Professional Documents
Culture Documents
An engagement is a contract between a man and a woman to marry each other on a specific or a
determinable date. A valid engagement is not a prerequisite for the conclusion of a valid
marriage. The E is concluded by means of an offer and acceptance. Will you marry me?
b. Misrepresentation: when one of the parties to the contract makes a false representation
to the other concerning certain facts which, had the other known the truth, would have
resulted in either the contract not being concluded at all or else it being concluded on
different terms. If misrepresentation is material, it will result in the cancellation of
contract. It is not clear as to which type of misrepresentation is material.
Man cancelled E after finding out fiancé’s uncle murdered his wife and fiancé’s brother has
served prison. Court did no justify termination of E. However, this judgement should not be
followed. A party who, on reasonable grounds, foresees the eventual failure of the M b4 even
entering it, should not feel obliged to enter into the M in order to avoid claim for breach of
promise.
Mistake in connection with significant personal qualities of one of the parties such as impotence,
sterility, or serious physical or mental defects are material so that info concerning such
characteristics should therefore be revealed.
Mistake in regard to favtors such as the other party;s family, income, occupation, previous
lifestyle or social standing is immaterial and could not jusitfu repudiation of the E unless it was
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induced by fraud.
2. Capacity to Act
Both parties must have the necessary capacity to act. A minor must obtain permission to become
E from his/her parents.
3. Lawfulness
Bother parties must not be unmarried. A promise made by a married person to marry after
obtaining divorce or after the death of his spouse is void because it is contra bona mores.
A married man undertook to marry the plaintiff is she paid him R 1600; in the event of the M not
taking place, he undertook to refund the $$$. The woman duly paid over the $ but the man
refused to marry her or refund the $ whereupon she sued him, but the action was unsuccessful.
The court decided that the E was contra bona mores and therefore void.
For a contract of engagement to be valid, both parties must have the capacity to marry each other
at the time when the promise to marry is made. A person who is already married does not have
the capacity to marry anybody else and therefore any engagement he purports to enter into will
be invalid. He can only enter into a valid contract of E once his M had been dissolved.
4. Possibility of Performance
At the time of entering into the agreement the parties must be in a position to marry each other.
They may not be related within the prohibited degree of relationship, neither of them may be
under the age of puberty, they must be of the opposite sex and so on.
Consequences:
λ Marriage itself brings about the termination of an engagement.
λ Breach of Promise:
An innocent party is permitted to withdraw from the E when the other party commits a
breach of contract.
*The court cannot grant an order for specific performance of an E any longer
However, the innocent party is entitled to claim:
1. Damages (patrimonial loss/ tangible loss, expenses incurred that were intended for
the M.
2. Satisfaction: where breach will cause an infringement on the innocent party’s
honour, dignity and reputation. The intention of injuring – animus iniuriandi
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Damages:
The general rule is that damages to be awarded for any proven patrimonial loss are calculated on
the basis of positive interest. The innocent party is entitled to be awarded damages which will
place him in the position he would have been in had the contract been performed.
Ability to claim:
In community of pty Out of community of pty
Half of existing estate All gifts that were promised
Half of the net profit Maintenance
Maintenance
Satisfaction:
Innocent party must prove the intention to injure “animus iniuriandi”. Where there is no
intention, the action for satisfaction will not succeed. The amount that will be awarded to the
innocent party as satisfaction is up to the discretion of the court. In order to arrive at a decision,
the court takes into account:
1. The way in which the breach occurred
2. The motive behind the course of action
3. The social status of the parties
4. The person’s previous life experience
Breach of promise to marry. Plaintiff sold everything she had and gave up her employment in NY
and moved to SA. After moving to JHB, defendant refused to marry her.
The court was of the opinion that the two actions caused confusion if combined, it may lead to a
consequential injustice. The court held that the prospective loss of the benefit of the M and the
actual monetary loss/expenditure incurred or to be incurred can be rewarded.
TROLLIP J therefore placed the plaintiff partially in the position she would have been in if the M
had taken place and partially in the position she would have been in if the contract of engagement
had never been entered into.
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Delictual damages: breach of contract of E is not sufficient to justify a claim for damages. Must
not only prove that the breach was wrongful but also that it was injurious or contumelious. In this
case, the plaintiff was allowed compensation.
The defendant had the plaintiff dangling like a puppet on a string, and had secretly married a 3 rd
party without terminating the engagement. This fact will not have the effect of decreasing the
amount awarded as satisfaction.
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Legal Requirements for the Conclusion of a Valid Marriage
Marriage is defined as the legally recognized life-long voluntary union between one man and one
woman to the exclusion of all other persons.
λCapacity to Act
Persons who have no capacity to act are totally incapable of etering into a valid M. If there is
such a M, it would be void abnitio.
λDeclared prodigals
A measure of uncertainty exists as to whether the M of a declared prodigal is completely
invalid or whether it is valid but always out of community of pty.
