FAMILY Law Pack

CLS cc ©
Family Law Notes

1
FAMILY LAW NOTES
THE ENGAGEMENT
Definition
Defined as a contract between a man and woman to marry each other
on a specific or determinable date.
An engagement is not like a normal contract!!!
A valid engagement is not a prerequisite for the conclusion of a valid

marriage.
The engagement is concluded by means of offer and acceptance.
Contracts can be concluded by post the moment the person who made
the offer becomes aware of its acceptance.
The parties do not have to be in each other’s presence and thus an
engagement can be concluded by a representative on behalf of the
parties, with their consent.
No special formalities are required for the conclusion of an
engagement.
Only persons who are competent validly to marry one another can
enter into a contract of engagement.
In certain circumstances, and based on good reasons, an engagement
may be terminated unilaterally.
Only damages can be claimed. Specific performance cannot be
claimed because in South Africa it is unlawful to force anyone to
marry.
The calculation of damages is sui generis because damages are
calculated on the basis of negative and positive interest.
Requirements for a valid engagement
The four requirements:
1. Consent.
2. Capacity to act.
3. Engagement must be lawful.
4. Possibility of performance.
(i) Consent:
A material mistake renders an engagement void.

A misrepresentation renders an engagement voidable, at the instance
of the party who is misled.
It does not matter whether the misrepresentation was made
innocently or fraudulently.
Critical Law Studies cc ©

CLS cc ©
Family Law Notes
2
Misrepresentation is not only committed by positive false

representations, but also through a failure to correct an existing
misconception or an omission to disclose certain facts where there is a
duty to speak.
Two examples of a mistake: Error in persona (mistaken identity) and

error in negotio (mistake re nature of act).
A misrepresentation occurs where one of the parties to the contract

makes a false representation to the other concerning certain facts
which, had he known the truth, would have resulted in the contract
not being concluded, or concluded on different terms.
A misrepresentation is material if it is of such a nature as to seriously

jeopardize the possibility of achieving a happy and harmonious
marriage.
Example of a material misrepresentation:

Impotence, sterility, mental illness, sexual promiscuity.
Misrepresentation:
Making a false representation.

Failing to remove a misconception.
Not disclosing certain facts where there is a duty to speak.
In Schnaar v Jansen: the man cancelled his engagement after

discovering one of his fiancées uncles had murdered his wife, that
another uncle had entered into an interracial marriage and her
brother had served a prison sentence for theft. Could he under these
circumstances unilaterally repudiate?
The Court held that he could not repudiate on this basis. She was
under no obligation to disclose these facts. Therefore, she could claim
damages from him.

CLS cc ©
Family Law Notes
3
SCHNAAR V JANSEN – breach of promise to marry – justa causa.
The plaintiff was engaged to the defendant. After they got engaged the
defendant discovered that one of the plaintiff’s uncle had a black wife,
that another had been hanged for his wife’s murder and that her
brother had been convicted of housebreaking and theft. The defendant
thereupon repudiated the engagement. The plaintiff sued him for
breach of promise. The defendant admitted breach of promise but
averred that the abovementioned circumstances rendered it
impossible for him to comply with his promise to marry the plaintiff
and that repudiation was justified. The plaintiff accepted to the
defendant’s plea and the exception was allowed as was the claim. The
court held that these circumstances did not justify unilateral
repudiation of the engagement. Judge President Dove-Wilson said “ if
a man engages himself to a woman without having satisfied himself as
to her relatives he takes the risk of their being unsatisfactory” Some
authors accept this decision whilst some do not. Van Heerden
suggests that this decision is incorrect as “an engagement to marry is
a contract of utmost good faith and a party with a skeleton in his/her
cupboard is obliged to disclose it”
(ii) Capacity to Act
If a minor gets engaged, he needs the necessary consent from

his parent/guardian.
Ratification ex post facto is also sufficient.

Both parties must have the necessary capacity to act.
It is not true that just because your parents have given consent for
you to get engaged that you have automatic consent to get married.
If the parents withdraw consent before the marriage, the engagement
is automatically terminated.
Persons who do not have capacity to act due to mental illness cannot
become engaged while incapable of acting.
(iii) Lawfulness
Both parties must be unmarried.

A promise made by a married person to marry after obtaining a
divorce is void because it is contra bonos mores (against good morals).
(iv) Possibility of performance
They must not be under the age of puberty.

They must not be related within the prohibited degrees of relationship.

CLS cc ©
Family Law Notes
4
The Content and Consequences of Engagement
If a date for the marriage has been determined, then there is a

reciprocal duty to marry on that date.
The date can be changed by mutual agreement.

If one party refuses to marry on the day agreed, he commits a breach
of contract.
If no date has been determined, it is tacitly understood that the

marriage will take place within a reasonable time.
The engagement does not give either party the right to claim physical
intimacy.
An engagement can be entered into subject to conditions: impossible
and unlawful conditions do not render the engagement void, but are
pro non scripto while the engagement remains valid.
The engagement is void only if the condition is contrary to the nature
of the marriage.
Terms:
A valid condition: won’t marry until age 22.
Impossible condition: won’t marry until you build me a house on
the moon. (engagement is valid but the condition is pro non scripto)
Unlawful condition: we will only get engaged if you allow me to
have sex with you now. (engagement is valid but the condition is
pro non scripto)
Condition contrary to marriage: we will get engaged on
condition we agree never to have children. (engagement is invalid)
Because an engagement is an agreement to marry, it requires the

couple to be faithful to each other.
So if one enters into a relationship with a 3rd person, the other is
justified in withdrawing from the engagement and instituting an
action for damages and satisfaction.
Termination of the Engagement
Six ways in which an engagement can be terminated.
1. Marriage.
2. Death of either of them.
3. Mutual agreement.
4. Withdrawal of parental consent.
5. Breach of promise.
6. Unilateral justified termination based on sound reasons.

CLS cc ©
Family Law Notes
5
A justa causa is a fact or occurrence which comes about AFTER the

engagement has been entered into and which according to human
experience will seriously jeopardise the chances of a happy and lasting
marriage.
A simple realisation by one of the parties that he or she no longer

loves the other party is not considered a justa causa for cancelling the
engagement.
However, this reason should be considered the most valid and
sensible one for unilateral termination of the agreement.
It is obvious that the possibility of a successful marriage would be
seriously jeopardised if one of the parties realises that the marriage
could be a mistake, even before it was entered into.
4 examples of a justa causa
1. Sterility.
2. Impotence (becoming impotent).
3. Develop a hereditary disease.
4. Commits a serious crime.
Breach of Promise
a) Breach of promise. Unlawful termination of engagement.

b) Consequence of a breach of promise. The innocent party can
withdraw from the engagement.
c) The “innocent” party claim from the “guilty” party - damages for
breach of promise and satisfaction for personality infringement.
d) Example of a breach of promise. Refuse to marry your fiancé
without good reason.
e) The “innocent” party can’t claim specific performance (i.e. force
the “guilty” party to marry).
f) Type of damages would the injured party be claiming -
patrimonial loss.
A party can claim satisfaction when his honour, dignity and

reputation have been injured (non patrimonial).
Consequences of Termination
Four actions available after termination of the engagement:
1. Action for damages based on the breach.

2. Action for satisfaction based on personality infringement.
3. Action to claim return of engagement gifts.
4. Action of ground of seduction (damages and satisfaction).

CLS cc ©
Family Law Notes
6
Action for damages
Damages for breach of promise are awarded differently from the way
in which they are awarded for other contracts.
When ordinary contracts are breached, damages are calculated on the
basis of positive interest.
Positive interest means - Damages which will place him in a

position he would have been had the contract been
performed. An example of positive interest - If married in
Community of Property she could claim half his estate as
well as maintenance.
In the case of breach of promise, however, damages are calculated on

the basis of positive and negative interest.
Negative interest mean - actual monetary loss because of

expenses incurred. We place the innocent party in the
financial position he would have been in had the engagement
never been entered into.
Examples of negative interest.
Invitations, bridesmaid’s dresses, food and wedding dress.
Guggenheim: A divorced woman, while living in New York, met the

defendant who was domiciled in South Africa. They fell in love and
agreed to marry in South Africa. She sold her car and some furniture;
she put some furniture in storage and gave up her apartment and her
job. When she arrived in South Africa, he repeated his promise to
marry her. However, later he refused to marry her. She sued him for
damages and satisfaction.
Court held that a valid engagement existed. She was entitled to sue
for actual loss and prospective loss (i.e. some positive and some
negative interest) and se could sue for satisfaction.

CLS cc ©
Family Law Notes
7
GUGGENHEIM V ROSENBAUM – breach of promise to marry –

damages
In 1943 the plaintiff was divorced at Reno in the American state of

Nevada. At that stage she was domiciled in the state of New York.
While she resided in New York she met the defendant, who was on a
visit to the United State. The defendant domiciled in S.A. They fell in
love and in New York the defendant asked the plaintiff to marry him.
It was agreed that the marriage would take place in S.A. The plaintiff
gave up her flat, sold her motor vehicle and some of her furniture had
the rest of her furniture put into storage and gave up her employment.
When she arrived in Cape Town the defendant met her and repeated
his promise to marry her. The parties went to Johannesburg, where
the defendant refused to marry the plaintiff. She sued him for
damages for breach of promise. In reply he pleaded 2 special defences:
1. That the plaintiff’s divorce could not be recognized in terms of S.A
law since she and her husband were divorced in a state in which
they were not domiciled. The defendants promise to marry the
plaintiff was therefore void as being contra bonos more on the
ground that the plaintiff was still legally married.
2. That the law of the state of New York had to be applied to the
matter. New York did not allow the plaintiff to recover damages for
breach of promise and the plaintiff’s claim for damages should
therefore be rejected.
The defences were rejected and the plaintiffs claim for damages was
allowed.

CLS cc ©
Family Law Notes
8
Plaintiffs claim for damages was decided as follows:

• Loss on sale of motor vehicle – court rejected plaintiffs claim as
she could not prove that the vehicle was sold below its market
value.
• Cost of packing and storing belongings – plaintiff proved these
expenses – R187
• Loss of earnings – court found that plaintiff was supported by
defendant for a period of time and that she then found
employment in JHB and plaintiff could not prove that this
income was lower than her previous one. Her claim was
therefore rejected.
• Loss of apartment – court rejected this claim as she could not
prove that she would pay a higher rental for another apartment
should she decided to return to New York
• Cost of returning to New York – rejected
• Prospective loss – the probability would have been that parties
would have married anc excluding the community of property
and profit and loss. In the absence of proof to the contrary it
must be assumed against the plaintiff that no marriage
settlement would have been made on her in the anc. Taking into
consideration that the defendant is a man of affluence and
occupies a position of life that is superior to her own, she would
have therefore derived material benefits from their marriage –
R2000 was approved.
• Delictual damages – R500 awarded.
Action for satisfaction based on iniuria
For the innocent party to be successful with this action, he must be

able to prove:
1. That his feelings were hurt or dignity wounded.

