, use considerations of
fairness and justness to deviate from the matrimonial property system selected by the
spouses when they got married (ie community of property)? Answer “yes” or “no” and
explain your answer with reference to authority. (6)
(e) Mr Brink refuses to maintain Mrs Brink after divorce since she is, according to him, not
entitled to permanent maintenance because of her qualifications. Indicate whether she
might be entitled to any other form of maintenance. Explain your answer with reference to
authority. (4)
(f) According to Swart v Swart, does the fact that Mrs Brink is addicted to drugs and
assaulted Mr Brink play any role when the court has to decide whether she is entitled to
maintenance? Answer “yes” or “no” and provide a reason for your answer by indicating
what the court held in Swart regarding the role conduct plays when maintenance is
considered. (2) [20]
Answer
(a) The underlying principle governing the forfeiture of patrimonial benefits is that no
person ought to benefit financially from a marriage which he or she has caused to fail .
(b) If the court orders a total forfeiture of benefits against Mrs Brink, she only forfeits the
right to share in the assets brought into the marriage by Mr Brink or acquired as a result of
his efforts (R40 000). She will not lose the assets which she brought into the joint estate –
in other words she gets her R10 000 back.
(c) Substantial misconduct is listed in section 9 of the Divorce Act (70 of 1979) as one of
the factors that should be taken into account by the court to determine whether a party
has been benefited unduly if the forfeiture order is not granted.
According to Wijker v Wijker (1993 (4) SA 720 (A)) substantial misconduct is not a
requirement for obtaining a forfeiture order .
The Appellate Division decided the following regarding misconduct:
- the introduction of no-fault divorce did not do away with misconduct as a factor to be
considered when forfeiture of benefits is at issue

- misconduct can be considered because it falls within the ambit of “the circumstances
which gave rise to the break-down” as contemplated in section 9 of the Divorce Act/ the
fact that “substantial misconduct” has been included as a separate factor in section 9
does not exclude consideration of misconduct as a circumstance which gave rise to the
breakdown of the marriage / “Substantial misconduct may include conduct which has
nothing to do with the breakdown of a marriage and may for that and other reasons have
been included as a separate factor.”
In most cases both parties are to blame for the marriage breakdown - in such cases their
conduct is not taken into account by the courts. Only misconduct which is of a serious
nature is considered, especially where only one party’s misconduct led to the breakdown
of the marriage.
(d) No./ Perceived justice and equity are not enough to warrant a forfeiture order. The
mere fact that the consequences of a specific matrimonial regime do not suit a party does
not mean that he or she will be successful with a claim for forfeiture.
Authority: The Appellate division in Wijker v Wijker (1993 (4) SA 720 (A)) rejected the
application of the principle of fairness by the court a quo: the court a quo granted a
forfeiture order against the husband as it was considered unfair that the husband should
share in the assets of a company which had been built up by his wife and to which he had
contributed very little.
Ratio: The fact that one party shares in the other’s successful venture is a consequence of
a marriage in community of property/to say that it is unfair would conflict with the basic
concept of community of property/ the court a quo lost sight of what community of
property entails.
Wijker specifically refers to Engelbrecht v Engelbrecht (1989 SA 597 (C)) , in which it was
held that the starting point in an application for forfeiture is that the parties must be held
to their antenuptial undertakings . Benefiting is an inescapable consequence of the
matrimonial property system and the party that made the larger contribution and
requests forfeiture can only complain about undue benefit. Section 9 of the Divorce Act
(70 of 1979) contains no provision for the application of such a principle of fairness.
Even if it is assumed that the party had not made much of a contribution to the business
from which he or she stands to benefit, it does not necessarily mean that he or she will be
unduly benefited because the benefit that he or she will receive cannot be viewed in
isolation. In order to determine whether the relevant party (Mrs Brink) will be unduly
benefited the court must have regard to the factors mentioned in section 9 of the Divorce
Act. There are 11 possible marks for this six-mark question.
(e) She will probably be entitled to rehabilitative maintenance.
In Kroon v Kroon (1986 (4) SA 616 (E)) the court held that rehabilitative maintenance
could be considered if it is likely that a party can be trained or retrained for a job,
occupation or profession and the party will therefore be able to provide her own support.
Such rehabilitative maintenance will support the party to whom it is awarded for a

certain/temporary period of time in order to enable him/her to be trained or retrained .

Rehabilitative maintenance was also granted in V v V
(f) No.
According to Swart v Swart only conduct which has a bearing on the breakdown of the
marriage can be taken into consideration.
Question 5
Name three ways in which a civil marriage is dissolved. (3)[3]
Answer
A civil marriage can be dissolved in three ways:
(i) By the death of one or both of the spouses.(1)
(ii) By the annulment of a voidable marriage.(1)
(iii) By divorce.(1)
QUESTION 5
Mr and Mrs Botha got married out of community of property in 1996. During the first three
years of marriage, the couple was very happy. As a token of his love for her, Mr Botha
donated an expensive car to Mrs Botha on their third wedding anniversary. Nothing is
mentioned about this donation in the spouses’ antenuptial contract. On 31 May 2001 Mrs
Botha informed Mr Botha that she was involved in an intimate relationship with her
employer, Mr Smit, and that she wanted to divorce Mr Botha. After that, the spouses no
longer shared a bedroom and although they still shared the same house, they rarely
communicated. In December 2001, Mrs Botha ended her relationship with Mr Smit in order
to reconcile with Mr Botha. Although they were happy for the first two months, Mrs Botha
realised that a reconciliation between herself and Mr Botha was impossible and that she
wanted to spend the rest of her life with Mr Smit. Since February 2002 Mrs Botha has been
living with Mr Smit. She plans to sue Mr Botha for a divorce at the end of June 2002.
(a) Mrs Botha has been informed that she can sue Mr Botha for a divorce on the ground
of the irretrievable breakdown of the marriage. When is a marriage considered to have
been irretrievably broken down? Name the criteria laid down by section 4 of the Divorce
Act 70of 1979 in this regard.
(b) The first guideline in section 4(2) of the Divorce Act 70 of 1979, which may indicate that
a marriage has broken down irretrievably, is that the parties have not lived together as

husband and wife for a continuous period of at least one year immediately prior to the date
of the institution of the divorce action.
(i) Which two aspects does Mrs Botha need to prove to the court, if she wishes to rely on
this guideline only? (2)
(ii) Why would Mrs Botha not be able to rely on this guideline?
(c) Would Mr and Mrs Botha be able to get a divorce if the court adopted the approach in
Coetzee v Coetzee? Answer “Yes” or “No” and explain your answer by indicating what was
decided in Coetzee v Coetzee regarding irretrievable breakdown as a ground for divorce. (2)
(d) Mr Botha informed Mrs Botha that he intends to oppose the divorce action and request
a forfeiture order in terms of section 9 of the Divorce Act 70 of 1979. Mrs Botha wishes to
know from you whether the car which Mr Botha donated to her will be regarded as a
patrimonial benefit of the marriage that may be forfeited by her upon divorce. Fully advise
her with reference to authority and the opinions of legal writers. (10) [17]
Answer
(a) Section 4 of the Divorce Act 70 of 1979 lays down two requirements, namely:
❖ the marriage relationship between the spouses must no longer be normal

❖ there must be no prospect of the restoration of a normal marriage relationship
between the spouses
(b)(i) Mrs Botha will have to prove that
❖ there has been no cohabitation for an uninterrupted period of at least one year
❖ even though they were living in the same house, the consortium between them
had been terminated - the issue is not geographical separation
(b)(ii) The separation was not uninterrupted - the spouses attempted to bring about a
reconciliation within the one year period.
(c) Yes , because in Coetzee v Coetzee it was held that in order to be successful in a divorce
action based on the irretrievable breakdown of the marriage, it must be proved that there
has been a change in the pattern of the marriage from which breakdown can be deduced .
(There is clearly a change in the pattern of Mr and Mrs Botha’s marriage from which the
breakdown can be deduced.)
(d) It is unclear whether benefits acquired during the subsistence of the marriage and
whichwere not conferred in the couple’s antenuptial contract, such as the motor car in
this case, can be forfeited.
According to the decision in Watt v Watt only benefits which were conferred in the
antenuptial contract are subject to forfeiture . Hahlo is of the opinion that Watt was
decided incorrectly. He says that the word “marriage” is ambiguous. It may mean the
ceremony itself or the relationship established by it. He argues that the phrase “benefits
of the marriage” should be interpreted as benefits which flow from the marriage as a
continuing relationship. This would mean that benefits acquired during the subsistence of

the marriage would also be liable to forfeiture even though these were not included in the
antenuptial contract. Sinclair and Kaganas are of the opinion that Watt was decided
correctly. They suggest that in this context the word “marriage” means matrimonial
property system, which implies that only benefits derived from the proprietary system are
liable to forfeiture. In a marriage out of community of property only benefits contained in
the antenuptial contract are therefore subject to forfeiture.
In Persad v Persad the court applied the view that the benefits acquired during the course
of the marriage can also be forfeited .
In Koza v Koza the court assumed, without deciding the issue, that in a marriage out of
community of property the patrimonial benefits of the marriage are not restricted to
those benefits which are conferred in the antenuptial contract .
There are 15 potential marks for this 10-mark question.
QUESTION 6
In terms of section 3 of the Divorce Act 70 of 1979, a court may dissolve a marriage by a
decree of divorce. One of the grounds on which such a decree may be granted, is the
irretrievable breakdown of the marriage as contemplated in section 4 of this Act.
(a) List the requirements for the irretrievable breakdown of a marriage as provided for in
section 4 .
(b) Discuss the method the courts use to determine whether the consortium between the
spouses has been terminated or seriously violated. You also have to discuss case law. (8)
[10]
Answer
(a) Section 4 lays down the following two requirements: - the marriage relationship must
no longer be normal - there must be no prospect of the restoration of a normal marriage
relationship between the spouses
(b) The courts use the objective and the subjective tests. According to Cronjé and Heaton,
a purely objective approach means that the court pays attention only to the facts and
circumstances of the marriage in question, without taking into consideration the reasons
why the plaintiff is suing for a divorce. Conversely, a purely subjective approach means
that the court takes cognisance only of the fact that the plaintiff is applying for a divorce,
without considering either the history of the marriage or the present state of the marriage
concerned. The consequences of a purely subjective approach would be that the marriage
is regarded as having broken down irretrievably when the plaintiff applies for a divorce.
The courts do not have a consistent approach to the application of the two approaches. In
Schwartz v Schwartz (1984 (4) SA 467 (A)) the two approaches were considered together .
In Naidoo v Naidoo (1985 SA 366 (T)) the court expressly decided that the test that must
be applied is both subjective and objective . In Swart v Swart (1980 (4) SA 364 (O)) the
subjective and objective approaches were applied somewhat differently than was done in
the Schwartz and Naidoo cases. In Swart the subjective element was taken into account to
determine whether the spouses’ marriage had broken down. /The judge contended that

the breakdown of a marriage and the reasons for this cannot be measured objectively.
The court took the objective element into account only in order to determine whether the
breakdown was irretrievable. Thus, in this case the court first applied the subjective
approach and afterwards the objective approach. According to Cronjé and Heaton, the
correct approach is that applied in the Schwartz and Naidoo cases
QUESTION 6
Answer the following questions regarding redistribution orders granted by the courts upon
divorce in terms of sections 7(3)-(6) of the Divorce Act 70 of 1979.
(a) What does a redistribution order entail? Explain very briefly. (2)
(b) May the court grant a redistribution order if the spouses were married in community of
property? Answer only “Yes” or “No”.
(c) One of the requirements for the granting of a redistribution order is that the spouse who
requests it should have contributed directly or indirectly during the subsistence of the
marriage to the maintenance or increase of the estate of the other spouse. List the ways in
which one spouse can, in terms of section 7(4) of the Divorce Act 70 of 1979, contribute to
the maintenance or increase of the other spouse’s estate. (3)
(d) Briefly explain the meaning of the “clean break” principle. Also explain whether it is
applied in our law. (5) [11]
Answer
(a) In terms of a redistribution order the court orders that assets or part of the assets of
one spouse (usually the wealthier spouse) be transferred to the other (usually the poorer
spouse).(2)
(b) No.
(c) In terms of section 7(4) of the Divorce Act 70 of 1979 contributions may be made by:
(i) the rendering of services (for example where the wife worked in her husband’s shop,
without any compensation) ; or
(ii) the saving of expenses which would otherwise have been incurred (for example where
the wife was a housewife and in this way saved her husband various expenses) ; or
(iii) in any other manner .
(d) In terms of the “clean break” principle the financial obligations of each party to the
other should terminate as soon as possible after divorce.(2)
OR
The “clean break” principle could only be achieved if the spouses were, or at least one of
them was, sufficiently well off to enable the court to make a distribution which would
place the poorer spouse in a financial position to maintain herself or himself . Yes , it
applies in our law.

In Beaumont v Beaumont (1987 SA 967 (A)) the Appellate Division (now the Supreme
Court of Appeal) said that this principle is not foreign to our law and that it is something
to be strived for “if the circumstances permit” . The latter qualification is most important:
the “clean break” principle cannot be used in all divorce actions - only if the spouses’
financial position is such that both of them will have sufficient means to make a living, can
a “clean break” be considered ./The “clean break” principle will be applied only if
application thereof will not lead to unfairness between the parties - either because the
amount will be too large and will consequently place too heavy a burden on the party who
has to pay it, or will be too small to provide for the needs of the party who receives it.
/The manner in which a clean break between the parties can be achieved, is by making
only a redistribution order in terms of section 7(3) and no maintenance order in terms of
section 7(2). /Whether the clean break principle will be applied will therefore depend on
the circumstances of every case.
The same approach was adopted in Katz v Katz (1989 (3) SA 1 (A)) and Archer v Archer
(1989 (2) SA 885 (E)) .
There are eight possible marks for this five-mark question.
Question 8
List the four events which result in the termination of a maintenance order in terms of
section7(2) of the Divorce Act. [4]
Answer
(i) The arrival of the date stipulated in the order.(1)
(ii) The death of the party entitled to maintenance.(1)
(iii) The remarriage of the party entitled to maintenance.(1)
(iv) In terms of Hodges v Coubrough, when the party who has to pay maintenance dies.(1)
(v) If the court rescinds the order.
1 Mr and Mrs Khoza were married in 1995. Mr Khoza is a practising attorney and Mrs Khoza
is a full-time LLB student in her third year, who also takes care of the parties’ household. Mr
Khoza recently discovered that he suffers from multiple sclerosis, which will render him
unable to work at some stage in the future. Mr and Mrs Khoza now wish to get divorced.
They both want to claim maintenance from each other. As they cannot reach an agreement
regarding the payment of maintenance to each other, the court will have to make an
appropriate maintenance order in terms of section 7(2) of the Divorce Act 70 of 1979.
(a) List any six of the nine factors which the court must take into account when making a
maintenance order in terms of section 7(2). (6)

(b) What form of maintenance would Mrs Khoza, as a third-year LLB student, probably be
entitled to? Also provide a definition of this form of maintenance and the name of one court
case in which this form of maintenance was awarded. (4)
(c) What form of maintenance would Mr Khoza, who suffers from an incurable diseasethat
will render him unable to work sometime in the future, probably be entitled to?
Also provide a definition of this form of maintenance and the name of one court case in
which this form of maintenance was awarded. (4)
Answer
(a) Any six of the following factors:
(1) The spouses’ existing and prospective means.
(2) The spouses’ respective earning capacities.
(3) The spouses’ financial needs and obligations.
(4) Each spouse’s age.
(5) The duration of the marriage.
(6) The spouses’ standard of living during the marriage.
(7) Each spouse’s conduct in so far as it may be relevant to the breakdown of the
marriage.
(8) Any redistribution order in terms of section 7(3) of the Divorce Act.
(9) Any other factor which, in the court’s opinion, should be taken into account.
(b) Mrs Khoza will probably be entitled to rehabilitative maintenance.(1)
Rehabilitative maintenance is maintenance that is awarded only for a period of time,(1)
which will enable a spouse to be trained or retrained for a job, occupation or

profession.(1)
Any one of the following cases for another mark:(1)
Kroon v Kroon
VvV
Pommerel v Pommerel
(c) Mr Khoza will probably be entitled to nominal or token maintenance.(1) Nominal or

token maintenance is a small monthly amount such as R1 or R5(1) that is awarded where
there is no reason to make a maintenance order at the time of the divorce, but it is
anticipated that one of the spouses may need maintenance at some future stage.(1)

Any one of the following cases for another mark:(1)
Nel v Nel
Portinho v Portinho
Qoza v Qoza
QUESTION 7
(a) What is “nominal maintenance” and why is it granted? (3)
(b) Briefly explain the meaning of “rehabilitative maintenance”. (2) *5+
Answer
(a) Nominal maintenance is a small monthly amount such as R1 or R5 awarded upon

divorce to a spouse who is not in need of maintenance upon divorce, but who may need
maintenance in the future . The nominal maintenance may later be changed to true
maintenance if this becomes necessary. The reason why courts make orders for token
maintenance is that a maintenance order cannot be made in favour of a spouse after the
marriage has been terminated by divorce./If
a spouse is not in need of maintenance upon divorce, it cannot be granted to him or her
after the dissolution of the marriage.
(b) Maintenance that is awarded to a spouse upon divorce for a limited period of
time/temporarily to enable him or her to get a job or to be trained or retrained.
Awarded in Kroon v Kroon (1986 (4) SA 616 (E))/V v V (1998 (4) SA 169 (C)).
Question 7
Hahlo submits that maintenance should not be awarded to a party to a divorce action who
can support himself or herself.
(a) What is the view of the court in Pommerel v Pommerel regarding the above-mentioned
rule?
(b) What does the court in Pommerel v Pommerel mean when it says that in each case
(when a maintenance order is considered upon divorce) the notional employability of the
spouse who claims maintenance should be considered?
(c) List any four of the factors which, according to the court in Pommerel v Pommerel,
should be considered to determine whether the unemployed spouse's decision to stay at
home and not to work after divorce is reasonable. (2)
(d) What did the court in Kroon v Kroon hold regarding the earning capacity of the
spouse who claims maintenance upon divorce(usually the wife) and the granting of
rehabilitativemaintenance?(4)[8]

Answer
(a) According to the court in Pommerel v Pommerel this statement of Hahlo's requires
qualification and cannot be regarded as a hard and fast principle of our law which applies
to all cases.
(b) It means that the possibility should be considered that a spouse who does not work
may be able to work.
(c) The factors that should be considered are the spouse's age, state of health,
qualifications, when he or she was last employed, the duration of the marriage, the
standard of living of the parties during marriage her or his commitment to the care of
young children, and others
(d) In Kroon v Kroon the court held that no notional earning capacity will be attributed to
a woman who does not have the necessary skills that will enable her to be trained or
retrained for a job, occupation or profession after divorce. Only if she can be trained or
retrained will some earning capacity be attributed to her. According to the court her age,
the duration of the marriage, her marketable skills and the duration of her absence from
the market place will be very important considerations.( 1) The court also stated that if,
however, it is likely in the light of all relevant considerations that she can be trained or
retrained, and that she therefore is able to provide her own support, or at least contribute
to it, the court will consider the possibility of awarding rehabilitative maintenance to her.
Such rehabilitative maintenance will support her for a period of time which will enable
her to be trained or retrained.
QUESTION 8
Mr and Mrs Fortuin have two teenage daughters. Although the relationship between Mr
and Mrs Fortuin has deteriorated of late, they are both devoted parents to their daughters.
Mr Fortuin has recently moved into another house situated relatively close to the
matrimonial home. The daughters often sleep over at his house, even on week nights. Mr
and Mrs Fortuin now wish to get divorced. They both want guardianship of the daughters
after the divorce as they both want to exercise the aspects of guardianship independently.
They also want joint physical custody of the daughters after the divorce.
(a) Even if both parents are awarded guardianship upon divorce, there are still certain
instances where the consent of both parents is required for certain transactions and where

they would not be able to act independently. List the transactions for which both parents’
consent would be required. (
(b) What does joint physical custody entail? Also explain with reference to authority what
Mr and Mrs Fortuin’s chances are of succeeding with a claim for joint custody of their
daughters upon divorce. (6)
Answer
(a) Transactions for which both parents’/ guardians’ consent would be required:
(1) The child’s marriage.(1)
(2) The child’s adoption.(1)
(3) The child’s removal or departure from South Africa.(1)
(4) An application for a passport for the child.(1)
(5) The alienation or encumbrance of any immovable property of the child.(1)
(b) Joint physical custody entails that the children spend substantial amounts of time such
as part of each week, or alternate weeks, with each parent.(1)
Mr and Mrs Fortuin’s chances of succeeding with a claim for joint custody are good(1) in
the light of the following:
Mr and Mrs Fortuin are successfully exercising de facto joint custody of the daughters at
the time of the divorce.(1)
There won’t be any logistical problems as Mr and Mrs Fortuin live reasonably close to one
another.(1)
As Mr and Mrs Fortuin are both devoted parents to the daughters, it would be in the
children’s best interests to make a joint custody order in this case.(1)
Although the court might look at the relationship between the parents,(1) it was decided
in Krugel v Krugel(1) that hostility between the parents is not a bar to joint custody.(1)
The court said that, as long as both parents are fit and proper persons, they should have
equal say in their child’s upbringing.(1) In deciding whether or not to order joint custody,
the court has to consider whether the input from both parents, “even if that input is at
times disharmonious”, is not preferable to an uninvolved parent. / It is preferable for the
child to learn to deal with the ups and downs of two involved parents, rather than to lose
half of his or her rightful parental input.(1)

1 Mr and Mrs Jones are married. Mr Jones wants to divorce Mrs Jones because he has
discovered that Mrs Jones is having an affair with Mr Smit. Mr Jones, who wants custody of
the children, heard that the courts prefer mothers as custodians, as it is simply assumed
that they make better caretakers. Explain with reference to case law and Heaton’s
constitutional arguments, whether this maternal preference is still, or ought to be, applied
by our courts.
Answer
The problem is whether courts still prefer mothers as custodians and simply assume that
mothers make better caretakers.(1)
It is true that in the past, mothers were preferred as custodians as it was simply assumed
that they make better caretakers (especially of young or handicapped children and
daughters of whatever age). (1)
In Van der Linde v Van der Linde(1) the court declared that mothers are not necessarily
better able to be good parents on a day-to-day basis. The court held that “mothering”
refers to caring for a child’s physical and emotional wellbeing and that it is not only a
component of a mother but also forms part of a father’s being. The court emphasised that
the quality of a parent’s role is not simply determined by gender. Consequently, a father
can be just as good a “mother” as the child’s biological mother, and, conversely, a mother
can be just as good a “father” as the child’s biological father.
The maternal preference was also rejected in Madiehe (born Ratlhogo) v Madiehe(1)
where the court emphasised that custody is not a gender privilege or right, but a
responsibility and privilege that has to be earned. However, the court further stated that
because of the physical demands made on the mother in carrying the child and giving
birth, the court may well, in case of doubt, favour the mother.
In Ex parte Critchfield(1) the court held that, “given the facts of the dynamics of
pregnancy, it would not amount to unfair discrimination” if a court considered maternity
in making a custody award. The court, however, warned that it would be unconstitutional
to place “undue (and unfair) weight” upon maternity when balancing it against the other
relevant factors and that “the court must be astute to remind itself that maternity can
never be, willy-nilly, the only consideration of any importance in determining the custody
of young children.” Mr and Mrs Jones are married. Mr Jones wants to divorce Mrs Jones
because he has discovered that Mrs Jones is having an affair with Mr Smit. Mr Jones, who
wants custody of the children, heard that the courts prefer mothers as custodians, as it is
simply assumed that they make better caretakers.
Cronjé and Heaton: The rejection of the assumption that mothers make better caretakers
is undoubtedly in accordance with the equality clause of the Constitution of the Republic
of South Africa, 1996.(1) It is also in line with section 28(1)(b) of the Constitution, which
affords all children the right to parental care, and not only maternal care.(1) Furthermore,
the Convention on the Rights of the Child requires recognition of the common
responsibilities of parents for the upbringing and development of their children.(1) It must

of course be emphasised that gender equality claims alone should never determine the
outcome of a custody dispute – the child’s interest must be are amount.(1)
There are fourteen possible marks. A maximum of 7 marks
Question 9
The Children’s Act 38 of 2005 repeals the Natural Fathers of Children Born out of Wedlock
Act86 of 1997. When does an unmarried father obtain parental responsibilities and rights in
terms of the Children’s Act? (5)
Answer
An unmarried father now obtains parental responsibilities and rights if he is the child’s
biological father and was living with the child’s mother in a permanent life partnership at
the time of the child’s birth.
(1) Regardless of whether he has lived or is living with the mother, an unmarried father
obtains parental responsibilities and rights if he consents to be identified or applies to be
identified as the child’s father(1) or pays damages in terms of customary law,(1)
contributes or has attempted in good faith to contribute to the child’s upbringing for a
reasonable period,(1) and contributes or has attempted in food faith to contribute
towards the expenses in connection with the maintenance of the child for a reasonable
period.(1)
QUESTION 7
(a) What is the maternal preference rule? (3)
(b) Name and very briefly discuss two cases in which this rule was rejected. (4) [7]
Answer
(a) The maternal preference rule is the rule that custody of young children and of
daughters, of whatever age , is awarded to the mother , except where the mother is a less
responsible parent than the father and would occupy a much lower social status than the
father after the divorce .
(b) In Van der Linde v Van der Linde it was held that mothering is not only a component of
a mother, but also forms part of a father's being / a father can be just as good a mother as
the child's biological mother (and the mother can be just as good a father as the child's
biological father) .
In Madiehe (born Ratlhogo) v Madiehe it was emphasised that the custody of a young
child is a responsibility as well as a privilege and it has to be earned / because of the
physical demands made on the mother in carrying the child and giving birth to it, it may
well be that the court will, in case of doubt, favour the mother rather than the father .
In Ex parte Critchfield the court expressed the view that, given the facts of the dynamics
of pregnancy, it would not amount to unfair discrimination for a court to have regard to
maternity as a fact in making a determination as to the custody of young children. / The
court however warned that it would be unconstitutional to place undue and unfair weight

upon maternity when balancing it against the other relevant factors. / The court held that
maternity can never be the only consideration of any importance in determining the
custody of young children.
Question 9
Name two cases in which the maternal preference rule in respect of child custody was
rejected and state very briefly what was decided in each case regarding the role of a
parent’s gender in custody issues. Also discuss the constitutionality of the maternal
preference rule with reference to authority (case law and the opinion of Cronjé and
Heaton). [9]
Answer
(a) Van der Linde v Van der Linde (1996 (3) SA 509 (O)). In this case the court declared
that mothers are not necessarily better able to be good parents on a day-to-day basis.
Judge Hattingh held that “mothering” (which means to care for a child’s physical and
emotional well-being) is not only a component of a mother but also forms part of a
father’s being. The court emphasised that the quality of a parent’s role is not simply
determined by gender. Consequently, a father can be just as good a “mother” as the
child’s biological mother, and conversely, the mother can be just as good a “father” as the
child’s biological father.(Any of the aforementioned for one mark.)
Madiehe (born Ratlhogo) v Madiehe (1997 (2) All SA 153 (B)). In this case the court
emphasised that “*c+ustody of a young child is a responsibility as well as a privilege and it
has to be earned. It is not a gender privilege or right”. However, Acting Judge Lever
further stated that because of the physical demands made on the mother in carrying the
child and giving birth to it, “*i+t may be that ... the court will in case of doubt, favour the
mother rather than the father”.(Any of the aforementioned for one mark.)
(You can also refer to Ex parte Critchfield (1999 (3) SA 132 (W)) in which the court stated
that “maternity can never be, willy-nilly, the only consideration of any importance in
determining the custody of young children” . Please note that although this part of the
decision rejects the maternal preference rule, the rejection is only conditional as the court
also expressed the view that the “facts of the dynamics of pregnancy” may justify giving
preference to the mother.) The rejection of the assumption that mothers make better
caretakers is undoubtedly in accordance with the Constitution of the Republic of South
Africa (108 of 1996) in terms of which no person may be unfairly discriminated against on
the ground of, inter alia, sex .In Ex parte Critchfield (1999 (3) SA 132 (W)) the court
expressed the view that given the “facts of the dynamics of pregnancy, it would not
amount to unfair discrimination ... for a court to have regard to maternity as a fact in
making a determination as to the custody of young children” . The court however warned
that it would be unconstitutional to place “undue (and unfair) weight” upon maternity
when balancing it against the other relevant factors and that “the court must be astute to
remind itself that maternity can never be, willy-nilly, the only consideration of any
importance in determining the custody of young children” .