An analogy is sought between the M of a person who has been placed under curatorship due to
mental illness, and that declared prodigal. Prodigals could contract a M without their curator;s
consent if, at the time of entering into M, they actually had the capacity to act. Problem is that
this does not provide us with a clear answer on whether M by a prodigal will be invalid
The act of M itself might be to get rid of his estate. If prodigal gains more by M, in community of
pty will be recommended. The advantage to which would accrue to the prodigal will determine
whether M will be in community of pty or in community of pty
λ Metal Capacity
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If a mentally ill person enters into a M, that M is void because of incapacity to act. Lack of
capacity to understand their juristic act.
In this case, a M was dissolved on the basis that the husband suffered from a certain disease
causing him to expertience hallucinations.
*Certification proving that the person is in control of his acts when he concluded the M will
render the M valid.
λ Minors
Marriage Act 25 of 1961, Section 24(1) states that:
“No M officer shall solemnize a M between parties of whom one or both are minors unless the
consent to the party or parties which is legally required for the purpose of contracting the M has
been granted and furnished to him in writing.”
2. The Guardian
A minor should attain the permission of their guardian in order to marry
A guardian cannot marry their adopted child
CASE: B v B
λ Mistake
Error in personan
Error in negotio
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Husband married the wife at the request of a friend, so that the wife can attain SA citizenship.
After conclusion of marriage, the husband tried to have the M annulled. The court rejected his
claim and held that the M was valid: that they both had the intention of entering into it.
λ Misrepresentation
When one fot he parties mislead the other prior to the M by making untruthful, or gives false
impression to the other party by concealing info which should have been made know.
Voidable grounds: Prenuptial stupram (pregnancy from previous marriage
Impotent/Sterile
λ Duress
A marriage is voidable in cases where one of the spouses had been forced to consent to the
marriage.
CASE: Smith v Smith
The young woman was coerced to such an extent by her father and prospective husband, that she
appreared completely dazed and lacked any will of her own during the M ceremony. The M was
consequently set aside.
λ Undue Influence
Voidable
The plaintiff had undergone sexual reassignment prior to the conclusion of the marriage. The
surgery was classified as a success. The court concluded that the marriage is null and void,
cannot file for a divorce, can only go for an annulment.
λAdoptive Parents
Adoptive parents may not marry adoptive child. Adoption does not render a marriage invalid if it
would otherwise have been valid. Where 2 adopted children are not related.
Affinity:
This is 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.
B is related to E in the 2nd degree, to F in the 3rd degree and to G in the 4th degree. B may not
marry either E, F or G however, cos he is related to the common ancestor A, in the 1st degree.
C is related to A in the 2nd degree, also F. It is thus permissible for C and F to marry each other,
and this also applies to C and G, D and F and D and G.
λ Marriage Officer
Marriage must be strictly solemnized by a marriage officer. If not, then the M is void.
a. Magistrates b. Special Judges c. Commissioners or ex-officio d. Priests
This applied only as far as it pertains to the district in which they hold an office
Solemnization should take place in a church / public office / pvt dwelling house with open doors
and in the presence of the parties themselves, and at least two competent witnesses.
Prescribed format: Any objections to the marriage being concluded
Take person to be lawful wedded husband
Pronouncement of husband and wife
Kissing the bride
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CASE: Ex Parte Dow
Formalities of the marriage not complied with. Instead of marrying inside the house, they married
outside, subsequently, h and w applied for annulment of M. Court dismissed application on the
basis that it was not a material defect.
λ Registration of Marriage
A marriage officer who solemnized the M must make certain that the parties concerned, and at
least two competent witnesses, sign a marriage register and two duplicate copies in the
prescribed form prior to leaving the premises at which the M took place
λ Voidable Marriage
A voidable M is a valid M although grounds are present either before, or at the time of
contracting the M, on the basis of which the court can be requested to dissolve the M. a voidable
M does affect the status of the parties
One of the parties at the time of marriage, fraudulently concealed that she was sterile. The wife
knew that she was sterile due to an operation that she has undergone. She failed to reveal this to
the H. The H’s application to have the M rescinded was rejected because he did not allege in his
pleading that his wife had concealed such facts. The action rests not on the mere presence of
sterility, but on the fraudulent concealment thereof.
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λ Consequences of a voidable marriage
Children born and conceived during the voidable M would be legitimate. In the event the
application of an annulment is successful, it will have a retroactive effect consequences derive
from such a M would extinguish. The status of the parties will change, they will be placed in the
position they were in before the conclusion of the M.
λ Putative Marriage
A putative M exists when one or both parties are unaware at the time of contracting the M of the
defect which renders their M void, and believed in good faith that they are lawfully married. In
CL is was further required that all the formalities had to have been complied with at the
solemnization of the void M.
λ Difference
Annulment Decree of divorce
Extinguishes/erases all consequences derived Brings to an end the marital relationship from
from the annulled marriage from the date it the date the divorce commences.
was solemnized
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