2. That the guilty party intended to harm the innocent party’s
personality (animus iniuriandi).
To arrive at an amount to be awarded, the court takes into account

which factors? The way in which the breach occurred, the motive
behind the action, their social status, plaintiff’s age and possibility of
plaintiff marrying some else.
Case law where the court granted satisfaction for personality

infringement based on breach of promise:
o Davel v Swanepoel The defendant kept the plaintiff on a
string and secretly married a third
party without first terminating the
engagement
o Smit v Jacobs The defendant secretly entered into a
marriage with a third party, without

CLS cc ©
Family Law Notes
9
first terminating the engagement

o Guggenheim v Rosenbaum The defendant, after having concluded
an engagement, denied all knowledge of
its existence
Return of engagement gifts – The rules applicable
Sponsalitia largitas - All gifts made with the marriage in view.
Arrhae sponsalitiae - Engagement ring and gifts presented to show the

seriousness of promise (watch).
If the parties agree to terminate the engagement, (a) and (b) must be
returned by both parties. Inconsequential gifts (ones to which no
specific meaning is attached) or gifts which have been used up or lost,
need not be returned.
If the engagement has been brought to an end by justa causa, the
same rule as above, will apply.
If one party has committed a breach of promise:
 The innocent party can claim back (a) and (b) – which he
gave.
 The innocent party can keep (a) and (b) - which he received.
Satisfaction and damages on the ground of seduction
a) Seduction is the extra marital intercourse with a virgin with her

consent.
b) To succeed, the girl must prove:
1. She was a virgin prior to seduction.
2. She was seduced.
3. Sex occurred as a direct result of the seduction.
c) 2 claims comprising an action on the ground of seduction:
1. Claim for satisfaction for defloration.
2. Claim for damages.
Because the action for seduction, can only be instituted by a woman,

it constitutes inequality before the law and unfairly discriminates
against men and therefore violates section 9 of the Constitution.
Therefore, the action should be abolished.

CLS cc ©
Family Law Notes
10
POSSIBLE QUESTIONS
Name four grounds for the termination of an engagement.
(1) The couple’s marriage.

(2) The death of either of the parties.
(3) A mutual agreement to terminate the engagement.
(4) Withdrawal of parental consent where one of the parties is a
minor.
(5) A unilateral and justified termination, based on a sound
reason (a justa causa).
(6) Breach of promise.
Name the requirements for a valid engagement.
The four requirements:
1. Consent.
2. Capacity to act.
3. Engagement must be lawful.
4. Possibility of performance.
Discuss the meaning of “iusta causa” and give an example.
A justa causa is a fact or occurrence which comes about AFTER the

engagement has been entered into and which according to human
experience will seriously jeopardise the chances of a happy and lasting
marriage.
1. Sterility.
2. Impotence (becoming impotent).
3. Develop a hereditary disease.

CLS cc ©
Family Law Notes
11
LEGAL REQUIREMENTS FOR THE CONCLUSION OF A VALID

MARRIAGE
Definition
Marriage is the legally recognised lifelong voluntary union between
one man and one woman to the exclusion of all other persons.
This definition relates only to civil marriages since Muslim and

customary marriages permit husbands to take more than one wife.
Some also argue that the prohibition on same sex marriages is
unconstitutional. If this is correct, the reference to “one man and one
woman” will have to be amended.
Although marriage may look like a contract, it is not a contract.
Requirements for a valid marriage:
1. Capacity to act.
2. Consensus.
3. Marriage must be lawful.
4. Formalities must be complied with.
1. Capacity to Act
Some persons are totally incapable of marrying because they have no

capacity to act (e.g. infans and mentally ill persons).
Certain people may marry, but only with the consent of certain other
persons. The most important example is minor children.
A girl under 12 and a boy under 14 are absolutely incompetent to
marry.
a. Declared Prodigals
A prodigal is a person with normal mental ability but who is not

capable of
managing his/her own affairs because he squanders his assets in an
irresponsible and reckless way.
A measure of uncertainty exists as to whether the marriage of a
declared prodigal is completely invalid.
Some cases say that a declared prodigal cannot marry without
obtaining the consent of his curator, and if he does, the marriage
must be out of community of property.
Modern South African writers adopt the view that the prodigal may
marry without the curator’s consent, but it is unclear which
matrimonial property system operates in such a marriage.

CLS cc ©
Family Law Notes
12
b. Insane Persons
An insane person is a person with a mental disorder or disability who

cannot understand the nature and consequences of his acts, due to
his disorder.
If a person is de facto insane, at the time of contracting a marriage,
the marriage will be void.
A marriage contracted during a lucid interval is perfectly valid.
c. Persons under curatorship because they are incapable of

managing their own affairs
Such persons are not insane, but simply incapable of looking after
their own affairs due to disability or chronic illness.
They are competent to conclude a valid marriage without the consent
of their curator.
2. Consensus
The parties must be in agreement that they want to marry each other.
Sometimes no genuine consensus exists, or consensus is defective.
The factors having an effect on consensus are mistake,

misrepresentation, duress and undue influence.
a. Mistake (unclear on effect of validity)
Only a material mistake excluded consensus.

Error in personam (concerning the I.D. of the other party) and error in
negotio (concerning the nature of the act) are the only forms of
material mistake in respect of marriage.
It is unclear whether a material mistake renders the marriage void or
voidable.
Hahlo says the marriage is voidable.
Cronje says it is void, but should be voidable
Distinguish simulated marriages from material mistake.

A simulated marriage is a marriage of convenience.
(NOTE: Simulated marriages are valid (i.e. there is no material

mistake) because the parties had the intention to conclude the
marriage).
A simulated marriage can only be terminated by divorce.

A non-material mistake is irrelevant and no ground for dissolution.
The court in Martens v Martens held that a stipulated marriage is a

valid marriage since the man and woman actually had the intention of
entering into a valid marriage.

CLS cc ©
Family Law Notes
13
b. Misrepresentation (voidable)
One party misleads the other prior to marriage by making untruthful

statements or giving false impression to other and thereby persuades
the other to enter the marriage.
Only a serious misrepresentation affects the validity of a marriage.
Example of a serious misrepresentation. Woman already pregnant by

another man at time of marriage and concealing it or impotence,
sterility.
The effect a material misrepresentation has on the validity of the
marriage is that it can be annulled / set aside.
c. Duress (voidable)
Force, undue pressure.

Here one of the parties has been forced to consent to the marriage.
The marriage will be voidable.
In Smith v Smith, the bride so threatened by parents (and assaulted)
and future husband, she went through ceremony in daze. Set aside.
d. Undue Influence (voidable)
Where one of the parties to the marriage has been influenced in his or
her choice and has been persuaded to enter into the marriage, due to
the influence.
3. The Marriage must be lawful
An unlawful marriage is void.
There are 6 groups of people who cannot marry:
1. Persons already married.

2. Persons of same sex. *since changed
3. Adoptive parent and adopted child.
4. Prohibited degrees of relationship.
5. Guardian and ward.
6. Prohibition on mixed marriages. *since changed
i) Persons already married
A person, who is already married, can’t enter into a further civil

marriage while the former marriage still exists.
The second civil “marriage” will be void.
The second “marriage” can however be a putative marriage, but the
marriage will still be void.

CLS cc ©
Family Law Notes
14
The marriage will be a putative marriage if either or both of them

believe honestly that the marriage was valid e.g. one party believed his
divorce had already been finalised.
ii) Persons of the same sex
In the past a man cannot marry a man and a woman cannot marry a
woman.
Today: although the Civil Union Act permits same sex couples to enter
into a civil union, civil marriages are still reserved for people of the
opposite sex.
The validity of marriages of a post-operative transsexual first came
before the courts in
o W v W - Plaintiff had undergone a sex change operation from
male to female successfully and then married. The court held
that although the operation made him look female he was NOT
therefore marriage had actually been concluded between two
men. The divorce was refused. The court held that the proper
order was ANNULMENT.
o A second case in which the same decision was made was Simms
v Simms.
The Alteration of Sex Description and Sex Status Act came into
operation in 2004 and this Act has changed the law in this regard.
Any person who has undergone a sex change may now apply to the
Director General of Home Affairs for alteration of the sex description
which appears in the register of births.
Once the person’s sex description is changed on the register, he is
deemed for all purposes to be a member of his new sex.
iii) Adoptive parent and adoptive child
A child may not marry the person who adopted him/her.

For the rest of the family, however, adoption does not render a
marriage invalid.
Thus 2 separately adopted children may marry each other.
iv) Guardian and Ward
A guardian and his ward (i.e. a minor under his guardianship) may
marry each other only if the High court has given consent.
v) Persons who belong to different race groups
While the Prohibition on Mixed Marriage Act existed, whites were

prohibited from marrying people from other race groups.
The new Immorality and Prohibition of Mixed Marriages Amendment
Act states that the Director General of Home Affairs can now declare
such marriages (entered into before 1985) valid.

CLS cc ©
Family Law Notes
15
The marriage is then deemed valid from the date it was entered into.
One of the parties must apply for validity, with the consent of the
other party (unless he is deceased).
vi) Persons within the prohibited degrees of relationship
Certain people may not marry because they are too closely related.
People can be too closely related by blood (consanguinity) or by
marriage (affinity).
The relationship can be in the direct line or in the collateral line.
a) Persons who are blood relatives in the direct line are ascendants
and descendants of each other.
b) Persons who are blood relatives in the collateral line are not
ascendants or descendants but have one or more common
ancestor.
c) Affinity in the collateral line exists between a spouse and the
blood relatives in the collateral line of the other spouse.
Marriage between blood relatives in the direct line is absolutely

forbidden, according to the Political Ordinance of 1580.
The general principle regarding blood relatives in the collateral line, is
that you cannot marry someone related to you, if either of you is
related to the common ancestor within the 1st degree. Political
Ordinance of 1580.
The general rule regarding persons related to each other by affinity, in
the direct line is that they may not marry according to Section 28 of
the Marriage Act.
The Marriage Act says that persons related to each other by affinity in
the collateral line are allowed to marry. There is no prohibition.
RELATIONSHIP:
a) Consanguinity: (blood relation)
i) Direct line: parents and children
ii) Collateral line: brothers and sisters, nieces and nephews and
cousins
b) Affinity: (relation by marriage)
i) Direct line: parents-in-law, step children
ii) Collateral line: sister / brother-in-law
4. The Marriage must comply with certain formalities
Certain formalities must be observed during the wedding ceremony.

E.g. both parties must be personally present. (Marriage by proxy is
not permissible).
Section 29 (2) of the Marriage Act states that a marriage shall be

solemnised in a church or other building which is used for religious
services, or in a public office or private dwelling house with open

CLS cc ©
Family Law Notes
16
doors and in the presence of the parties themselves, and at least two
competent witnesses.
Non-compliance with this requirement should render the marriage

void.
This is, however, not the position in the Durban and Coast Division.
In Ex Parte Dow, the husband/applicant applied for an order

declaring the marriage null and void, since it was solemnised in a
garden of a private dwelling house and not in the house. This was the
only defect with the marriage. The wife supported the application. The
court held that the object of Section 29 (2) is to avoid clandestine
marriages. Judge could find no reason or need for the ceremony to
take place indoors. Marriage is such an important relationship and
the consequences of nullifying it so far reaching, that he did not
consider it the intention of the legislature that the marriage should be
void simply because the word “in” had not been complied with.
Therefore the application was dismissed.
The marriage officer who solemnises the marriage, the parties thereto
and two competent witnesses must sign the marriage register
immediately after the marriage ceremony. Should this not be done,
the marriage is not invalid.
EX PARTE DOW:
On 7 July 1984, a marriage was solemnized by a minister at a

privately owned residential property. In breach of the provisions of
S29(2) of the Marriage Act, the entire ceremony took place in the front
garden in the open, that is to say that it did not take place in a private
dwelling.
S29(2) states that “a marriage officer shall solemnize any marriage in
a church or other building used for religious service, 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”. The
“marriage” subsequently turned sour, and the “husband” approached
the court with an application to have the purported marriage declared
null and void from the start.
The question here is what the consequences are of the non-
compliance with this section. The so-called “husband” has no doubt
about the matter. The Act says clearly that a marriage officer shall or
must solemnize a marriage inside a church, office or house with open
doors. If a marriage officer fails to do so, he or she commits a crime
and can be prosecuted.
As the prescribed procedure was not strictly complied with, the
marriage was never legally concluded and should be declared null and
void.
The argument sounds convincing enough, but this was not what the
court decided.