Heaton is of the opinion that the maternal preference will probably continue to be applied
because our courts will probably continue to find that children’s interests are served best
by awarding custody to their mothers .
QUESTION 9
Susan and Anna, two women who have been living together for the past six years, would
like to have children. They approach you for advice about the possibility of adoption.
(a) Who is competent to adopt children in terms of section 17 of the Child Care Act 74 of
1983? (4)
(b) The court recently had to decide about the constitutionality of parts of section 17 of the
Child Care Act 74 of 1983, in so far as it deals with the categories of persons who are
competent to adopt children. Discuss the particular case and indicate how it will be relevant
for Susan and Anna. (5) [9]
Answer
(a) Section 17 of the Child Care Act 74 of 1983 provides that a child can be adopted by
- spouses jointly
- a same-sex couple jointly
- a widower or widow, or unmarried or divorced person
- a person who is married to the child’s parent
- the natural father of a child who was born out of wedlock
(b) The relevant case is Du Toit and another v Minister of Welfare and Population
Development and others (2001 (12) BCLR 1225 (T)). The applicants in this case were two
partners in a lesbian relationship who wished to become the joint adoptive parents of two
minors. Since section 17 of the Child Care Act does not make provision for the joint
adoption of a child by the members of a same-sex partnership, the children could be
adopted by only one of them. The applicants approached the High Court for an order
declaring section 17(a) of the Child Care Act unconstitutional and invalid in so far as it
prevents the partners in a same-sex life partnership from jointly adopting children.
(Although s 17(c) of the Child Care Act did not apply to the applicants, the court was
nevertheless requested to declare it unconstitutional and invalid in so far as it does not
provide for the adoption of a child by a person who is involved in a same-sex relationship
with the child’s parent.) The court indicated that these shortcomings in the Act not only
discriminate against the applicants on the grounds of their sexual orientation and marital
status but also violate the provisions of section 28(2) of the Constitution which provides
that a child’s best interests are of paramount importance in every matter concerning the
child . In the present case it was to the minors’ advantage to be adopted by the applicants
jointly. Section 17 thus prevents adoptions which, as in the case under discussion, serve
the best interests of the child. For the above reasons the court declared section 17(a)
unconstitutional and invalid in so far as it prevents the partners in a same-sex relationship
from jointly adopting children. (S 17(c) was declared unconstitutional and invalid in so far

as it prevents the adoption of a child by the person with whom the child’s parent had a
same-sex relationship.) The court ordered specific words to be read into the provisions so
that section 17(a) would permit adoption of a child by spouses jointly or by the two
members of a permanent same-sex life partnership jointly , and section 17(c) would
permit adoption by a married person whose spouse is the parent of the child or by the
person whose same-sex life partner is the parent of the child. (This decision has been
confirmed by the Constitutional Court and is thus now enforceable, which means that all
courts in South Africa are bound by it.) Anna and Susan will therefore be able to adopt the
children jointly.
Question 8
Mr and Mrs Roux are married in community of property. The spouses have no separate
assets. Mrs Roux has a minor daughter, Nadia, who was born from an extramarital
relationship she had with Mr Olivier before she married Mr Roux. Mr Roux decided not to
adopt Nadia. Explain fully who is liable for Nadia’s maintenance. *5+
Answer
Both parents of an extramarital child are obliged to support the child in proportion to
their means - Mrs Roux and Mr Olivier are therefore responsible for Nadia’s
maintenance. Owing to the fact that the duty of support between parents and children
rests on blood relationship and not on affinity, Mr Roux is not responsible for Nadia’s
maintenance . Since Mrs Roux is married in community of property, her means consists of
an undivided half share of her and Mr Roux’s joint estate. Although she remains
responsible, together with the natural father (Mr Olivier) for the support of Nadia, her
husband (Mr Roux) will probably have a right of recourse against her when the joint
estate is divided, in order to prevent his having to contribute to the support of Mrs Roux’s
extramarital child .
Question 5
Is the Maintenance of Surviving Spouses Act 27 of 1990 applicable to Muslim marriages?
Motivate your answer with reference to authority. [5]
Answer
The Maintenance of Surviving Spouses Act does not expressly indicate that it applies to
surviving Muslim spouses.(1) In respect of monogamous Muslim marriages the majority of
the judges in the constitutional court held in Daniels v Campbell(1) that the old
interpretation of “spouse”, which excluded a party to a Muslim marriage “did not flow
from the courts giving the word “spouse” its ordinary meaning. Rather, it emanated from
a linguistically strained use of the word flowing from a culturally and racially hegemonic
appropriation of it.” (1) This restricted interpretation was discriminatory and no longer
sustainable in view of the Constitution of the Republic of South Africa, 1996.(1) The
constitutional court therefore concluded that the words “spouse” and “survivor” in the
Maintenance of Surviving Spouses Act include a Muslim spouse and a Muslim surviving

spouse.(1) The court emphasised that its judgment applies only to monogamous Muslim
marriages, as the issue before it concerned only a monogamous Muslim marriage.(1)
However, the Constitutional court’s interpretation will in future probably be applied to
surviving spouses in polygamous Muslim marriages too,(1) for otherwise there would be
unjustifiable inequality before the law and unequal protection and benefit of the law
between surviving spouses in such marriages and surviving spouses in polygynous
customary marriages.(1)
NB: See now also the Hassam case above (as it is discussed under 1.5 in this tutorial letter)
where the words “spouse” and “survivor” were indeed extended to include spouses in
polygynous Muslim marriages.
Question 5
In addition to a South African civil marriage Mr and Mrs Goldberg concluded a marriage in
accordance with the Jewish faith. Mrs Goldberg, who has been having an intimate
relationship with her boss, Mr Smith, for the past two years sued Mr Goldberg for divorce
last week. She wishes to marry Mr Smith as soon as possible because she is expecting his
baby. Mr Goldberg, however, informed Mrs Goldberg that he would never grant her a
Jewish religious divorce (a get). Answer the following questions:
(a) How does South African divorce law address the dilemma Mrs Goldberg faces, namely
the fact that Mr Goldberg refuses to grant her a Jewish religious divorce (a get)? Answer this
question with reference to section 5A of the Divorce Act 70 of 1979. (4)
(b) State the name of the first reported case which dealt with section 5A of the Divorce Act
70 of 1979 and briefly indicate what was decided in that case. (2)
(c) It has been argued that section 5A of the Divorce Act 70 of 1979 violates the
constitutional right to equality because it treats spouses in religious marriages differently
from spouses whose marriages are not governed by a system of religious law.
(i) In what way does section 5A of the Divorce Act 70 of 1979 treat spouses in religious
marriages differently from spouses whose marriages are not governed by a system of
religious law? Explain briefly. (2)
(ii) Cronjé and Heaton disagree with the first part of the statement in (c) and submit that
section 5A of the Divorce Act 70 of 1979 rather conforms to the equality clause of the
Constitution of the Republic of South Africa, 1996. What reasons/arguments do they use in
support of their viewpoint? (4) [12]
Answer
(a) In terms of section 5A of the Divorce Act 70 of 1979, the court is empowered to refuse
a decree of divorce or to make any other order it considers just if it appears that, despite
the granting of the divorce decree, both spouses or either of them will, by reason of the
prescripts of their religion or the religion of either of them , not be free to remarry unless
the marriage is also dissolved in accordance with those religious prescripts or unless a

religious barrier to remarriage is removed . There are five possible marks for this four-
mark question.
(b) Amar v Amar. The court issued a divorce decree in terms of the Divorce Act (70 of
1979) , but ordered the husband who was unwilling to co-operate in obtaining a Jewish
divorce, to pay maintenance to his wife (who was not otherwise entitled to maintenance
from him) until such time as their marriage was terminated by the granting of a Jewish
divorce/until he granted her a get . You earn one mark for the name of the case and one
mark for the decision.
(c) (i) In an ordinary divorce (ie where the spouses’ marriage is not governed by a system
of religious law), the court does not have a discretion to refuse a divorce if one of the
grounds for divorce has been proved , while section 5A affords the court the power to
refuse a divorce in religious marriages even where one of the grounds for divorce is
present .
(ii) Cronjé and Heaton submit that on a proper interpretation of the concept “equality”,
the argument that section 5A of the Divorce Act 70 of 1979 violates the constitutional
right to equality, should be rejected. They point out that equality does not mean that all
people should be treated alike and that the constitutional court has repeatedly made it
clear that real or substantive equality is what is to be achieved . They argue that
substantive equality demands that spouses whose marriages are governed by a system of
religious law which could be used to prejudice one of them should be treated differently
from spouses whose marriages are not so governed . They further indicate that since it is
usually the husband who exploits the religious prescripts, the object of section 5A is also
to achieve real sex equality between the spouses.
Question 5
Read the following quotation from South African Family Law and then answer the
questions below:
“It has been argued that section 5A of the Divorce Act violates the constitutional right to
equality because it treats spouses in religious marriages differently from spouses whose
marriages are not governed by a system of religious law.”
(a) What does section 5A of the Divorce Act 70 of 1979 entail? Explain briefly. (4)
(b) In what way does section 5A of the Divorce Act 70 of 1979 treat spouses in religious
marriages differently from spouses whose marriages are not governed by a system of
religious law? Explain very briefly. (2)
(c) Cronjé and Heaton disagree with the statement that section 5A of the Divorce Act 70 of
1979 violates the constitutional right to equality and submit that section 5A rather
conforms to the equality clause (of the Constitution of the Republic of South Africa 108 20
of 1996). Which reasons/arguments do they use in support of their viewpoint? (4) [10]
Answer
(a) In terms of section 5A of the Divorce Act 70 of 1979, the court is empowered to refuse
a decree of divorce or to make any other order it considers just if it appears that, despite

the granting of the divorce decree, both spouses or either of them will, by reason of the
prescripts of their religion or the religion of either of them , not be free to remarry unless
the marriage is also dissolved in accordance with those religious prescripts or unless a
religious barrier to remarriage is removed .
(b) In an ordinary divorce (ie, where the spouses’ marriage is not governed by a system of
religious law) the court does not have a discretion to refuse a divorce if one of the grounds
for divorce has been proved , while section 5A affords the court the power to refuse a
divorce in religious marriages .
(c) Heaton submit that on a proper interpretation of the concept “equality”, the argument
that section 5A of the Divorce Act 70 of 1979 violates the constitutional right to equality,
should be rejected. They point out that equality does not mean that all people should be
treated alike. Equality requires that those who are different should be treated differently
and those who are alike should be treated alike. They argue that real equality actually
demands that spouses whose marriages are governed by a system of religious law which
could be used to prejudice one of them should be treated differently from spouses whose
marriages are not governed in this way . They further indicate that since it is usually the
husband who exploits the religious prescripts, the object of section 5A also is to achieve
real sex equality between the spouses.
Question 8
Themba and Lindiwe want to enter into a customary marriage in terms of the Recognition of
Customary Marriages Act 120 of 1998. They want to know from you, a final year law
student, what the legal requirements for a valid customary marriage are. Mention five legal
requirements that have to be met to conclude a valid customary marriage. (5)
Answer
Any 5 of the following six possibilities:
(1) Both spouses must be above the age of 18.(1) (A minor below the age of 18 years can
only enter into a customary marriage if the Minister of Home Affairs or his or her
designate grants written permission.)
(2) Both spouses must consent to the marriage.(1)
(3) If either spouse is a minor, his or her parents or legal guardian must consent to the
marriage.(1) (If the parents’ or legal guardian’s consent cannot be obtained, the provisions
of s 25 of the Marriage Act 25 of 1961 apply. If minors marry without the necessary
consent, the provisions of s 24 of the Marriage Act apply.)
(4) The spouses must not be within the prohibited degrees of relationship.(1) (The
forbidden degrees of relationship are determined in accordance with customary law.)
(5) The marriage must be negotiated and entered into or celebrated in accordance with
customary law.(1)
(6) Lobolo is also customarily delivered.(1)

QUESTION 8
The most important objection against the recognition of customary marriages as valid
marriages is that certain elements of these marriages, namely polygyny and the payment of
lobolo, infringe gender equality. Can the infringement of gender equality by these two
elements of customary marriages, however, be justifiable in terms of section 36 of the
Constitution (the limitation clause)? 6]
Answer
Section 36 permits the limitation of a fundamental right only if such limitation is

reasonable and justifiable in an open and democratic society based on human dignity,
equality and freedom .
It is clear that sex equality is one of the key values of our Constitution.
• The very first section of the Constitution elevates non-sexism to one of the
founding constitutional values.
• The equality clause of the final Constitution expressly includes more grounds which
relate particularly to women than the one in the 1993 Constitution did. Eg: Pregnancy,
marital status.
A court may therefore be reluctant to find that violation of a key, founding constitutional
value such as sex equality is reasonable and justifiable.
QUESTION 9
(a) Name the two most striking features of customary marriages and briefly explain the
meaning of each feature. (4)
(b) What does section 6 of the Recognition of Customary Marriages Act 120 of 1998 provide
regarding the status of a wife in a customary marriage? Explain very briefly. (2) [6]
Answer
(a) The two most striking features of customary marriages are that they are:
• polygynous, that is, the husband is permitted to take more than one wife ; and
• Group-oriented in that the marriage is based upon an agreement between the family
groups of the bride and bridegroom and not just the two prospective spouses.
(b) Section 6 furthermore expressly provides that the wife has, “on the basis of equality
with her husband ... full status and capacity, including the capacity to acquire assets and
to dispose of them, to enter into contracts and to litigate, in addition to any rights and
powers she may have at customary law ”.
Question 10

Sipho, who has already concluded a customary marriage with Grace, wishes to conclude a
further customary marriage with Thandi. Sipho was informed that before he could marry
Thandi he first has to apply to the court for approval of a written contract which will
regulate the future matrimonial property system of his marriages. Answer the following
questions:
(a) Why, according to Cronjé and Heaton, would community of property not be a good
choice for Sipho’s polygynous customary marriage? Explain briefly. (4)
(b) Why, according to Cronjé and Heaton, would the accrual system not be a good choice for
Sipho’s polygynous customary marriage? Explain briefly. (2)
(c) Why, according to Cronjé and Heaton, would complete separation of property be a good
choice for Sipho’s polygynous customary marriage? Explain briefly. (2) *8+
Answer
(a) The reasons why community of property will not be a good choice for Sipho’s
polygynous customary marriage are the following:
Community of property entails that each spouse acquires an undivided half share in all
property acquired by either spouse. It seems legally impossible to implement this
principle in a polygynous marriage: surely it could not be argued that the husband (Sipho)
should get one half share and his wives (Grace and Thandi) should jointly get the other
half share.
Nor, in terms of the common law, could a separate joint estate be formed for each
marriage - the common law applies only in respect of monogamous marriages and
therefore provides no mechanism for splitting up the husband’s property between various
joint estates.
The only possibility is that the spouses agree on a variation of community which indicates
exactly which proportion of the total value of Sipho’s estate should fall into which joint
estate: for example, 60 percent should fall into the joint estate created by Sipho’s
marriage to Grace and 40 percent should fall into the joint estate created by his marriage
to Thandi. The disadvantage of this system is that it could give rise to some serious
problems at the termination of a joint estate since a particular wife, for example Grace,
could agree with Sipho that the value of her half share of the particular percentage of his
assets should be made up by giving her a particular asset which could seriously affect
Thandi.
(b) The reasons why the accrual system will not be a good choice for Sipho’s polygynous
customary marriage are the following:
Assume that the marriages Sipho concluded with Grace and Thandi end in divorce within
six months of one another and that neither wife’s estate shows any accrual upon divorce.
Each wife has a claim to share in Sipho’s accrual. The problem however is that it is not
certain how each wife’s claim should be calculated. Surely the share of the wife whose
marriage ends first cannot be calculated according to the normal basis of accrual sharing
since that would entitle her to half of Sipho’s accrual, which would reduce the second

wife’s claim to share in Sipho’s accrual . There are three possible marks for this two-mark
question.
(c) According to Cronjé and Heaton, complete separation of property would not present
too many practical difficulties as Sipho, Grace and Thandi would simply retain their own
estates. Although complete separation of property is notoriously unfair to wives who do
not have an opportunity to build up their own estates, the court fortunately has the
power to make an equitable order in the case of dissolution of the marriage(s) by divorce.
However, wives whose polygynous marriages are dissolved by death (if it is possible) have
no remedy.
QUESTION 8
Briefly explain the meaning of the following terms:
(a) Guardianship which is not a component of parental power (2)
(b) Curator ad litem (2)[4]
Answer
(a) Guardianship refers to the care of the person and estate , or only the estate of a minor
which is officially supervised . There are four possible marks for this two-mark question.
(b) A curator ad litem is someone who assists a person in litigation because the person
does not have capacity to litigate . Such a curator is appointed for, for example, unborn
children, mentally ill persons, and minors who are involved in litigation against their
parents
The end
.
Wish you the best of luck

1
FAMILY LAW COURSE NOTES 2007 (1)
SECTION 2: LEGAL REQUIREMENTS FOR THE CONCLUSION OF A CIVIL MARRIAGE
“Marriage” is traditionally defined as the legally recognised life-long voluntary union between one
man and one woman to the exclusion of all other persons. This relates only to civil marriages,
since customary and Muslim marriages permit polygyny. Furthermore, with the enactment of the
Civil Unions Act, a “civil union” is defined as the voluntary union of two persons who are both 18
years of age or older, which is solemnized and registered by way of either a marriage or a civil
partnership, in accordance with the procedures prescribed in this Act, to the exclusion, while it
lasts, of all others”.
Marriage is not a contract. Because marriage is based on consensus, the parties must clearly
have capacity to act in order to be able to enter into a valid marriage.
Capacity to act
Persons who have no capacity to act, such as the mentally ill and infants (persons below 7 years
of age), are totally incapable of entering into a marriage. Others, like minors who are over the age
of puberty, need consent to supplement their limited capacity to act.
(1) Declared prodigals
The prodigal may marry without his or her curator’s consent. The weight of opinion favours the
rule that the prodigal’s advantage determines whether the marriage is in or out of community of
property, otherwise, the selection of the matrimonial property system would amount to an
unauthorized disposition of the prodigal’s property.
(2) Mentally ill persons
If someone is de facto mentally ill at the moment he or she enters into a marriage, the marriage is
void as a result of his or her incapacity to act. A person is regarded as mentally ill and
consequently lacking the necessary capacity to act, not only when he or she does not understand
the nature and consequences of the juristic act, but also when hallucinations caused by a mental
illness prompt him or her to enter into the marriage.
A marriage concluded during a lucidum intervallum is perfectly valid. The fact that someone has
been certified mentally ill however places the burden on him or her to prove that he or she is
actually normal, while in the absence of certification, it is the person who alleges mental illness
who must prove the presence of mental illness.
(3) Persons who have been placed under curatorship because they are incapable of managing
their own affairs
Competent to conclude a valid marriage without the consent of his or her curator.
(4) Minors
Minors between 7 and 21 have limited capacity to act and thus cannot conclude valid juristic acts
by means of which they incur obligations unless they have parental consent. Parental consent is
therefore required for a minor to enter into a valid marriage. Section 24(1) of the Marriage Act

2
provides that a marriage officer may not solemnize (conduct a marriage ceremony) a minor’s
marriage, unless the consent which is legally required for the purpose of contracting the marriage
has been granted and furnished to him in writing.
Section 27 – if a marriage officer reasonably suspects that the age of a prospective spouse is
such that he or she may not marry without having obtained some other person’s consent, the
marriage officer may refuse to solemnize the marriage unless he or she is furnished with the
required consent in writing.
Section 12 – a marriage officer may not solemnize a marriage unless each of the parties either
produces his or her identity document or furnishes the marriage officer with a prescribed affidavit.
(a) consent required for the marriage of a minor
(i) parents
If both parents are alive, both must consent to the marriage of their legitimate minor child, unless
the court orders otherwise or sole guardianship has been granted to one of them. If the minor
was born out of wedlock, the mother’s consent is needed as she is the child’s guardian.
(ii) legal guardian
An orphan for whom a guardian has been appointed must obtain his or her guardian’s permission
to marry.
(iii) Minister of Home Affairs
Section 26(1) of the Marriage Act - a boy below the age of 18 years and a girl below the age of 15
years may not marry without the written permission of the Minister of Home Affairs. Consent will
only be granted if the marriage is deemed ‘desirable’. Even if the Minister’s consent is obtained,
all the other legal requirements still have to be complied with, so the parents’ consent must also
be obtained and the prescribed formalities for a marriage must be met. Ministerial consent is not
required if the court has consented to the marriage. If a boy below the age of 18 years or a girl
below the age of 15 years marries without ministerial consent, the marriage is null and void, but
section 26(2) empowers the Minister to ratify the marriage if:
1. he or she considers the marriage desirable and in the interests of the parties
2. the marriage was in all other respects solemnized according to the Marriage Act’s provisions;
3. there is no other lawful impediment to the marriage.
The Minister’s power only applies to marriages of girls between 12 and 15 years of age and boys
between 14 and 18 years of age.
(iv) Commissioner of child welfare
Where either of the minor’s parents, or both of them, or his or her guardian is absent, mentally ill,
or in any other way incompetent to consent to his or her marriage, or if the minor can for any other
good reason not obtain the consent of his or her parents or guardian, consent may be granted by
the commissioner of child welfare. The commissioner of child welfare must also determine
whether it would be in the minor’s interests to enter into an antenuptial contract. If so, the

3
commissioner must assist the minor in the execution of the antenuptial contract and his or her
assistance is deemed to be the assistance of the minor’s parent or guardian.
If the commissioner refuses to consent to the marriage, the minor may approach the high court for
consent in terms of section 25(4) of the Marriage Act. However, where application must be made
to the commissioner of child welfare in terms of section 25(1), the minor may not bypass the
provisions of the section by applying directly to the court.
(v) high court
Section 25(4) – if one or both parents, the legal guardian, or the commissioner of child welfare
withholds consent, the minor may approach the high court for permission to marry in terms of
section 25(4) of the Marriage Act. For purposes of this particular application, the minor is regarded
as having capacity to litigate.
Consent will only be granted if:

1. the court is of the opinion that the refusal to consent by parents, etc. is without adequate
reason; and
2. contrary to the minor’s interests – Alcock v Alcock.
B v B: these tests are complementary and must not be considered separately. The court must
take all the circumstances into account and weigh the reasons for the parents’ refusal, with due
allowance for the fact that the parents are in a better position than the court to make a decision of
such a personal nature.
Even if the minor’s application is unopposed, the court will inevitably override the parent’s refusal
to grant consent. The court will then also make an order regarding the matrimonial property
system which is to apply in the marriage and if necessary, it may order that a curator be appointed
to assist the minor in the execution of an antenuptial contract.
(b) instances in which a minor requires no consent to marry
(i) a minor who has already been married
Section 24(2) – “minor” does not include a person below the age of 21 but who has previously
been married and whose marriage has been dissolved by death or divorce.
(ii) a person below 21 years of age who has been declared a major
Age of Majority Act – someone who has been declared a major in terms of this Act is deemed in
all respects to have reached the age of majority. An emancipated minor does not have capacity
to marry without consent.
(c) the effect of absence of the necessary consent
(i) the effect on the validity of the marriage
Section 24A(1) of the Marriage Act: a minor’s marriage is not void merely because his or her
parents or guardian or the commissioner of child welfare has not consented to it. However, the
court may dissolve the marriage on the ground of lack of consent. The application to have the
marriage set aside may be made by:

4
1. the minor’s parents or guardian, before the minor attains majority and within six weeks from
the date on which they become aware of the existence of the marriage;
2. the minor himself or herself, before he or she attains majority or within three months thereafter.
The court may not set the marriage aside unless it is satisfied that the dissolution of the marriage
is in the minor’s interest.
(ii) the effect of the patrimonial consequences of the marriage
Section 24 of the Matrimonial Property Act governs the patrimonial consequences of a marriage
a minor entered into without consent.
Patrimonial consequences if the marriage is set aside
Section 24(1): the court may make an order with regard to the division of the matrimonial property
of the spouses “as it may deem just”. The court will probably have regard to factors such as the
respective ages of the parties, their financial circumstances, their wishes and whether the major
spouse took advantage of the inexperience of the minor spouse and benefited at the latter’s
expense.
The patrimonial consequences if the marriage is not set aside
Section 24(2): the patrimonial consequences of the marriage are the same as if the minor were
of age when the marriage was entered into and any antenuptial contract in terms of which the
accrual system is included and which has been executed with a view to such a marriage, is
deemed to have been validly executed.
2 possibilities:
1. if the parties did not enter into an antenuptial contract, the primary matrimonial property
system, namely community of property, applies;
2. if the parties entered into an antenuptial contract which includes the accrual system, the
antenuptial contract is valid even though the minor did not have the necessary consent to
conclude the contract. (An antenuptial contract which excludes the accrual system is invalid).
(iii) the effect of the Matrimonial Property Act on a marriage a minor concluded without consent
before the commencement of the Act
The marriage of a minor is not void merely because the required consent is lacking. Section 24A
of the Marriage Act therefore applies to all marriages minors entered into without consent.
With regard to section 24 of the Matrimonial Property Act, it could be argued that the wording of
the section does not rebut the presumption that the legislator only intends to regulate future cases
(presumption against retroactivity).
The person who marries a minor without the latter having first obtained the necessary consent
thereto, may never enjoy any patrimonial benefit from the marriage. Applying this rule, our courts
have in the past declared such marriages either in or out of community of property depending
upon which system was in the minor’s best interests at the time he or she entered into the
marriage. Consequently, the courts judged the circumstances as they were at the inception of the
marriage and then declared that the marriage was in community of property, out of community of

5
property with complete separation of property, or out of community of property with retention of
community of profit and loss.
Consensus as a requirement for marriage
Consensus forms the basis of, and is the fundamental requirement for entering into a marriage.
At the time of the marriage, both parties must have the will to marry each other. Therefore, during
the ceremony, the marriage officer must expressly ask each party whether he or she accepts the
other party as husband or wife, and both parties must answer in the affirmative. Consensus could
be negated due to mistake, misrepresentation, duress or undue influence.
(1) Mistake
Only a material mistake excludes consensus. A mistake concerning the identity of the other party
(error in personam) or nature of the juristic act (error in negotio) are the only forms of material
mistake recognised in connection with marriage. In practice, only an error in negotio may occur.
In such cases, the marriage should be voidable.
(2) Misrepresentation
The marriage is voidable if the misrepresentation was of a serious nature. Prenuptial stuprum
would classify as such a case. A husband can have the marriage set aside if he can prove that
at the time of entering into the marriage, his wife concealed the fact that she was pregnant by
another man and that he had been unaware of this state of affairs. The only other instances in
which a misrepresentation might possibly result in the marriage being voidable, is the concealment
by one of the parties that he or she is either impotent or sterile.
(3) Duress
Smith v Smith: the woman was coerced to such an extent by her father and prospective husband
that she appeared completely dazed and lacked any will of her own during the wedding. The court
concluded that the duress rendered the marriage voidable and therefore set the marriage aside.
(4) Undue influence
The general principles of the law of contract apply here.
Lawfulness as a requirement for marriage
Generally, an unlawful marriage is void. Marriages between the following persons are unlawful:
(1) persons who are already married

The attempted second civil marriage is void and the person is guilty of the crime of bigamy. This
second marriage may be putative if either or both of the spouses honestly believed that the
marriage was valid.
(2) adoptive parents and their adopted children

Section 20(4) of Child Care Act: an adoptive parent may not marry his or her adopted child.
(3) persons who are within the prohibited degrees of relationship

6
Consanguinity (blood relationship) is the relationship which is created by birth between persons
with at least one common ancestor. It is irrelevant whether the relationship arose as a result of
legitimate or extra-marital birth. Consanguinity may exist either in the direct line, (between
ascendants and descendants), or the collateral line (related through a common ancestor).
Affinity refers to the relationship that comes into being between a married person and the blood
relations of his or her spouse, as a result of the marriage. Affinity is restricted to the blood relations
of the other spouse. Thus no relationship by affinity exists between the blood relations of one
spouse and the blood relations of the other spouse. Affinity can exist in either the direct or the
collateral line.
(a) Blood relations in the direct line (ascendants and descendants)
Blood relations in the direct line may not marry each other.
(b) Collateral blood relations
Specific prohibitions: neither brother and sister, nor uncle and niece, nor granduncle and
grandniece are allowed to marry each other. Marriage between cousins is permissible. Blood
relations in the collateral line may not marry each other if either is related to the common ancestor
within the first degree. One degree of consanguinity separates one generation from the generation
immediately following it.
(c) Relations by affinity in the direct line
(d) Relations by affinity in the collateral line
Section 28 of Marriage Act: there is no prohibition on a marriage between a person and his or her
relations by affinity in the collateral line. One spouse only becomes related by affinity to the other
spouse’s blood relations and the blood relations of one spouse are not related to the blood
relations of the other spouse. After the dissolution of the marriage, one of the spouses may marry
the relations in affinity of the other spouse in the collateral line.
(4) Guardians and their wards
A guardian may only marry his or her minor ward with the consent of the high court, because in
such circumstances the guardian cannot consent to the marriage on behalf of his or her minor
ward. The consequences of the absence of the court’s consent are the same as those that apply
if the guardian’s consent is not obtained. The validity of the marriage would therefore be governed
by section 24A of the Marriage Act. It could also be argued that a marriage which a guardian and
ward enter into without the court’s consent is still valid.
(5) Persons who belong to different race groups
Ethnicity no longer constitutes an impediment to marriage. However, section 7 of the Immorality

and Prohibition of Mixed Marriages Amendment Act provides that the Director-General of Home
Affairs may direct in writing that a marriage which, “but for the provisions of the Prohibition of
Mixed Marriages Act, 1949, would have been a valid marriage in the Republic” is valid for all
purposes as from the date on which it was concluded. Section 7(4) provides that the director-
general must be satisfied that:

