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BOOK REVIEWS

(4th ed.). By H.
Pp. xcii, 754. ($45.50)

THE SOUTH AFRICAN LAW OF HUSBAND AND WIFE

Hahlo. Juta & Company Ltd., Capetown, 1975.

The first edition of Professor Hahlo's The South African Law of
Husband and Wife, published in 1953,1 received widespread critical
acclaim.2 The fourth edition 3 continues to display the author's wide
knowledge of the law of many countries, his cogent analysis of complicated issues and his great felicity of expression. The book is of
considerable interest to readers outside South Africa since throughout
comparison is made with foreign law, including a fair representation of
Canadian jurisprudence. 4
The book also contains, as it has since the first edition, an
appendix s by Dr. Ellison Kahn on jurisdiction and conflict of laws
aspects of the subject. 6
The first chapter of the book, "Survey, Historical and Comparative", presents a penetrating analysis, from a comparative standpoint, of
South African law. Professor Hahlo summarizes the position by stating
that "[s]een in the global context, the South African law of husband and
wife has, for better or worse, fallen behind developments overseas" . 7 The husband remains legally the head of the family, 8 the
divorce law is essentially fault-based 9 and South Africa has
"no[t] .... so far given serious consideration to a root-and-branch
reform of its marital property system" .10 It would, however, be unwise
to overstress the extent of this conservatism. In certain areas ll South
H. HAHLO, THE SOUTH AFRICAN LAW OF HUSBAND AND WIFE (1953).
Maisels, Book Review, 71 S. AFR. L.J. 183 (1954).
3 H. HAHLO, THE SOUTH AFRICAN LAW OF HUSBAND AND WIFE (4th ed. 1975).
4 About two dozen Canadian decisions are referred to, as well as the Divorce Act,
R.S.C. 1970, c. 0-8, and a wide range of Canadian academic commentary.
• HAHLO, supra note 3, at 529-674.
6 Since the publication of the previous edition, Dr. Kahn produced an important
treatise, E. KAHN, THE SOUTH AFRICAN LAW OF DOMICILE OF NATURAL PERSONS
(1972). See Copeling, Book Review, 5 COMPo & INT'L. L.J. S. AFR. 245 (1972) and
Ranchod, Book Review, 89 S. AFR. L.J. 500 (1972).
1 HAHLO, supra note 3, at 14.
8 Id., ch. 9.
9 Id., chs. 25-28. The four grounds for divorce are adultery, malicious desertion,
incurable insanity and imprisonment as an habitual criminal.
101d. at 15. Cf. Miller, Pointers for Possible Reform of South African Matrimollial
Property Law, 91 S. AFR. L.J. 390-95 (1974).
\I The welfare of the child has been recognized in decisions stretching back as far as
1881 and in the legislation, as controlling the determination of custody In divorce
proceedings; id. at 459. In V. V. de Wet, 1953 (1) S.A. 612(0), the Court recognized the
right of a mistress to claim an interest in a house built with her assistance. An
unreported decision in 1968 applying the ex turpi principle so as to bar a mistress' claim is
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15 The legal position of parties of the same sex who go through a ceremony of marriage together has given rise to academic discussion in South Africa 16 but as yet there has been no reported decision on the question. and van Niekerk. 12 HAHLO. 52 D..L. "[a]ccording to expert opinion. supra note 3. somewhat tentatively. Comment: M. 17 Re North and Matheson.A. supra note 3. 6 FAM. II OSGOODE HALL L. Today and Tomorrow.T. supra note 3. Note. may still be taken in South Africa. . 33 (P.T. Corbett. 1976). J.14 but Professor Hahlo argues. App.J.g. see Hahlo. Sex-Change Operations and the Law. 16 See. Transexllalism [sic] and Marriage. Matrimonial Property Regimes: Yesterday. The Mistress and the Law.J. Holloway.T.S.2d 204 (Sup. 120 NEW L. 355 A. as Professor Hahlo displays. L.A.J.R. at 54. 1974). Many aspects of South African law strike the foreign reader as unusual or obsolete. 19 it is worth noting that a recent decision 20 in the United States has taken a different view. Ct.T. 518 (C. and see generally Samuels. a naive and shallow one.R. [1971] P.L.). 83. 45. REV. For an account of the legal position of the mistress in South African law. which did not exist in Roman law. that today "[ilt is questionable whether this still holds true" . at 51. Another excellent recent analysis of the subject is made by Hahlo. traditional community and deferred community systems is a model of clarity and fairness. e. AFR. J. at 15-21. 140 N. the English position. and was at one time enforceable by specific performanceP3 The fact that a man's fiancee turns out not to be a virgin was formerly a good ground for his cancelling the engagement. a real change of sex is not possible". IS Id. 87 S.R. HAHLO. 13 HAHLO.R. Div.1978] Book Reviews 465 African law is as advanced as elsewhere and even in those areas where the principles are expressed in conceptually obsolescent terms a strong element of judicial common sense appears to have assured that substantial justice is done in most cases. 321 (1972). 20 M. 403 (1977). 77. . 71 (1972). criticized by Parschin-Rybkin. IH..J. The action for breach of promise. 6 CAP. [1972] 1 W.J. as exemplified by Cooke v. The Law of Concubinage. at 36 n. at 66 n. noted by Browell. [1972] 2 All E. 14 Id. [1970] 2 All E. Whilst there are Canadian 17 and British l8 decisions in support of Professor Hahlo's statement that. 1970). with much comparative reference. 89 S. supra note 3. The idea current in some circles that the separate property system is malum in se and that community represents the best of all property worlds is. 210 (1970) . U. It is relevant to note that there is a move towards separation of property in some countries with "advanced" community systems. 455 (1973). Transsexuals Some Further Legal Considerations. Cty Ct. V.. 152 (1976). V. Cf. 583 (1972) and Green. 18 Corbett v.D. at 51-52. 5 OlTAWA L.: An Enlightened Perspecti\'e on Transsexllalism. L. AFR. L. REV.L. Sup. Head. 5 COMPo & INT'L. L. criticized by HAHLo.J. (3d) 280 (Man. AFR. 239 (1970). 38. Professor Hahlo's discussion l2 of the respective merits and disadvantages of the separate property.