CLS cc ©
Family Law Notes
17
The court held that the marriage was legally concluded and that the
disgruntled husband would have to follow the standard divorce
proceedings if he wanted to bring an end to the marriage.

CLS cc ©
Family Law Notes
18
THE MARRIAGE OF A MINOR
1. Consent necessary for the marriage of a minor
a. The parents of the minor
If both are alive both must consent, to the marriage of their legitimate
child, unless the court orders otherwise or sole guardianship has been
granted to one of them.
(a) If parents are divorced, both parents.
(b) If one parent is deceased, the surviving parent.
If the child is born out of wedlock, the mother’s consent is needed.
If sole guardianship has been granted to a father, only his consent is
necessary.
b. The guardian
If both parents are deceased, the orphan must obtain the guardian’s
permission.
The guardian cannot consent to a marriage between himself and the
minor. In such case, the consent of the court must be obtained.
c. The Minister of Home Affairs
A boy below 18 and a girl below 15 must obtain permission from

his/her parents and written consent from the Minister of Home
Affairs.
The Minister will only grant consent if he considers the marriage
desirable.
The Minister’s consent is only unnecessary if the High Court has given
consent.
If the marriage is entered into without ministerial consent it is null
and void, however the Minister may ratify the marriage if:
He considers the marriage desirable and in the interests of the parties.
The marriage was in all other respects solemnised in accordance with
the provisions of the Marriage Act.
There is no other lawful impediment to the marriage.
d. The presiding officer of the Children’s Court:
Where one or both parents are absent, or mentally ill, or in any other
way not competent to consent to the marriage, or the minor does not
have a guardian, the presiding officer of the Children’s Court can
consent.
The presiding officer cannot consent if either the parents or guardian
refuses to grant consent.
The presiding officer must also determine if it is in the minor’s interest
to enter into an ante-nuptial contract.

CLS cc ©
Family Law Notes
19
If so, he must ensure that the contract is entered into before

consenting to the marriage and must assist the minor in execution of
the contract.
If the presiding officer refuses to consent to the marriage, the minor
may approach the high court for consent.
e. High Court
If one or both parents, the guardian or the Presiding officer of

Children’s Court refuses to grant consent, the minor may approach
the High Court for permission to marry. (For this purpose he is
regarded as having capacity to litigate).
The judge will only grant the order if he is satisfied the refusal was
without adequate reason and contrary to the interest of the minor.
The court must make due allowance for the fact that the parents are
in a better position that the court to make decisions of such a
personal nature.
However, even if the minor’s application is unopposed, the court will
not inevitably override the parent’s refusal to grant consent.
f. Instances in which the minor requires no consent to

marry
Where the minor has already been married (and the marriage was
dissolved by death/divorce)
2. Effects of the absence of the necessary consent (where 1 or

both are minors without consent)
a. Effect of validity of the marriage
Section 24 (A) of the Marriage Act. The marriage is not merely invalid
because the parents have not consented thereto.
A court can however dissolve the marriage if application is made by:

1. Parents of or guardian.
2. Minor himself.
(a) The parents or guardian must apply before the minor attains
majority and within six weeks from the date of finding out about
the marriage.
(b) The minor apply before he attains majority or within three
months thereafter.
Thus, the marriage is voidable at the instance of the minor or his

guardian.
If the marriage has not yet been dissolved by this time, it continues to
exist until such time as it is dissolved by death or divorce.

CLS cc ©
Family Law Notes
20
The court may not set the marriage aside unless it is satisfied that the
dissolution is in the minor’s interest.
b. Effect on patrimonial consequences of the marriages
i. If the marriage is dissolved
Section 24 (1) of the Matrimonial Property Act provides that the

assets are to be divided as the court deems just.
The court will look at factors like: what each contributed the wishes of
the parties, the interests of the minor, the ages of the parties and
whether the major spouse took advantage of the minor spouse’s
inexperience.
ii. If the marriage is not dissolved
Section 24 (2) of the Matrimonial Property Act makes provision for two
options. They are:
1. If the parties have not entered into an ante-nuptial contract
they are married in Community of Property.
2. If the parties have entered into an ante-nuptial contract in
which accrual is not excluded, the ante-nuptial is valid.
For which proprietal regime does Section 24 (2) not make provision?
Where the parties entered into an ante-nuptial contract excluding
accrual. In this regard, there is uncertainty whether such a contract is
valid or not.
Hahlo’s view on the validity of the contract is that the contract is valid.
The counter-argument is that the contract is invalid i.e. the parties
are married in Community of Property (Edelstein v Edelstein).
The third view is that only the clause in the ANC which excludes the
accrual is valid. Thus, the marriage is out of community with accrual.
The authors of the test book support the view that the ANC which
excludes the accrual is invalid.

CLS cc ©
Family Law Notes
21
VOID AND VOIDABLE CIVIL MARRIAGES AND PUTATIVE CIVIL

MARRIAGES
The distinction between void and voidable civil marriages
A marriage is voidable on the strength of circumstances which were

present before or at the time of the wedding (and it may be
ANNULLED).
A DIVORCE is granted on the strength of circumstances that
developed during the marriage.
We know that ordinarily a void (never existed) marriage does not have
any legal consequences. There are some statutory exceptions:
o Section 6 of the Marriage Act: A marriage solemnised by a person
who is not a marriage office is void, but it can be ratified by the
Minister of Home Affairs. Then it will be valid.
o Section 26 of the Marriage Act: A boy under 18 or a girl under 15
can’t marry without the consent of the Minister of Home Affairs.
Marriage contracted without his consent is void but the Minister
may ratify the marriage. Then is will be valid.
o Common law exception. PUTATIVE MARRIAGE.
The effect of a decree of annulment of a voidable marriage is that all

the consequences of the marriage are EXTINGUISED as from date of
marriage (retroactive).
I.e. parties become unmarried.
Children remain children born of married parents.
It is important to remember that annulment of a voidable marriage is

not the same as divorce.
Grounds for nullity of a marriage
There are two grounds. They are:

1. Non-compliance with formal requirements.
2. Non-compliance with material requirements.
Non compliance with formal requirements
The marriage is solemnised by someone who is not a competent

marriage officer.
Girl under 15, boy under 18 did not get consent of Minister of Home
Affairs.
No witnesses were present at the marriage.
Non compliance with material requirements
Both parties are of the same sex.

One party is already married to someone else.

CLS cc ©
Family Law Notes
22
They are related with prohibited degrees.

One of them has not reached puberty.
One was insane at the time of the marriage.
Grounds for voidability of a marriage
1. Minority.
2. Material mistake
3. Duress
4. Undue Influence
5. Stuprum.
6. Impotence.
7. Sterility.
Minority
A marriage entered into without the necessary consent is not void, but
voidable, at the request of the parent or the minor himself.
If the parent has not consented, the court can dissolve the marriage if
application is made by:
o The parent/guardian within six weeks from the date upon

which he became aware of the marriage and before the minor
turns 18.
o The minor himself before majority (18 or within three months
thereafter.
Stuprum (sexual intercourse before marriage)
Stuprum is the sexual intercourse with a third party before marriage.
This does not normally affect the validity of the marriage.
It is only where the wife was, at the time of the marriage, pregnant
with the child of a man other than her husband, and he was unaware
of this, that he can apply for the annulment of the marriage.
The fact that the husband himself had sexual intercourse with his
wife before the marriage, does not affect his right to have the marriage
annulled.
If the husband accepts his wife’s pregnancy, and condones her

actions, he cannot apply for annulment.

CLS cc ©
Family Law Notes
23
Impotence
Impotence is the inability to have sexual intercourse.
The marriage is voidable only if the one spouse proves that the other
was impotent BEFORE contracting the marriage and remains
impotent and he was unaware of the impotence at the time of the
marriage.
The impotent spouse can also apply for annulment provided he was
unaware of his impotence at the time of contracting the marriage.
The application won’t succeed if the plaintiff:

1. Was aware of the impotence.
2. Condoned it.
3. If the impotence was temporary or had a probable cure.
Sterility
What is the difference between sterility and impotence? Impotence is

the inability to have sexual intercourse. With sterility the party can
have sexual intercourse but is infertile.
There are 2 conflicting decisions regarding sterility. What was decided
in each case?
1. Van Niekerk v Van Niekerk: The mere fact of sterility
renders the marriage voidable.
2. Venter v Venter: Only fraudulent concealment of sterility
renders the marriage voidable.
Which view is preferable and why? Venter is preferable because it is

not the mere fact of sterility but the fact that he hid it which renders it
voidable.
This view was supported by the Constitutional Court in National
Coalition for Gay and Lesbian Equality v Minister of Home Affairs
The Putative Marriage
This is where one or both of the parties are unaware at the time of
contracting the marriage of the defect, which renders their marriage
void and believe in good faith they were lawfully married.
Such a marriage is void.
It is uncertain whether the marriage had to comply with all the other
formalities to be called a putative marriage.
1. Bam v Bhabha: The matter was discussed but not decided.
2. Moola v Aulsebrook: Due solemnisation is not a
requirement for recognition of a putative marriage.
3. Solomons v Abrams: Due solemnisation is required for
recognition of the putative marriage.

CLS cc ©
Family Law Notes
24
MOOLA V AULSEBROOK:
The applicant and her deceased husband had gone through a

marriage ceremony in accordance with Islamic rites by a priest who
was not a duly appointed marriage officer. Neither spouse was aware
that they had to be married by a duly appointed marriage officer. The
spouses lived together in monogamy from date of wedding until the
husband’s death. They had seven children. When the husband died it
was discovered that his will was invalid and his estate therefore had to
devolve intestate. The applicant applied for an order declaring the
children to be legitimate to enable them to inherit from their father.
(At that time extra marital children could not inherit from their father
in terms of the rules of intestate succession). The application was
based on the argument that the marriage between the children’s
parents was a putative marriage even though the statutory
requirements for solemnization of a marriage had not been complied
with. The application was granted. In this case the court had to decide
whether or not a putative marriage can come into existence if the
marriage was not duly solemnized.
At common law due solemnization was a prerequisite for a putative
marriage. There are however many cases which are authority for he
view 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 (ex parte anzar, ex parte l , ex parte soobiah, ex
parte Reynolds)
SOLOMONS V ABRAMS: - due solemnization as a requirement for a

putative marriage.
The parties entered into a Muslim marriage. There was no evidence

that they attempted or intended to comply with the requirements of
the marriage act. Nor did they make any attempt to establish what
those requirements were. They did not think that they had entered
into a civil marriage. The priest did not hold himself out as being
authorized to solemnize a civil marriage or as purporting to solemnize
such a marriage. The applicant sought an order declaring that the
union between the parties was putative civil marriage and that the
children born thereof were legitimate. The application was dismissed.
Parties did not think that the moulana was a marriage officer. Their
evidence is not that they thought that they had become spouses in a
civil marriage. There is no evidence of attempting or intending to
comply with the requirements of the marriage act.
The consequences:
Void ab initio
The court can’t declare a putative marriage valid as its VOID.
Children of the putative marriage:

These children are born of married parents

CLS cc ©
Family Law Notes
25
Both parents thus have full responsibilities and rights.
Patrimonial consequences:
If both parties bona fides at time of the marriage, and marriage was
concluded without an anc, they are then treated as having been
married in cop and have a joint estate.
If only one party was bona fides, the marriage will be treated as having
been in cop if this will be to the advantage of the bona fides party. In
terms of Zulu v Zulu, these rules don’t apply if the putative marriage
was entered into while either of the parties was a spouse in an
existing valid civil marriage in cop.
If the parties entered into an anc in which cop was excluded, the
marriage will be treated as being out of cop if this best serves the
interests of the bona fides party or both of them if they were both
bona fide.
ZULU V ZULU
This was an application for an order awarding the applicant a one-half

share of the estate of T Zulu (the deceased).
The applicant’s claim was based on the allegation that she was
married to the deceased in COP. There were two minor children born
of the marriage. The applicant submitted that subsequent to the death
of the deceased, she learnt that he was previously married to the
respondent. The respondent does not deny the marriage between the
applicant and the deceased but submitted that such marriage was
null and void. Both produced copies of their marriage certificate to the
deceased. The second marriage was therefore bigamous and void.
In the circumstances, the applicant claimed that the marriage

between herself and the deceased was a putative marriage and that
she was entitled to a one half share of his estate. Her claim was based
on the allegation that she entered into the marriage in good faith and
that the marriage was in COP. She further claimed that the intention
of the deceased and herself was to create a universal partnership.
The court found, that in the circumstances, there was no universal

partnership and no COP.
In our law where a spouse is induced to enter into a void marriage
when unbeknown to such a spouse the marriage is void, such a
spouse has a right to claim damages resulting from such an
inducement. The application was dismissed with costs.

CLS cc ©
Family Law Notes
26
INVARIABLE CONSEQUENCES OF A CIVIL MARRIAGE
Invariable consequences: these are the consequences of a marriage

which come into being automatically by operation of law and which
cannot be excluded by the parties to the marriage. The consequences
mainly concern the person of the spouses
Variable consequences: these are the consequences of a marriage

which can be agreed upon and / or be excluded beforehand by the
parties to the marriage, in an anti-nuptial contract. The consequences
mainly affect the estates of the spouses.
The meaning of “invariable consequences of marriage”
Some consequences of marriage come into being automatically by

operation of law (ex lege) and cannot be excluded by the parties.
Other consequences of marriage can be agreed upon and/or excluded
beforehand by the parties in an ante-nuptial contract.
Status of spouses
7 ways in which the status of the parties is changed by marriage:
1. Neither spouse may marry anyone else while still married.

2. The prohibition resulting from affinity continues even after the
marriage ends.
3. A right on intestate succession is created between the spouses.
4. Extra marital children of the couple are legitimated by the
marriage.
5. Both spouses are guardians of their children.
6. A spouses’ capacity to act is restricted if they are married in
Community of Property.
7. A minor becomes a major when he marries and stays a major
even if the marriage is dissolved.
Consortium omnis vitae
Marriage creates a consortium omnis vitae between husband and wife.
a) Grobbelaar v Havenga
“An abstraction comprising the totality of a number of
rights, duties and advantages accruing to the spouses of a
marriage”. This comprises companionship, love, affection,
comfort, mutual services and sexual intercourse.
b) Peter v Minister of Law and Order
The word is used as an umbrella term for all the legal
rights of one spouse to the company, affections and
support of the other.

CLS cc ©
Family Law Notes
27
Thus all the objects of the rights emanating from marriage can
collectively be grouped under the concept consortium.
A spouse cannot enforce his right to consortium, and his only
recourse is divorce (i.e. divorce the spouse because he is not been
given love, affection, etc).
Wiese v Moolman = a broad indefinable concept with a nevertheless
well understood meaning.
The relationship between the consortium, the right to family life and
the right to dignity: although the constitution doesn’t expressly
protect the right to family life, the CC in Dawood held that the right to
dignity encompasses and protects the rights of individuals to enter
into and sustain permanent intimate relationships. In Booysens, the
CC applied the decision in Dawood.
Reciprocal maintenance
Duty of Support
From its beginning until its termination, marriage imposes a

reciprocal duty of support on spouses, provided the spouse who
claims maintenance is in need of maintenance and the spouse from
whom it is claimed is able to provide it.
Both spouses must maintain each other. The duty applies to both in
proportion to their individual means. If both have means, they must
contribute pro rata towards the maintenance and running of the joint
household.
3 requirements:
1. Valid marriage.
2. Person claiming it must need it.
3. Person from who claimed must be able to provide it.
Reyneke v Reyneke: H became unable to work and received a lump

sum disability payment. H then intentional impoverished himself to
frustrate his wife’s claim for maintenance. Her application for
maintenance was discussed because H was unable to pay.
If one spouse claims maintenance and the other can’t pay, the claim
for maintenance will fail.
The duty applies not only to the husband but to both spouses in
proportion to their means.
Maintenance includes provision of accommodation, clothing, food,
medical services and other necessaries.
The extent of the duty is determined by the social status of the
parties, their means/income and the cost of living.
If a creditor wants payment, where must payment come from?
i) The parties are married in community of property. Joint Estate.

CLS cc ©
Family Law Notes
28
ii) The joint estate is insufficient.

If one or both possesses assets which do not form part of the
Joint Estate, debts can be recovered from such assets on a pro
rata basis.
iii) The parties are married out of community of property.
From the spouse who incurred the debt.
Spouses are jointly and severally liable for debts incurred by either of
them for household necessaries.
The question arises whether a third party who provides items which
are required for one spouse’s maintenance can hold the other spouse
liable on some other ground.
Two other possible grounds have been suggested:
Negotiorum gestio and undue enrichment.
o Undue enrichment arises if one person obtains a patrimonial
advantage at the expense of another, in the absence of a
recognized legal ground justifying the enrichment.
o Negotiorum gestio refers to the situation where one person
promotes the interests of another without his consent.
However, because negotiorum gestio requires the third party to act
with the specific intention of promoting the interests of the spouse
who is obliged to pay maintenance, this ground will seldom be used.
Instead, undue enrichment will be relied on.

Duty of support terminates on death or divorce.
However, in terms of the Divorce Act, the court granting the divorce
can grant an order for maintenance to be paid after divorce.
Similarly, in terms of the Surviving Spouse Act, a surviving spouse
can be maintained out of the estate of his deceased spouse.
Where the marriage still exists, the duty of support may be terminated
only if the spouses no longer live together and if the spouse who
claims maintenance is the one who causes the separation.
If the separation is due to H’s fault, his obligation to maintain W
remains.
If the parties reached mutual agreement to live apart, W is entitled to
receive maintenance.
If the separation is due to fault on W’s part, she loses her right to
maintenance.
The duty of support can be enforced in the High Court or in the
Maintenance Court, regardless of whether the parties are married in
or out of community of property.
In Bannatyne: when the parties were divorced, the settlement

agreement provided for payment of maintenance to the wife and
children, and the husband undertook t keep the children on his
medical aid. The husband did not pay maintenance regularly and
removed the children from the medical aid. The husband applied to

CLS cc ©
Family Law Notes
29
the maintenance court for a reduction order, which was granted,

replacing the High Court order. When the husband again fell into
arrears, the wife applied for a contempt of court order in the High
Court. It was refused. The wife applied to the constitutional court for
the contempt order on the grounds that the High Court had neglected
to take into account the children’s constitutional rights (what was in
their best interests).
The court granted her special leave and also upheld her appeal
against the High Court.
This decision is to be welcomed as it shows the serious light in which
the Constitutional Court views non-compliance of maintenance
orders.
BANNATYNE V BANNATYNE –enforcement of a maintenance order.
When the parties were divorced in the Pretoria high court in 1999, a
settlement order providing for the payment of maintenance to the wife
and the children was incorporated into the decree of divorce. The
husband also undertook to retain the children on his medical aid
scheme and to pay their reasonable medical expenses. The husband
did not pay maintenance regularly. Towards the end of 1999 he
obtained a reduction of maintenance in the maintenance court. The
order of the maintenance court replaced the order of the high court.
the husband again fell into arrears. He further removed the children
from his medical aid scheme and refused to pay their medical
expenses. The wife repeatedly approached the maintenance court for
enforcement of the maintenance order. 2 writs of execution were even
issued but failed to produce any money. The wife then approached the
high court for an order committing the husband to prison for
contempt of court for failing to comply with a maintenance order
which had been made at the time of their divorce. The HC committed
the husband for contempt of court but this was not a competent order
as the order which had been made at the time of the parties divorce
had ceased to be of force when the maintenance court order replaced
it. The husband appealed to the supreme court of appeal, which held
that the wife had not established factual and legal grounds for the
granting of a contempt order. The wife applied to the CC for special
leave to appeal on the ground that the SC of appeal had failed to take
section 28(2) of the constitution of RSA into consideration. This
section requires that the best interest of the child be given paramount
in all matters affecting the child. The CC granted the wife special
appeal and also upheld her appeal against the order of the SC of
appeal.
The cc 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 defective.

CLS cc ©
Family Law Notes
30
Purchase of household necessaries
Although the duty of support in many instances overlaps the duty to

contribute to household necessaries, it differs in other respects from
that duty.
Litigation costs (duty of support) are not household necessaries.
Food and veterinary services (household necessaries) are not part of
duty of support.
Things which are both household necessaries and which fall into the
duty of support are accommodation, food, clothing, medical and
dental services.
The spouses have the same rights as far as purchasing household
necessaries is concerned, regardless of the matrimonial property
system that operates in the marriage.
As we stated earlier the spouses are jointly and severally liable for
household necessaries irrespective of which spouse was the
purchaser.
Thus, it is still important to determine whether a particular item is a
household necessary.
i.e.
i. If they are married out of community of property, the
purchasing spouse binds himself and the other spouse.
ii. If they are married in community of property the purchasing
spouse binds himself and the joint estate.
If the item is not a household necessary only the spouse who incurred
it is liable for the debt, unless the party can rely on undue enrichment
or negotiorum gestio.
The requirements for capacity to purchase household necessaries:
(1) There must be a valid marriage.

(2) There must be a joint household.
(3) Item purchased must be a household necessary.
The basis on which one spouse can bind the other is contractual
(Excell v Douglas)
If one of these requirements is not present, the one spouse cannot
bind the other in contract for household necessaries.
The 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 the basis of liability will no longer be one
spouse’s capacity to bind the other in contract.
However, the spouse may be liable on some other basis (undue
enrichment or negotiorum gestio).