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1. the marriage would, but for the provisions of the Prohibition of Mixed Marriages Act, have been
valid;
2. the marriage has not been dissolved or declared invalid by a court on a ground other than the
provisions of the Prohibition of Mixed Marriages Act;
3. neither spouse married another person after the conclusion of the “mixed marriage” and during
the life of the other spouse.
Without the declaration of validity, the marriage remains void.
Recent developments in the law
Same sex marriages
Civil Unions Act, 2006 provides that a civil union means the voluntary union of two persons who
are both 18 years of age or older, which is solemnized and registered by way of either a marriage
or a civil partnership, in accordance with the procedures prescribed in this Act.
The Alteration of Sex Description and Sex Status Act, 2003 states in section 1(1) that any person
who has undergone sexual reassignment surgery may apply to the Director-General of Home
Affairs for the alteration of the sex description which appears in the register of births. Section 2(2)
provides that once the person’s sex description has been changed on the register of births, he or
she is deemed for all purposes to be a member of their new sex.
See W vW and Simms v Simms for historical position.
Formalities for marriage
1) Marriage officers
Anyone who purports to solemnize a marriage without having the necessary authority to do so, is
guilty of an offence. This prohibition does not apply to a religious ceremony which does not purport
to effect a valid marriage.
All marriage officers, special justices of the peace, and commissioners are ex officio marriage
officers for the district or area in respect of which they hold office. The Minister of Home Affairs
may also appoint other persons as marriage officers.
2) Formalities preceding the marriage ceremony
Section 12 of the Marriage Act: a marriage officer may not solemnize a marriage unless each
party furnishes his or her identity document or the prescribed affidavit.
Section 23: anyone who wishes to raise an objection to an intended marriage must lodge that
objection with the marriage officer who is to solemnize the marriage. The marriage officer may
only solemnize the marriage if he or she is satisfied that there is no lawful impediment to it.
3) Formalities during the marriage ceremony

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Both parties must be personally present at the solemnization of their marriage. A marriage may
be solemnized at any time and on any day of the week, but a marriage officer is not obliged to
solemnize a marriage at any other time than between 08:00 and 16:00.
In terms of section 29(2) of the Act, the marriage must be solemnized in a church or other building
used for religious services, or in a public office or private dwelling house with open doors and in
the presence of the parties themselves, and at least two competent witnesses.
Ex parte Dow: marriage not solemnized “in” a house. The legislator could not have intended the
marriage to be void if “the two-letter word ‘in’” was not complied with.
Marriage formula is provided in section 30(1). Once the parties have replied in the affirmative, the
marriage legally comes into existence.
4) Registration of the marriage
The marriage officer who solemnizes a marriage, the parties thereto and two competent witnesses
must sign the marriage register immediately after the marriage has been solemnized. The
marriage register must then be sent to a regional or district representative of the Department of
Home Affairs. Non-fulfilment of these requirements does not affect the validity of the marriage
and registration of the marriage can be effected postnuptially.
A duly signed marriage certificate serves as prima facie proof of the existence of the marriage. In
the absence of a marriage certificate, the existence of the marriage can be proved by other
evidence.
VOID, VOIDABLE AND PUTATIVE CIVIL MARRIAGES
VOID VOIDABLE PUTATIVE

- where one of the basic requirements for the - there is a defect or - is a valid
validity of a marriage is not satisfied impediment which marriage, where
- cannot be transformed into a valid marriage existed at the time when one or both of the
- court order does not cause the marriage to be the marriage was parties
void contracted mistakenly, but in
- this marriage never came into existence - it does not prevent the good faith,
marriage from coming believed that
A marriage will be nullified on the following into existence there was a valid
ground: - the marriage is set marriage
1. if either or both parties lacked capacity to act aside by a competent - recognised to
when marriage was contracted (eg: mental court on application by mitigate the
illness) one or both of the negative
2. if the necessary formalities regarding the spouses, or by a third consequences of
marriage officer or marriage ceremony were party a null and void
not satisfied - this marriage is valid but marriage
3. if marriage is legally prohibited or factually can be annulled
impossible (eg: age)
4. if the parties have not reached consensus
Void marriages

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Grounds for nullity
The court can declare a marriage null and void on the ground of non-compliance with the formal
1. the marriage is solemnized by someone who is not a competent marriage officer;

2. a girl below 15 years of age or a boy below 18 years of age marries without having obtained
the written consent of the Minister of Home Affairs;
3. no witnesses are present at the marriage.
The court can declare a marriage null and void on the ground of non-compliance with the material
1. one of the parties is already married to someone else;

2. the parties are related to each other within the prohibited degrees of relationship;
3. one of the parties is below the age of puberty;
4. one of the parties is mentally ill.
Consequences of a void marriage
A void marriage has no consequences: it does not affect the status of the parties and children
who are born of the marriage are extra-marital.
Statutory qualifications of the consequences of a void marriage are contained in the Marriage Act:
1) a marriage which was solemnized by someone who was not a competent marriage officer is
void, but the Minister of Home Affairs may ratify the marriage in terms of section 6 of the Act,
in which case it is validated;
2) section 26(1) of the Act provides that a boy below the age of 18 years and a girl below the age
of 15 years may not marry without the permission of the Minister of Home Affairs. A marriage
concluded without the minister’s consent is void, but section 26(2) empowers the minister to
ratify the marriage, thereby validating it.
Voidable marriages
A voidable marriage is a marriage in which grounds are present, either before or at the time of the
wedding, on the basis of which the court can be requested to set the marriage aside.
Grounds for setting aside a voidable marriage
(a) Minority
(b) Stuprum (sexual intercourse (with a third party) and pregnancy before marriage)
Extra-marital sexual intercourse with a third party before the marriage normally does not affect the
validity of the marriage. Even if an extra-marital child is born before the marriage as a result of
pre-marital sexual intercourse, the validity of the marriage is not affected. It is only if the wife is
pregnant with another man’s child at the time of the wedding, without her husband being aware of
this, that the husband can apply for annulment of the marriage. If the husband accepts the wife’s
pregnancy, and condones her actions, he loses the remedy.
(c) Material mistake

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(d) Impotence
The marriage is voidable if one spouse proves that the other spouse was impotent before the
marriage and remains impotent, and that he or she was unaware of the impotence at the time of
entering into the marriage – W v W.
(e) Sterility
Sterility refers to infertility; that is, the situation where a person is able to have sexual intercourse,
but cannot procreate. It is essential to prove fraudulent concealment of the sterility.
Consequences of a voidable marriage
A voidable marriage remains in force and has all the normal legal consequences of a valid
marriage until it is set aside by a court order. If not set aside, it remains in force.
The effect of the decree of annulment is retroactive - all the consequences of the marriage are
extinguished as from the date on which the marriage was solemnized. The status of the parties
reverts back to the former position and they are in the same position as if the marriage never took
place. The interests of third parties are however protected, and therefore the validity of
transactions entered into with third parties prior to the annulment is not affected by the decree.
The Children’s Status Act provides that the status of a child conceived or born of a voidable
marriage is not affected by the annulment of the marriage. A voidable marriage may not be
annulled until the court has enquired into and considered the safeguarding of the interests of the
minor or dependent children born of that marriage.
As the Divorce Act does not apply to the annulment of a voidable marriage, the court cannot make
an order for maintenance of one of the parties, forfeiture of patrimonial benefits, or redistribution
of the assets when it sets a voidable marriage aside.
Putative marriages
A putative marriage exists when one of the parties to the marriage marries while being unaware
that there is a defect which renders the marriage void. At the time of entering into the marriage,
the particular party believes in good faith that he or she is entering into a valid civil marriage.
Requirements for a putative marriage
1. one of the parties or both of them must be unaware of the defect which renders their
marriage void.
2. defects in form do not preclude a marriage from being putative.
Consequences of a putative marriage
Although a putative marriage is void ab initio, it has some of the legal consequences of a valid
marriage for as long as at least one of the parties is bona fide. In other words, for as long as one

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of the parties is, on reasonable grounds, unaware of the defect which renders the marriage void,
the marriage has some of the legal consequences of a valid marriage. As soon as both parties
become aware of the defect, the marriage automatically ceases to be a putative marriage.
The court simply declares that the relationship was a putative marriage with the result that certain
consequences can be attached to it from the date of the wedding until the date on which both
parties became aware of the invalidity of the marriage.
(a) the legitimacy of a child born of a putative marriage
Children born of putative marriages are legitimate. When the court is approached to declare a
marriage to have been putative, an application is simultaneously made for a declaration that the
children are legitimate with the assumption being that the order is merely declaratory. Both
parents have guardianship over the children, but the court can make any order as to guardianship,
custody and access that is in the children’s best interests.
(b) the patrimonial consequences of a putative marriage
If both parties were bona fide at the time of entering into the putative marriage, and the marriage
was concluded without an antenuptial contract, the parties are treated as having been married in
community of property (or as having entered into a universal partnership). If only one party was
bona fide, the marriage is treated as having been in community of property if this is to the
advantage of the bona fide party. If the parties entered into an antenuptial contract in which
community of property was excluded, the marriage is treated as having been out of community of
property if this is in the interests of the bona fide party or if both parties were bona fide. The bona
fide party may also enforce any benefit due to him or her in terms of the antenuptial contract, but
the mala fide party must return all benefits he or she received in terms of the antenuptial contract.
SECTION 3: CONSEQUENCES OF A CIVIL MARRIAGE
Invariable consequences
These consequences come into being automatically by operation of law and cannot be excluded
by the spouses. The invariable consequences mainly relate to the personal consequences of
marriage, such as the reciprocal duty of support between spouses.
Status of spouses after marriage:

1. neither spouse may marry anyone else while the marriage subsists;
2. new impediments to marriage, which continue after the dissolution of the marriage, arise as
a result of the relationship by affinity which is created by the marriage;
3. a right of intestate succession is created between the spouses;
4. extra-marital children the couple had before marriage are legitimated post marriage;
5. spouses are the guardians of the children born of the marriage;
6. spouses’ capacity to act is restricted if they marry in community of property;
7. a spouse who is a minor when he or she marries attains majority, and retains it even if the
marriage is dissolved before he or she turns 21.
Marriage creates a consortium omnis vitae between the spouses and includes the objects of all
the rights emanating from marriage. Consortium is an umbrella word for all the legal rights of one
spouse to the company, affection, services and support of the other - Peter v Minister of Law
and Order.

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One spouse cannot enforce companionship, affection, etc. by means of a court order, or obtain
an interdict to prevent the other spouse from infringing the consortium, for example, by committing
adultery. Nor can the wronged spouse sue the offending spouse in delict for infringements of the
consortium. Divorce is the only remedy that can be invoked once the consortium is lost. Presently,
adultery is no longer a ground for divorce but merely a factor that may indicate that the marriage
has irretrievably broken down.
A third party who infringes the consortium by committing adultery, enticing one of the spouses
into deserting the other, or harbouring one of the spouses can be sued in delict – Wassenaar v
Jameson. If a third party intentionally persuades one of the spouses to leave the other, the
wronged spouse can institute the action on the ground of enticement against the third party.
However, this action may be challenged on the ground that it violates the third party’s (and other
spouse’s) constitutional right to freedom of association.
SPOUSAL MAINTENANCE
Reciprocal duty of support between spouses
Marriage imposes a reciprocal duty of support upon the spouses, provided that the spouse who
claims maintenance is in need of maintenance and the spouse from whom it is claimed is able to
provide it – Langemaat v Minister of Safety and Security.
In Reyneke v Reyneke, the husband deliberately impoverished himself and the joint estate by
spending part of a lump sum disability payment and giving away the balance to frustrate his wife’s
claim for maintenance. His wife contended that because of his fraudulent conduct he should be
deemed still to have the means to maintain her and should be ordered to make regular
maintenance payments to her even though he could not afford them. However, her claim failed
because the court rejected the argument that a wife has a right of recourse against her husband
for maladministration of the joint estate (deeming him not to have disposed of the disability grant).
Furthermore, the court confirmed that it can only make a maintenance order if it is satisfied that
the person from whom maintenance is claimed is able to pay it. The court held that it could not
extend a remedy in order to afford an otherwise remediless person relief by overlooking one of
the fundamental principles applicable to that remedy.
Maintenance includes the provision of accommodation, clothing, food, medical services and other
necessaries. The extent of the duty of support is determined by the social status of the parties,
their means or income, and the cost of living. According to the Maintenance Act, the duty of
support applies to both spouses in proportion to their means and this duty is enforceable in either
the high court or the maintenance court.
The duty of support terminates upon dissolution of the marriage (death). The surviving spouse
may have a claim for maintenance against the deceased spouse’s estate in terms of the
Maintenance of Surviving Spouses Act. Divorce also terminates the reciprocal duty of support,
but the court which grants the decree of divorce can make a maintenance order in favour of one
of the spouses in terms of the Divorce Act.
If the spouses are not divorced but no longer share a joint household, matrimonial guilt determines
whether the duty of support continues. The same applies if the parties agree to live apart.
However, if the separation is due to the wife’s fault, she loses her right to maintenance – Chamani
v Chamani.

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Although the duty of support often overlaps the duty to contribute to household necessaries, it
differs in other respects from that duty, for example, litigation costs fall within the scope of the duty
of support, but are not household necessaries. Food and veterinary services for the family’s pets
are household necessaries but do not fall within the duty of support. If the husband pays for his
wife’s accommodation, food and clothing, he is discharging not only his duty of support but also
his duty to provide household necessaries.
The husband and the wife have the same rights as far as purchasing household necessaries is
concerned regardless of the matrimonial property system which operates in their marriage. In
terms of section 17(5) of the Matrimonial Property Act, spouses who are married in community of
property are jointly and severally liable for household necessaries irrespective of which spouse
was the purchaser. By virtue of section 23 of the Matrimonial Property Act, the same rule applies
in marriages out of community of property. It is therefore of practical importance to establish
whether or not a specific item is a household necessary, because if it is, the purchasing spouse
binds himself or herself and the other spouse if the marriage is out of community of property, or
himself or herself and the joint estate if the marriage is in community of property. If the item is not
a household necessary, only the spouse who incurred it is liable for the debt unless the
circumstances are such that the third party can rely on negotiorum gestio or undue enrichment to
found his or her claim.
A spouse’s capacity to purchase household necessaries is dependent on (requirements):
(1) a valid marriage
Capacity to purchase household necessaries is an invariable consequence of marriage.
(2) a joint household
Capacity to conclude binding contracts for household necessaries is dependent on the existence
of a joint household. Where no joint household exists, the purchasing spouse may still bind the
other spouse, but then the basis of liability is no longer on the spouse’s capacity to bind the other
in contract for household necessaries because existence of a joint household is absent. In such
event the liability depends on whether or not the non-contracting spouse is obliged to maintain the
other spouse, and this in turn depends on matrimonial guilt. Thus, the basis of liability rests on
the duty of support, which is not dependent on the existence of a joint household.
(3) the commodities indeed being household necessaries
Household necessaries are the everyday items which are needed for running a household. In
general, items such as food, clothing, medical and dental services, food and veterinary services
for the family’s pets, and so on are household necessaries. Whether or not a specific item is
necessary in a specific household is determined inter alia by the practices and customs of the
area, and the family’s social status, income and past standard of living.
In Reloomel v Ramsay, the husband was a reasonably well-off doctor. His wife bought dress
fabric for a number of silk dresses on credit. The court found that, in view of the family’s standard
of living, the dresses were household necessaries

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The courts use 2 tests to determine whether a particular item is a household necessary –
1. objective approach: court considers all the relevant facts of the case to determine whether the
purchasing spouse acted within the scope of his or her capacity. The court looks at the family’s
social background, their standard of living, and the supply of the specific commodity the family
already had at its disposal to determine whether the transaction indeed related to household
necessaries.
2. subjective approach: Reloomel v Ramsay – the matter is viewed from the dealer’s point of
view and considers only the facts of which the dealer was aware or of which he or she could
reasonably have been expected to be aware. This approach affords better protection to third
parties.
Revocation or limitation of a spouse’s capacity to purchase household necessaries
In terms of section 16(2) of the Matrimonial Property Act, the court can suspend the capacity of a
spouse who is married in community of property to deal with the joint estate for a definite or an
indefinite period. This results in the spouse losing their capacity to bind the joint estate for debts
in respect of household necessaries.
Whether one spouse can unilaterally and without a court order revoke the other spouse’s capacity
to purchase household necessaries is not clear. One view is that a spouse cannot revoke the
other’s capacity because capacity is not based on agency, but comes into being ex lege when a
valid marriage and joint household come into existence. According to case law, revocation is
possible provided it is clearly conveyed to third parties – Reloomel v Ramsay.
The question which arises is what effect the notice has on third parties. The test is divided into
an objective and a subjective approach:
1. objective approach: the spouse who notified the third party would, despite the notice, be liable
for items which (objectively viewed) were household necessaries.
2. subjective approach: the court looks at what the third party knew, and here the notice plays a
role. The onus is on the third party to make further enquiries about the spouse’s circumstances
before supplying one of them with goods. If no enquiries are made, the third party is deemed
to know the extent of the supply of the particular item in the household.
Can one spouse limit the other’s capacity to buy household necessaries on credit by making funds
available to him or her with which household necessaries must be bought? No – Reloomel v
Ramsay. The subjective approach was used and the facts were viewed from the dealer’s point
of view. The defence probably would have succeeded if the objective approach was used.
MAINTENANCE ACT, 99 OF 1998
Preceded by the Maintenance Act 23 of 1963. Abrogated and replaced because of the
ineffectiveness of its enforcement mechanism. Still in existence is the Reciprocal Enforcement of
Maintenance Orders Act 80 of 1963, which provides for the recognition in South Africa of
maintenance orders issued in designated foreign countries or territories and vice versa. Once the
foreign maintenance order has been registered in South Africa, many of the provisions of the
Maintenance Act 99 of 1998 apply to it.

15
The duty of support extends beyond the duty of support between spouses and blood relations to
a contractual duty of support between persons not related by blood or marriage, hence section
2(1), which provides that the Act applies irrespective of the nature of the relationship between
those persons giving rise to that duty.
Maintenance complaint and enquiry
Maintenance officers investigate complaints concerning:

- allegations that someone who is liable to maintain someone else is in default;
- good cause exists for substituting or discharging an existing maintenance order
A decision is then made whether or not to institute an enquiry in the maintenance court.
In the case of the substitution of a maintenance order, the Act provides that whenever a
maintenance court…makes an order…in substitution of a maintenance order…the maintenance
order shall cease to be of force and effect (only in so far as the order of the maintenance court
expressly or by necessary implication replaces it).
The maintenance officer has the power to locate a person who is liable to pay maintenance or
who can provide relevant information, gather information about the identification, whereabouts
and financial position of the person who is liable to pay maintenance, the financial position of the
person who is entitled to maintenance, or take statements from anyone who may be able to give
relevant information. The maintenance officer may summon a person to appear before the
maintenance court to give evidence or to produce any book, document or statement.
In terms of section 16 of the Judicial Matters Second Amendment Act 55 of 2003, the maintenance
court has the power to instruct a family advocate to carry out an investigation in terms of the
Mediation in Certain Divorce Mattes Act 24 of 1987.
Maintenance orders
A maintenance court can make an order against the maintenance debtor in favour of the
maintenance creditor. The Act empowers the maintenance court to make an order for the payment
of maintenance by way of a lump sum.
A maintenance order can include any provision the court deems fit regarding payment of medical
expenses in respect of the maintenance creditor, such as requiring the maintenance debtor to
register the maintenance creditor or his or her dependants under his or her medical aid scheme.
The 1998 Maintenance Act further empowers a court which makes or substitutes a maintenance
order to direct someone who owes the maintenance debtor periodical instalments of money
because of a contract between them, to make the periodical payments to the maintenance creditor
instead of the maintenance debtor.
The Act makes provision for orders to be made by default. If the maintenance court is satisfied
that the person against whom the maintenance complaint was made knows that he or she has
been subpoenaed to appear before the court but has failed to do so, it may call upon the
maintenance complainant to adduce evidence in support of the complaint. After considering the
evidence, the maintenance court may make, substitute or discharge a maintenance order, make
any other order it considers appropriate, or decline to make an order. In practice, a maintenance
order by default can be made against a maintenance debtor who tries to prolong or obstruct
proceedings by simply not appearing before the court on the appointed date and time.

16
A copy of the order by default is delivered to the person against whom it operates and that person
may, within 20 days of becoming aware of the order, apply to the court for its variation or setting
aside. Both parties will then be heard and the maintenance court may confirm, vary or set aside
the order by default.
Appeals
An appeal against a maintenance order made by a maintenance court must be brought in the high
court. The lodging of the appeal does not suspend the payment of maintenance. The high court
will not easily grant a variation or discharge of a maintenance order made by the maintenance
court because, generally, the maintenance court is the proper forum for variations and discharges
or such orders – Sher v Sher.
Enforcement of maintenance orders
Two methods of enforcement: civil sanctions; criminal sanctions.
Civil sanctions
Any order of the maintenance court has the effect of an order in a civil action, and enforcement
can take place in the ordinary courts and not only the maintenance court.
If a maintenance debtor fails to make a payment in accordance with a maintenance order within
10 days from the date on which the payment becomes payable, the maintenance creditor may
apply for:
(1) a warrant of execution against the maintenance debtor’s movable (or if this is insufficient,
immovable property)
The amount recoverable is the amount which the maintenance debtor failed to pay, together with
interest and costs. Execution or attachment can occur against any pension, annuity, gratuity,
compassionate allowance or similar allowance or benefit. The warrant is set aside when the
maintenance debtor satisfies the maintenance court that he or she has already complied with the
maintenance order.
Mngadi v Beacon Sweets & Chocolates Provident Fund: court can order a provident fund to retain
the maintenance debtor’s lump sum benefit for use in respect of the maintenance debtor’s future
maintenance payments, and that the court can furthermore order a provident fund to make monthly
payments from that benefit for the maintenance of the maintenance debtor’s dependent children
while the maintenance order is in operation.
(2) an order for the attachment of emoluments due to the maintenance debtor (attachment of his
or her remuneration for employment, such as his or her salary, wage, or allowance, regardless
of whether or not it is expressed in money)
In deciding whether to grant this application, the maintenance court considers the following factors:
1. the maintenance debtor’s existing and prospective means;

2. the financial needs and obligations of, or in respect of, the maintenance creditor;
3. the maintenance debtor’s conduct in so far as it may be relevant regarding his or her failure to
comply with the maintenance order;

17
4. other circumstances which should, in the court’s opinion, be taken into account.
Once such an order is made, the court must instruct the maintenance debtor’s employer to make
payments on behalf of the maintenance debtor until the amount the maintenance debtor has failed
to pay, interest and costs have been paid. If the maintenance debtor’s employer fails to make any
payment, the maintenance order can be enforced directly against the employer (s 29(4)).
Furthermore, that employer commits an offence. If the maintenance debtor leaves the service of
the employer, the employer has 7 days within which to notify the maintenance officer.
(3) an order for the attachment of any present or future debt owing or accruing to the maintenance
debtor
The court must order the person who incurred the debt to make the payments specified in the
order. If the person who owes the maintenance debtor the debt fails or refuses without sufficient
reason to make the payments stipulated in the order, he or she commits an offence.
Criminal sanctions
A person who fails to pay maintenance in terms of a maintenance order can also be charged with
the crime of failing to make a payment in accordance with a maintenance order. If the accused
raises the defence that his or her failure was due to a lack of means, he or she will not be acquitted
if it is proved that the failure was due to his or her unwillingness to work or his or her misconduct.
If the accused is convicted of such crime, a fine or term of imprisonment (with or without the option
of a fine) can be imposed on him or her. In addition, the convicted maintenance defaulter’s
personal particulars can be supplied to credit bureaux and other businesses which grant credit or
are involved in the credit rating of persons. Furthermore, the court can order that the arrear
maintenance, plus interest may be recovered from the convicted maintenance debtor, and
execution can be taken against his or her property.
Ignoring a maintenance order can also constitute contempt of court, for which the maintenance
defaulter can be committed to prison. In Bannatyne v Bannatyne, the constitutional court held
that contempt of court proceedings are appropriate constitutional relief for the enforcement of a
claim for the maintenance of children (if the legislative remedies are in some way deficient).
THE MATRIMONIAL HOME
During the subsistence of the marriage, both spouses are entitled to live in the matrimonial home
and to use the household assets irrespective of whether they are married in or out of community
of property and irrespective of which spouse owns or rents the matrimonial home or household
assets.
The owning or renting spouse may not eject the other spouse from the matrimonial home without
providing him or her with suitable alternative accommodation. Ejectment will not easily be granted
by the court as it is an extraordinary remedy. Section 28(2) of the Constitution is important here,
because it requires that the best interests of the child be of paramount concern.
A spouse can protect his or her right to live in the matrimonial home and use the household assets
without interference by applying for an interdict. If one spouse has already ejected the other
spouse or denied them access to the home and has changed the locks or removed household
assets, the prejudiced spouse can invoke the mandament van spolie [remedy aimed at restoring
control of property. Requirements: (a) proof that applicant was in peaceful and undisturbed control of
property; (b) proof that respondent took or destroyed that control by unlawful spoliation].

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PARENTAL AUTHORITY
Both parents have equal guardianship over their legitimate children, but courts may intervene and
deprive parents of their parental authority.
DONATIONS BETWEEN SPOUSES
Before the commencement of the Matrimonial Property Act on 1 November 1984, spouses who
were married out of community of property were prohibited from making donations to each other.
Any donation which was made in contravention of the prohibition was voidable at the instance of
the donor. Section 22 of the Act provides: “subject to the provisions of the Insolvency Act, 1936,
no transaction effected before or after the commencement of this Act is void or voidable merely
because it amounts to a donation between spouses”. The reason for this is that donations
between spouses could seriously prejudice their creditors. Donations which spouses made to
each other before the commencement of the act are valid.
THE FAMILY NAME
Most married women still assume their husband’s surname although they need not do so.
According to section 26(1) of the Births and Deaths Registration Act, a wife may assume her
husband’s surname or, after having assumed his surname, resume a surname she bore at any
prior time, or add her married surname to any surname she bore at any prior time (double-barrel
surname). A divorced or widowed woman may also resume a surname she bore at any previous
time. A husband has to apply to the Director-General of Home Affairs for permission to assume
his wife’s surname or add it to his own. This is possibly unconstitutional on the ground that it
unjustifiably violates the rights to equality and equal protection and benefit of the law.
HEADSHIP OF THE FAMILY
In common law, the husband is the head of the family. Despite the fact that this rule is
unconstitutional because it constitutes unjustifiable unfair discrimination on the ground of sex and
gender, it still forms part of our law.
Variable consequences of marriage in community of property
Some consequences can be regulated by the spouses (usually in an antenuptial contract).

Variable consequences mainly relate to the spouses’ estates (property consequences).
Prior to 1 November 1984, 2 main matrimonial property systems existed in South Africa:
- marriage in community of property (rebuttable presumption); and
- marriage out of community of property, excluding community of profit and loss. The husband’s
martial power was also excluded.
The Matrimonial Property Act, which entered into force on 1 November 1984 abolished the martial
power and introduced a third matrimonial property system, namely marriage out of community of
property with the accrual system.
HISTORICAL OVERVIEW OF MARRIAGE IN COMMUNITY OF PROPERTY
The fundamental characteristics of marriage in community of property are that upon marriage all
the assets and liabilities of both spouses are merged into a joint estate of which husband and wife

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each became owner of an undivided half-share. All income earned by both spouses stante
matrimonio (during the subsistence of the marriage) falls into the joint estate and all debts are
discharged from the joint estate. At the dissolution of the marriage the joint estate is divided into
two equal portions, with each spouse receiving one portion.
THE REBUTTABLE PRESUMPTION OF MARRIAGE IN COMMUNITY OF PROPERTY
The presumption that marriage is in community of property is rebutted by proving any of the
following circumstances:
1. The existence of a valid antenuptial contract in which community of property and community
of profit and loss are excluded.
2. The existence of a valid postnuptial notarial contract in which community of property and
community of profit and loss are excluded.
3. If the husband is domiciled in a country where marriage is automatically out of community of
property, the spouses are married out of community of property, unless they enter into an
antenuptial contract in which they choose community of property. This is pursuant to our law
which prescribes that the patrimonial consequences of marriage are governed by the law of
the place where the husband is domiciled at the time of the marriage (lex domicilii matrimonii).
4. In terms of section 22(6) of the Black Administration Act 38 of 1927, civil marriages entered
into by black persons before the entry into force of the Marriage and Matrimonial Property
Law Amendment Act 3 of 1988 (2 December 1988) are out of community of property, unless
the spouses made a joint written declaration before a magistrate, commissioner or marriage
officer, within one month prior to the marriage, that they wished to marry in community of
property, profit and loss. The Marriage and Matrimonial Property Law Amendment Act
repealed section 22(6) of the Black Administration Act. Black persons who married before
the coming into operation of the Marriage and Matrimonial Property Law Amendment Act
could (up until 2 December 1990) cause the provisions of the Matrimonial Property Act to
apply to their civil marriage by executing and registering a notarial contract to that effect within
2 years of the commencement of the Act and the result is that the provisions of the Matrimonial
Property Act applied from the date on which the contract was registered. Presently, parties
can alter their matrimonial property system in terms of section 21(1) of the Matrimonial
Property Act.
NATURE OF UNIVERSAL COMMUNITY OF PROPERTY
Husband and wife become tied co-owners in undivided and indivisible half-shares of all the assets
and liabilities they have at the time of their marriage as well as all the assets and liabilities they
acquire during the marriage. Upon marriage, the spouses’ separate estates are automatically
merged into one joint estate for the duration of the marriage. Upon dissolution of the marriage, all
liabilities are settled from the joint estate and the balance of the joint estate is then distributed
equally between the spouses.
CONTENT OF COMMUNITY OF PROPERTY
Assets
Spouses become co-owners of everything that either of them owned prior to marriage. Transfer
of ownership takes place automatically by operation of law so that no delivery of movable property,
registration of immovable property, cession of rights, and so on, is necessary. Assets acquired
by either spouse after marriage become part of the joint estate, unless excluded.