Comment. 23 Cf. 25 Id.S. 1970.C. 91 S. & COMPo L. N. Kahn and Professor Hahlo express the South African law in slightly different terms. at 545. noted by Hartley and Karsten in 37 MODERN L. 1973. 194 (1977). Danforth. [1975] I.466 Ottawa Law Review [Vol. reference to Kahn's development of the subject in the appendix. JURIST (NEW SERIES) 59 (1974) and by Webb. SHATTER. LEGAL Q. 9 (1977). 24 Id.g. Coming from a country which has no divorce jurisdiction. 428 U. Note: Third PC/rty Consent to Abortions Before and After Danforth: A Theoretical AnC/lysis.27 however. C. Gaffney. See further. 2° of the Irish Constitution provides that "[n]o law shall be enacted providing for the dissolution of marriage.S. 411 (1976). at 111. 10 AKRON L. 73. the wife shares her husband's legal domicile. 367 (1976) and Crist-Brown.) and Gaffney V. Professor Hahlo suggests21 that this consent is not necessary.C. 1976. L. On the question of the domicile of married women. 42 Mo. at 211 (1977). 96 S. FAM. AFR. 22 Planned Parenthood of Cent. R. and in New Zealand by the Domicile Act. at 529-674.R. The American Revolution in Family Law. C. 133 (S. at 400-01 (1976).O. this reviewer must take 21 HAHLO. 27 Article 41.J. Sept. Ontario having recently abolished the domicile of dependency of married women for all purposes. noted by Long and Ravenscraft. 9 IR. Kahn recognizes as "a possible (though very doubtful) exception"25 the qualification that a wife judicially separated from her husband may be able to acquire an independent domicile. 203. HAHLO. 179 (1974). c. 98. REV. L. 26 The domicile of dependency of married women has been abolished in England by the Domicile and Matrimonial Proceedings Act. it is noteworthy that Dr. 1978. 15 J. 65. Divorce: The Change in Attitudes. FAMILY LAW IN THE REPUBLIC OF IRELAND ch.Q. 26 Where Professor Hahlo ventures to express his opinions on the social desirability of certain aspects of the law.J. Rafferty. 7 MAN. 45. S. has been criticized for not going far enough: see. id. The partial reform in Canada brought about by the Divorce Act. See also Hahlo. S. supra note 3. 10:464 Another question to which South African case law has not supplied a definitive answer is whether a woman requires her husband's consent for an abortion. Hibernia (Dublin). L.24 whereas Dr. Ct. See Family Law Reform Act 1978. 27 N.R. 291 (1977). The point is of general comparative interest since the whole subject of the domicile of married women is one of current controversy.J. 52. Comment. at 107. Nasciturus in the Limelight. even if she lives in fact apart from him". Professor Hahlo states baldly that "[a]s long as the marriage subsists. Missouri v. noted by Webb in 26 INT.. he displays what migh t be described as "moderate-progressive" views. 371.).C. noted by Duncan. A recent public opinion poll conducted by a national periodical indicated that only a minority (around 35%) favoured the introduction of divorce although this number was somewhat larger than in a poll conducted three yoars previously: see. L. at 541.1. REV.The Need for Reform. 24. REV. 508 (1977) and Binchy. 1976. 22 The appendix by Dr. 3. e. Caffin. Divorces obtained in foreign jurisdictions may be recognized in certain cases: see Bank of Ireland V. supra note 3.L. 123 (S. an approach since favoured by the United States Supreme Court. D-8. Domicile . . 2831 (1976). at 76-78 (1974). [1971]I. see also Schell. The provinces are beginning to respond to such criticism." See generally A. Kahn 23 on jurisdiction and conflict of laws presents a clean analysis of the subject with a considerable amount of reference to the law of the Commonwealth and of the United States.Z.