CLS cc ©
Family Law Notes
31
Two requirements for negotiorum gestio:
1. The shopkeeper (gestor) must have intended to promote the

interest of the other spouse.
2. The shopkeeper must not have acted against the express
prohibition of the spouse.
The dealer provides goods on credit to the wife after termination of the
joint household. The dealer is actually fulfilling the other spouse’s
duty of support.
If the spouse who is liable for support forbids the trader from
providing goods on credit to his spouse, negotiorum gestio, cannot be
used. The trader can still sue the spouse, but it will be on the basis of
undue enrichment.
The trader provides goods on credit to the spouse, which goods are
required for his maintenance; the spouse is being enriched by not
paying the trader for goods he would have had to buy.
(1) If the parties no longer live together, the basis on which a

spouse binds the other spouse is no longer contractual, but
rather on the basis of duty of support (Excell v Douglas).
(2) If the husband caused the break-up, or they parted
amicably, the wife can still bind the husband’s credit and the
trader can sue him on negotiorum gestio or undue
enrichment, depending on the facts.
(3) If the wife caused the break-up, the husband cannot be sued
by the trader for goods bought by his wife.
(4) If the article bought is not a household necessary, the parties
are not jointly and severally liable. Only the spouse who
entered into the contract is liable.
Household necessaries are the everyday items which are necessary to

housekeeping.
Practices and customs of area, social status of family, income of
family, standard of living.
What may be a household necessary for one family may be a luxury
item for another.
The problem is which approach to take to these factors
(subjective/objective).
EXCELL V DOUGLAS – liability for household necessaries when there

is no joint household.
The defendant and his wife are married in community of property.

They agreed to apart. For the duration of the separation, the husband
paid his wife an allowance. In 1923 a court ordered him to pay his
wife 20 pounds per month. A number of years after their separation,
the wife bought clothes on credit. When she refused to pay for the
gods, the storekeeper demanded payment from the defendant. He

CLS cc ©
Family Law Notes
32
denied liability on the ground that the spouses were living apart and
that he was paying his wife a monthly allowance. The court a quo held
that a husband is indeed liable for household necessaries his wife
buys while they are living apart, owing to an agreement between them.
The defendant appealed against this decision. The appeal was upheld.
The question as to when and how far a wife can bind her husband by
her contracts is dealt with by a large number of roman Dutch law
writers, and has often been discussed in our courts.
This case deals with the basis of ones spouses’ liability for goods the
other spouse purchased on credit while there was no common
household between them. One spouse has the capacity to bind the
other and, if the marriage is in cop, the joint estate, for household
goods only if 3 requirements are met: there must be a valid marriage
between the parties, the parties must share a joint household, the
transaction in question must relate to household necessaries.
As was pointed in this case once the joint household comes to an end,
one spouse can no longer bind the other spouse in contract for
household necessaries – one of the requirements for contractual
liability is absent, namely joint household.
The objective approach:
The court weighs up all the relevant facts of the case to determine,
whether according to THAT family, in light of their social standing etc
the article is a household necessary. Therefore it is irrelevant what
the trader knew. The spouse will be liable to the trader.
The spouse is liable despite notification to the trader.
If the family already has an adequate supply of the article, then it’s no
longer a household necessary and the spouse is not liable for
payment.
The subjective approach:
The court views the matter from the trader’s point of view and only
takes into consideration the facts that the trader was aware of or
which he could reasonably have been expected to be aware of.
Here it is irrelevant whether the family already has a sufficient

supply of the household necessary. Also, if the spouse has notified
the trader that his wife can’t bind his credit, the trader can’t sue the
spouse.
There is doubt as to which approach will be followed in practice, but

the subjective approach is more favourable to the trader and should
therefore be used.
The court in Reloomel v Ramsey followed the subjective approach.

CLS cc ©
Family Law Notes
33
In Reloomel the husband was a reasonably well-off doctor. His wife

bought dress fabric for a number of silk dresses. The court found that
in view of their standard of living, the dresses were household
necessaries.
There are several defences available to the spouse who is sued for the
price of household necessaries.
1) The court has revoked the wife’s capacity to bind the

husband’s credit. This is a valid defence. Thus he is not
liable. That would be where the court has declared her a
prodigal
2) The husband says he has revoked his wife’s capacity. He
cannot do this (e.g. he has notified the trader that she no
longer can buy goods on credit). If the court adopts the
subjective approach, the husband can’t be sued. It the court
adopts the objective approach; the husband can be sued
despite the notification.
3) The husband says he has made sufficient funds available to
his wife. It the objective approach is followed, the defence
will succeed. If the subjective approach is followed (as was
in Reloomel v Ramsay), it is irrelevant that the husband has
made sufficient funds available. He will be liable.
In Reloomel v Ramsay the court used the subjective approach in terms

of which the question is viewed from the perspective of the trader.
According to this approach the court looks at the facts of which the
trader was aware or should reasonably have been aware. If the
subjective approach is applied and a wife, for example, buys a pair of
shoes for her husband while he already has more than enough shoes,
the shoes will still be viewed as household necessaries if the trader did
not know of the abundant supply of shoes.
Alternatively, the court can adopt the objective approach. In terms of
this approach the trader's knowledge of the spouses' circumstances is
ignored. The court merely looks at the couple's social background and
status, their standard of living, the customs in the area where they
live, their means and the existing supply of items in the household,
without paying any attention to what the trader knew about these
factors. Looking at the example above, the objective approach would
mean that it would be totally irrelevant whether or not the trader
knew that the husband already had more than enough shoes. The
objective approach was applied in Voortrekkerwinkels (Ko-operatief)
Bpk v Pretorius. In this case the court decided that the husband
would not be liable if he could show that there was already an
adequate supply of the specific commodity in the house.

CLS cc ©
Family Law Notes
34
RELOOMEL V RAMSAY: liability for household necessaries
Dr ramsay and his wife were married out of cop. Dr ramsay went to
England and left his wife and children behind in Potchefstroom. There
was no disagreement between the spouses and they were therefore not
separated in the legal sense. Dr Ramsay gave his wife a very meager
allowance of 15 pounds per month while he was away. During his
absence his wife exceeded her allowance. On Dr Ramsay’s return, the
plaintiff demanded payment for the debts Mrs Ramsay had incurred.
Dr Ramsay refused to pay. He averred that the goods that the plaintiff
had supplied to his wife were not household necessaries that his wife
had had no right to pledge his credit, and that as their marriage was
out of cop he was not liable for debts she incurred. The court a quo
allowed the plaintiffs claim in respect of several items but refused to
allow his claim for payment for silk and other fabric, as it did not
consider them to be household necessaries. The plaintiff appealed
against this decision. The appeal was upheld and Dr Ramsay was
ordered to pay for the dress fabric as well.
In this case the court inter alia set out how one should determine
whether a particular item is a household necessary. The court
emphasized that factors such as the spouses standard of living ,their
means, the customs of the people in their area and so forth must be
considered. The subjective approach was used in terms of which the
matter is viewed from the prospective of the dealer. In terms of the
subjective approach the court looks at the facts of which the dealer
was aware or should be reasonably aware. It held tat ,because the
dealer did not even know that Dr Ramsay was away it was irrelevant
that Dr Ramsay had given his wife money so that she did not have to
buy on credit.
Court held that one spouse cannot limit regarding necessary
household expenses others capacity to buy household necessaries on
credit by making funds available to him or her with which household
necessaries must be bought. The facts in this case were viewed from
the third parties point. . Subjective approach test used ,the matter is
viewed from the dealers point of view and considers only the facts of
which the dealer was aware of which he or she could reasonably have
been expected to be aware. Subjective approach affords better
protection to third parties.
The Matrimonial Home
During the subsistence of the marriage, both spouses are entitled to

live in the matrimonial home, and use the household assets
irrespective of whether they are married in or out of community.
The owning or renting spouse may not eject the other spouse from the
matrimonial home without providing him with suitable alternative
accommodation.
Nor may the spouse eject the owning or renting spouse.

CLS cc ©
Family Law Notes
35
Marital guilt and the interests of the children play a role.

A spouse who is subjected to or threatened with domestic violence can
invoke the provisions of the Domestic Violence Act to prevent the
other spouse from entering the matrimonial home.
Parental Responsibilities and Rights
Both parents are equal guardians over their children born of married
parents.
Thus the mother and father share parental responsibilities and rights
over the child.
Donations between spouses
At common law spouses were prohibited from making donations to

each other.
Section 22 of the Matrimonial Property Act has changed that.
Spouses can now make donations inter partes.
However, spouses married in community of property can still not
make donations to each other, unless the donor spouse donates one of
his separate assets to the other spouse, subject to the provision that
the donation must be excluded from the joint estate.
The reason for this is that spouses married in community share
everything and a donation by one to the other will simply fall back into
the joint estate.
Section 22 is retrospective in nature.

CLS cc ©
Family Law Notes
36
POSSIBLE QUESTIONS
Answer the following questions regarding void, voidable and

putative marriages:
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).
Void marriage Voidable marriage

A void marriage is one which has A voidable marriage remains in
simply never come into existence force and has all the normal
and the position is thus exactly as consequences of a valid marriage
it would have been had the until it is dissolved by a court
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 A voidable marriage must be
void marriage should be declared annulled by a court order. The
void by the court. The order is decree is compulsory
merely declaratory
Aside from certain statutory A voidable marriage has all the
exceptions, a void marriage does normal consequences of a valid
not have the legal consequences marriage
of a valid marriage
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.
In Van Niekerk v Van Niekerk 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 it was held that it is not the
mere presence of sterility which renders the marriage voidable, but
the fraudulent concealment thereof.
Unisa prefer the approach in the Venter case.
What is understood by the term “putative marriage”? Explain
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 were lawfully
married.
Discuss Ex Parte Dow.
See above

CLS cc ©
Family Law Notes
37
What is meant by the “consortium omnis vitae”?
Marriage creates a consortium omnis vitae between husband and wife.

a) Grobbelaar v Havenga
“An abstraction comprising the totality of a number of rights,
duties and advantages accruing to the spouses of a
marriage”. This comprises companionship, love, affection,
comfort, mutual services and sexual intercourse.
b) Peter v Minister of Law and Order
The word is used as an umbrella term for all the legal rights of
one spouse to the company, affections and support of the
other.
Thus all the objects of the rights emanating from marriage can
collectively be grouped under the concept consortium. A spouse
cannot enforce his right to consortium, and his only recourse is
divorce (i.e. divorce the spouse because he is not been given love,
affection, etc). Wiese v Moolman = a broad indefinable concept with a
nevertheless well understood meaning.
The relationship between the consortium, the right to family life and
the right to dignity: although the constitution doesn’t expressly
protect the right to family life, the CC in Dawood held that the right to
dignity encompasses and protects the rights of individuals to enter
into and sustain permanent intimate relationships. In Booysens, the
CC applied the decision in Dawood.
Discuss the objective and subjective approaches regarding the

purchase of household necessaries.
Or
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
The objective approach: The court weighs up all the relevant facts of
the case to determine, whether according to THAT family, in light of
their social standing etc the article is a household necessary.
Therefore it is irrelevant what the trader knew. The spouse will be
liable to the trader. The spouse is liable despite notification to the
trader. If the family already has an adequate supply of the article,
then it’s no longer a household necessary and the spouse is not liable
for payment.
The subjective approach: The court views the matter from the trader’s
point of view and only takes into consideration the facts that the
trader was aware of or which he could reasonably have been expected
to be aware of.
Here it is irrelevant whether the family already has a sufficient supply

of the household necessary. Also, if the spouse has notified the trader

CLS cc ©
Family Law Notes
38
that his wife can’t bind his credit, the trader can’t sue the spouse.
There is doubt as to which approach will be followed in practice, but
the subjective approach is more favourable to the trader and should
therefore be used. The court in Reloomel v Ramsey followed the
subjective approach.
Briefly discuss Reloomel
Alternatively, the court can adopt the objective approach. In terms of
this approach the trader's knowledge of the spouses' circumstances is
ignored. The court merely looks at the couple's social background and
status, their standard of living, the customs in the area where they
live, their means and the existing supply of items in the household,
without paying any attention to what the trader knew about these
factors. Looking at the example above, the objective approach would
mean that it would be totally irrelevant whether or not the trader
knew that the husband already had more than enough shoes. The
objective approach was applied in Voortrekkerwinkels (Ko-operatief)
Bpk v Pretorius. In this case the court decided that the husband
would not be liable if he could show that there was already an
adequate supply of the specific commodity in the house.
May a spouse’s capacity to purchase household necessaries

unilaterally and without a court order be revoked by the other
spouse? Briefly explain.
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.
Explain what is understood by the term “voidable marriage” and

give one example of such a marriage.
A voidable marriage is a valid marriage although grounds are present

either before, or at the time of concluding the marriage, on the basis of
which the court can be requested to dissolve the marriage. The
party/parties concerned, therefore, has/have a choice whether or not
to bring an application for the annulment of the marriage.
Grounds upon which a voidable marriage may be set aside:
(1) Material mistake, serious misrepresentation, duress,
unlawful influence
(2) Minority