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Separate assets
1. Assets excluded in an antenuptial contract
The fruits of such assets form part of the joint estate unless excluded by antenuptial contract.
In terms of common law, a third party can make a donation or bequest to a spouse, subject to the
condition that such asset (and possibly fruits) must not become part of the joint estate.
These assets (including the income or proceeds derived from such property) do not fall within the
joint estate because they are the beneficiary’s personal rights which are inalienable.
Arrhae sponsalitiae (eg, engagement ring) and sponsalitia largitas (small gifts) do not become part
of the joint estate.
5. Benefits under the Friendly Societies Act 25 of 1956
In terms of section 17 of the Friendly Societies Act, benefits due to a married woman in terms of
the Act do not fall into the joint estate.
6. Non-patrimonial damages
Any amount a spouse recovers by way of non-patrimonial damages for a delict committed against
him or her does not fall into the joint estate (section 18(a) of the Matrimonial Property Act)) – Van
den Berg v Van den Berg.
7. Costs in a matrimonial action
If spouses married in community of property become involved in a matrimonial action without the
marriage being dissolved, any costs awarded to them do not fall into the joint estate.
By virtue of the maxim pretium succedit in locum rei, res succedit in locum pretii (the price takes
the place of the asset, the asset takes the place of the price) any asset which replaces separate
property also falls outside the joint estate. For example, a spouse selling their inherited motor
vehicle.
Attachment of separate assets
Du Plessis v Pienaar & Others – creditors of spouses who are married in community of property
can look to the estates of both spouses for recovery of a joint debt. Thus, even the separate
assets of a spouse who is married in community of property can be attached for joint debts. If a

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testator excludes property from an heir’s joint estate, the exclusion operates only as between the
spouses and not as against third parties. Therefore, all property of both spouses fall into the
insolvent estate if the spouses are sequestrated.
A spouse’s private creditors can attach his or her separate assets as well as assets belonging to
the joint estate, but if joint assets are attached, the spouse who did not incur the debt has a right
of recourse when the joint estate is terminated. One spouse’s separate assets may however not
be attached for the other spouse’s separate debts.
Liabilities
The merger of liabilities applies to antenuptial debts as well as debts incurred during the
subsistence of the marriage. The spouses are joint debtors, therefore one spouse who is married
in community of property cannot stand surety for the other spouse’s debts because those debts
are joint debts, and in our law a person cannot stand surety for his or her own debt, even if the
spouse has assets falling outside of the joint estate – Nedbank v Van Zyl.
Antenuptial debts
The rule is that marriage in community of property causes all antenuptial debts to become joint
debts to be discharged from the joint estate – this includes contractual debts as well as
maintenance obligations towards parent, siblings, children from a previous marriage, and even
extra-marital children. As for antenuptial delictual debts, section 19 of the Matrimonial Property
Act could possibly apply and it provides that the delictual debt must first be recovered from the
separate property of the spouse who committed the delict, and then from the joint estate to the
extent that the spouse’s separate assets are insufficient to meet the debt. Adjustment will be
made upon dissolution of the marriage or division of the joint estate.
Debts incurred during the subsistence of the marriage
The question to be asked is whether the spouse had the capacity to bind the joint estate. If so,
the debt becomes a joint debt which can be recovered from the joint estate.
(2) Delictual debts
This is regulated by section 19 of the Matrimonial Property Act: when a spouse is liable for
damages or a contribution towards damages for a delict he or she committed, the creditor can
recover the amount:
(a) firstly, from the separate property of the spouse who committed the delict;
(b) secondly, if there is no or insufficient separate property, from the joint estate.
Adjustment will be made upon dissolution of the marriage or division of the joint estate. However,
if upon dissolution the joint estate is too small for a total adjustment to be effect, he or she has no
remedy.

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Spouses who are married in community of property cannot sue each other in delict, as each
spouse owns half the joint estate and the amount recovered as damages will come from the joint
estate only to return to it – Tomlin v London and Lancashire Insurance Co.
The exception to this rule is found in section 18(b) of the Matrimonial Property Act by permitting a
spouse who is married in community of property to recover compensation for non-patrimonial loss
in respect of bodily injuries caused either wholly or partly by the other spouse. Section 18(b)
restricts the exception to the common law rule that spouses who are married in community of
property cannot sue each other in delict, to compensation for non-patrimonial loss in respect of
bodily injuries (notwithstanding that the other spouse has separate assets from which the
patrimonial damages can be recovered).
In terms of section 18(a) of the Matrimonial Property Act, the amount the injured spouse receives
as compensation for pain and suffering becomes part of his or her separate estate.
(3) Other separate debts
Subject to the innocent spouse’s right of recourse upon dissolution of the joint estate, a criminal
fine should be recoverable from the joint estate if the guilty spouse has no or insufficient separate
assets. The same rule ought to apply to maintenance debts in respect of a spouse’s parent,
sibling, extra-marital child, or child from a previous marriage, for otherwise the other spouse would
be compelled to contribute to the support of someone in respect of whom he or she has no duty
of support.
Section 17(1)(a) of the Matrimonial Property Act provides that a spouse has the capacity to
institute legal proceedings in connection with his or her own separate property without the other
spouse’s permission. Legal costs and debts in respect of such separate property ought also to
be recovered first from the separate property of the spouse concerned.
Debts which are outstanding at the division of the joint estate
Antenuptial contractual debts that have not yet been paid can be recovered only from the original
debtor. The original debtor has a right of recourse for half (pro semisse) of the debt against the
other spouse. After dissolution of the marriage, contractual debts which were incurred during the
subsistence of the marriage can be claimed in full from the spouse who originally incurred the
debt. In the alternative, half of the debt can be claimed from the original debt and the other half
from the other spouse. If the original debtor pays the full debt in full, he or she has a pro semisse
right of recourse, as the debt was a joint liability. If one of the spouses possesses most the assets
of the former joint estate after its dissolution (for example, due to a forfeiture order having been
made against the other spouse upon divorce), the debt can be claimed in full from him or her
without the other spouse first being excussed.
(2) Delictual and other separate debts
These can only be claimed from the original debtor. If the original debtor pays the debt, he or she
has no right of recourse against his or her former spouse.
ADMINISTRATION OF THE JOINT ESTATE

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The abolition of marital power
Prior to the commencement of the Matrimonial Property Act, the husband had the marital power
in all marriages in community of property. Marital power gave the husband the power to incur
debts, and to buy, sell, pledge, and burden joint assets as well as his wife’s separate assets over
which his marital power had not been excluded. From the women’s perspective, marital power
was effectively a restriction on her capacity to act as well as a personal humiliation because she
was placed in a position of inferiority to her husband. Therefore, section 11 of the Matrimonial
Property Act abolished the marital power and replaced it with a system of equal administration of
the joint estate.
When the Matrimonial Property Act was enacted, it did not apply to civil marriages of black people.
This exclusion was removed by the Marriage and Matrimonial Property Law Amendment Act.
Since 2 December 1988, the Matrimonial Property Act governs all civil marriages.
Finally, section 29 of the General Law Fourth Amendment Act (1993) abolished marital power
completely by replacing section 11 of the Matrimonial Property Act and further provided that the
provisions of the Matrimonial Property Act regarding equal administration of the joint estate would
henceforth apply to all marriages in community of property irrespective of the date on which they
were concluded.
Equal administration of the joint estate
Section 14 of the Matrimonial Property Act provides that a wife married in community of property
has the same capacity to dispose of the assets of the joint estate, incur debts which lie against
the joint estate, and manage the joint estate as her husband. For purposes of the spouses’
interests and the interests of third parties, the Matrimonial Property Act lays down that, in principle,
either spouse can perform any juristic act with regard to the joint estate without the consent of the
other spouse, but that the other spouse’s consent must be obtained for certain juristic acts. This
restricts both spouses’ capacity to act, especially with regard to actions which could lead to serious
friction.
Acts for which consent of both spouses is required
These are listed under sections 15(2) and (3) and section 17(1) of the Matrimonial Property Act.
There are 4 types of consent:
(1) prior written consent, attested by two competent witnesses, in respect of each transaction
separately, is necessary for:
(a) alienating or burdening immovable property which forms part of the joint estate, or conferring
any other real right in it
(b) suretyship
Ratification is not permitted! As consent must be granted separately, one spouse cannot grant a
power of attorney to the other to enter into such juristic acts in general.
(2) written consent, attested by two competent witnesses, in respect of each transaction
separately, is necessary for:

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(a) entering into a contract to alienate, burden with a mortgage or servitude, or confer any other
real right in immovable property which forms part of the joint estate
(b) receiving credit under a credit agreement as defined in the Credit Agreements Act (which has
been superseded by the National Credit Act)
(c) purchasing immovable property under a contract of sale as defined in the Alienation of Land
Act 68 of 1981.
Ratification is permitted in terms of section 15(4) of the Matrimonial Property Act and consent must
be granted separately in respect of each individual act.
(3) written consent without any further requirements (ratification permitted in respect of (a), (b)
and (c)), is necessary for:
(a) alienating, ceding or pledging shares, stock, debentures, debenture bonds, insurance
policies, mortgage bonds, fixed deposits or any similar assets or any investment by or on
behalf of the other spouse in a financial institution
(b) alienating or pledging assets held mainly as investments and which form part of the joint
estate, such as jewels, coins and paintings
(c) withdrawing money credited to the name of the other spouse in any account in a banking
institution or post office savings bank
(d) instituting or defending legal proceedings which do not relate to the spouse’s profession, trade
or business, or his or her separate property, or the recovery of non-patrimonial damages for
a delict committed against him or her.
(4) oral or tacit consent (ratification permitted), is required for:
(a) alienating or pledging furniture or “other effects of the common household” which form part of
the joint estate. Whether a specific item falls within this category is determined in light of the
circumstances of each case. Examples of items which could qualify as household effects are
furniture, curtains, crockery, cutlery, and household appliances, such as stoves, refrigerators,
washing machines, microwaves, tumble driers, etc.
(b) Receiving money which is owed to the other spouse as
1. remuneration in any form, including a bonus, pension, or gratuity for services rendered, or
in respect of his or her profession, trade, or business, or damages for loss of income from
those sources;
2. income derived from his or her separate property;
3. interest and dividends on, or the proceeds of shares, investments, insurance policies or
annuities;
4. an inheritance, donations, bursary or prize.
(c) donating any asset from the joint estate to a third party if this would unreasonably prejudice
the other spouse’s interests in the case. Whether such unreasonable prejudice will occur is
determined in light of the value of the donation, the reasons for making it, the parties’ standard
of living and their social and financial position, and any other factor the court considers
relevant.
Acts for which the other spouse’s consent is unnecessary
No consent required for juristic acts not mentioned in the Matrimonial Property Act. Consent is
not required for the transactions listed in sections 15(2)(b), (c), (f), (g) and (h) if they are performed
by a spouse in the ordinary course of his or her profession, trade or business.

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Section 15(7) exempts transactions on the stock exchange concerning listed securities, and
transactions concerning deposits at a banking institution in the name of the spouse who wishes to
deal with the deposit, from the consent requirement.
Protective measures in respect of the administration of the joint estate
Protection of third parties
Section 15(9) of the Matrimonial Property Act protects a third party who enters into a transaction
with a person who is married in community of property if the third party does not know, and cannot
reasonably be expected to know that the persons’ spouse had to consent to the transaction or that
the necessary consent was not obtained. In such a case the transaction is deemed to have been
entered into with the required consent (the transaction is valid and enforceable). This is most
probably an objective test – from the perspective of the reasonable person. A juristic act
contravening the consent requirement is invalid.
Protection of the spouses inter partes (between the parties)
(1) Statutory right to adjustment upon dissolution of the joint estate
Section 15(9)(b) of the Matrimonial Property Act governs the position if a spouse enters into a
transaction with a third party while he or she knows or ought reasonably to know that his or her
spouse will probably not consent to the transaction. If the joint estate suffers a loss as a result of
the transaction, an adjustment must be effected upon division of the joint estate in favour of the
spouse whose consent was not obtained. The same applies if the spouse enters into the
transaction while his or her power to deal with the joint estate has been suspended.
(2) Dispensing with the other spouse’s consent
If consent cannot be obtained for some reason, or if a spouse unreasonably withholds consent,
the court can authorize the transaction in terms of section 16(1) of the Matrimonial Property Act.
The court will only grant consent if it is satisfied that a good reason exists for dispensing with the
other spouse’s consent.
(3) Suspension of a spouse’s powers in respect of the joint estate
Section 16(2) of the Matrimonial Property Act prescribes that the high court may suspend any
power a spouse has in respect of the joint estate for a definite or indefinite period. The prejudiced
spouse must apply for the order and satisfy the court that the order is necessary for the protection
of his or her interests in the joint estate. If a spouse acts in contravention of a suspension, the
consequences are the same as in the case of juristic acts performed without the required consent.
(4) Immediate division of joint estate
If one spouse’s conduct seriously prejudices the other spouse’s interests in the joint estate, the
prejudiced spouse may apply to court in terms of section 20 of the Matrimonial Property Act for
the immediate division of the joint estate. The applicant must convince the court that:
(a) his or her interests in the joint estate are being seriously prejudiced or will probably be
seriously prejudiced by the other spouse’s conduct or proposed conduct
(b) no other person will be prejudiced by the order.

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The court is empowered to replace community of property with any other matrimonial property
system that it deems fit. The court will usually order that the joint estate be divided in equal shares
or any other basis. The factors which are considered in determining the basis of the division are:
the duration of the marriage, the assets each spouse brought into the marriage, each spouse’s
debts at the commencement of the marriage, each spouse’s contribution to the joint estate during
the marriage, the prejudice one spouse suffered in respect of assets of the joint estate during the
(5) Interdict
The basis for this remedy is fraud (intention to prejudice the other spouse). Very heavy onus of
proof. The interdict is the remedy available if one of the spouses intends to alienate an asset of
the joint estate with the intention of prejudicing the other spouse. The interdict is intended to
prevent the transaction from proceeding. If the threatened juristic act is one for which the
Matrimonial Property Act requires spousal consent, the spouse who approaches the court for an
interdict would have to prove that his or her right to adjustment in terms of section 15(9)(b) of the
Matrimonial Property Act does not offer a suitable alternative remedy.
(6) Common law right of recourse upon dissolution of the joint estate
If one spouse has already alienated assets of the joint estate in fraud of the other spouse, the
prejudiced spouse has a right of recourse against the other spouse or his or her estate upon
dissolution of the marriage.
(7) The actio Pauliana utilis [protecting creditors from fraudulent alienation of property]
Uncertain whether this action can be invoked during the subsistence of the marriage or while the
joint estate remains undivided, but this has been criticized as being illogical as the delay may
impair the ability of the spouse to recover assets of the joint estate from a third party.
(8) Having the other spouse declared a prodigal
If this is successful, all the powers that he or she enjoys in terms of the joint estate are taken out
of his or her hands. Such a declaration may unjustifiably infringe the spouse’s constitutional rights
to dignity and privacy.
CAPACITY TO LITIGATE
Section 17 of the Matrimonial Property Act regulates the capacity to litigate of spouses who are
married in community of property. One spouse may not institute or defend legal proceedings
without the other spouse’s written consent, unless the proceedings relate to:
1. his or her separate property

2. the recovery of non-patrimonial damages for a delict that was committed against him or her
3. his or her profession, trade or business.
Non-fulfilment of this requirement does not affect the validity of the proceedings. The court may
sanction the non-compliance with the requirement by making a costs order against the litigating
spouse. The court exercises this discretion with due regard to the non-consenting spouse’s
interests in the joint estate and the reasons for the lack of consent.

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Insolvency
[Amended] section 17(4) of the Matrimonial Property Act stipulates that applications for the
surrender and sequestration of a joint estate must be made by and against both spouses.
However, it further provides that an application for the sequestration of a debtor’s estate will not
be dismissed solely on the ground that the estate is a joint estate if the applicant satisfies the court
that, despite taking reasonable steps, he or she could not establish whether the debtor is married
in community of property or the name and address of the debtor’s spouse. If the sequestration
order is granted against only one of the spouses, the order is valid and automatically relates to
both spouses.
Suing for joint debts
Section 17(5) stipulates which spouse should be sued when a debt is recoverable from the joint
estate. The general rule in respect of joint debts is that the suit must be brought either against
both spouses jointly, or against the spouse who incurred the debt. If the debt was incurred for
household necessaries, the spouses are jointly and severally liable for it.
Variable consequences of marriage out of community of property
If spouses do not wish to be married in community of property, or if they wish to deviate from the
normal consequences of community of property by excluding assets from the joint estate or
excluding one spouse’s liability for the other’s antenuptial debts, they have to enter into an
antenuptial contract. The primary purpose of an antenuptial contract is to deviate from the
common law or statutory rules regarding the matrimonial property consequences of marriage.
Antenuptial contracts often include marriage settlements (donations between spouses).
In the narrow sense, an antenuptial contract refers to the formal contract which is executed before
a notary and registered in the deeds office in terms of the Deeds Registries Act. In the wide sense
it is an informal agreement between the parties which only binds them and includes every kind of
agreement between intending spouses before marriage.
Nature of an antenuptial contract
The primary object is not to create obligations but to determine the matrimonial property system
by excluding or varying the normal patrimonial consequences of marriage.
Formalities for the creation of a valid antenuptial contract
It is only valid inter partes and not valid as against third parties. Section 86 of the Deeds Registries
Act provides that unless an antenuptial contract is registered in terms of section 87 of the Act, it is
of no force or effect as against anyone who is not a party to it. An antenuptial contract which is
executed in South Africa must be attested by a notary and registered in a deeds registry within
three months of its execution or within such extended period as the court may on application allow.
Postnuptial execution and registration of an antenuptial contract
If the spouses entered into an antenuptial contract prior to marriage, but never complied with the
formalities of notarial execution and registration, the high court may be approached in terms of
section 88 of the Deeds Registries Act for permission to have the contract formally executed and

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registered postnuptially. The application can be made by either of the spouse or both of them, or
even by a beneficiary under a will.
3 requirements must be met before the court will grant its consent:
1. the parties must definitely have agreed on the terms of the antenuptial contract before
entering into marriage
2. the parties must give good reasons for their failure properly to execute and/or register
the antenuptial contract
3. the application must be made within a reasonable time after it was discovered that the
agreement was not properly executed and/or registered.
Additional requirements which apply in respect of the antenuptial contract of a minor
A minor who enters into an antenuptial contract must personally sign the contract. The minor must
have his or her parent or guardian’s consent to enter into an antenuptial contract. If consent must
be obtained from the commissioner of child welfare, the commissioner must assist the minor in
the execution of the antenuptial contract. If the high court grants consent to the marriage, it may
order that the minor sign the antenuptial contract with the assistance of a court-appointed curator.
The parent, guardian, commissioner, or curator need not indicate his or her consent by signing
the antenuptial contract. However, in practice, notaries refuse to execute, and registrars of deeds
refuse to register an antenuptial contract which has not been signed by the minor’s parent or
guardian or by someone else who has been duly authorized to do so. The parent or guardian’s
signature is not required.
If a minor has the consent to marry but does not have consent to enter into an antenuptial contract,
the antenuptial contract is void and cannot be ratified or registered after the marriage has taken
place.
Contents of an antenuptial contract
The parties may include any provision in their antenuptial contract which is not impossible or
contrary to law, good morals, or the nature of marriage. Essentially, it is “the effect and not merely
the fact of the agreement which must be assessed”.
Matrimonial property system
Most antenuptial contracts exclude community of property and separate the property.
Right of recourse in respect of household necessaries
Section 23 of the Matrimonial Property Act governs liability for household necessaries in marriages
out of community of property. It provides that, as against third parties, the spouses are jointly and
severally liable for debts for household necessaries, irrespective of which of them originally
incurred the debt. The spouses are obliged to contribute to expenses for household necessaries
on a pro rata basis (proportionately according to their respective means). If one spouse
contributed more, or has contributed more than his or her pro rata share, he or she has a right of
recourse against the other spouse if the marriage was concluded before the coming into operation
of the Matrimonial Property Act. In marriages concluded after the coming into operation of the

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Matrimonial Property Act, there is no automatic right of recourse, but the spouses may agree that
they will nevertheless have a right of recourse against one another.
Succession
In their antenuptial contract, the spouses may agree on the devolution of their estates after their
respective deaths. This is called a pactum successorium and is the only pactum successorium
recognised in law.
In order to amend such a succession clause, the amendment must be made by means of a will
made jointly between the spouses. If the spouses do make a will, the surviving spouse has the
choice of inheriting either in terms of the pactum successorium or the will.
Marriage settlements
A marriage settlement is a donation which one spouse makes to the other in terms of an
antenuptial contract. A marriage settlement may be subject to a time clause or condition.
A reversion clause is generally included in respect of a marriage settlement. In a reversion clause

the donor stipulates an event upon which the donation will revert to him or her, for example, if the
beneficiary predeceases the donor. The clause is enforceable, provided it does not violate the
institution of marriage or its sanctity.
In principle, a marriage settlement becomes irrevocable when the marriage takes place. However,
because the prohibition on donations between spouses has been abolished, spouses can freely
agree to cancel or amend a marriage settlement. If they cannot reach agreement, the donation
specified in the antenuptial contract must be carried out unless the court orders amendment of the
marriage settlement.
Prior to the entry into force of the Matrimonial Property Act, marriage settlements were common,
as they were exempt from the prohibition on donations between spouses. Because of the abolition
of the prohibition, spousal donations need no longer be included in an antenuptial contract. The
only advantage of including a donation in the antenuptial contract is that such inclusion confers
some protection on the donation in the case of insolvency.
Interpretation of an antenuptial contract
Interpreted in exactly the same way as any other contract. The intention of the spouses must be
clear. Every legal consequence which is neither explicitly nor tacitly excluded is retained pursuant
to the common law or statute.
Cancellation and amendment of an antenuptial contract
Parties can cancel or amend their antenuptial contract right up until the wedding. Once the
wedding has taken place, the parties cannot cancel or amend the antenuptial contract (subject to
the condition that postnuptial alterations operate only as between the spouses).
Section 21(2) of the Matrimonial Property Act did make provision for a transitional period during
which spouses who married before the coming into operation of the Act with an antenuptial

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contract excluding community of property and community of profit and loss could make the accrual
system applicable to their marriage, without the intervention of the court, by the mere execution
and registration of a notarial contract to that effect. The transitional period existed up until 1
November 1988.
If the spouses appoint a third party as heir or legatee in their antenuptial contract and the third
party is a party to the antenuptial contract, they cannot revoke the third party’s benefit without his
or her consent. If the third party is not a party to the antenuptial contract but has already accepted
the benefit the antenuptial contract confers on him or her, the spouses likewise cannot revoke the
succession clause without the third party’s consent. In all other cases the spouses can revoke or
amend the third party’s benefit by means of a joint will.
An antenuptial contract can also be amended (rectified) by the high court if it does not properly
convey the terms of the parties’ actual agreement.
Termination of an antenuptial contract
An antenuptial contract does not lapse on dissolution of the spouses’ marriage. The antenuptial
contract comes to an end only when all the contractual obligations have been fulfilled.
MARRIAGE OUT OF COMMUNITY OF PROPERTY AND COMMUNITY OF PROFIT AND LOSS

WITHOUT THE ACCRUAL SYSTEM (COMPLETE SEPARATION OF PROPERTY)
Since the coming into operation of the Matrimonial Property Act, a marriage which is entered into
with an antenuptial contract which excludes community of property and community of profit and
loss is automatically subject to the accrual system. If the spouses do not wish the accrual system
to apply to their marriage they therefore have to stipulate this in their antenuptial contract.
In marriages out of community of property and community of profit and loss without the accrual
system, a complete separation of property arises. In such a marriage each spouse has full
capacity to act and can enter into contract without the other’s assistance. The spouses can also
freely enter into contracts with each other. The spouses are not liable for each other’s contractual
debts as each spouse binds only himself or herself. The spouses are also not liable for each
other’s delicts and can sue each other delictually. Husband and wife have full capacity to litigate
and can independently institute or defend legal proceedings.
MARRIAGE OUT OF COMMUNITY OF PROPERTY WITH RETENTION OF COMMUNITY OF

PROFIT AND LOSS
Each spouse retains the assets he or she owns at the time of the wedding and remains separately
liable for his or her antenuptial debts. Donations, bequests and inheritances which are received
during the subsistence of the marriage remain the separate property of the spouse who receives
them. In this regard the position is exactly the same as in a marriage which is subject to complete
separation of property. However, because community of profit and loss is retained, all profit and
loss arising during the marriage becomes joint profit and loss and constitute a joint estate owned
in an undivided half share by each spouse.
The main differences between marriage out of community of property with retention of community
of profit and loss and the accrual system are that in the case of community of profit and loss the
spouses share postnuptial gains and losses, and this sharing occurs during the subsistence of the

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marriage. Under the accrual system, on the other hand, only profits are shared, and the sharing
only takes place upon dissolution of the marriage.
THE ACCRUAL SYSTEM
Prior to the commencement of the Matrimonial Property Act most antenuptial contracts provided
for complete separation of property. This matrimonial property system often proved very
prejudicial to the wife. If she was a housewife and mother who was unable to accumulate her
own estate, she could find herself in a most unfavourable financial position upon dissolution of the
marriage – her husband could completely disinherit her, she had no claim for maintenance against
his estate, and so on. The accrual system is an attempt to address this situation. The accrual
system is founded on the notion that at the dissolution of a marriage out of community of property
and community of profit and loss both spouses ought to share in the growth their estates have
shown, without there having been a joint estate during the subsistence of the marriage.
Marriages to which the accrual system applies
Section 2 of the Matrimonial Property Act provides that the accrual system applies to all marriages
which are concluded out of community of property and community of profit and loss after the
coming into operation of the Act (on or after 1 November 1984), unless this system is expressly
excluded in the couple’s antenuptial contract.
The accrual system does not automatically apply to marriages out of community of property and
community of profit and loss which were concluded before 1 November 1984.
When and how accrual sharing takes place
The accrual system can be described as a type of postponed community of profit. During the
subsistence of the marriage, it is out of community of property and community of profit and loss.
Each spouse retains and controls his or her own estate, but upon dissolution of the marriage, the
spouses share equally in the accrual or growth their estates have shown during the subsistence
of the marriage. If the marriage is dissolved by death, the accrual of the deceased spouse’s estate
is determined before effect is given to any inheritances or donations mortis causa (upon the
deceased’s death). Accrual sharing thus takes place before the deceased spouse’s estate is
distributed in terms of the rules of the law of succession.
Section 3(1) of the Matrimonial Property Act provides that accrual sharing is brought about by
giving the spouse whose estate shows the smaller accrual or no accrual at all, a claim against the
other spouse or his estate (value of estate) for an amount equal to half of the difference between
the accrual of the respective estates of the spouses.
During the marriage, the accrual claim is not an asset in the estate of the ultimate recipient.
Section 3(2) provides that during the marriage, the right of a spouse to share…in the accrual of
the estate of the other spouse is…not transferable or liable to attachment, and does not form part
of the insolvent estate of a spouse. The claim arises only upon dissolution of the marriage, but
the right to share in the other spouse’s accrual has a separate existence from the claim, and the
right exists during the subsistence of the marriage. It is a contingent right, which only becomes
vested when the marriage is dissolved and if there is an accrual claim.
(a) Renouncing the accrual claim

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If the spouse who wishes to renounce his or her claim is solvent, there should be no objection to
the renunciation, as a solvent person may renounce any claim. Potential prejudice to the creditors
could be caused if the insolent spouse renounces the accrual claim as ultimately, renunciation of
the claim would amount to a disposition without value as envisaged in section 26 of the Insolvency
Act.
Calculating the accrual
Section 4(1)(a) of the Matrimonial Property Act provides that the accrual of a spouse’s estate is
the amount by which the net value of his or her estate at the dissolution of the marriage exceeds
the net value of his or her estate at the commencement of the marriage. Certain assets are
excluded from the accrual.
To calculate accrual, one has to deduct the net commencement value of the estate as well as the
value of the assets which do not form part of the estate’s accrual, from the net end value of the
estate. The Matrimonial Property Act imposes a reciprocal duty on spouses to provide each other
with full particulars of the value of the respective estates for the purpose of determining the accrual.
(i) Commencement value (initial value)
Methods to determine commencement value:
1. A spouse can declare the net commencement value of his or her estate in the
antenuptial contract. If this is not done, the commencement value can be declared in a
separate statement either before, or within six months of the wedding. This statement
must be signed by the other spouse, attested by a notary, and filed together with a copy
of the parties’ antenuptial contract in the protocol of the notary before whom the
antenuptial contract was executed. This is prima facie proof of the commencement
value of the estate.
2. If the commencement value is not declared in either the antenuptial contract or a
separate statement, it is deemed to be nil unless the contrary is proved.
3. The net commencement value of a spouse’s estate is also deemed to be nil if the
spouse’s liabilities exceed his or her assets at the commencement of the marriage.
Due allowance has to be given to the fluctuating value of money. The weighted average of the
consumer price index (CPI) is prima facie proof of any change in the value of money. The number
by which the commencement value must be multiplied to get the adapted commencement value
is calculated as follows:
CPI value for the month in which the marriage is dissolved

CPI value for the month of the wedding.
(ii) Assets which do not form part of the accrual
1. Any non-patrimonial damages a spouse receives during the marriage;

2. Assets the spouses exclude in their antenuptial contract. The proceeds of such excluded
assets, and assets which replace such excluded assets or are acquired with their proceeds,
are also excluded;
3. An inheritance, legacy or donation one of the spouses receives from a third party. The
proceeds of inheritances, legacies and donations, and assets which replace, or are acquired
with the proceeds of such assets are also excluded. An inheritance, legacy or donation does