Director of the Institute of Air and Space Law at McGill University and Editor-in-Chief of the Annals. Matte edt 1976). SId. 2 at at at at vii.45) Edited by N. the fourth edition of The SOllth African Law of Husband and Wife is to be welcomed by lawyers far beyond the confines of South Africa as a work of major comparative interest. This minor criticism apart. * * * ANNALS OF AIR AND SPACE LA w. 28 No study of the mores of the Irish has been published which supports this proposition. vii-viii. with its experience and continued development. M. Aircraft and the InternationaL Legal and Institutional Aspects of the Stratospheric Ozone ProbLem. Vol. . 4 ld.. Republic of Ireland. pp. Professor Nicolas Mateesco Matte.4 Professor Carl Q. 1976.. 289. 3 The importance of this new enterprise is underlined by the high quality of the contributions to the first volume. 3 ld. WILLIAM BINCHY· 28 HAHLO. The publication of the AnnaLs was prompted partly "because . ld. Matte. He observes that there exists a consensus that "an excessive amount of nation-based pollution violates world community expectations". ($25. Carswell's.C. recounts the history of the successful effort. The appearance of this volume l is an event of major significance in the study and research of air and space law in Canada.:1 and submits that "the reduction of the hazards caused by high-flying jet aircraft to the ozone layer of the stratosphere requires the use of 1 ANNALS OF AIR AN D SPACE LA W. 3. 24. Christol discusses the need for an enlarged international environmental law dealing with hazards. Vol. supra note 3. In the article. Q. 1. the Institute's Faculty. viii. I (N.1978] 467 Book Reviews issue with the universality of Professor Hahlo's assertion that "[t]here is everything to show that hard divorce law breeds immorality and discourages marriage". In his preface. *Law Reform Commission. could assist in advising and directing the editing staff'2 and partly because "the Government of Quebec-recognizing the past and present achievements of the Institute-recently chose it as a Centre for research of interest to Quebec as well as an inter-University and inter-disciplinary forum for studies" . at 26..