CLS cc ©
Family Law Notes
39
(3) Stuprum
(4) Impotence
(5) Sterility
Explain what is understood by the term “invariable consequence

of a marriage” and give one example of such a consequence.
The invariable consequences of marriage are those consequences of

marriage which come into being automatically by operation of law (ex
lege) and which cannot be excluded by the parties. The invariable
consequences mainly concern the person of the spouses.
Example: status of spouses, attaining majority, consortium omnis
vitae, maintenance/purchase of household necessaries, matrimonial
home, parental power, donations between spouses, family name,
husband – head of the family.
Explain with reference to case law (refer to only one court case)
what is understood by the term “consortium omnis vitae”.
In Grobbelaar v Havenga it was said that the consortium between

husband and wife is “an abstraction comprising the totality” of a
number of rights, duties and advantages accruing to the spouse’s of a
marriage. The totality comprises inter alia “companionship, love,
affection, comfort, mutual services, sexual intercourse – all of which
belong to marriage”.
Piet and Elsie, who are both currently 17 years old, were married
on 1 November 2007.
Because Piet and Elsie’s parents objected to the marriage and
they did not have the money to apply to the high court for
consent, they married without the necessary consent. They
agreed to be married out of community of property and loss and
expressly excluded the accrual system in their antenuptial
contract. Piet and Elsie were however recently informed that
section 24(2) of the Matrimonial Property Act 88 of 1984 (which
regulates the matrimonial property system of a minor’s marriage
which is not set aside), does not make provision for the
matrimonial property system they selected. Piet and Elsie now
approach you for advice on the correct position regarding their
matrimonial property system. Fully advise them, with reference
to the content of and implications of section 24(2) of the
Matrimonial Property Act as well as the various interpretations of
this section. You need not refer to the constitutional aspects
regarding this issue.
Section 24(2) of the Matrimonial Property Act 88 of 1984 provides that

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

CLS cc ©
Family Law Notes
40
and which has been executed with a view to such a marriage, is

deemed to have been validly executed.
Two possibilities are open to the minor, namely:
(i) community of property, if the parties did not enter into an
antenuptial contract and
(ii) the accrual system, if the parties entered into an antenuptial
contract which includes the accrual system.
Section 24(2) does not expressly deal with an antenuptial contract in
which the accrual is excluded.
Some are of the opinion that an antenuptial contract in which the
accrual system is excluded, will also be deemed to have been validly
executed. Their view is based on the wording of the first part of section
24(2), which deems the minor to have been of age when the marriage
was entered into. This suggests that effect should be given to whatever
matrimonial property system the spouses chose. In other words, in
terms of this interpretation the marriage would be out of community
of property excluding the accrual system.
Criticism of the above-mentioned interpretation: it renders the second
part of section 24(2) meaningless, which conflicts with the principle of
interpretation of statutes that the legislature is presumed not to make
meaningless enactments.
In order to give meaning to the second part of the section, the specific
inclusion of one implies the exclusion of the other could be invoked
and it could be argued that section 24(2) does not cover an
antenuptial contract in which the accrual system is excluded. This
would mean that the law has not been reformed in this respect and
that the antenuptial contract in which the accrual is excluded, is
invalid. Thus, the marriage would be in community of property. Also,
it could be argued that it is merely the clause which excludes the
accrual system from the marriage which is invalid. This would mean
that the marriage would be out of community of property but subject
to the accrual system.
The implication of the interpretation that exclusion of the accrual
system is impermissible is that the minor’s marriage cannot from its
inception be subject to complete separation of property.
The result is that the financial interests of only some minors who
married without consent and whose marriages are not set aside are
protected.
Which legal concept is used in our law to determine when a

marriage relationship is no longer normal? Give a description of
this concept and refer to case law in which the concept was
defined.
The legal concept consortium omnis vitae is used in our law to

determine when a marriage relationship is no longer normal.
This 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. The concept thus includes material and immaterial things.

CLS cc ©
Family Law Notes
41
In Grobbelaar v Havenga it was described as “an abstraction

comprising the totality of a number of rights, duties and advantages
accruing to the spouses of a marriage”, which inter alia comprises
companionship, love, affection, comfort, mutual services and sexual
intercourse.
In Peter v Minister of Law and Order the concept was used as an
umbrella word for all the legal rights of one spouse to the company,
affection, services and support of the other.

CLS cc ©
Family Law Notes
42
MARRIAGE IN COMMUNITY
There is a rebuttable presumption in our law that when two people are
married, they are married in community of property.
This presumption can be rebutted by proving:
1. The parties entered into a valid Ante-Nuptial Contract.

2. The parties entered into a valid notarial contract in terms of
which Community of Property is excluded (postnuptial)
3. If the husband is domiciled in a country where Community of
Property is not the automatic system.
4. When Blacks entered into marriage before 2 December 1988, it
was presumed to be out of Community of Property. Therefore
the position was the exact opposite to that which applied to
Whites, Coloureds and Indians.
The nature of universal community of property
The husband and wife become co-owners in undivided half-shares of

all the assets and liabilities they both possess at the moment of their
marriage, as well as of all the assets and liabilities acquired by them
stante matrimonio.
On marriage, the separate estates of the husband and wife are

automatically merged into one joint estate, which is administered by
the spouses concurrently.
All the liabilities incurred by the husband and wife must be paid out
of the joint estate.
At the termination of the marriage, all liabilities are settled from the
joint estate and the balance is the distributed equally between the
husband and wife.
Confirmed in De Wet v Jurgens.
Although there is only one joint estate, the parties may own
separate property which does not fall into the joint estate.
DE WET V JURGENS – the nature if the spouses liability for their

joint debts
The respondent was married in cop. Her husband committed adultery

with Ms Shaw. Ms Shaw’s conduct affected the respondent to such an
extent that she had to received ate claimed medical treatment. With
her husbands consent (which was necessary), the respondent claimed
for damages for personality infringement and medical expenses from
Ms Shaw. The respondent’s husband was declared insolvent before
the damages were paid to the respondent. When the amount was
eventually paid, the trustee of the insolvent estate claimed it, as he
contended that it fell into the insolvent estate. The trustee argued that

CLS cc ©
Family Law Notes
43
the respondent was an insolvent because her husband was an

insolvent and that the damages therefore fell into the insolvent estate.
The court a quo held that the respondent was an insolvent but that
the damages did not fall into the insolvent estate as the amount was
excluded in terms of section 23(8) of the insolvency act. The trustee
appealed against this decision and his appeal was dismissed.
The appellant division held that spouses who are married in cop are
joint debtors in respect of joint debts. The same court had however
also held that the spouses remain separate debtors even though the
debt has to be paid out of the joint estate.
In Du Plessis v Pienaar, the creditors of both spouses married in

community can look to the estates of both spouses for recovery of a
joint debt. Thus, even the separate assets of a spouse can be
attached for joint debts.
The content of universal community of property
The joint estate consists of joint assets and joint liabilities.
Joint Assets
All the assets which the parties owned prior to the marriage as well as
all the assets which they obtain after the marriage form part of the
joint estate.
Because transfer of assets takes place automatically by operation of

law, no delivery or registration is necessary.
Certain assets do not however, form part of the joint estate.

(SEPARATE ASSETS)
1. Assets excluded by Ante-Nuptial Contract.
2. Assets excluded by will or donation
3. Assets subject to fideicommissum/usufruct.
4. Jocalia (engagement gifts).
5. Benefits under the Friendly Societies Act.
6. Non patrimonial damages.
7. Damages as a result of personal injury inflicted by the other
spouse
8. Costs in matrimonial action.
9. Proceeds excluded by the court in terms of the Prevention of
Organised Crime Act
10. Assets which replace separate assets.

CLS cc ©
Family Law Notes
44
Assets excluded in an ANC
The fruits form part of the joint estate unless also excluded in the anc.
Assets excluded by will or deed of donation (NB)
A third party can make a bequest/donation to a spouse subject to the

condition that the asset must not become part of the joint estate.
The fruits form part of the joint estate unless excluded as well.
An important question is whether the assets excluded from the joint
estate are protected against attachment for debts.
Creditors of spouses who are married in community of property can

look to the estates of both spouses for recovery of a joint debt.
The fact that a spouse owns separate assets does not affect the
ordinary right of a creditor to look to all the property of a debtor in
satisfaction of the debt.
If, for example, a testator excludes property from the heir’s joint
estate, the exclusion operates only as between the spouses and not as
against third parties. This means that ALL property of both spouses
falls into the insolvent estate if the spouses are sequestrated (De Wet v
Jurgens).
A spouse’s private creditors can attach his separate assets as well as
assets belonging to the joint estate, but if the joint assets are
attached, the spouse who did not incur the debts has a right of
recourse when the joint estate is terminated.
One spouse’s separate assets may not be attached for the other
spouse’s separate debts.
Assets subject to a fideicommissum or usufruct
Such property does not form part of the joint estate, but the proceeds
do form part of the joint estate.
A usufruct is a personal servitude that gives the usufructuary the

right to use the property of another, with the duty to eventually return
it to the lawful owner.
In a fideicommissum the testator leaves property to a person subject

to the duty of handing it over in full ownership to another person at a
certain time or upon the fulfilment of a certain condition.
Jocalia (small gifts)
Arrhae sponsilatiae (usually the engagement ring) and sponsilatia

largitas (small gifts made with a view to marriage) do not form part of
the joint estate.