33
form part of the accrual if the testator or donor stipulates this, or if the parties include a clause
to this effect in their antenuptial contract;
4. Donations inter vivos (between living persons) between the spouses.
Protection of a spouse’s right to share in the accrual
Because it is obvious that the spouses also have an interest in each other’s estates during the
marriage, a mechanism has been created to protect this interest. Section 8(1) of the Act provides
that if, during the subsistence of the marriage, one spouse by his or her conduct seriously
prejudices or will probably seriously prejudice the other spouse’s right to share in the accrual of
his or her estate at the dissolution of the marriage, the spouse who stands to be so prejudiced
may apply to the high court for the immediate division of the accrual. The court will only order this
if no other person will be prejudiced thereby.
The court is empowered to divide the accrual on any basis it deems fit, such as 40/60 as against
the usual 50/50. By making an unequal division of the accrual, the court can compensate the
prejudiced spouse for loss suffered as a result of the other spouse’s conduct.
If the court orders immediate division, it may also order that the marriage will no longer be subject
to the accrual system, and will in future be subject to complete separation of property or a new
accrual system will apply.
If a spouse who stands to be prejudiced by the conduct of the other spouse, she or he can seek
an interdict to prevent the other spouse from entering into the juristic act which will prejudice him
or her. But if the other spouse has already depleted his or her estate there is little the prejudiced
spouse can do. If the assets have been transferred to a third party, the prejudiced spouse can
recover the property from the third party with the actio Pauliana utilis, but the prejudiced spouse’s
chances of success are slim. The spouse may apply to have the other spouse declared a prodigal,
although this probably amounts to an unjustifiable infringement of the person’s constitutional rights
to dignity and privacy. Moreover, a declaration that the spouse is a prodigal would afford the
prejudiced spouse any redress of the other spouse’s past conduct.
Satisfaction of the accrual claim
Section 10 of the Matrimonial Property Act provides that a court may, on the application of the
spouse against whom an accrual claim lies, order that satisfaction of the accrual claim be deferred
(if the immediate satisfaction of the claim could cause him financial prejudice). The deferment
may be granted on such conditions as the court deems just, for example, furnishing security,
payment by way of instalments, payment of interest and delivery and transfer of specified assets.
Advantages and disadvantages of the main matrimonial property systems
Advantages of marriage in community of property
1. It applies by operation of law without an antenuptial contract having to be executed and

therefore requires no effort or expense on the part of prospective spouses;
2. Each spouse automatically shares in the assets that are accumulated during the subsistence
of the marriage;
3. Antenuptial assets are also shared;
4. The credit-worthiness of husband and wife is the same during the subsistence of the marriage.
Disadvantages of marriage in community of property

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1. The principle of joint liability for debts results in neither spouse being protected against the
other’s creditors. Insolvency, in particular, poses serious problems for both spouses;
2. One spouse is relatively unprotected against delictual liability the other spouse may incur as
against third parties;
3. In general, the spouses cannot recover delictual damages from each other. Consequently, they
cannot hold each other’s insurers liable either;
4. The administration of the joint estate during the subsistence of the marriage is complicated. As
long as the marriage remains happy this matters little, because under those circumstances the
rules of matrimonial property la are in any event unimportant, but in the case of marital discord
the consent requirement and breach of the consent requirement, may create problems;
5. A liquidity problem can occur if the marriage is terminated by the death of one of the spouses.
Advantage of separation of property
The absence of any form of sharing may be an advantage.
Disadvantage of separation of property
The spouses have no right to share in any part of one another’s estate. This obviously prejudices
the spouse who is financially in the weaker position at the dissolution of the marriage.
Advantages of the accrual system
1. The spouses share in the accrual of each other’s estate;

2. Whatever each spouse amassed prior to the marriage is not shared;
3. The spouses are not liable for each other’s debts, with the result that each spouse’s estate is
protected against claims by the other’s creditors, except possibly when one of them is insolvent
at the dissolution of the marriage;
4. The spouses my freely enter into contracts with each other;
5. The spouses can incur delictual liability against each other and can consequently hold each
other’s insurers liable;
6. The administration of each spouse’s estate is uncomplicated.
Disadvantages of the accrual system
1. The spouses have to enter into an antenuptial contract to apply this system to their marriage;
2. The spouses do not share in each other’s credit-worthiness, which can result in the spouse who
does not work outside the home having little credit-worthiness during the subsistence of the
marriage if his or her estate is small;
3. The calculation of the accrual upon dissolution of the marriage can be complicated.
SECTION 4: DISSOLUTION OF A CIVIL MARRIAGE – DEATH AND DIVORCE
Marriages are dissolved in 3 ways:
1. Death of one or both of the spouses;

2. Annulment of a voidable marriage;
3. Divorce.
Judicial separation

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Until the Divorce Act, courts had the power to issue orders for judicial separation. This merely
temporarily suspended some of the spouses’ marital obligations, particularly the duty of
cohabitation. Section 14 of the Divorce Act deprived courts of this power and therefore, judicial
separation has virtually become obsolete.
Extra-judicial separation
Extra-judicial separation rests on an agreement between the spouses that they will live apart. The
spouses can come to a matrimonial property arrangement covering the period for which they will
live apart, but this agreement is only effective as between the parties. It can determine who is to
stay in the matrimonial home and who is to leave; if there are minor children, who is to have their
custody; who is t have the furniture, the car and the dog or cat; and who is to pay maintenance to
the other, and how much.
Despite the separation agreement, either spouse may institute divorce proceedings, seek an order
of court in connection with custody or guardianship of, or access to the children, or approach the
court to amend the maintenance agreement the spouses made privately.
Dissolution of a civil marriage by death
Marriage in community of property
Death of either of the spouses dissolves both the marriage and the community of property. An
executor winds up the joint estate in terms of the Administration of Estates Act. This involves
paying all debts owed by the joint estate and exacting payment for all debts owed to the joint
estate. Any unpaid antenuptial debts of either spouses are not paid from the joint estate but from
the net half of the debtor, irrespective of whether this is the deceased or surviving spouse.
Once all debts have been settled, the executor delivers half of the net balance of the joint estate
to the surviving spouse, because the surviving spouse owns this portion by virtue of the
matrimonial property system which operated in the marriage, and not because she inherits it. The
other half devolves on the heirs of the deceased spouse.
In order to meet creditors’ claims, the executor is often entitled and obliged to liquidate some of
the assets of the joint estate. This applies even in respect of immovable property because the
executor may not mortgage such property to discharge a debt. Even if there are no creditors, the
surviving spouse may experience serious problems if the heirs’ inheritances have to be paid out
in cash. Often this deprives the surviving spouse of his or her only shelter or means of income.
The surviving spouse is however allowed to buy some of the assets or even the whole joint estate
in order to pay out the heirs. A further disadvantage is that control of the joint estate is removed
from the surviving spouse and vested in the executor. Without the consent of the master of the
high court, the surviving spouse may only deal with the assets of the estate in order to preserve
and protect them, to pay the deceased’s funeral expenses, and to maintain the household and the
deceased’s or his or her own dependants.
Marriage out of community of property
Antenuptial contracts are not terminated by the death of either spouse. Any outstanding
settlements and pacta successoria (agreements concerning devolution of an estate) must be
implemented.

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The executor winds up only the deceased spouse’s estate. The surviving spouse must institute
an action against the executor in respect of any claims he or she has against the deceased estate,
including a claim for household necessaries in terms of section 23 of the Matrimonial Property Act.
If the accrual system applies and the accrual of the surviving spouse’s estate is less than that of
the deceased spouse’s estate, the surviving spouse must lodge a claim against the deceased
spouse’s estate. If the accrual of the deceased spouse’s estate is less than that of the surviving
spouse’s estate, the executor must lodge a claim against the surviving spouse on behalf of the
deceased spouse’s estate.
The surviving spouse in a marriage which is dissolved by death after 1 July 1990 has a claim for
maintenance against the estate of his or her deceased spouse in respect of his or her reasonable
maintenance needs until death or remarriage. The claim only arises in so far as the surviving
spouse is unable to provide for his or her reasonable maintenance needs from his or her own
means and earnings. The surviving spouse’s means include any matrimonial property (such as
half the joint estate or a share of the accrual of the deceased spouse’s estate) and any inheritance
from the deceased’s estate to which he or she may be entitled.
The following factors are considered in determining the surviving spouse’s reasonable
maintenance needs:
1. the amount available in the deceased estate for distribution to heirs and legatees;
2. the surviving spouse’s existing and expected means, earning capacity, financial needs and
obligations;
4. the surviving spouse’s standard of living during the subsistence of the marriage;
5. the surviving spouse’s age at the time of the deceased’s death;
6. any other relevant factor.
The surviving spouse’s claim for maintenance and the dependent children’s claim for maintenance
has the same order of preference as other claims against the deceased’s estate. If they compete
with each other and there are insufficient resources from which they can be met, they are reduced
proportionately. The claim must be lodged with the executor of the deceased estate. The
executor has an additional power, which is to enter into an agreement with the surviving spouse
and the interested heirs and legatees in order to settle the surviving spouse’s maintenance claim
either fully or partially.
The surviving spouse does not have a right of recourse in respect of his or her maintenance claim
against anyone to whom money or property has been validly distributed in terms of the
Administration of Estates Act.
The position of surviving customary and Muslim spouses
The recognition afforded to customary marriages by the Recognition of Customary marriages act
120 of 1998 has brought surviving customary spouses within the ambit of the Act. Because the
Recognition of Customary Marriages Act affords full legal recognition to customary marriages
regardless of whether or not they are de facto polygynous or monogamous, all the surviving
customary wives in a polygynous customary marriage may lodge a claim for maintenance against
their deceased husband’s estate (and would often have to be reduced proportionately if there are
insufficient resources).

37
In respect of monogamous Muslim marriages the constitutional court has concluded that the words
“spouse” and “survivor” in the Maintenance of Surviving Spouses Act include a Muslim spouse
and a Muslim surviving spouse in monogamous (and polygynous) Muslim marriages.
The position of surviving life partners
Excluding a permanent life partner from a maintenance claim against his or her deceased life
partner’s estate in circumstances where a spouse would have such a claim, violates the equality
clause of the Constitution and infringes the right to dignity of surviving life partners. In order to
remedy the unconstitutionality of such a situation, the definition of “marriage” in the Maintenance
of Surviving Spouses Act has been extended to deem a permanent life partner to be a spouse,
and deems a surviving permanent life partner to be a surviving spouse. [See Volks v Robinson
(CC)].
Dissolution of a civil marriage by divorce
3 no-fault grounds for divorce were introduced by the Divorce Act:
1. irretrievable breakdown of the marriage (section 4);

2. mental illness of a party to the marriage (section 5);
3. continuous unconsciousness of a party to the marriage (section 3).
Irretrievable breakdown of the marriage
Section 4(1) – court may only grant a decree of divorce on the ground of the irretrievable
breakdown of a marriage if it is satisfied that the marriage relationship between the parties to the
marriage has reached such a state of disintegration that there is no reasonable prospect of the
restoration of a normal marriage relationship between them. There are thus 2 requirements:
(a) marriage relationship must no longer be normal;

(b) there must be no prospect of the restoration of a normal marriage relationship between the
spouses.
The legal definition of “normal marital relationship” should be sought in the concept of consortium
omnis vitae. When either spouse or both of them behave in such a way that the consortium omnis
vitae is terminated or seriously disrupted, it can be said that a normal marriage relationship no
longer exists between the spouses.
Schwartz v Schwartz: in determining whether a marriage has reached such a state of

disintegration that there is no reasonable prospect of the restoration of a normal marriage
relationship between the parties it is important to have regard to what has happened in the past,
that is, history of the relationship up to the date of trial, and also to the present attitude of the
parties to the marriage relationship as revealed by the evidence at the trial.
Swart v Swart: a marriage has broken down if one spouse no longer wishes to continue with the
marriage. The formation of an intention to sue for divorce is the subjective element in the method
of determining marriage breakdown. However, in order to assess the probability of a successful
reconciliation being effected, the court also has to consider the reasons that prompted the plaintiff
to sue for divorce, and the parties’ conduct. Only when the court has determined that there is no
reasonable prospect of reconciliation, will it find that the marriage has broken down irretrievably
and grant a decree of divorce. The court looks at the objective scantiness and surmountability of

38
the reasons why a divorce was applied for to ascertain whether the marriage in question can still
be saved.
Coetzee v Coetzee: in order to succeed in a divorce action based on irretrievable breakdown,

the plaintiff must prove that there has been a change in the pattern of the marriage from which
breakdown can be deduced. The inherent problem in this conception is that a divorce cannot be
obtained in a marriage which was unhappy from the start and remained unhappy throughout.
Guidelines for irretrievable breakdown of marriage (section 4(2))
The guidelines are merely examples of instances where the probability is high that a normal
marriage relationship no longer exists and that there is no reasonable prospect for the restoration
of a normal marriage relationship. However, these guidelines are not exhaustive nor conclusive.
(1) parties have not lived together as husband and wife for a continuous period of at least one
year immediately prior to the date of the institution of the divorce action
Since the legislator requires an unbroken period of at least one year, it is clear that if the period
was interrupted by periods of resumed cohabitation, the plaintiff would have to present more
evidence to the court than the mere fact that they have lived apart for a year.
The consortium between the spouses must have been terminated. Even if the spouses have
continued living together under the same roof there is no reason why the plaintiff cannot show that
the consortium between them has been terminated.
If the plaintiff wishes to rely only on the spouses having lived apart for a year without adducing
any further evidence in support of the divorce action, he or she would have to produce proof that
the full period of a year has elapsed. If the spouses still share the same dwelling, the plaintiff
would have to prove the particular point in time at which the consortium came to an end.
(2) The defendant has committed adultery and the plaintiff finds it irreconcilable with a continued
marriage relationship
The test to determine whether the plaintiff considers the defendant’s adultery irreconcilable with
the continuation of the marriage is clearly subjective. If the plaintiff alleges that he or she cannot
continue with the marriage, there is no way in which this allegation can be refuted. There is
support for the contention that it is not necessary to convince the court on a balance of probabilities
that adultery was committed. The plaintiff should however place some evidence of the adultery
before the court. A mere allegation that the defendant committed adultery would not be sufficient
to ensure the success of the divorce action.
(3) A court has declared the defendant a habitual criminal and the defendant is undergoing
imprisonment as a result of that sentence
If the defendant has not been declared an habitual criminal, the plaintiff would have to adduce
evidence other than the mere fact of the defendant’s imprisonment to prove that the marriage has
broken down irretrievably. In any event, in terms of section 4(2), a plaintiff may sue for divorce
after a year’s separation, regardless of whether or not the separation resulted from imprisonment.
Incurable mental illness or continuous unconsciousness

39
The criteria
Section 5(1) – mental illness
1. The defendant has been admitted to an institution as a patient in terms of a reception

order under the Mental health Act, or is being detained as a state patient or mentally ill
convicted prisoner at an institution;
2. The defendant has not been unconditionally discharged from the institution or place of
detention for a continuous period of at least two years immediately prior to the institution
of the divorce action;
3. There is no reasonable prospect that the defendant will be cured of his or her mental
illness. This fact must be proved by the evidence of at least two psychiatrists, one of
whom must be appointed by the court.
Section 5(2) – continuous unconsciousness
1. The defendant must be in a state of continuous unconsciousness caused by a physical

disorder;
2. The defendant’s unconscious state must have lasted for a period of at least six months
immediately prior to the institution of the divorce action;
3. There must be no reasonable prospect that the defendant will regain consciousness. This
fact must be proved by the evidence of at least two doctors, one of whom must be a
neurologist or neurosurgeon appointed by the court.
The requirements of section 5 need not be complied with in order to obtain a divorce order against
a mentally ill or unconscious spouse. A decree of divorce can be granted under section 4 if the
plaintiff can prove that the marriage has broken down irretrievably. Only in the most exceptional
circumstances will a court make a forfeiture order against a defendant whose mental illness or
unconsciousness is the reason for a divorce which is granted in terms of section 4.
Special rules which apply in terms of the Divorce Act:
(a) Section 5(3)
The court is empowered to appoint a legal practitioner to represent the defendant at the court
proceedings, and to order the plaintiff to bear the costs of the defendant’s legal representation.
(b) Section 5(4)
The court may make any order it deems ft in respect of requiring the plaintiff to furnish security for
any patrimonial benefits to which the defendant may be entitled as a result of the divorce.
(c) Section 9(2)
Forfeiture of patrimonial benefits may not be ordered against a defendant if the marriage is
dissolved on the ground of the defendant’s incurable mental illness or continuous
unconsciousness.
(d) Maintenance

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The plaintiff may indeed claim maintenance from the mentally ill or unconscious defendant if he
or she qualifies for maintenance in terms of section 7(2) of the Act.
Defences against an action for divorce
If a spouse rebuts allegations that the marriage has broken down irretrievably, a divorce will not
be granted. The proceedings may be postponed in terms of section 4(3) if there is the prospect
of reconciliation. An unsuccessful attempt at reconciliation does present strong evidence of
irretrievable breakdown so a decree of divorce will be granted.
The provision in section 6(1) of the Divorce Act that a decree of divorce may not be granted until
the position of the couple’s minor or dependent children has been satisfactorily arranged, does
not constitute a defence against an action for divorce. It is a complete bar to a decree of divorce.
The court’s discretion to refuse a decree of divorce
The court does not have a discretion whether or not to grant a divorce if one of the grounds for
divorce has been proven. In terms of section 5A of the Divorce Act, the court is empowered to
refuse a divorce or to make any other order it considers just if, despite the divorce, the spouses
or either of them will not be free to remarry unless the marriage is also dissolved in accordance
with the prescripts of their religion or the religion of either of them, or unless a religious barrier to
remarriage is removed. The purpose of this provision is to relieve the desperate position in which,
for example, a Jewish woman finds herself if her husband refuses to grant her a Jewish religious
divorce (a get) – Raik v Raik.
Amar v Amar: Judge Goldstein issued a divorce decree in terms of the Divorce Act but ordered
the husband who was unwilling to co-operate in obtaining a get, to pay maintenance to his wife
(who was not otherwise entitled to maintenance from him) until such time as their marriage was
terminated by the granting of a get.
Patrimonial consequences of divorce (division of spouses’ assets)
Settlement agreements
In South Africa it is accepted practice to regulate the consequences of divorce by means of

agreement. This deed of settlement details division of their assets, payment of maintenance,
custody of, and access to their children, and payment of the costs of the proceedings.
The parties may include any provision in their deed of settlement which is not impossible, illegal,
or contra bonos mores. The parties may agree on a division of their assets which deviates from
the normal rules regarding the matrimonial property system which operates in their marriage.
In terms of section 7(1) of the Divorce Act, the court may incorporate (the whole or parts of) the
spouses’ settlement agreement into the divorce order if it is in writing. The divorce order
incorporating the settlement agreement may be amended or rescinded by mutual consent.
Patrimony of the spouses
The division of the spouses’ assets depends firstly, on the matrimonial property system in place
and secondly, on whether or not the court orders forfeiture of patrimonial benefits. In certain

41
marriages out of community of property, the court also has a discretion to order redistribution of
assets.
If the court does not grant an order for forfeiture of benefits, the divorce order in respect of a
marriage in community of property automatically operates as an order for division of the joint
estate. If the spouses cannot reach agreement on how the estate is to be divided, the court may
either order the division it deems just or appoint a liquidator to divide the estate.
Misconduct still plays a role in respect of the patrimonial consequences of divorce, as fault is taken
into account in respect of forfeiture of benefits and redistribution of assets. It is also considered
in respect of spousal maintenance.
(1) Pension interests
Traditionally, a future pension or retirement annuity benefit was not included in a spouse’s estate
upon divorce as the right to claim the benefit only vests in the spouse when he or she retires or
reaches a certain age. However, in terms of section 7(7)(a) of the Divorce Act, a spouse’s pension
interest is now deemed to be part of his or her assets upon divorce.
In terms of the definition of “pension interest” in section 1 of the Divorce Act, the value of a
spouse’s pension interest is calculated in the following manner:
1. If the spouse is a member of a pension fund other than a retirement annuity fund, the
pension interest is the benefit to which the spouse would have been entitled had he or
she terminated his or her membership of the fund on the date of the divorce;
2. If the spouse is a member of a retirement annuity fund, the pension interest is equal to
all his or her contributions to the retirement annuity fund up to the date of the divorce,
together with annual simple interest on those contributions calculated at the rate the
Minister of Justice and Constitutional Development prescribes in terms of the
Prescribed Rate of Interest Act.
Schenk v Schenk: the Act does not make provision for growth on the portion of the pension
benefit which is to be paid to the non-member spouse, nor does it provide for the payment of
interest.
Spouses’ pension interests are not taken into account if they married with complete separation of
property on or after 1 November 1984.
Forfeiture of patrimonial benefits
Requirements for a forfeiture order
Section 9(1) of the Divorce Act prescribes that the following factors should be considered in
determining a total or partial forfeiture:
1) the duration of the marriage;

2) the circumstances which led to the breakdown of the marriage;
3) any substantial misconduct on the part of either spouse.
Wijker v Wijker: these factors need not all be present and need not be viewed cumulatively.
The court also held that no-fault divorce did not do away with fault as a factor in respect of forfeiture
orders. Further, it is submitted that an order for forfeiture of benefits may only be granted if the

42
court is satisfied that in the absence of the order, one spouse will be unduly benefited in relation
to the other.
The court may not use a forfeiture order as a mechanism for deviating from the normal
consequences of the spouses’ matrimonial property system. It is clear that the mere fact that the
consequences of a specific matrimonial property system do not suit a party, does not entitled him
or her to forfeiture of benefits.
Benefits which can be forfeited
Forfeiture of benefits does not mean that a spouse loses his or her own assets. It merely entails
that the spouse loses the claim he or she has to the other spouse’s assets.
In a marriage in community of property, the benefits which can be forfeited are the spouse’s share
of the assets brought into the marriage by, or acquired as a result of the other spouse’s effort.
Watt v Watt: Benefits which can be forfeited in the case of a marriage out of community of
property include the right to share in the accrual of the other spouse’s estate, benefits by virtue of
a succession clause and marriage settlements.
Botha v Botha: question of whether there would be undue benefit to one spouse if a forfeiture
order is not made, with reference to the 3 requirements in section 9(1) of the Divorce Act.
Redistribution of assets as a reformative and remedial measure
As the accrual system has no retroactive effect, the legislator inserted sections 7(3) to (6) into the
Divorce Act to assist spouses who married with complete separation of property prior to the
commencement of the Matrimonial Property Act or the Marriage and Matrimonial Property Law
Amendment Act. Sections 7(3) to (6) empower the court to make an order that the assets, or part
of the assets of one spouse be transferred to the other spouse if the court considers this to be
just. These provisions introduced an entirely novel concept (redistribution of assets upon divorce)
into our law. Its purpose was to remedy the inequity which could flow from failure of the law to
recognise a right of a spouse upon divorce to claim an adjustment of a disparity between the
respective assets of the spouses which is incommensurate with their respective contributions
during the subsistence of the marriage – Beaumont v Beaumont.
Prerequisites for a redistribution order
Section 7(3) – a spouse may ask the court to transfer the other spouse’s asset, or such part of the
other spouse’s assets as the court may deem just, to him or her, if the spouses did not enter into
an agreement concerning the division of their assets and they were married:
1. prior to the commencement of the Matrimonial Property Act with an antenuptial contract
which excludes community of property, community of profit and loss, and accrual
sharing in any form;
2. prior to the commencement of the Marriage and Matrimonial Property Law Amendment
Act in terms of section 22(6) of the Black Administration Act.
Lagesse v Lagesse: foreign marriage. Parties had married in terms of the law of Mauritius and
had not concluded a formal antenuptial contract but at the time of their wedding a note had been
made in the margin of their marriage certificate that they wanted their marriage to be governed by

43
the Status of Married Women Ordinance of 1949 (Mauritius). Under this ordinance, complete
separation of property operates in the marriage. Accordingly, the wife could invoke section 7(3)
of the Divorce Act. No consideration was given to the rule that the proprietary consequences of a
marriage are governed by the lex domicilii matrimonii, which is submitted to be erroneous.
Subsection 7(9) of the Divorce Act empowers a South African court which grants a divorce order
in respect of a marriage the patrimonial consequences of which are governed by foreign law, to
order redistribution of assets if the court of the foreign state has that power.
Requirements for a redistribution order
Section 7(4):
1. the spouse who seeks redistribution must have contributed directly or indirectly to the
maintenance or increase of the other spouse’s estate during the subsistence of the marriage
[factual];
2. the court must be satisfied that, by reason of such contribution, it would be equitable and just
to make a redistribution order [discretionary].
The nature of the contribution to the maintenance or increase of the other spouse’s estate:
1. the rendering of services (eg: working in the other spouse’s business, without any
compensation or for a very small salary);
2. saving of expenses which would otherwise have been incurred (eg: by being a
housewife/homemaker and in this way saving the other spouse various expenses);
3. any other manner.
Katz v Katz: section 7(4) covers the performance of the “ordinary duties” of a wife in respect of
looking after the home and caring for the family, for in performing these duties the wife renders
services and saves expenses which necessarily contribute to the maintenance or increase of her
husband’s estate. A monetary value need not be placed on the contribution.
Other considerations the court takes into account
Section 7(5):
1. The existing means and obligations of the parties, including any obligation that a husband who
entered into a civil marriage while being married to another woman at customary law may have
to that customary wife in terms of section 22(7) of the Black Administration Act;
2. Any donation one spouse made to the other during the subsistence of the marriage, or which
is still owed in terms of the spouses’ antenuptial contract;
3. Any order for forfeiture of patrimonial benefits in terms of section 9 of the Divorce Act;
4. Any other factor which, in the opinion of the court, should be taken into account.
(a) Misconduct
The legislator expressly made fault or misconduct a relevant factor for purposes of assessing
maintenance under section 7(2) of the Divorce Act. There is no reason why misconduct cannot
be taken into account under the wide terms of subsection 7(5)(d), eventhough the courts will adopt
a conservative approach in order to ensure that justice is done between the parties – Beaumont
v Beaumont.

44
(b) The interrelationship between sections 7(2) and 7(3) of the Divorce Act, and the
clean-break principle
A maintenance order can also be taken into account when the nature or extent of a redistribution
order is to be determined.
Beaumont v Beaumont: clean-break principle - the financial obligations between the spouses
should terminate as soon as possible after divorce. A clean break can be achieved by making
only a redistribution order in terms of section 7(3) and no maintenance order under section 7(2).
Because of the obvious advantages the principle entails, our courts would always consider the
possibility of using their powers in such a way as to achieve a complete termination of the financial
dependence of the one party on the other, if circumstances permit. The clean-break principle can
be applied only if its application will not lead to unfairness between the parties.
One philosophy is that a redistribution order under section 7(3) can serve two distinct purposes,
one being compensation of a spouse for past contributions to the maintenance or increase of the
other spouse’s estate, and the other being provision for the applicant spouse’s maintenance
needs. A redistribution order under the Divorce Act can be made in respect of foreign marriages
in so far as that order provides purely for a spouse’s maintenance needs. But the correctness of
this view is disputable. However, an interrelationship between two different orders does not mean
that one becomes the other.
Criterion for establishing the extent of the redistribution
In the past the “one-third” principle was used. Presently, equality is the yardstick in redistribution
orders. The spouses’ assets are divided equally unless good reason exists for not doing so.
Bezuidenhout v Bezuidenhout: “there is no place for discrimination between husband and wife
in their respective roles”. Reference was made to the equality and interpretation clauses in the
Constitution and the Promotion of Equality and Prevention of Unfair Discrimination Act.
The form a redistribution order may take
The court may not order the party in whose favour the redistribution order operates to transfer
some of his or her own assets to the other party.
The party who seeks a redistribution order must apply for the order but need not set out the exact
nature and extent of the order in any detail. That can be left to the court. The applicant bears the
onus of proof in the identification of assets…that must be redistributed.
The court is not bound to order the transfer of a specific asset to the successful applicant – it may
order that a sum of money be transferred in lieu of the asset or assets.
A claim and a counterclaim for redistribution should generally be considered separately to ensure
that each claim get the attention it deserves.
MAINTENANCE OF A SPOUSE AFTER DIVORCE
The duty of support between spouses comes to an end when the marriage is terminated, unless
a maintenance order has been made in favour of one of the spouses, which could be incorporated

45
into the divorce order in terms of section 7(1). The court may alternatively make a maintenance
order in terms of section 7(2), which is not incorporated into the divorce order.
Maintenance order in terms of section 7(2)
This is a maintenance order made for any period of time until the death or remarriage of the party
in whose favour the order operates. This maintenance order is coupled with a decree of divorce,
thus it cannot be granted after the marriage has been dissolved by divorce.
Factors the court must consider:
1. the spouses’ existing or prospective means;

2. the spouses’ respective earning capacities;
3. the spouses’ financial needs and obligations;
4. each spouse’s age;
6. the spouses’ standard of living during the marriage;
7. each spouse’s conduct in so far as it may be relevant to the breakdown of the marriage;
8. any redistribution order in terms of section 7(3) of the Divorce Act;
9. any other factor which, in the court’s opinion, should be taken into account.
Grasso v Grasso: Judge Berman held that no particular stress was laid on any one or more of
these factors, and they are not listed in any particular order of importance or of greater or lesser
relevance. Only misconduct which has a bearing on the breakdown of the marriage is relevant.
If the misconduct of one of the parties was gross, and especially if the other party was prepared
to attempt a reconciliation, fault assumes greater relevance. The court also held that if the
husband can afford to maintain two homes at the same standard of living at which the common
home was maintained and can afford to have his former wife stay at home, she need not take up
paid employment after the divorce, and he must see to it that she can maintain her previous
standard of living. The court additionally considered the high rate of inflation in South Africa under
the broad provision that the court may take any other factor into account.
The proper approach is to consider each case on its own merits in the light of the facts and
circumstances peculiar to it, especially with regard to the factors that are set out in section 7(2).
Pommerel v Pommerel: the courts normally accept that both spouses have to adopt a lower
standard of living after divorce. It is a question of balancing up the needs of both parties and
making an equitable distribution of the available income.
The movement away from permanent maintenance
The courts have increasingly expected women to take up paid employment after divorce and have
granted employable women rehabilitative (limited) maintenance only.
V v V: a wife who was married in community of property and who was capable of earning her own
living was awarded maintenance only for one year, as the court was of the view that that was long
enough to enable her to establish herself in her career, and for the joint estate to be divided
Kroon v Kroon: permanent maintenance will not be awarded to a woman who can support herself
or who can be trained or retrained to do so. The factors the court takes into account include the

46
woman’s age, her state of health, the duration of the marriage, the parties’ standard of living during
marriage, the length of the woman’s absence from the labour market, whether she has any
marketable skills, and her commitment to the care of young children.
Pommerel v Pommerel: no maintenance will be awarded to a wife who is able to support herself,
nor can a wife expect to enjoy after the divorce the same standard of living that she had as a
married woman. However, the mere fact that she is able to earn an income does not in itself
disentitle her to maintenance. Secondly, the court must balance up the needs of both parties and
make an equitable distribution of the available income between them.
Lump-sum maintenance
Purnell v Purnell: previously, it was argued that maintenance could only be paid in the form of
periodic payments and not a lump sum. However, the Maintenance Act provides that the court is
empowered to make an order for the payment of maintenance by way of a lump sum.
Token maintenance
If there is no reason to make a maintenance order at the time of the divorce, but it is anticipated
that one of the spouses may need maintenance at some future stage, the court may make an
order for token or nominal maintenance (eg: R1) in favour of the spouse who may need
maintenance in the future. The nominal maintenance can later be varied if necessary. It is
important to note that token maintenance is important, because if a spouse does not get a
maintenance order upon divorce, he or she can never get one. The factors in section 7(2) must
further be considered in order to decide the amount that has to be paid, and the period for which
it is to be paid.
Rescission, suspension and variation of a maintenance order
Section 8(1) of the Act, with sufficient reason. The order may also be varied or rescinded in terms
of the Maintenance Act.
“Sufficient reason”
Factual question which must be answered in light of the circumstances of each specific case.
Usually, it is necessary for there to have been a material change in circumstances, but this is not
a statutory prerequisite.
Reid v Reid: a maintenance order cannot be varied simply because the applicant agreed to an
unjust divorce settlement, as this could easily lead to abuse of the court process. Special
circumstances must be proved before the court will permit a party to question the justness of the
existing maintenance order. If the party who is financially worse off proves that there is sufficient
reason for a variation, the maintenance order will be varied, but the mere fact that there is financial
inequality between the parties does not mean that the order must be varied.
The mere fact that the party in whose favour the maintenance order operates lives with another
person does not constitute sufficient reason for rescission of the maintenance order, unless the
maintenance order expressly includes a dum casta clause (a dum casta clause provides that the
maintenance recipient will forfeit maintenance if he or she leads an unchaste life).

47
On its own, inflation does not constitute a sufficient reason to justify an increase in maintenance.
However, it is one of the factors that are taken into account when variation of a maintenance order
is sought, especially in respect of evaluating the ability of the party against whom the order
operates to pay more and the other party’s need for more maintenance.
Waiver of the right to claim rescission, suspension or variation of a maintenance order
Either party may waive his or her rights.
Termination of a maintenance order
The obligation to pay maintenance will only terminate at the death of the liable party if the
agreement so provides. In case of doubt whether the obligation continues after the liable party’s
death, the court favour continuation.
The obligation to pay maintenance comes to an end at the time stipulated in the order, or upon
the death or remarriage of the party in whose favour the order operates, whichever even occurs
first. A maintenance order may also operate against the deceased estate of the former spouse
who was obliged to pay maintenance.
A maintenance order is also terminated if a court rescinds it. Insolvency does not terminate a
maintenance order.
SECTION 5: CUSTOMARY MARRIAGES, MUSLIM MARRIAGES, SAME-SEX MARRIAGES

AND HETEROSEXUAL LIFE PARTNERSHIPS
CUSTOMARY MARRIAGES
Prior to the entry into force of the Recognition of Customary Marriages Act, customary marriages
were recognised only for limited purposes, because they permit polygyny and are not solemnized
in terms of the Marriage Act. The Recognition of Customary Marriages Act confers full legal
recognition on customary marriages regardless of when they were concluded and regardless of
how many customary wives a husband has. The Act preserves the old customary-law
requirements and consequences for customary marriages concluded prior to the commencement
of the Act, while it creates different requirements and consequences for customary marriages
entered into after its coming into operation.
Customary marriages entered into before the coming into operation of the Recognition of
Customary Marriages Act
A customary marriage which was entered into before the coming into operation of the Act is valid
only if it complies with the customary-law requirements for a valid marriage.

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In KwaZulu-Natal, Zulu customary law has been partly codified. 2 differed codes apply in
KwaZulu-Natal, namely the KwaZulu Act on the Code of Zulu Law 16 of 1985 and the Natal Code
of Zulu Law. These codes are virtually identical in so far as they relate to customary marriages.
The essential requirement is consent: the bride must publicly declare to the official witness that
the marriage is taking place of her own free will and with her consent, and that if either future
spouse is a minor, his or her father or guardian must also consent to the marriage. Certain
specified family members are not within the prohibited degrees of relationship for purposes of
entering into a customary marriage. In addition, lobolo (bridewealth) is customarily delivered – it
is property (livestock and/or money) given to the head of the bride’s family in consideration of the
marriage.
Outside of KwaZulu-Natal, regardless of the spouses’ ages, both of them and the bride’s guardian
or family head must consent to the marriage. If the bridegroom is a minor, his father, guardian or
family head must also consent to the marriage. The spouses must be over the age of puberty and
must not be within the prohibited degrees of relationship. The wife must leave her family and live
with her husband. Lobolo is customarily delivered. A ceremony is not a prerequisite, but it often
takes place.
Registration of marriage
Customary marriages concluded before the coming into operation of the Recognition of Customary
Marriages Act had to be registered with the Department of Home Affairs before 15 November
2002. However, non-registration does not affect the validity of the marriage.
Proprietary consequences remain unchanged since the entry into force of the Act and continue to
be governed by customary law.
Each customary marriage results in the establishment of a separate house with a specific rank.
The rank is determined by the ranking system adopted by the particular tribal group. Complex
ranking is usually used. It takes 2 main forms: firstly, each house has a relative rank according
to the date of marriage, with the first wife and her house occupying the highest rank. All other
wives are ranked according to the date of marriage. Secondly, the houses are divided into two
separate sections. The first wife is the main wife and her house forms the senior house in the first
section. The second wife is the right-hand wife and her house is the senior house in the second
house. All further wives are added, in turn, to the two sections and their ranking is determined
according to the date of marriage. The husband is always the family head of all the houses.
Assets a customary spouse acquires become either general (family) property, or house property.
The position of a person usually determined ownership of property. Anything obtained by or
through a member of a particular house belongs to that house, for example, wages earned by a
particular wife and her children and lobolo paid for her daughters belongs that wife’s house. The
family head may allot property to a particular house. The family head’s property and earnings and
any unalloted property fall into the family estate, which is used to support dependants.
In terms of the simple ranking system, each wife does not establish a separate house, but the
property of the whole group, consisting of the family head and all his wives, forms one estate.
Each wife occupies a different rank, determined by her date of marriage. The first wife is the chief
wife and all other wives are ranked in the order of their marriages. The husband is the head of
the family.

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Spouses who entered into a customary marriage before the coming into operation of the
Recognition of Customary Marriages Act may change their matrimonial property system with the
court’s permission. The application must be made by the spouses jointly and all other wives must
be joined in the proceedings. The court must be satisfied that:
1. There are sound reasons for the proposed change;

2. Sufficient written notice has been given to all creditors to whom the spouses owe more
than R500 (or the amount stipulated in the Government Gazette);
3. No other person will be prejudiced by the proposed change.
The wife’s status
The Act abolished the wife’s status as perpetual minor and her husband’s guardianship over her.
The wife is equal to the husband and, subject to the matrimonial property system governing the
marriage, has full status and capacity to acquire assets and to dispose of them, to enter into
contracts and to litigate, in addition to any rights and powers that she might have at customary
law. However, the husband remains the family head and he control all family property, thus the
wife’s capacity to deal with property and her capacity to act are still restricted. Despite the
“equality” provision, the relative status of each wife remains unaltered in terms of customary law,
so the chief wife retains the customary rights associated with her superior status.
(a) Divorce
Irretrievable breakdown of marriage. This may be determined with reference to the circumstances
which formerly constituted the customary-law grounds for divorce.
The court has the powers conferred on it by sections 7, 8, 9 and 10 of the Divorce Act, 1979.
Therefore, the court has the power to incorporate a settlement agreement, make an order
regarding post-divorce maintenance of one of the spouses, redistribute assets if the marriage is
subject to complete separation of property, order forfeiture of patrimonial benefits, and make an
order regarding costs. It may also subsequently rescind, vary or suspend a maintenance order.
The parties’ pension interests are deemed to form part of their assets upon divorce.
The court’s power to order redistribution is restricted to marriages which are subject to complete
separation of property, which it is submitted customary marriages amount to as a result of the
need to remedy inequity between the spouses.

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Because the contract for the delivery of lobolo is concluded between the bridegroom and the
bride’s father, it does not relate to the spouses’ matrimonial property and is not automatically
terminated by the dissolution of the marriage. However, the high court has jurisdiction to entertain
such claims.
Interests of the children of divorcing parents
The court is competent to make an order regarding the guardianship or custody of minor children
of a customary marriage. The Recognition of Customary Marriages Act applies section 6 of the
Divorce Act as well as the Mediation in Certain Divorce Matters Act 24 of 1987 to the dissolution
of the marriage. This means that a family advocate must investigate the welfare of the child and
furnish the court with a report and recommendations, which are considered in determining
guardianship, custody, access and maintenance.
Maintenance
The court is specifically required to take into account any provision or arrangement that has been
made in accordance with customary law. The payment of lobolo and isondlo (delivery of an animal
by a father to the person who raised his child) probably qualifies as factors in terms of this
provision.
(iii) Joinder
The court may order that any person who has a sufficient interest in the matter may be joined in
the divorce proceedings. This may include the husband’s other customary wives and the wife’s
father as lobolo holder.
(iv) Jurisdiction
A divorce order must be obtained from the high court, family court, or divorce court. Customary
law still plays a prominent role in the mediation of disputes prior to divorce.
(v) Interim relief
Pending divorce, either spouse may apply for maintenance pendent elite, a contribution towards
costs, interim custody of a child, and/or interim access to a child in terms of Rule 43 of the Uniform
Rules of Court.
(b) Death
With the exception of KwaZulu-Natal, customary law provides that a customary marriage is not
necessarily dissolved by a spouse’s death. The wife’s death never destroys the house created by
her marriage and nor does it necessarily end the marriage. After her death, her husband may
take a “seed raiser” to produce children for the deceased wife’s house. This custom is known as
the sororate is practiced mainly if the deceased wife is not survived by a son. The husband’s
death does not terminate a customary marriage. The custom of levirate allows the deceased
husband to be replaced by one of his paternal male relatives. Any child the woman has with this
man is deemed to be her deceased husband’s child.

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The Recognition of Customary Marriages Act does not deal with the issue of the dissolution of
marriage by death, hence lending credence to the sororote and levirate customs and the fact that
death does not automatically terminate a customary marriage.
Customary marriages entered into after the coming into operation of the Recognition of
Customary Marriages Act
Such a marriage is valid if the bride and groom are over 18 and both have consented to the
marriage and the marriage is negotiated and entered into or celebrated in accordance with
customary law.
Despite the rule of customary law, the age of majority is the same for men and women – 21 years
of age. If either spouse is a minor, his or her parents or legal guardian must consent to the
marriage. If their consent cannot be obtained, the provisions of section 25 of the Marriage Act
apply – the minor can ask the commissioner of child welfare to consent to the marriage. If the
parents or guardians or the commissioner of child welfare withholds consent, the minor may
approach the high court for consent. The high court will only consent if it is of the opinion that the
parent or guardian or commissioner’s refusal is without adequate reason and contrary to the
minor’s best interests.
If a minor marries without consent, section 24A of the Marriage Act applies to the customary
marriage, hence the marriage is voidable at the instance of the minor or the minor’s parents or
guardian. The parent or guardian must make the application to have the marriage set aside before
the minor attains majority and within 6 weeks from the date on which he or she becomes aware
of the existence of the marriage. The minor must make such an application before attaining
majority or within 3 months thereafter. The order as to dissolution must be in the interests of the
minor child.
A minor below 18 years of age may only enter into a customary marriage if the Minister of Home
Affairs or the Minister’s designate considers the marriage desirable and in the parties’ interests.
If ministerial consent is granted, the prospective spouses must still comply with all the other
requirements for a valid marriage, such as obtaining consent from parents and guardians. If the
marriage of a minor below 18 years of age takes place without ministerial consent, the Minister
may ratify the marriage.
The forbidden degrees of relationship for purposes of a customary marriage are determined in
accordance with customary law. Generally, marriages who may not enter into a civil marriage
may not enter into a customary marriage.
Registration of the marriage
The marriage must be registered within 3 months of the date of the wedding. Either spouse may
apply for registration and must furnish the necessary information to enable the registering officer
to be satisfied that the customary marriage exists. A certificate of registration is issued, bearing
the parties’ identity, date of their marriage, and any lobolo agreed to. The certificate is prima facie
proof of the existence of the customary marriage and other particulars contained in it.
If the spouses do not request registration, any party who has “a sufficient interest in the matter”
may request the registering officer to enquire into the existence of the marriage. If a valid marriage
exists, it must be registered and a registration certificate must be issued.

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Non-registration does not affect the validity of the marriage.
(a) A customary marriage a minor entered into without consent
(i) Patrimonial consequences if the marriage is set aside
Section 24(1) of the Matrimonial Property Act governs the patrimonial consequences if the court
dissolves the marriage. The court can therefore make any order with regard to the division of the
spouses’ matrimonial property that it deems just.
(ii) Patrimonial consequences if the marriage is not set aside
The issue of a minor’s unassisted customary marriage is unlikely ever to arise in practice, because
it is unheard of for the couple’s family groups not to participate in the arrangements for a customary
marriage.
(b) Other customary marriages
(i) Monogamous customary marriage
If the marriage is the husband’s only marriage, the matrimonial property system is determined by
the same rules that apply to civil marriages – if no antenuptial contract is entered into, the marriage
is in community of property. If they do enter into an antenuptial contract, the provisions of the
antenuptial contract determine their matrimonial property system. If the marriage is in community
of property, section 14 to 20 and section 24 of the Matrimonial Property Act apply to it. Thus, the
rules which govern administration of the joint estate, litigation by or against a spouse who is
married in community of property, damages for non-patrimonial loss that are paid or recovered by
such a spouse, the spouse’s delictual liability, and the statutory protective measures one spouse
can employ against the other are exactly the same for civil and customary marriages.
The couple should approach the court for permission to change their matrimonial property system
during the subsistence of their marriage in terms of section 21(1) of the Matrimonial Property Act.
(ii) Polygynous customary marriage
Prior to the celebration of the new marriage, the husband must obtain the court’s approval of a
written contract which will regulate the future matrimonial property system of his marriages. If the
husband’s existing customary marriage is in community of property or out of community with the
accrual system, the court must terminate the matrimonial property system and effect a division of
the property. The court must ensure that the property is equitably distributed, and take into
account all relevant circumstances of the family groups which would be affected if the application
were granted. The court requires that all persons with a sufficient interest in the matter, such as
the husband’s present wife or wives and his future wife, are to be joined in the proceedings. The
Act authorizes the court to allow amendments to the proposed contract, grant an order subject to
conditions, or refuse the application.
The accrual system cannot operate in a polygynous customary marriage, due to the provisions of
section 3(1) of the Matrimonial Property Act.

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Complete separation of property seems to be the only option. Application of this system would
not occasion many practical difficulties as the husband and each of his wives would simply retain
their own estates. But complete separation of property is unfair to wives who do not have an
opportunity to build up their own estates. Upon divorce, the court may make “any equitable order
that it deems just”, but in the case of death, no remedy is available to polygynous customary wives.
The wife’s status
The wife is equal to the husband. The objection that the matrimonial property system which
operates in the marriage virtually negates the wife’s power to acquire and deal with property and
enter into contract does not apply to customary marriages which are concluded after the coming
into operation of the Act, as the customary-law proprietary consequences do not operate in these
marriages. Both spouses’ capacity to enter into contract and to litigate is limited by the provisions
of the Matrimonial Property Act if the marriage is in community of property.
(a) Divorce
Irretrievable breakdown of marriage. This may be determined with reference to the circumstances
which formerly constituted the customary-law grounds for divorce.

The court has the powers conferred on it by sections 7, 8, 9 and 10 of the Divorce Act, 1979.
Therefore, the court has the power to incorporate a settlement agreement, make an order
regarding post-divorce maintenance of one of the spouses, redistribute assets if the marriage is
subject to complete separation of property, order forfeiture of patrimonial benefits, and make an
order regarding costs. It may also subsequently rescind, vary or suspend a maintenance order.
The parties’ pension interests are deemed to form part of their assets upon divorce.
The court’s power to order redistribution is restricted to marriages which are subject to complete
separation of property, which it is submitted customary marriages amount to as a result of the
need to remedy inequity between the spouses.
Because the contract for the delivery of lobolo is concluded between the bridegroom and the
bride’s father, it does not relate to the spouses’ matrimonial property and is not automatically
terminated by the dissolution of the marriage. However, the high court has jurisdiction to entertain
such claims.
Civil marriage by a spouse who is a party to a customary marriage
Section 10(4) – parties to a civil marriage are not “competent to enter into any other marriage”. A
marriage concluded in contravention of this provision is void.

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Parties to a customary marriage may not later enter into a civil marriage with another person.
They may enter into a civil marriage with each other, but the husband’s other customary marriages
must first be dissolved. A subsequent civil marriage in contravention of these provisions is void.
Section 10(2) – if a couple who is married at customary law subsequently also enters into a civil
marriage with each other, their marriage is in community of properly unless they enter into an
antenuptial contract.
The Recognition of Customary Marriages Act does not adequately regulate the consequences of
the interface between the couple’s customary and civil marriage. In terms of section 10(2),
customary law applies in respect of the proprietary consequences before the date of the civil
marriage and the provisions of section 10(2) apply as from the date of the civil marriage. This is
because section 10(2) prescribes the matrimonial property consequences in “the marriage” “when
a marriage is concluded as contemplated in subsection (1)” and section 10(1) governs the capacity
of spouses who are married at customary law to “contract a marriage with each other under the
Marriage Act” (that is, to conclude a civil marriage). Thus all assets acquired before the civil
marriage will still be governed by the customary-law principles of family and house property, while
all assets acquired as from the date of the civil marriage will fall into the Matrimonial Property Act.
The customary marriage is terminated at the date of the civil marriage, but the termination is not
retroactive.
The Constitution and customary marriages
MUSLIM MARRIAGES
Recognition of Muslim marriages
1) Statutory recognition
Child Care Act, Births and Deaths Registration Act and Domestic Violence Act apply to religious
marriages. Further recognition is given in Civil Proceedings Evidence Act, Criminal Procedure
Act, Transfer Duty Act and Estate Duty Act.
Daniels v Campbell: a surviving spouse in a monogamous Muslim marriage qualifies as a

“spouse” and “survivor” in terms of the Intestate Succession Act and the Maintenance of Surviving
Spouses Act. The ordinary meaning of the word “spouse” encompasses a party to a Muslim
marriage. However, this only applies to spouses in monogamous Muslim marriages, although in
future polygynous marriages could also possibly apply to spouses who institute claims in terms of
the Maintenance of Surviving Spouses Act.
2) Judicial recognition
Ryland v Edros: court held that contractual obligations flowing from a de facto monogamous
Muslim marriage can be recognized and enforced as between the parties despite the fact that the
marriage is potentially polygynous. The spouses are bound, as against each other, by their
contractual undertakings under Islamic law. The court rejected the 1983 decision in Ismail v
Ismail, in which the appeal court had held that a polygamous union and the contractual obligations

55
flowing from it could not be recognized because polygamy conflicts with public policy. In Ismail v
Ismail, the court had considered only the views of one group of our pluralistic society, which is
unacceptable. The decision in Ismail v Ismail no longer precludes a court from enforcing a claim
emanating from the marriage contract between Muslim spouses.
Enforcing the contractual obligations which flow from a Muslim marriage does not mean that the
marriage is equated with a civil or customary marriage and also does not result in full legal
recognition of the Muslim marriage.
Amod v Multilateral Motor Vehicle Accidents Fund: extension of dependant’s action for loss
of support to the surviving spouse in a monogamous Muslim marriage. This was a claim for loss
of support against the Multilateral Motor Vehicle Accidents Fund and the court a quo rejected the
claim. On appeal, the court held that the decisive issue was not whether or not the plaintiff as
lawfully married to the deceased but whether or not the deceased was under a legal duty to
support her in a relationship which was worthy of recognition and protection in terms of the
common law. A claim for loss of support would arise subject to the following requirements:
(a) the deceased had a legally enforceable duty to support the dependant;
(b) that duty arose from a marriage in accordance with the tenets of a recognized and
accepted faith;
(c) that duty deserved recognition/protection for the purposes of a dependant’s claim.
Boni mores of our society require that the contractual duty of support which flows from a Muslim
marriage should be recognized and be legally enforceable at common law. The Fund was
therefore ordered to compensate the plaintiff for her loss of support.
The Muslim Marriages Bill
All Muslim marriages concluded before the coming into operation of the proposed legislation will
be subject to its provisions unless the spouses jointly elect to exclude those provisions. The
provisions of the legislation will not apply to Muslim marriages which are concluded after the
coming into operation of the proposed legislation unless the spouses elect to be bound by the
legislation.
If the legislation applies to a Muslim marriage, the marriage will be recognized as a valid marriage
in terms of South African law if it meets all the requirements set by the proposed legislation. If the
legislation does not apply, the marriage will only be governed by Islamic law and will not be
recognized as a valid marriage in terms of South African law.
Legal requirements for a valid Muslim marriage
These requirements apply to marriages concluded after the coming into operation of the proposed
legislation:
1. The bride and groom must consent to the marriage. Marriage by proxy is allowed
(representative), but then the marriage officer must ascertain from the proxy whether
the bride and groom have consented to the marriage;
2. The bridge and groom must both be above the age of 18 years;
3. If either party is a minor, his or her parents or legal guardian must consent to the
marriage;

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4. The parties must not be within the prohibited degrees of relationship, which degrees
are to be determined in accordance with Islamic law;
5. The witnesses who are required by Islamic law must be present at the tme of the
conclusion of the marriage;
6. The marriage must be contracted in accordance with the formulae prescribed by
Islamic law;
7. The marriage officer who conducts the marriage ceremony must register the marriage
and ensure that the spouses understand the registration process. He or she must also
inform the spouses that they may conclude a standard contract or a contract of their
choice regulating their marital regime, and must present the parties with examples of
such a contract.
The proprietary consequences of the marriage and control of the matrimonial property
A Muslim marriage to which the legislation applies will be out of community of property without the
accrual system unless the spouses enter into an antenuptial contract. A husband will only be
allowed to enter into another Muslim marriage if he obtains court approval of the marriage as well
as the proposed written contract regulating the future matrimonial property system of his
marriages.
The wife’s status
Husband and wife are equal in human dignity and have full status, capacity and financial
independence, including the capacity to own and acquire assets and dispose of them, to enter
into contracts, and to litigate.
(a) Divorce
(i) Grounds for divorce
The marriage will be dissolved by way of Talãq, Faskh or Khula’. A Talãq is the immediate or later
termination of a Muslim marriage by a husband or his agent, through the use of the word Talãq or
a synonym or derivative of that word in any language. A Talãq can be revocable, in which case it
does not terminate the marriage until the ‘Iddah (mandatory waiting period during which the wife
may not remarry) has expired. After having been pronounced 3 times, the Talãq becomes
irrevocable. A Faskh is a divorce decree which is granted by a court on either spouse’s application
on a ground which is permitted by Islamic law. Divorce by way of Khula’ refers to divorce at the
instance of the wife in terms of an agreement for the transfer of property or other permissible
consideration between the spouses according to Islamic law.
A court which dissolves a Muslim marriage or confirms the dissolution of a Muslim marriage will
have the powers contemplated in sections 7(1), 7(7) and 7(8) of the Divorce Act. Thus, the court
will have the power to incorporate a settlement agreement into the divorce order and to deal with
the spouses’ pension interests like it would in a civil or customary marriage.

57
The spouses’ assets are also to be divided equally between them if this is just and equitable. This
is only possible if one of the spouses assisted or otherwise rendered services in the operation or
conduct of the family business(es), or the spouses contributed to the maintenance or increase of
each other’s estate, or the estate of either of them to the extent that it is not practically feasible or
otherwise possible to accurately quantify the separate contributions of each spouse.
When a polygynous Muslim marriage is dissolved, the court is obliged to take all relevant factors
into consideration, such as post-nuptial alteration of the spouses’ matrimonial property system,
and the court order regarding the matrimonial property system of the polygynous marriage.
In respect of maintenance, all relevant circumstances also need to be considered, including the
fact that a husband must maintain his wife during the ‘Iddah. If the wife has custody of the minor
children, the husband must remunerate her for her services during the period for which she has
custody. Such remuneration could include the provision of a separate residence. The wife is
furthermore entitled to remuneration for a breastfeeding period of 2 years from the birth of a baby.
The court has the power to make an order regarding guardianship, custody or access. The
Divorce Act and the Mediation in Certain Divorce Matters Act apply to the dissolution of a Muslim
marriage. The best interests of the child are paramount.
(iii) Jurisdiction and appeals
Provisions governing a court’s jurisdiction to dissolve a civil marriage apply. However, because a
pronouncement in respect of a Muslim marriage by a non-Muslim judge is impermissible, the head
of the relevant court must appoint a Muslim judge or acting judge to adjudicate disputes. The
court must also be assisted by 2 Muslim assessors. Rule 43 applications may be decided by non-
Muslim judges. Unopposed proceedings and proceedings in which the spouses have concluded
a settlement agreement are to be heard by a Muslim judge sitting without assessors.
(iv) Alternative dispute resolution
Compulsory mediation is essential. The dispute must be referred to a Mediation Council before
or after the institution of legal proceedings, but prior to the adjudication of the dispute by a court.
A mediation agreement must be submitted to a high court, family court or divorce court within 30
days. If satisfied, the court may confirm the mediation agreement. If mediation is unsuccessful,
the dispute may be adjudicated by the court.
Muslim spouses may agree to refer their dispute to an arbitrator. The decision of the arbitrator
will be binding and will not have to be confirmed by the court unless it affects the welfare of minor
children or a person’s status, upon which time it will have to be confirmed by the high court. The
court may review the arbitration award.
(b) Death
The mandatory ‘Iddah during which a widow may not remarry is 130 days if she is not pregnant at
the time of her husband’s death. If pregnant, the ‘Iddah lasts until she gives birth.
A surviving spouse may lodge a claim against the deceased spouse’s estate for any unpaid dower
(money, property or anything of value which the husband must give to the wife as an ex lege
consequence of the marriage in order to establish a family and lay the foundations for affection
and companionship) or any tangible contribution recognized by Islamic law.