CLS cc ©
Family Law Notes
45
Benefits under the Friendly Societies Act
Satisfaction recovered by a spouse
An amount received by a spouse for satisfaction for a delict does not

form part of the joint estate.
However, an amount received by a spouse for damages for patrimonial
loss, does form part of the joint estate.
Costs in a matrimonial action
If the husband and wife become involved in a matrimonial action

without the marriage being dissolved, an order as to costs in favour of
the wife does not fall into the joint estate.
Assets which replace separate assets
Where separate property is replaced by other assets, the substituted

assets remain separate property.
Proceeds excluded by the court in terms of the Prevention of

Organised Crime Act:
Both spouses rights to the property are forfeited to the State
(Mazibuko)
Joint liabilities
A marriage in community does not only result in community of assets,

but also community of liabilities.
All ante-nuptial debts and liabilities, as well as debts incurred stante
matrimonio form part of the joint estate.
In recent years, the SCA has favoured the view that the spouses are
joint debtors (Nedbank v Van Zyl).
The result of this view is that one spouse who is married in
community cannot stand surety for the other spouse’s debts because
these debts are joint debts and a person cannot stand surety for his
own debts.
NEDBANK V VAN ZYL:
The spouses were married in COP. Mrs Van Zyl entered into a written
contact of suretyship with the bank, in terms of which she bound
herself to the bank as surety and co-principle debtor for the
repayment, on demand of all moneys owed by her husband on
overdraft. Mr and Mrs Van Zyl divorced two years later. After the
divorce Mr Van Zyl defaulted on his obligations to the bank and all of
the banks attempts to recover the amounts from Mr Van Zyl were
fruitless. The bank then sued Mrs Van Zyl for the amount, interest
and costs on the basis of the suretyship. The court a quo held that

CLS cc ©
Family Law Notes
46
spouses who are married in community of property are co-debts in

respect of liabilities that bind the joint estate. Thus, they cannot
stand surety for each other’s debts. This was confirmed on appeal.
Ante-Nuptial Debts
Ante-Nuptial debts include all contractual and delictual debts of the

husband and the wife, as well as any maintenance obligations to
parents, sibling and child from previous marriages.
Contractual debts incurred during the marriage (stante

matrimonio)
If a spouse had capacity to incur the debt, the debts become joint
debts which can be recovered from the joint estate.
Delictual debts incurred (stante matrimonio)
Section 19 of the Matrimonial Property Act stipulates that when a

spouse is liable for the payment of damages or satisfaction, the
creditor can recover the amount from:
First from the separate property of the spouse who committed the
delict.
Secondly, if there is no separate property from the Joint Estate.
Provided that if damages are claimed from the joint estate, an

adjustment shall be effected upon the division of the joint estate in
favour of the other spouse.
If the joint estate is too small to make the adjustment, the spouse has
no remedy.
The separate assets of the spouse who committed the delict must first
be exhausted before joint assets can be seized.
Spouses married in community of property cannot sue each other for
patrimonial loss, but can sue each other for satisfaction for pain and
suffering.
However, Section 18 (b) creates an important exception by permitting
a spouse married in community to recover compensation for non-
patrimonial loss in respect of bodily injuries caused by the other
spouse.
If a spouse claims satisfaction from the other spouse, the money

comes from:
Firstly, from the separate assets of the spouse who committed
the delict. *If they are insufficient or there were no separate
assets, the amount is paid from the Joint Estate, but an
adjustment will take place when the Joint Estate is dissolved. *

CLS cc ©
Family Law Notes
47
The amount received by the injured spouse becomes part of her

separate assets.
The injured spouse still cannot claim damages for patrimonial loss
from the other spouse. This is so even if the other spouse has
separate assets from which the patrimonial damages can be
recovered.
Other separate debts incurred stante matrimonio
This includes criminal fines, and a spouse’s maintenance obligations.

At present the legal position is unclear.
Although Section 19 only covers delicts, it is submitted that Section
19 should be extended to cover separate debts of spouses married in
community of property as well.
In other words, a criminal fine should be recoverable from the joint
estate only if the guilty spouse has no or insufficient separate assets.

CLS cc ©
Family Law Notes
48
MARRIAGE IN COMMUNITY
ADMINISTRATION OF THE JOINT ESTATE
Equal Management of the Joint Estate
Marital power was abolished. Replaced by equal concurrent

management of the Joint Estate
The effect of the abolition is that is has done away with the
restrictions which marital power placed on the capacity of the wife to
contract and litigate.
A wife married in Community of Property has the same capacity, with
reference to the disposal of the assets of the Joint Estate, the
contracting of debts which lie against the Joint Estate and the
management of the Joint Estate as the husband had immediately
prior to the commencement of the Act.
This means the husband and wife now have equal powers to manage
the joint estate and incur debts.
However, Section 15 (1) provides:
A spouse married in Community of Property can perform any juristic

act with regard to the Joint Estate without the consent of the other
spouse except such juristic acts as are specifically excluded by the
Act.
Thus, there are certain acts which a spouse, may not perform without
the consent of the other spouse.
Each spouse’s capacity to act is thus restricted.
The difference forms of consent
4 Forms of consent:
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.
3) Written consent without any further requirements.
4) Oral or written consent.
1. Prior written consent, attested by two competent witnesses
This form of consent is necessary for

a) Transactions requiring registration in the deeds office, such as
transfer of immovable property which constitutes a part of the
Joint Estate, registration of mortgages or servitudes over
immovable property which is part of the Joint Estate.
b) Suretyship.
RATIFICATION is NOT possible.

Thus, written consent must be obtained beforehand.

CLS cc ©
Family Law Notes
49
2. Written consent, attested by two competent witnesses

a) Contracts for alienation or burdening with a mortgage of
servitude, a conferring of any other real right over immovable
property which constitutes a part of the Joint Estate.
b) Credit receipt according to a credit agreement.
c) A contract of sale in terms of the Alienation of Land Act for the
purchase of immovable property.
RATIFICATION is possible.
Thus, written consent from the other spouse can be obtained after the
juristic act.
3. Written consent without any further requirements

a) Alienation, cession or pledging of shares, stock, debentures,
bonds, insurance policies, mortgage bonds or similar assets and
any investment by or on behalf of the other spouse in a financial
institution.
b) Alienation or pledging of assets held mainly as investments and
which form part of the Joint Estate (e.g. jewels, coins, stamps
and paintings.
c) Withdrawing of money credited to the name of the other spouse
in any account in a banking institution, building society or post
office savings account.
d) Institution of legal proceedings.
RATIFICATION is possible.
Thus, written consent from the other spouse can be obtained after the
juristic act.
4. Oral or tacit consent
Oral or tacit consent must be given in the following cases:
a) Household effects
(I.e. Consent is required for alienation and pledging of furniture
or other effects of the common household, which form part of
the Joint Estate (e.g. fridge, washing machine).
b) Money
Neither spouse may received, without the other’s permission,
money which is owed to the latter and is derived from one of the
following sources

CLS cc ©
Family Law Notes
50
i) Remuneration in any form, including a bonus, pension or

gratuity for services rendered or derived from his profession
or trade.
ii) Income derived from the other spouse’s separate property.
iii) Interest and dividends on, or proceeds of shares,
investments, policies or annuities.
iv) Inheritance, donation, bursary or prize bequeathed, made or
awarded to the other spouse.
Donations
A spouse may not, without the other’s consent donate any asset from
the joint estate to anyone else, if this would unreasonably prejudice
the interests his marriage partner has in the estate.
What are the factors that must be taken into account to determine
whether a spouse’s interests in the joint estate will be unreasonably
prejudiced?
Value of the donation, the reason for making it, their standard of
living, their social and financial position.
Acts for which no consent is necessary
a. If the transaction concerned is performed by a spouse in the course

of his profession or trade (i.e. a contract to alienate his own
immovable property, receive credit, alienate shares, bind himself as
surety and institute legal proceedings).
b. Transactions on the stock exchange.
c. Transactions concerning deposits at banking institutions.
Protective measures in the Matrimonial Property Act in respect of

the administration of the joint estate
We look firstly at protection afforded to third parties and secondly at

protection afforded to spouses as between themselves:
1) When a spouse concludes a transaction with a third party

without the necessary consent.
2) When one spouse unreasonably withholds consent.
3) When one spouse prejudices the interests of the other
spouse in the joint estate in another way.
Protection of third parties
The third party does not know or cannot reasonably know, that
consent is required from the person’s spouse or that the requisite
consent has not been obtained (third part is bond fide)

CLS cc ©
Family Law Notes
51
Distiller’s Corp v Modiese: “cannot reasonably know” implies that

the matter must be considered from the point of view of the
reasonable person.
The consequence is that the transaction is valid and enforceable by

the third party in terms of Section 15 (9) (a) of the Matrimonial
Property Act. Consent is deemed to have been given.
If the third party is well aware that consent is required from the
person’s spouse and that this consent has not been obtained (third
party is mala fide)
Consequences: The Act is silent, but according to case law
(amalgamated Bank v Lydenherg and Bopape v Moloto) the transaction
is void. The consequence of this is that the spouse who had to
consent, can if asset belonging to the Joint Estate has already been
transferred to the third party, reclaim it from the third party.
Protection of spouses as between themselves
There are various remedies one spouse has against the other spouse.
Capacity to litigate
This is a person’s capacity to act as a party in a court case.
Section 17 (1) provides
A spouse married in Community of Property cannot institute

legal proceedings against another person or defend legal
proceedings instituted by another person without the written
consent of the other spouse.
The consequence of a spouse not complying with this section is that

the validity of the proceedings is not affected. The third party is
completely protected.
If costs are awarded against the spouse who instituted or defended
legal proceedings without the written consent of the other spouse, the
costs must be recovered from the separate property of the litigating
spouse.
If the separate property is not sufficient, costs can be recovered from
the Joint Estate and the court can order an adjustment to be affected
in favour of the innocent spouse upon division of Joint Estate.
When can a spouse institute or defend legal proceedings without the

consent of the other spouse?
1) In respect of his separate property.

2) For recovery of damages for non patrimonial loss due to a
delict committed against him.

CLS cc ©
Family Law Notes
52
3) In respect of any matter relating to his trade or profession.
In terms of Section 17 (4) an application for the sequestration of a

joint estate must be made against both spouses.
The application will not be dismissed if it is brought against one
spouse only, if the applicant satisfies the court that despite
reasonable steps, he was unable to establish whether the debtor was
married in community of property or the name and address of the
spouse.
Section 17 (5) provides which spouse should be sued when a debt is
recoverable from the joint estate.
In the Govender case the applicants were married in community of

property and wanted to conclude a contract with the respondent to
purchase immovable property from him. According to section 15(2)(b)
of the Matrimonial Property Act 88 of 1984 the other spouse’s written
consent attested by two competent witnesses is required by the
spouse who wants to conclude such a transaction. The first applicant
signed the agreement to purchase immovable property from the
respondent. Subsequently, the second applicant signed a counter-
offer that was made by the respondent, but the first applicant never
signed this second agreement (i.e. the counter-offer).
In their application the applicants relied on section 15(9) of the
Matrimonial Property Act 88 of 1984 to enforce the agreement with the
respondent. Section 15(9) of the Matrimonial Property Act protects a
bona fide 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 person’s spouse
had to consent to the transaction or that the necessary consent was
not obtained. In such an event the transaction is deemed to have been
entered into with the required consent. In this case the applicants
averred that the agreement was binding on the respondent
irrespective of whether or not he knew that consent was required from
both the applicants in order to enter into a valid agreement.
The court held that the legislature’s intention in enacting section 15(9)
was not to provide a weapon to spouses married in community of
property to enable them to enforce transactions against bona fide
third parties where the spouses themselves acted against the
peremptory provisions of section 15(2).
Bopape And Another v Moloto
The second plaintiff, who was married in community of property to the

first plaintiff, had, during an illicit relationship with the defendant,
made certain payments to the defendant. The plaintiffs instituted
action for repayment of those sums paid to the defendant on the basis
that they constituted donations which were invalid in terms of
s15(3)(c) of the Matrimonial Property Act 88 of 1984, which prohibited
donations made from the joint estate without the consent of the other

CLS cc ©
Family Law Notes
53
spouse. The defendant contended inter alia that the prohibition was
only effective as between the spouses and the aggrieved spouse had a
remedy, in that an adjustment in favour of the aggrieved spouse
would be effected upon division of the joint estate and, further, that
the fact that, in terms of s 15(4), consent could be given by way of
ratification indicated that the alienations could not be void ab initio for
want of consent.
Held, that there was not sound reason why an aggrieved spouse
should suffer prejudice pending the possible eventual division of the
join estate, which might or might not come about. It could also have
been prejudicial to an aggrieved spouse to seek a division of the joint
estate in terms of s 20 of the Act. To accommodate a lawful donation
or an alienation without value, the consent of both spouses was
required. When it was clear that such consent was absent, the
alienation could not be lawful. It followed of necessity that such
alienation was void.
Held, further, that the Legislature had merely provided for the manner
in which informal consent could be given. The particular juristic act
was incomplete without the consent of the other spouse and therefore
without any force or effect. Section 15(4) merely provided that the
juristic act could be completed by later consent. Once it was clear that
the required consent had neither been sought nor given, illegality
followed and the particular juristic act could not survive.
Held, further, that the moment the causa for the acquisition fell away,
it followed of necessity that the particular asset or assets had to be
returned whence it or they came, being the joint estate. The defendant
had no right to retain what she had received and the plaintiffs had
every right to recover it.