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Civil marriage by a Muslim spouse
A spouse who is a party to a Muslim marriage to which the proposed legislation applies will not be
allowed to enter into civil or customary marriage with the same wife or another woman.
Spouses will be allowed to convert to a civil marriage they concluded with each other prior to the
entry into force of the proposed legislation into a Muslim marriage. All provisions of the proposed
legislation will apply, except requirements for validity and registration of a Muslim marriage.
Proprietary rights will remain unaffected.
The Constitution and Muslim marriages
The two main constitutional values at issue are freedom of religion and non-discrimination on the
ground of religion, on the one hand, and sex and gender equality on the other.
Section 15(3)(b) of the Constitution provides that legislation recognising the particular marriages
or system of law must be consistent with the rights contained in section 15(3) and the other
provisions of the Constitution.
Polygyny is actually the only obstacle to the recognition of Muslim marriages. Howevever, non-
recognition of Muslim marriages most probably results in far greater inequality and indignity for
Muslim women.
HETEROSEXUAL AND SAME-SEX LIFE PARTNERSHIPS
A life partnership refers to living together outside marriage in a relationship which is analogous to,
or has most of the characteristics of a marriage. Also known as domestic partnership,
cohabitation, living together, concubinage, de facto marriage, and common-law marriage.
None of the ex lege consequences of marriage automatically ensue if a couple lives together
without getting married. This is the case regardless of whether or not the life partners are legally
permitted to marry each other. Life partners do not automatically have the right to share in each
other’s property during its subsistence or upon its termination. They also do not inherit from each
other in terms of the rules of intestate succession. Through legislation and court decision, some
of the consequences of marriage have been extended to life partnerships, especially same-sex
life partnerships.
The constitutional court has recognised that the family is a social institution of vital importance and
that “families come in many shapes and sizes”. Marriage between heterosexuals “represents but
one form of life partnership”.
Recognition of heterosexual life partnerships
Section 21(13) of the Insolvency Act includes a heterosexual life partner in the definition of a
spouse. Thus, if one heterosexual life partner becomes insolvent, the other’s estate also vests in
the master of the high court and thereafter in the trustee of the insolvent estate. But if the insolvent
life partner is still married, it is his or her spouse’s estate (and not the life partner’s estate) which
vests in the master and the trustee. In terms of the Compensation for Occupational Injuries and

59
Diseases Act, a “wife or husband” is entitled to claim compensation as the employee’s dependant
if the employee was killed in the course of his or her employment, and only if the employee did
not also have a spouse.
The Estate Duty Act, Pension Funds Act and Income Tax Act, as well as the Maintenance Act,
Domestic Violence Act and Rental Housing Act all extend the same protection to heterosexual
and same-sex life partners and treat both groups as spouses and accords the relevant protection
against discrimination.
Volks NO & Others v Robinson & Others: Maintenance of Surviving Spouses Act was declared
unconstitutional to the extent that it fails to include permanent life partners. This amounts to unfair
discrimination on the grounds of marital status as well as infringes the right to dignity. In effect, a
permanent life partnership is included in the definition of “marriage”, a permanent life partner is
deemed to be a spouse, and a surviving permanent life partner is deemed to be a surviving
spouse.
Recognition of same-sex life partnerships
The Pension Funds Adjudicator has held that pension fund rules which exclude same-sex life
partners from benefits that are conferred on spouses and heterosexual life partners, unfairly
discriminate against same-sex life partners on the ground of their sexual orientation and such
discrimination is unjustifiable.
Medical Schemes act provides that a medical scheme may not be registered if its rules unfairly
discriminate against anyone on the ground of, inter alia, sexual orientation.
Langemaat v Minister of Safety and Security challenged the constitutionality of rules and
regulations of police medical scheme, which allowed only the legal spouse, widow or widower and
the child of a member of the police force to be registered as the member’s dependent. The effect
of the rules and regulations excluded many de facto dependants of members of the police force,
which amounted to discrimination. Our courts have been willing to extend recognition to same-
sex life partnership, hence Judge Roux’s statement that “parties to a same-sex union, which has
existed for years in a common home, must surely owe a duty of support, in all senses to each
other”.
MARRIAGE
Formalities regulated by the Marriage Act and apply to civil marriage concluded within South
Africa. No spouse in a marriage entered into under the Marriage Act may during such marriage
enter into another marriage.
Marriage must be concluded between a man and a woman, solemnized by a person appointed or
authorized as a marriage officer. A male of 18 years and older but under 21, and a female of 15
years and older but under 21 needs the consent of his/her parents or guardians. If the male is 14
to 17 years of age or the female is 12 to 14 years of age, the consent of the Minister of Home
Affairs is also necessary. If consent is refused, the High Court (as upper guardian) must be
approached before a valid marriage can be entered into.
The ceremony must be concluded in a building. However, in Ex parte Dow 1987 (3) SA 829 D,
the court found that it was never the intention of the legislature that non-compliance with these
formal requirements be punished with nullity.

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Customary marriages are governed by the Recognition of Customary Marriages Act. Customary
marriage is defined as a marriage concluded in accordance with customary law, being the customs
and usages traditionally observed amongst the indigenous African peoples of South Africa and
which form part of the culture of those peoples. The Act recognizes marriages that are valid at
customary law and existing before 15 November 2000 or that are customary marriages entered
into after 15 November 2000 which comply with the provisions of the Act. The Act applies to each
of a person’s customary marriages where a person is a spouse in more than one customary
marriage. To be recognized as a valid customary marriage, the prospective spouses must both
be over 18 years, consent to be married to each other under customary law and the marriage must
be negotiated and entered into or celebrated in accordance with customary law. The Marriage
Act, 1961 may apply to a customary marriage if the spouses are married exclusively to each other.
Where a prospective spouse is a minor, both parents, or the legal guardian if there are no parents,
must consent to marriage, failing which Section 25 of the Marriage Act applies.
The spouses to a customary marriage must register their marriage within 3 months after the
marriage. The registering officer will issue a certificate of registration, which constitutes prima
facie proof of the particulars contained in it. Failure to register a customary marriage does not
affect its validity.

1
SECTION 1- MARRIAGE LAW

ENGAGEMENT
Q&A Define the concept engagement?

Is a contract between a man and a woman who agree to marry each other on a specific or determinable date
- Is a contract but not a normal contract
Engagement is not a prerequisite to carry out a valid marriage
May an engagement be concluded subject to conditions?
C an be subject to conditions. Impossible or unlawful conditions do not void it.
List the requirements for valid engagement
Legal req for valid engagement: Acronym- CCLP (consent,capacity,lawful,possible)
Parties must agree (must be consensus) about the marriage
parties must have capacity to act (minor needs permission or mentally ill is incapable)
engagement must be lawful (parties are unmarried and able to marry)
engagement must be judicially and factually possible
material mistake and material misrepresentation excludes consensus
- material mistake = engagement is void
- material misrepresentation = engagement is voidable by party who was misled
- Does not matter if mistake was deliberate or made innocently
- Misrepresentation occurs when there is a false representation of the truth or failing to correct a misconception or
omitting to disclose certain facts where there is a duty to speak
Distinguish between error in persona and error in negotio?
A married person promises to marry another person after obtaining a divorce from current spouse. Is the promise
valid?
Q&A- What is the effect of a material mistake and of a material misrepresentation respectively?
The consequence of a material mistake is that the engagement is void whereas the consequence of a material
misrepresentation is that the engagement is voidable by party who was misled
CASE- Schnaar v Jansen (concept of the duty to speak)
Consensus was the legal requirement in issue in this case.
Facts of case: Man terminated engagement after finding out things about the womans family. She sued him for breach of
contract.
Legal question: Court had to decide if those circumstances (non disclosure of certain facts) justified the mans termination
of the engagement.
Van den Heever thinks decision is wrong because a party is obliged to disclose things of this nature in good faith as an
engagement is a contract to marry
Note- age of majority is 18 not 21
When a minor wants to conclude contract

of an engagement- following consent is needed

2
Impossible or unlawful conditions do not render the engagement void, but are merely held to be pro non scripto (not
to have been written). Such conditions are not taken into account at all.
Q&A- When can an engagement be terminated. List the different ways?

Marriage
Death of either person
Mutual agreement
Withdrawal of parental consent when the party is a minor
Unilateral and justified termination based on sound reasons (justa causa)
Justa causa is a fact or occurrence which comes about after the engagement has been entered into
which will seriously jeopardise the chances of a happy and lasting marriage. The realisation by one
party that s/he is no longer in love is not justa causa as it will not seriously jeopardise the chances of a
happy marriage. A termination of engagement for this reason will constitute breach of promise. Rule
can b criticised because not loving the other party should be the most valid reason for terminating an
engagement. Possibility of having a happy marriage is jeopardised if a party is not in love with the
other.
Breach of promise (is the unlawful termination of the engagement) (innocent party can claim damages
for breach of contract or satisfaction for personality infringement based on the delict iniuria
CASE- Guggenheim v Rosenbaum- Authority: Courts calculate damages on the basis of positive and negative interest
Decided that a clear distinction must be drawn between an action for damages and an action for satisfaction which
may be brought in the same action.
- Damages awarded for breach of contract of engagement are sui generis (of its own kind). They are awarded differently
to other contracts. When ordinary contracts are breached, damages are worked out on the basis of positive interest.
With breach of engagement, damages calculated on the basis of positive and negative interest.
Positive interest (innocent party entitled to damages that will place them in the financial position they would have
been in had the contract been performed)
In Guggenheim, both prospective loss and actual loss was awarded. This also allows for expenses incurred to be
awarded as and the person will be placed in the same financial position if the contract had not been entered into
(negative interest)
- For action for satisfaction based on iniuria (infringement of personality), plaintiff must prove infringement as well as
the intention to infringe to succeed with claim.
Q&A- name 3 examples where courts granted satisfaction for personality infringement based on breach of promise.

3
Return of engagement gifts- different rules apply according to the reasons for termination (whether parties agree to
terminate engagement or if its terminated for a justa causa or if a party has committed a breach of promise)
Q&A- List rules which apply in respect of the return of engagement gifts where a party has committed breach of
promise
- Innocent party can claim sponsalitia largitas (gifts made with a view to the marriage) and the arrhae sponsalitiae (gifts
to show the seriousness of promise to marry) which he or she gave (small or unconditional gifts not included here)
- Innocent party may retain arrhae sponsalitiae and sponsalitia largitas they received
- If innocent party claims damages, the value of the gifts retained must be taken into account. (unsure if same applies
when satisfaction is claimed)
Satisfaction and damages on the grounds of seduction.
- This includes 2 separate claims : one for seduction and one for defloration and the concomitant minimising of womans
chances of making a suitable and successful marriage) and the claim for damages
Define seduction – induced into sexual activity outside marriage
LEGAL REQUIRMENTS FOR THE CONCLUSION OF A VALID CIVILMARRIAGE
Note- minor children are children between 7-18 not 7-21

Q&A- define marriage?
Marriage is traditionally defined as the legally recognised life long voluntary union between one man and one woman
to the exclusion of all other persons.
It is not a contract
Requirements for a valid marriage: (Acronym- CCLF, capacity, consensus, lawful, formalities)
Capacity to act
Consensus
Must be lawful
Prescribed formalities must be complied with
If the requirements are not met, the marriage is not valid
CAPACITY TO ACT
infants (children under 7) and mentally ill have no capacity to act. They cannot understand the nature and
consequences of their actions. Minors (7-18) or prodigal (prodigal is incapable of managing his own affairs or
squanders her assets) are people who need consent to marry.
CONSENSUS
Q&A- What are the factors affecting consensus? (possible essay question)
Mistake- only material mistake excludes consensus. Mistake concerning identity of other person (error in personam)
and mistake concerning nature of the juristic act (error in negotio) are the only forms of material mistake in
respect of marriage. Error in negotio is the only form that occurs in practice. Unsure if the mistake renders it
void or voidable. Heaton suggests should be void because consent is absent but in the interests of society it
should be voidable at request of party who was mistaken.
Simulated marriages (marriages of convenience) are valid as the parties had intention to validly marry.
Mistake in not material where a party is mistaken about facts concerning marriage or personal attributes of
other party unless the misunderstanding was caused by misrepresentation. A non-material mistake is
irrelevant to the marriage and is therefore not a ground for its dissolution.
Misrepresentation- Only serious misrepresentation will affect the validity of marriage. eg. where woman is already
Pregnant by another man at time of entering marriage and fraudulently conceals this. Husband can have
marriage set aside.
Duress- Duress (force) renders a marriage voidable. Eg. Spouse is forced to consent to marry.eg Smith v Smith where
bride was threatened by father and groom that she went ahead in a daze. Court set aside upon her request.
Undue influence- Undue influence should affect validity. There is no express authority on this. It should be a ground
for setting aside a marriage.
Q&A- Distinguish between error in negotio and error in personam?

4
LAWFULNESSS
Marriage must be lawful for the parties to marry to be valid
Who is prohibited from marrying?
A man or woman already married cannot take a second spouse while marriage still exists.
A child cannot marry the person who adopted them
People too closely related
Guardian and his ward (minor under guardianship) unless High Court consents
Mixed marriages before Mixed Marriages Act 55 of 1949 was repealed were not automatically validated
PRESCRIBED FORMALITIES MUST BE COMPLIED WITH

Marriage by proxy not permitted. Parties must be personally present
Ex Parte Dow – Prescribed formalities should be complied with were at issue. Applicant applied for order declaring his
marriage void because the wedding had taken place in conflict with section 29(2) of the Marriage Act 25 of 1961 in
the front garden of a dwelling house and not in the house.
29(2) provides that a marriage should be solemnised in a church or other building used for religious services or in a
public place pr private dwelling house with open doors and in the presence of the parties themselves and at least 2
competent witnesses. Purpose is to avoid clandestine marriages. Decision is to be welcomed since only a material
defect ought to render a marriage void ab initio.
Registration- Marriage register must be signed by parties to the marriage, two witnesses and marriage officer but if
not done, marriage is still valid.
Prohibited degrees of relationship- certain people may not marry each other because they are too closely related.
Related by blood (cosanguity) or Related by marriage (affinity)
Relationship can be in the direct line or collateral.
Blood relatives in collateral line are not ascendants or descendants but have a common ancestor
Relatives in direct line are Ascendants (forebears or ancestors: parents, grandparents, great-grandparents and so on)
Descendants (born of you: children, their children and so on)
Affinity in the direct line- exists between a spouse and all the blood relatives in the direct line of the other spouse
Affinity in the collateral line- exists between a spouse and the blood relatives in the collateral line of the other spouse
PROHIBITIONS- who may not marry

Rule 1- Blood relatives in the direct line (can never marry your ascendants or descendants)
Rule 2- Blood relatives in the collateral line may not marry if either of them is related to their common ancestor within
the first degree or generation (cannot marry your brother, sister, their children, their grandchildren because
you have the common ancestor). You can marry your cousin because although you are blood relatives in the
collateral line, neither is related to a common ancestor
Rule 3- Persons related to each other by affinity in the direct line may not marry (cannot marry ex-spouses relatives in
direct line.)
Rule 4- Persons related to each other by affinity in the collateral line are allowed to marry (eg, ex spouses
brother, sister, brother in law, sister in law, cousin, niece, nephew)
THE CIVIL MARRIAGE OF A MINOR

Note- minor children are children between 7-18 not 7-21
Minors have limited

capacity to act and
must obtain
necessary consent to
enter into marriage

5
ABSENCE OF REQUIRED CONSENT

Validity
24A Marriage Act 25 of 1961 provides that a minors marriage is not void if consent is not obtained. However a
competent court may dissolve it on grounds of lack of consent on application by parents or guardian or minor
themselves within certain periods
Must distinguish between cases where marriage is dissolved on ground of lack of consent and those where the
marriage is not dissolved. Where marriage is dissolved on the ground of lack of consent, the court can make an order
regarding the division of matrimonial property as it deems just. Where the marriage is not dissolved, the Act provides:
- If the parties have not entered into an antenuptial contract, community of property applies
- If the parties entered in to ANC where accrual was not excluded, the ANC is valid
- It does not provide for if the ANC is excluded. The question arises whether the contract is valid or void.
Q&A- Summarise the consequences of a minor concluding a marriage without the necessary consent as per section 24
of marriage Act.?
Know section 24(2) Marriage Act Distribution of matrimonial property upon dissolution of marriage for want of consent
of parents or guardian.
(2) If such a marriage is not dissolved, the patrimonial consequences of the marriage are the same as if the minor were of
age when the marriage was entered into and any antenuptial contract in terms of which the accrual system is included and
which has been executed with a view to such a marriage is deemed to have been validly executed.
VOID CIVIL, VOIDABLE CIVIL AND PUTATIVE CIVIL MARRIAGES

Two grounds for nullity of a marriage
1> Non -compliance with formal requirements for a valid marriage
2> Non -compliance with the material requirements for a valid marriage
Consequences of a void marriage- A void marriage does not have the legal consequences of a valid marriage therefore
a court order declaring the marriage void is not essential.
A voidable marriage is defined as a marriage which can be set aside by the court on the basis of grounds which are
present before the wedding or after.
Grounds for setting aside a voidable marriage : 1. Minority
2. stuprum
3. material mistake
4. impotence DIMSSUM
5. sterility
6. undue influence
7. duress
Minority- marriage of a minor can be set aside if entered into without consent at request of parents, guardians or
minor
Stuprum- (extramarital sexual intercourse with a 3rd party before the marriage)
Q&A: When can a man apply for the annulment of his marriage on the ground of stuprum? A man can apply for
annulment where his wife was pregnant with another mans child as the time of entering into the marriage
Material mistake- Mistake concerning identity of other person (error in personam)
and mistake concerning nature of the juristic act (error in negotio) are the only forms of material mistake in respect of
marriage. Error in negotio is the only form that occurs in practice.
Impotence- one spouse has to prove that the other was already impotent before entering the marriage. Either spouse
may apply for annulment provided that she was unaware of the impotence.
Q&A- Define impotence? The inability to have sexual intercourse
Q&A- When is a marriage voidable on the ground of impotence? When one spouse proves that the other was already
impotent before entering the marriage and is still impotent and that the first mentioned spouse was unaware of the
impotence at the time of entering the marriage
Q&A- When will an applicant fail with his application for the annulment of marriage on the ground of impotence?
If applicant was aware of the impotence
If applicant condoned or excused the impotence
If impotence was temporary or probably curable
Sterility- When a person is able to have sexual intercourse but cannot procreate children and is thus infertile
Q&A- Distinguish between impotence and sterility
6
Van Niekerk v Van Niekerk- held that the mere fact of sterility renders the marriage voidable. On the other hand, held
in Venter v Venter that not the presence of sterility which renders it voidable but the fraudulent concealment thereof
Heaton prefers Venter case decision
Constitutional Court case lends support to Heatons view- National Coalition for Gay & Lesbian Equality v Minister of
Home Affairs
Consequences of a voidable civil marriage- remains in force until set aside by a court order
Putative Marriages- a void marriage can also be a putative marriage. This happens when at the time of entering, one
or both parties were unaware of the defects that rendered their marriage void and believed in good faith that they
were lawfully married.
Q&A- How do the consequences of a marriage which is void only differ from those of a void marriage which is putative
as well? Unlike a marriage which is merely void, the putative marriage has some of the legal consequences of a valid
marriage.
Children born of these marriages are legitimate
Patrimonial consequences will depend on whether one or both parties were bona fide
THE INVARIABLE CONSEQUENCES OF A CIVIL MARRIAGE
Distinguish between variable and

invariable consequences of marriage
Grobbelaar v Havenga describes the concept of consortium omnis vitae as ‘an abstraction comprising the totality of a
number of rights, duties and advantages accruing to the spouses of a marriage’
This concept is also described in Peter v Minister of Law and Order
Spousal maintenance
support and maintenance in the same thing
reciprocal duty on spouses to maintain each other
duty arises at start of marriage as soon as it has been solemnised and lasts until termination (death or divorce)
Requirements for duty of support between spouses:
- must be a valid marriage between parties
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- person claiming support must be in need of support

- person from whom support is claimed must be able to provide it
Recovery of debts for support- where debts incurred for maintenance can be recovered in the case of a marriage COP.
First from the joint estate. If marriage is out of community, the spouse who incurred the debt is liable unless the debt
was in respect of household necessaries in which case both will be jointly liable.
In terms of Divorce Act- Duty to support lasts till end of marriage but court can grant order for maintenance after
divorce. In matters of death, in terms of Maintenance of surviving spouse Act, the surviving spouse can be maintained
out of the estate of the deceased. Where marriage still exists, the duty may be terminated only if the spouses no
longer live together and if the spouse who is claiming is the one who caused the separation.
How duty to contribute to household necessaries overlaps

with duty of support in certain instances and differs from it
in other instances
Termination of joint household- where joint household no longer exists one spouse can no longer bind the other in contract to
buy household necessaries. When household terminates, one of the requirements for the capacity to buy household good
necessaries is no longer met and the capacity no longer exists. This does not mean that a spouse cannot still bind the other on
the basis of the duty to support.
Reloomel v Ramsay- court set out how one should determine whether a particular item is a household necessary or
not. Emphasised factors such as spouses standard of living, their means, customs of the people in the area etc to be
considered.
Court used subjective approach in terms of which the perspective of a trader is considered. Looks at facts that the
trader was or should have been aware of.
Alternatively , court can use objective approach- traders knowledge of the spouses circumstances is ignored. Applied
in Voortrekkerwinkels. Court decided that husband would not be liable if he could show that there was already an
adequate supply of the specific commodity in the house
If court revokes a spouses power to buy household necessaries, the other spouse will not be liable for it.
A spouse cannot unilaterally revoke the capacity of the other spouse. The duty arises ex lege and is an incident of
marriage.
The Maintenance Act 99 of 1998

Applies in respect of the legal duty of any person to maintain another irrespective of the relationship giving rise to the
duty. Therefore it applies also to contractual duties between people not related by blood or marriage.
Maintenance court can make order for payment of maintenance by lump sum and periodical payments
An order of the maintenance order has the effect of an order made in a civil action and can be enforced in the
ordinary courts.
Provides new mechanisms to enforce the maintenance order. Provisions of Act can be invoked before debtor is
convicted of an offence of failing to pay as per the order. If he fails to pay within 10 days from the date it is payable,
the creditor can apply for:
1. Authorisation of a warrant of execution against the maintenance debtors property
2. Order for the attachment of emoluments due to the maintenance debtor (ie. Attachment of wages, allowance etc
whether in money or not)
3. Order for attachment of any present or future debt owing to or accruing to him
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The Matrimonial Home

As a result of marriage, both spouses have the right to occupy the matrimonial home irrespective of how they are
married and of who rents or owns it.
Parental responsibility and rights

Both parents have parental responsibilities and rights in respect of their children born of the marriage.
Donations between spouses

If married in community of property, you are prohibited from making donations to each other unless she donates one
of her separate assets to the spouse with the condition that it must be excluded from the joint estate.
Q&A- What is the reason why the abolition of the prohibition on donations does not apply between spouses married
in community of property? Spouses who are married COP share everything equally. If one spouse makes a donation
from his half of the joint estate to the other spouse, the item will simply come out the joint estate and fall back into it.
Thus the donation will have no effect.
The family Name

A wife need not assume her husbands surname on marriage
A woman can keep her own surname or create a double barrel surname
A husband must apply to the director general if he wishes to assume his wifes surname or add it to his.
This state of affairs may be unconstitutional.
At common law, the husband is the head of the family
SECTION 2- MATRIMONIAL PROPERTY LAW
Consists of legal rules which determine patrimonial consequences of marriage (consequences regarding assets and
liabilities)
Parties can determine their patrimonial consequences by selecting the specific matrimonial property system
available- these are variable consequences
Marriage in Community of property

Each property system determines the patrimonial consequences of marriage in a particular way.
Universal COP is the primary matrimonial property system in SA. There is a rebuttable presumption in law that when 2
people get married they are married COP. This can be rebutted by proving the existence of certain circumstances.
Universal Community of property entails that spouses become tied-co owners in undivided and indivisible half shares
of all the assets and liabilities they have at the time of their marriage as wee as of all the assets and liabilities they
acquire during their marriage. When they marry, their separate estates automatically merge into one joint estate.
Upon dissolution, liabilities are settled from joint estate and balance is distributed equally between spouses.
Confirmed in Estate Sayle v Commissioner for Inland Revenue & De Wet v Jurgens
Joint estate consists of joint assets and joint liabilities
Assets are the assets which the spouses owned prior to marriage as well as what they obtain after marriage
Ownership takes place automatically by law and transfer and delivery or registration of immovable property is not
required
Assets which do not form part of the joint estate and remain separate assets:
1. Assets excluded in antenuptial contract
5. Benefits under Friendly Societies Act
6. Non patrimonial damages (affects person or personality)
7. Costs in matrimonial action
9. Assets as a result of personal injury inflicted by other spouse
10. Proceeds excluded by the court in terms of prevention of organised crime Act
Note- fruits of the inheritance can be stipulated to be excluded as well
9
In the case of a fideicommissum, the testator leaves property to a person (fiduciary) subject to the duty of handing it
over in full ownership to another person (fideicommissary) at a certain time or upon the fulfilment of a certain
condition.
In the case of a usufruct, a personal servitude that gives the usufructuary a limited real right to use the property of
another as well as its fruits with the duty to eventually return the property to the owner with the preservation of the
substance thereof.
Du Plessis v Pienaar- held that creditors of spouses married COP can look to the estates of both spouses for recovery
of a joint debt. Therefore even separate estates can be attached for joint debts.
All antenuptial debts and liabilities as well as debts and liabilities incurred stante matrimonio (during existence of
marriage) form part of joint estate therefore spouses are co-debtors for the debts as in Nedbank v Van Zyl. Authority
for teh fact that spouses in COP are co-debtors.
Mr & Mrs Van Zyl were married COP. Mrs entered into a written contract of suretyship with the bank binding herself
as surety for the repayment of money owed by husband on overdraft. After a divorce, Mr defaulted on his payments
to the bank. The bank was unable to recover the debt from Mr, so they sued Mrs on basis of the suretyship. Court had
to decide on nature of liability between spouses for joint debts. Court held that spouses married in COP are co-debtors
and were jointly responsible for liabilities that bind the joint estate. Declared the deed of suretyship unenforceable.
SCA upheld decision.
Antenuptial debts- include all contractual and delictual debts of spouses including maintenance liabilities (eg, from
previous marriage or for children from previous marriage
Contractual debts, Delictual debts and other separate debts

A contractual debt- can be recovered from the joint estate if the spouse who incurred the debt had capacity to incur
such debt.
Delictual debt- Spouses married COP cannot hold each other liable for damages in delict (ie.for compensation for
patrimonial loss, eg, damage to a motor vehicle, medical expenses, loss of income etc), however one can sue the other
for satisfaction (bodily injuries caused by a spouse-satisfaction is compensation for non-patrimonial loss like damage
which affects your person and not your patrimony like pain and suffering, personality infringement)
Other separate debts- Section 19 of Matrimonial Property Act should be extended to cover criminal fines and a
spouses maintenance obligations towards his/her parents, siblings, children born of unmarried parents, and children
from a previous marriage.
Delictual and other separate debts which are still outstanding when the marriage has been dissolved can be claimed
only from the spouse who originally incurred the debt and if that spouse pays it, he has no right of recourse against
the other spouse.
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Administration of the joint estate

Section 14 Matrimonial Property Act - Marital power is replaced by equal concurrent management in COP marriages.
Spouses have equal powers to manage estate. Principle of equal management in section 14 of Matrimonial Property
Act. Any spouse may perform any juristic act with regard to the joint estate without consent of the other spouse
except such acts which are excluded by the Act.
Different forms of consent needed from a spouse to perform certain actions:
Prior written consent, attested by two competent witnesses iro each transaction separately
Req To register a servitude
To conclude contract standing surety
Written consent attested by two competent witnesses iro each transaction separately
Req to take a bond
Written consent without any further requirements
Req To institute legal proceedings like apply for an interdict
Oral or tacit consent
Req To sell household goods
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No consent needed when spouse acts in ordinary course of business

Protective measures in the Matrimonial Property Act iro the administration of the joint estate
When one spouse concludes a transaction with a 3rd party without necessary consent
When one spouses consent cannot be obtained or is unreasonably withheld
When one spouse prejudices the interests of the other in the joint estate
Remedies and the requirements which a spouse may use against the other when married in COP
1. Can apply for an adjustment upon division of the joint estate
Requirement: a) spouse who concludes a transaction with a 3rd party ought to know or ought to have known that
required consent would probably not be obtained from the other spouse or that the power concerned
has been suspended.
b) The joint estate has to suffer a loss as a result of the transaction
2. Apply for authorisation of the transaction by court when required consent cannot be obtained or is withheld
Requirement: a)Court must be satisfied that a good reason exists for dispensing with the other spouses consent
3. Apply for suspension by high court of any power which a spouse may have over joint estate in terms of Act for a
definite or indefinite period
Requirement: a) court must be satisfied that it is necessary for the protection of the other spouses interests in the
joint estate
b) court can only suspend the power on application by the prejudiced spouse
4. Apply for immediate division of joint estate

Requirement: a) court must be convinced that the interests in the joint estate of the spouse who applies to it are being
seriously prejudiced or will be seriously prejudiced by the conduct or proposed conduct of the other
spouse
b) court should be convinced that no other person will be prejudiced by the order
5. Apply for common law interdict to prevent other spouse from proceeding with a transaction which affects the
joint estate
Requirement: a) One spouse must threaten to alienate an asset from the joint estate-alienation must not have
happened yet
b) spouse who intends to alienate an asset of the estate must do so with the intention of prejudicing
the other spouse
c) the party who applies for the interdict will suffer loss if the interdict is not granted
d) no other remedy should be available
6. Apply for the common law right of recourse.

Requirement: a)assets of joint estate should already have been alienated by the guily spouse
b) guilty spouse should have alienated the assets in fraud of the other- in other words the transaction
must have been concluded with the intention to defraud the other spouse, it must not just be an
unwise transaction
7. Institution of the action Pauliana utilis in terms of which an asset of the joint estate that was alienated in a
fraudulent manner may be recovered
Requirement: a) assets of joint estate shuld already have been alienated by guilt spouse
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entering into the transaction, was aware that the disposal of the assets was in fraud of the other
spouses rights. According to Heaton this view is incorrect.
d) It is uncertain whether this remedy is available during the subsistence of the marriage while the joint
estate remains undivided or whether the action can only be brought after dissolution of the joint
estate
Nel case- action can be instituted only after dissolution of marriage
Reyneke case- seems illogical to grant this right to the innocent spouse ,but to delay the ability to
enforce it until dissolution of joint estate by which time the right may be useless
heaton- in favour of Reyneke decision
8. Apply for the declaration of one spouse as a prodigal

Requirement: a) person must squander their assets in an irresponsible and reckless manner
b) squandering must be due to defect in the persons power of judgment or character
Capacity to litigate- is the capacity to act as a party in a court case

Application for sequestration of the joint estate must be brought against both spouses however if brought against only
one spouse, it will not be dismissed if teh applicant satisfies the court that despite reasonable steps he was unable if
the debtor was married COP or get the name and address of the debtors spouse
Application for the surrender of joint estate must be made by both spouses
A distinction must be made between debts incurred

for necessaries for the joint household, other debts
which bind the joint estate & debts in connection
with the separate property of a spouse
MARRIAGE OUT OF COMMUNITY OF PROPERTY
Purpose of antenuptial contract is to exclude all or some of the common-law and statutory consequences of marriage,
in particular those relating to the matrimonial property system
Ante (means before) nuptial (means marriage)- must be entered into before the marriage
Requirements: if not properly executed by a notary and registered at Deeds office, it is not valid as against 3rd parties
(Deeds Registries Act)- (it will be as if married in COP). Such unregistered anc is known as informal ANC and is valid
only between spouses.
Postnuptial registration is possible (governed by deeds Registries Act). Need consent of the High court. Section 88 of
Deeds Registries Act governs this and court will grant consent if these 3 req are met: (Application can be made by one
or both parties or a beneficiary under a will)
Parties must definitely have agreed on the terms of the anc before contracting the marriage
Parties must provide good reasons for their failure to properly execute or register the anc
And the application must be made within a reasonable time after it has been discovered that the
agreement has not been properly registered.
Any provision not contrary to the law, good morals or the nature of marriage can be included in anc.
Main purpose of anc is to deviate from the automatic matrimonial property consequences of marriage namely
COP
Various matrimonial property systems can be agreed upon in anc:
complete separation of property
marriage out of community of property with retention of community of profit and loss
accrual system
anc can contain provisions regarding a spouses right of recourse in respect of liability for household necessaries,
however in COP marriages, the Matrimonial property Act governs this liability.
Succession clauses can be added
Marriage settlement is sometimes included (a donation which one spouse makes to the other)
Q&A- Is it possible to have an anc if you are married in COP? Yes. Spouses married in COP can exclude certain assets
from their joint estate
Note- can use abbreviation anc in exam, not ANC
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THE ACCRUAL SYSTEM
NB- Accrual applies automatically to marriages out of COP and community of profit and loss after 1 November 1984 and
does not apply to marriages out of COP concluded before the Matrimonial Property Act
Accrual system regarded as the secondary matrimonial property system in SA
Defined as a type of postponed community of profit (accrual system is based on the idea that both spouses should
upon the dissolution of marriage, share in the assets accumulated by them during the marriage, without a joint
estate having existed between them during the subsistence of the marriage)
Although spouses each have own estate during marriage, the spouse whose estate shows the smallest or no
accrual at the dissolution of the marriage may legally share in the accrual of the other spouses estate.
Does not apply to parties married before the Act out of COP and of profit and loss, however parties so married
were given a limited period to make the accrual system applicable by execution and registration of a notarial
contract in terms of the Act.
Accrual system applies to:
1. Marriages concluded out of COP and community of profit & loss after 1 Nov 1984 where parties did not
expressly exclude accrual in the anc
2. Marriages where the spouses introduced the accrual by execution and registration of a notarial contract
3. Marriages where spouses introduced accrual ito a court order under section 21(1) of Act
During the subsistence of the marriage- everything the spouses acquire falls into their own separate estates. They
retain and control their own estate.
On dissolution of marriage spouses share equally in the accrual. The spouse whose estate shows no accrual or
lower accrual has a claim against the spouse with the larger accrual. The claim is for an amount equal to half the
difference between the accrual of the respective estates.
Right to accrual cannot be transferred during marriage, it is not liable to attachment during marriage and does not
form part of the insolvent estate of a spouse.
Reeder v Softline case- court recognised the difference between the claim and the right. Authority for fact
that the accrual and accrual claim relate to the value of an estate and not the assets in that estate
Calculation of accrual
Accrual is the growth of a spouses estate during marriage. It is the amount by which the value at the dissolution
exceeds the value at the commencement. (difference between the net end value and net commencement value)
It is calculated with reference to the net value of the estates at the commencement and dissolution. This means after
all debts have been paid and includes all amounts owing. It excludes all assets which should be excluded.
Net end value on dissolution – net commencement value – assets which do not form part of estates accrual = accrual
Accrual claim = ½ (larger accrual –smaller accrual)
Can use abbreviation CPI for consumer price index in exam
Protection of spouses right to share in accrual by common law remedies : interdict and the actio Pauliana utilis
What amount to patrimonial loss? Loss which reduces a person estate eg.damage to vehicle, compensation for
damage to pay to aggrieved party for repairs to vehicle, medical and hospital expenses, loss of income etc
What is non-patrimonial loss? Loss which does not affect a persons estate but affects he person or personality eg.
Compensation for pain, suffering, personality infringement, loss of amenities of life, satisfaction etc. The
compensation for non patrimonial loss must be deducted from accrual. This compensation will not place him in the
same position he was in before the incident.
Know these definitions of marital property systems:

Complete separation of property- each spouse retains the estate s/he had before marriage or at time of marriage as well
as everything s/he acquires during the marriage
Marriage out of community of property with retention of community of profit and loss- each spouse retains the estate
s/he had before marriage but because community of profit and loss is retained, all profit and loss arising during the
marriage become joint profit and loss and constitute a joint estate of which each spouse owns an undivided half share
Accrual system- each spouse retains the estate s/he had before the marriage. Upon dissolution of marriage the spouses
share equally in the accrual/growth/profit their estates have shown during the subsistence of the marriage
Alteration of matrimonial property system

Immutability means unchangeability or unalterability
The principle of immutability means that after the conclusion of marriage the matrimonial property system chosen by
the spouses remains fixed and cannot be changed during the subsistence of the marriage
The principle applies in SA law but is relaxed by legislator effecting a postnuptial change.
For a limited period certain spouses were permitted
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and whose marriage was out of COP by virtue of an anc could adopt the accrual system by executing and registering a
notarial contract before 1 Nov 1988. Black married before 2 Dec 1988 out of COP by Black Admin Act 38 of 1927 could
adopt accrual system by executing and registering a notarial contract to that effect before 2 December 1990.
A court has the power to order immediate division of estates and to change the matrimonial property system at the
request of one of the spouses. Section 20 empowers court to order immediate division and to change system if teh
conduct of a spouse seriously prejudices or will prejudice the interests of the other spouse in the joint estate.
Spouses can bring a joint application to change system. Requirements must be met.
High court has common law powers to rectify, amend or cancel and ANC which does not correctly reflect the terms of
the parties agreement
These change bind the spouses and 3rd parties.
There is extra judicial mechanism for effecting a change to bind the spouses only
COURT SANCTIONED ALTERATION OF A PROPERTY SYSTEM

Act provides for spouses to apply to high court for permission to change their matrimonial property system.
Application can be brought by any married couple regardless of when they were married.
Requirements that must be met before a High court will make an order for the separation of the spouses matrimonial
property system as per section 21(1) Matrimonial Property Act 88 of 1984
(1) there must be sound reasons for the proposed change
(2) sufficient notice of the proposed change must be given to all the creditors of the spouses
(3) no other person will be prejudiced by the proposed change
One spouse cannot apply on his own, both must apply jointly
Must also attach a draft notarial contract to application setting out the proposed system
In the case of an application in terms of section 21(1) it means that the matrimonial property system is changed not
from the date of the court order but as from before that date normally the start of the marriage.
It is not clear whether a court can authorise an alteration of the system with retroactive effect.
Honey v Honey- Question arises whether spouses can change their matrimonial property system without
going to court with an application in terms of section 21(1), that is extra-judicially. Can spouses merely
enter a contract changing it, what will the effect be?
In this case parties concluded an anc with accrual prior to marriage and registered it in deeds registry.
They later entered a further agreement which was notarially executed but not registered in deeds registry
and not with leave of the court as required as per Act This contract excluded accrual from the and. Later
wife sued husband for divorce and relied on postnuptial contract. Claimed that she was entitled to retain
her sole property as per the contract. At time of divorce, her accrual was larger. The husband maintained
that the contract was void and that he had a claim to his wifes accrual. Court had to decide if contract was
valid. Held that it was void and unenforceable between spouses and 3rd parties.
The decision can be criticised on the following two points:
(a) The postnuptial contract between the spouses is void, because of section 2 of the Matrimonial Property Act
88 of 1984. According to Heaton this statement is incorrect since section 2 only deals with the position when
the spouses are entering into an antenuptial contract. In terms of section 2 they may at that stage exclude the
accrual system from their marriage by having an express clause to that effect included in their antenuptial
contract. This section clearly does not deal with postnuptial exclusions of or alterations to the accrual system.
(b) The rule that the matrimonial property system is immutable [is] a substantive rule with a separate
existence and not a mere application of the rule prohibiting donations between spouses” renders the
postnuptial contract between the spouses void both as against third parties and as between the spouses. This
statement by the judge is also not supported by Heaton. Although it is clear that changes by the
spouses inter se to the matrimonial property system cannot bind third parties, why should spouses who are
married out of COP not be permitted to enter into a contract which is binding only as between themselves,
simply because that contract may have an effect on their matrimonial property system? Why, for example,
should a spouse who is married out of community of property not be permitted to donate an amount to
his or her spouse which is equal to the accrual benefit? Surely there is no reason thus to limit the principle of
freedom to contract and the spouses' contractual capacity. If the contract is binding only as between the
spouses no third party can be prejudiced by it, and thus the rule that the matrimonial property system is
immutable, still applies in respect of third parties.

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STUDY UNIT 3- DISSOLUTION OF MARRIAGE

3 ways which a marriage can be dissolved
1. Dissolution by death
2. By divorce
3. Annulment of marriage
Judicial separation abolished by section 14 of Divorce Act
Marriage in COP- marriage ends at death of a spouse. COP also ends. Joint estate dealt with by executor in terms of
Administrations of Estate Act. Executor pays all debts from joint estate and claims all debts owed to estate. He then
gives half of estate to surviving spouse. Other half is given to heirs of deceased.
A surviving spouse can claim maintenance from deceased estate as per Maintenance of surviving spouse Act.
Feldman v Oshry- decision was overruled by SCA in Oshry & Oshry v Feldman. Found that maintenance
could be awarded in a lump sum in terms of Maintenance of surviving spouse Act
Act provides that a surviving spouse can claim maintenance from the deceased estate for the provision of her
reasonable maintenance needs until her death or remarriage in so far as she is unable to provide from her own means.
Act only applies to marriages dissolved by death and where dissolution took place after commencement of Act.
The claim is limited to the amount required to provide for her reasonable maintenance needs, Flg factors must be
considered:
1. Amount in deceased’s estate available for distribution amongst heirs or legatees
2. The existing and expected means, earning capacity, financial needs and obligations of the surviving spouse
and the subsistence of the marriage
3. The standard of living of the surviving spouse during the subsistence of marriage and her age on death of
spouse
GROUND FOR DIVORCE

Marriage may be dissolved by a court or by decree of divorce.
Divorce can only be granted if:
a) Irretrievable breakdown of marriage
b) Mental illness or continuous unconsciousness
When is a marriage irretrievably broken down?
Requirements from section 4: a) marriage relationship must no longer be normal
b) there must be no prospect of restoration of a normal marriage relationship
Therefore it must be determined when a marital relationship is no longer normal.
Legal definition of a normal marital relationship lies in the concept consortium. When one or both spouses behaves in
a way that the consortium is terminated or seriously disrupted one can say that a normal marital relationship no
longer exists between spouses.
Section 4(2) of Divorce Act provides 3 eg of situation of irretrievable breakdown (only guidelines)
(1) the fact that the spouses have not lived together as husband and wife for a continuous period of at least
one year immediately prior to the date of the institution of the divorce action
(2) the fact that the defendant has committed adultery and that the plaintiff finds it irreconcilable with a
continued marital relationship
(3) the fact that the defendant has been declared an habitual criminal by a sentence of a court of law, and that
he or she is serving a prison sentence because of it
Court can refuse to grant divorce order even though a ground for divorce has been proved. Court can refuse if as a
result of religious prescriptions or one or both spouses will not be able to remarry after divorce.
CONSEQUENCES OF DIVORCE
Patrimony of spouses deals with assets and liabilities and finances. The effect of divorce on the division of the spouses
property depends on :
1. Matrimonial property system (in COP or out or with/without accrual
2. Whether court order forfeiture of benefits
Pension interests- is deemed to be part of the assets upon divorce (pension fund, retirement annuity fund)
Court can order endorsement on fund (funds to be paid directly to spouse)
Not applicable to marriages to marriages with complete separation from 1 Nov 1984
The spouses pension interest will be equal to all the spouses contributions to the RA up to the date of divorce together
with annual simple interest on those contributions at prescribed interest rate.
15
FORFEITURE OF PATRIMONIAL BENEFITS

In certain circumstances one of the parties can lose their patrimonial benefits which they acquired on basis of their
marriage.
Forfeiture order will be granted only if one spouse will be unduly benefited in relation to the other spouse if such an
order is not made.
Court cannot use its discretion to order forfeiture of benefits to deviate from the matrimonial property system
because it may be just and fair to do so.
Forfeiture does not mean that spouse will lose his assets, it means that he will lose his claim that he has to the assets
of the other spouse.
Watt v Watt- couple married COP.Husband donated house to wife which he bought with his own money.
On divorce, husband claimed house was a patrimonial benefit which she must forfeit. Wife claimed it was
not a patrimonial benefit. Court had to decide if it was a patrimonial benefit or not. Court held that
patrimonial benefits of marriage out of COP are stipulated in ANC. Held that donation made during
marriage arises from relationship and not from marriage itself. Since donation was made during marriage
and not on conclusion of marriage, the house was not a patrimonial benefit. Hahlo thinks this is incorrect.
Feels the word marriage can relate to the ceremony or relationship also. Benefits must be interpreted as
benefits derived from marriage as continual relationship meaning that benefits acquired during marriage
could also be forfeited.
Sinclair & Kaganas opinion that it was correct. Argued that marriage refers to the marital property regime.
Implication is that only those benefits acquired in terms of marital property regime can be forfeited.
Persad v Persad- different decision. Court applied view that the benefits in terms of a tenancy, residential
permit and statutory lease acquired during marriage can be forfeited
Koza v Koza- court assumed that marriage out of COP, the patrimonial benefits are not restricted to
benefits conferred in anc.
REDISTRIBUTION OF ASSETS
A court may order with regard to certain marriages under specific circumstances that one party must transfer some of
his assets to the other party
Court may take following into consideration”
Misconduct- look at the spouses conduct
Beaumont v Beaumont- could held that conservative approach to matter of misconduct should be adopted.
Only if breakdown of marriage resulted from misconduct of one party only should be taken into account
especially if conduct was gross and prolonged.
Court may not disregard possibility of issuing a maintenance order when considering redistribution. Court
must decide whether equity and justice would be served if only a maintenance order or redistribution order or
both were issued. Therefore there is interrelationship between the two.
Court refused to accept one-third starting point or any starting point
Held that clean break principle should be strived for.
Hel that duties of housewife qualify as a contribution.
Held that misconduct must be considered
Clean break principle- there should be a clean break betw divorcing parties if one of them is wealthy enough to enable
court to make order which will put the poorer spouse in the financial position to maintain himself. This principle is not
foreign to our law.
Divorce Act serves two purposes- compensation of a spouses for past contributions rendered to the maintenance or
increase of the other spouses estate and provision for the applicants spouse maintenance needs
One-third rule- used to be accepted as a staring point in English law. Court awards one-third of the total value of the
spouses estate to the spouse who has the smallest estate on divorce. Court held that it should make an order that is
fair in light of all the factors.( Beaumont v Beaumont case)
Court may not make a redistribution order on its own accord

16
Important- know comparisons
MAINTENANCE OF THE SPOUSES

Divorce Act empowers court to make order for maintenance it finds just to a spouse for any period of time until death.
Order can only be granted upon divorce and not at later stage.
Spouse can be compelled to pay enough to poorer spouse to maintain his or her standard of living
Maintenance can be paid in a single lump sum
Token maintenance awarded to spouse who does not really need maintenance at time of divorce but who may need it
the future (this is awarded at time of divorce because an award cannot be made after). It can be increased later to
provide real maintenance
Section 8 covers recission, suspension and variation of maintenance orders by high court.
Orders made by high court can also be varied by maintenance court regardless of what the order was
There must be sufficient reason for the recission, suspension and variation
Reid v Reid- held that maintenance order need not effect financial equality. If party agrees to an unjust
settlement in respect of maintenance, he cannot apply for variation purely on this ground. If existing
maintenance order has resulted in financial inequality betw parties, the inequality must continue. However if a
party proves that there is sufficient reason for a change then the order will be varied but the mere fact that
there is financial inequality will not in the Reid case be sufficient reason.
If party has voluntarily taken on more financial responsibilities, could will not vary order
If party who wins order lives with another person is not reason for recission of order except where a dum casta clause
is included in order.
Maintenance order comes to an end on date or occurrence of event stipulated in agreement. Whether duty to
maintain continues after death depends on stipulation in order. If it is not clear, it can carry on after spouse death.
An order made in terms of section 7(2) (division of assets and maintenance of parties) ends:
on date stipulated in order
on death of party entitled
on remarriage of party entitled
in terms of Hodges v Coubrough on death of party who has to pay, confirmed by SCA in Kruger v Gos
on recission of order by court
factors the court takes into account when determining a maintenance order are:
1. the amount in the estate of the deceased spouse available for distribution to heirs and legatees
2. the existing and expected means , earning capacity , financial needs and obligations of the survivor and the
subsistence of the marriage
3. the standard of living of the survivor during the subsistence of marriage and his/her age at death of the deaceased
spouse
Q&A What are the req for the duty of support to exist betw spouses married in terms of Marriage Act
- There must be a valid marriage between spouses
- Person claiming support must beDownloaded
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- Person from whom support is claimed must be able to provide it
17
INTERESTS OF THE CHILDREN OF DIVORCING PARENTS

When considering the consequences of divorce in respect of the children, the general principle applies,
namely that the best interests of the children should be the paramount concern. This principle is clearly
embodied in the Mediation in Certain Divorce Matters Act 24 of 1987 and section 6 of the Divorce Act 70 of
1979
Section 6 of Divorce Act regulates the interests of children in four respects
Van Vuuren- The family advocate ought to apply for an order authorising an enquiry if it is envisaged that
(1) custody of a young child will not be awarded to the child's mother
(2) siblings will be separated
(3) custody will be awarded to a person other than the child's parent
(4) an arrangement regarding custody or access will be made which is prima facie (ie, on the face of it)
not in the child's interests
GUARDIANSHIP
Court may make any order it deems fit
In terms of Childrens Act, both parents have guardianship of legitimate children during marriage therefore
guardianship should be awarded to both upon divorce so both can exercise any right, power, carry out any duty arising
from guardianship independently without other parents consent
CARE (custody)
Care is normally awarded to one person
Maternal preference rule- young or handicapped children and daughters of any age generally awarded to their
mother. This rule was rejected in Van der Linde.
Courts were hesitant to make joint care awards. Risk of parental conflict and disagreement is an argument against
joint custody. Also, one parent should control the childs life so the child knows where they stand. Another objection to
joint legal custody is that, as it does not involve sharing of day-to-day care of a child, it puts the care-taking parent in a
position of responsibility without power, whilst giving the non-caretaker parent (usually the father) power without
responsibility
Krugel v Krugel- court rejected argument against joint custody on ground that they do not serve the childs best
interest. Held that a more liberal approach to granting joint custody is appropriate in view of changing roles of
parents. Court rejected hostility betw parents as ground to bar joint custody. Held as long as both were fit and
proper persons, both should have equal say in their childs upbringing even if it is at times disharmonious.
Unless the disagreement is of such a nature that the child is put at risk physically or emotionally.
Held that joint custody helps establish sex equality by reshaping gender roles in parenthood
Due to Krugel case, seems as if courts reluctance to award joint custody is changing.
Heaton felt in favour of joint custody and it should only be denied if one was violent or threatened violence
CONTACT (access)
If divorce order is silent on contact, non caregiving parent will still have a right of contact
Parents can agree on how right of contact should be exercised or court can make ruling in divorce order. Order can be
structured and defined or reasonable access. Structured or defined access refers to the case where the access
arrangements are very specific regarding the frequency of access and the times during which and the places where
access may be exercised. Reasonable access means that the non-custodial parent may have access to the child at
reasonable times, places and intervals.
Custodial parent has final say in disputes but cannot be unreasonable regarding contact.
Court may impose any conditions / restrictions on contact in best interests to the child
Van Rooyen- Husbands rights were restricted because he was homosexual. this order was made before BOR. It
may be deemed unconstitutional now. V v V criticises this decision in light of equality clause. It is wrong to
describe sexual orientation or homosexuality as abnormal.
Upon divorce, both parents are still obliged to maintain the children born of the marriage in proportion to their
respective means
Parental responsibilities and duties
- Must care for the child
- Maintain contact with child
- Act as a guardian of child
- Contribute to the maintenance of child
-
18
Section 18 (3)(c) of Childrens Act

(3) Subject to subsections (4) and (5), a parent or other person who acts as guardian of a child must—
(a) administer and safeguard the child’s property and property interests;
(b) assist or represent the child in administrative, contractual and other legal matters; or
(c) give or refuse any consent required by law in respect of the child, including-
(i) consent to the child’s marriage;
(ii) consent to the child’s adoption;
(iii) consent to the child’s departure or removal from the Republic;
(iv) consent to the child’s application for a passport; and
(v) consent to the alienation or encumbrance of any immovable property of the child.
STUDY UNIT 4- CUSTOMARY MARRIAGES
Were invalid in terms of common law (permit polygyny)but received full legal recognition when Recognition of
Customary Marriages Act came into operation on 15 Nov 2000. The Act afforded legal recognition to all customary
marriages regardless of when they were concluded (even before the Act)
Not recognised because it permits polygyny and are not solemnised in terms of the Marriage Act
Legal req for marriages before Act (before 15 Nov 2000):
both spouses must be above the age of 18 (a minor below the age of 18 years can only enter into a customary marriage if
the Minister of Home Affairs or his or her designate grants written permission.)
both spouses must consent to the marriage
if either spouse is a minor, his or her parents or legal guardian must consent to the marriage (If the parents' or legal
guardian's consent cannot be obtained, the provisions of s 25 of the Marriage Act 25 of 1961 apply. If minors marry
without the necessary consent, the provisions of s 24A of the Marriage Act apply.
the spouses must not be within the prohibited degrees of relationship (Note that the forbidden degrees of relationship
are determined in accordance with customary law.)
the marriage must be negotiated and entered into or celebrated in accordance with customary law
lobolo is also customarily delivered
Registration:
Marriages entered into before the coming into operation of the Act had to be registered before 15 November 2002.
Any spouse or person who has a sufficient interest in the matter may apply for the registration of the marriage. Non-
registration does not affect the validity of the marriage.
Customary marriages entered into after the coming into operation of the Act must be registered within three months
of the date of the wedding. Again, non-registration does not affect the validity of the marriage.
Proprietary consequences:
Proprietary consequences of monogamous customary marriages entered into during or before Act are same as in Civil
marriages.
Proprietary consequences of polygynous customary marriages entered into during or before Act are determined by
traditional customary law
Proprietary consequences of polygynous customary marriages entered into after the Act are regulated by the Act
If a husband wishes to enter into another customary marriage, he must apply to court for approval of a written
contract which will regulate all future matrimonial property systems
Wifes status
Recognition of customary marriages Act abolishes wifes status of perpetual minority and her husbands guardianship over her
Dissolution of marriage
Only one ground for divorce- irretrievable breakdown
Act empowers court to incorporate a settlement agreement into divorce order, make an order regarding spousal
maintenance, redistribute assets, order forfeiture of benefits, make order regarding costs.
Court can rescind, vary or suspend maintenance order or order regarding children.
Parties pension interest forms part of assets upon divorce
If man is spouse in a polygynous marriage, court must take all relevant factors into consideration and make an
equitable order. Downloaded by: BradleyCooper12 | chikosrufa@gmail.com Want to earn
Court may make an order regarding childrens guardianship and care
19
Maintenance- court must take into consideration any provision or arrangement that has been made in accordance
with customary law
Court may order joinder of anyone with sufficient interest in the divorce proceedings
Divorce order in respect of jurisdiction must be obtained from high court, family court or divorce court. Act preserves
the role of customary mediators
Act does not regulate dissolution of marriages by a spouses death because of sororate and levirate customs,
customary unions are not dissolved by a spouse’s death. The Act is silent on the dissolution of marriage by death
Civil marriage by a spouse who is party to a customary marriage
All civil marriages remain monogamous
Couples in a polygymous customary marriage cannot change their marriage to a civil one
STUDY UNIT 4 HINDU & MUSLIM MARRIAGES

Not yet fully recognised by our law but have some recognition
Polygyny is very rare under Hindu & Muslim marriage today
Not recognised because it permits polygyny and are not solemnised in terms of the Marriage Act
Several Acts afford recognition to the Hindu & Muslim marriage regardless of whether mono or polygynous
Daniels v Campbell- constitutional court held that a surviving spouse in a monogamous Hindu & Muslim
marriage qualifies as a spouse and survivor in terms of Intestate Succession Act and Maintenance of Surviving
spouse Act
In terms of Civil Proceedings Evidence Act and Criminal proceedings Act- recognise religious marriages for the
purposes of compelling a spouse as a witness
Property which one spouse inherits in a religious marriage from the other spouse is exempt from transfer duty
If a marriage is terminated by death, a spouse can institute a claim for maintenance against the deceased’s estate in
terms of Maintenance of Surviving Spouses Act in so far as she is unable to provide for her reasonable maintenance
needs from her own means and earnings. (Daniels v Campbell)
Amod- surviving spouse has an action for loss of support. SCA decision. Court held that the decisive issue is not
whether surviving spouse was lawfully married to deceased by whether deceased was legally obliged to
support surviving spouse in a relationship which was worthy of protection and recognition in terms of the
common law. Should be legally enforceable at common law.
Advocates of the recognition of Hindu & Muslim marriages argue that non-recognition of Hindu & Muslim marriages
violates the right to be free from unfair discrimination on the ground of religion, conscience or belief and the right to
freedom of conscience, religion, thought, belief and opinion. They also rely on section 15(3)(a) of the Constitution,
which permits legislation recognising religious marriages or systems of religious personal and family law. However, any
such legislation must comply with section 15(3)(b) of the Constitution, which provides that the legislation must be
consistent with the rights contained in section 15(3) and the other provisions of the Constitution.
You also have to explain that from a sex and gender-equality perspective it could be argued that Hindu & Muslim
marriages should not be recognised in their present form, because elements of these marriages violate the right to sex
and gender equality. The offending elements include polygyny and the patriarchy which is inherent in Hindu & Muslim
marriage law and includes the rule that the husband has ``leadership'' of the family and that the wife must obey him.
On the ground of these decisions it is arguable that polygyny is the only obstacle to the recognition of Muslim
marriages.
The final aspect you have to discuss is the application of the limitation clause of the Constitution in the context of
Hindu & Muslim marriages. The limitation clause would come into play only if it were to be concluded that Hindu &
Muslim marriages violate sex and gender equality and the right to dignity. The court may be reluctant to hold that
violation of the key founding values of equality and dignity is reasonable and justifiable. However, nonrecognition of
Hindu & Muslim marriages probably results in greater inequality and indignity for Hindu & Muslim women. Also, the
different treatment of customary and Hindu & Muslim marriages constitutes inequality before the law and unequal
protection and benefit of the law. It seems unlikely that a court would consider the latter infringement justifiable.
STUDY UNIT 5- LIFE PARTNERSHIP
Couples who live together in marriage like relationships without getting married have none of the ex lege
consequences of marriage. This is the case regardless of whether or not the life partners are legally permitted to marry
each other.
Legislation and court decisions have extended some of the consequences of marriage to life partnerships
Same-sex life partnerships enjoy more or less the same statutory recognition as heterosexual life partners but they
enjoy broader judicial recognition
Du Plessis v Road Accident Fund- SCA
Downloaded extended common
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sex life partnerships where a contractual
Distributionduty
of thisto maintain
document had been undertaken.
is illegal R13,625 per year?
20
STUDY UNIT 6- DOMESTIC VIOLENCE

Children have a right to a name
Children under 18 are afforded special protection by s 28 of Constitution (childrens rights clause) in addition to having
all the rights the Const confers on everyone
A parents duty to support his child exists by law and is not a component of parental authorityDuty of support passes to
grandparents only if neither parent can support the child
Duty passes to both the childs maternal and paternal grandparents
Persen v Maintenance Officer- High court declared unconstitutional the rule laid down in Motan v Joosub that
paternal grandparents were not liable for the maintenance in respect of their sons extra-marital child
If neither the childs parents nor grandparents are in a position to support the child, the duty passes to the childs
siblings
At common law a step parent is not obliged to maintain his stepchild. The duty of support rests on the blood
relationship and not affinity.
Heystek v Heystek- court held that step parent does have a duty of support in respect of stepchild. The
decision is wrong in so far as the court held that marriage in COP the existence of a common law household
and consortium onmis vitae with the childs mother render the stepfather liable for his stepchilds support.
Note- consortium omnis vitae- comprises the rights, duties, advantages accruing to a spouse in a marriage. It
comprises companionship, love , affection and comfort. The term is used as an umbrella term for all the legal
rights of one spouse to the other in a marriage.
Same principles that govern enforcement of maintenance also governs enforcement of maintenance obligations
between parent and child. Childrens Act provides that anyone who is legally able to maintain the child and who fails to
do so while able is guilty of a crime
Reciprocal duty applied- child must also support parents
that a parent, grandparent, and siblings have a duty to support a child, but that it is unclear whether a
stepparent is obliged to support his or her stepchild
what the scope of the duty of support is
how the duty of support is enforced
when the duty of support ends
that the duty of support is reciprocal

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