CLS cc ©
Family Law Notes
54
MARRIAGE OUT OF COMMUNITY
The purpose of the ante-nuptial contract
The purpose of the ante-nuptial 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.
The anc must be entered into before the marriage.
Requirements for the creation of a valid anc
If the formal requirements are not met, an ante-nuptial contract

entered into by the parties is valid as between themselves but invalid
against third parties and the marriage is considered to be in
community of property as far as the spouses’ debtors and creditors
are concerned.
The formal requirements as set out in Section 86 of the Deed

Registries Act are that:
It must be properly executed by a notary and registered in the Deeds

Office.
a) Section 87 provides, regarding an ANC executed in the Republics:
The Ante-Nuptial Contract executed in South Africa must be attested

by a notary and must be registered in the Deeds Registry within three
months of the date of its execution or within such extended period as
the court may on application allow.
To be valid as against third parties, the ANC must be notarially

executed and registered.
It is permissible for spouses who have definitely agreed prior to the
marriage to conclude an ANC, but who have not complied with the
formalities of notarial execution and registration, to have the contract
executed and registered after the marriage with the consent of the
High Court.
Section 88 sets out 3 requirements that must be met before the

High Court will grant consent.
These include:
1) The parties must definitely have agreed on the terms of the

Antenuptial Contract before entering into the marriage.
2) The parties must provide good reasons for their failure to properly
execute and /or register the Ante-Nuptial Contract.

CLS cc ©
Family Law Notes
55
3) The application must be made within a reasonable time after it

has been discovered that the agreement has not been properly
executed or registered.
The application in terms of Section 88 can be made by either one or

both of the spouses, or even a beneficiary under a will.
The Minor’s anc
In the first place, the minor himself must sign before the notary.
In addition, who are the different people that must assist the minor?
1) The consent of either parent is sufficient.

2) If sole guardianship has been awarded to one parent, only that
parent needs consent.
3) If both parents are deceased, the guardian.
4) If the High Court consents to marriage, it must consent.
5) If the presiding officer of the children’s court has consented to
marriage, he must assist the minor.
If neither the parents nor the guardian has consented to the ANC, it is
null and void and the court will not allow subsequent registration.
The contents of the anc
Any provision which is not contrary to the law, good morals or the
nature of marriage can be included in an anc (e.g. A provision in the
anc that they need not be faithful to each other or need not live
together).
The most important provisions which can be found in an ANC are:
Provisions concerning liability of spouses with regard to

household necessaries
Section 23(2) - each spouse is liable to contribute to necessaries for

the joint household pro rata according to his financial means.
Section 23(2)
i) As far as third parties are concerned, spouses married out of
Community of Property are joint and severally liable for any debts
in respect of household necessaries, irrespective of which spouse
originally incurred the debt.
ii) Amongst themselves, the spouses are obliged to contribute to
necessaries on a pro rata basis according to their means.
iii) A spouse married before the commencement of the Act has a
right of recourse against the other spouse in so far as he
contributes more that his pro rata share.

CLS cc ©
Family Law Notes
56
In marriages concluded after the commencement of the Act, the right

of recourse is abolished BUT spouses can agree in Ante-Nuptial
Contract that there will be a right of recourse.
Therefore, spouses may determine their liability towards each other

for household necessaries in the anc.
Succession clauses (pactum successorium)
Spouses can stipulate in the ANC, how their property is to be disposed

of after their respective deaths – one spouse heir of the other.
Such an agreement between living people as to the devolution of their
estates is called a pactum successorim.
A pactum successorim contained in an ANC is the only recognized valid
one recognized in our law today.
It can be altered later only by a joint will made by both spouses.
Marriage settlements (donations)
A marriage settlement is a donation which one spouse makes to the

other in terms of an anc.
Because the prohibition on donations between spouses married out of
community of property has been abolished, it is no longer necessary
for such donations to be made in an anc (e.g. husband donates the
house in which they are to live, to his wife).
The donation can be subject to a time clause or condition (e.g.
donation will be made when first child is born).
The donation can also be subject to a reversion clause.

In a reversion clause the donor stipulates an event upon which the
donation will revert to him (e.g. the donation will revert to the
husband if the wife predeceases him). NB for multiple choice!
Matrimonial property system
Main purpose of the ANC is to deviate from the automatic matrimonial

system of “in community of property”.
SYSTEMS:
Exclusion of community of property and profit and loss (complete

separation of property)
Since the Matrimonial Property Act came into operation, marriages

entered into in terms of an anc automatically include the accrual
system (new standard form anc)
Thus, if spouses do not wish for the accrual system to apply to their
marriage, they have to stipulate this expressly in the anc.

CLS cc ©
Family Law Notes
57
The effect of the old standard form anc the parties remain in the same
financial position as they were before the marriage. Each spouse
retains the estate he had before marriage as well as everything he
acquires during the marriage.
Each spouse has full capacity to act and can enter into contracts
without the other’s assistance.
The spouses are not liable for each other’s debts or delicts.
Exclusion of community of property with retention of community

of profit and loss
This means each spouse retains his premarital assets and each
remains liable for his premarital debts.
All profit and loss which arises after conclusion of the marriage
becomes joint and constitutes a joint estate of which each spouse
owns an undivided half share.
Parties married in community of property can enter into an anc.

CLS cc ©
Family Law Notes
58
THE ACCRUAL
The accrual system is applicable to all marriages out of community of

property entered into after the commencement of the Act, unless it is
expressly excluded in the ANC.
It is a type of postponed community of profit.
Although the spouses each have their own separate estate during the
marriage, the spouse whose estate shows no or the smallest accrual
(growth) at the dissolution, may legally share in the accrual of the
other spouse’s estate.
Accrual system is an attempt on the part of the legislature to resolve

the disadvantages of the standard form anc.
Idea is that one spouse contributes financially and otherwise to the
growth of the other spouse’s estate and should thus, be entitled to
share in that spouse’s estate on dissolution of the marriage.
If parties were married out of community of property before 1
November 1984, the accrual system does not apply automatically to
their marriage.
If the parties do not want the accrual system to apply, the system
must be expressly excluded by the parties in their ANC.
The accrual system applies to the following marital systems:
1) Marriages concluded out of community of property and

community of profit and loss after 1 November 1984 where the
parties did not expressly exclude the accrual system in their
ante-nuptial contract.
2) Marriages where the spouses introduced the accrual system by
the execution and registration of a notarial contract.
3) Marriages where the spouses introduced the accrual system in
terms of a court order under Section 21 (1) of the Matrimonial
Property Act.
The meaning of the accrual system
Accrual claim: what one spouse has against another spouse (or the
estate of the other spouse) upon dissolution of the marriage for half
the difference between the accrual in the respective estates. - A
spouse’s claim to share in the accrual of the other spouse’s estate
arises only at the dissolution of the marriage, whereas the right refers
to the position during the marriage.
Accrual right: what the spouse has during the subsistence of the
marriage to share in the accrual of the other spouse’s estate. One
spouse’s right to share in the other spouse’s accrual eventually cannot
be transferred during the subsistence of the marriage, nor does it form
part of the insolvent estate of a spouse.

CLS cc ©
Family Law Notes
59
The accrual system can be described as a type of postponed

community of profit.
During the marriage, the marriage is out of Community of Property.

Each spouse retains and controls his own assets, and everything he
obtains during the existence of the marriage becomes a part of his
separate estate. BUT on dissolution of the marriage, the spouses
share equally in the accrual (i.e. the growth which the estate of each
spouse showed during the existence of the marriage)
The spouse, whose estate shows no accrual or the smaller accrual,

acquires a claim against the spouse whose estate shows the larger
accrual. The claim is for an amount equal to half the difference
between the accruals of the respective estates.
An accrual claim + ½ (larger accrual – smaller accrual).
The determination of the accrual
It is the amount by which the value of the spouse’s estate at the

dissolution of the marriage exceeds the value at the commencement of
the marriage (i.e. the difference between the net end value and the net
commencement value of each estate).
Net value means the value after all outstanding debts have been paid
and includes all amounts owed to the estate.
Certain assets are excluded from the accrual and their value is not
taken into account for determination of the accrual.
The calculation:
1) Determine the net end value of each estate separately. (Usually
given).
2) Determine the net commencement value of each estate. Subtract
this from net end value.
There are 3 ways of determining the net commencement value. They

are:
a. The party can declare the net commencement value of his
estate in the Ante-Nuptial Contract or declare it within six
months of concluding the marriage.
b. If such a declaration is not made, the value of the estate is
deemed to be zero.
c. If a party’s liabilities exceeded his assets at the
commencement of the marriage, the value of the spouse’s
estate is deemed to be zero.
The net commencement value of an estate must be adapted according

to the weighted average of the C.P.I. (x2)

CLS cc ©
Family Law Notes
60
3) Subtract from the net end value all assets which are excluded
from the accrual.
The following assets are excluded:

i. Any amount received as satisfaction (i.e. non patrimonial
loss).
ii. Any assets excluded in the Ante-Nuptial Contract. Assets
which replace these assets are also excluded.
iii. Any inheritance, legacy or donation from a third party.
Assets which replace such assets are also excluded.
iv. Donations between spouses inter vivos.
4) Once the accrual of the spouse’s separate estates has been

determined, establish which spouse’s estate has the smaller or
no accrual and determine his claim by:
i. Subtracting the smaller accrual from the larger accrual.
ii. Dividing the difference by two in order to determine what
half the difference is.
Protection of a spouse’s right to share in accrual
Sometimes one spouse uses his assets during the marriage in such a
way that the other spouse will be prejudiced.
Section 8 (1) of the Matrimonial Property Act provided that where one
spouse seriously prejudices the other spouse’s right to share in the
accrual, the prejudiced spouse can do the following:
Apply to the High Court for the immediate division of the accrual.
The court will only order such a division if it is satisfied that no other
person will be prejudiced.
Section 8 (2) provides that:

If the court orders such a division, it also has the discretion to order
that the marriage will not in future be subject to the accrual system,
but will be subject to complete separation of the property.
If the court does not so order, it means the accrual system continues
to apply, but a new accrual comes into being.
Besides this statutory remedy, there are also several common law
remedies.
1) Interdict
The purpose is to prohibit a spouse from donating his estate or a
substantial part thereof to a third party.

CLS cc ©
Family Law Notes
61
2) Actio Pauliana utilis

The purpose of the actio pauliana - where one of the spouses has
already transferred his assets to a third party with fraudulent intent
of prejudicing the other spouse, it is possible that the prejudiced
spouse can reclaim the property from the third party.
Satisfaction of the accrual claim

A party can find that at the assessment of the accrual he is not
financially able to transfer such a large amount of cash.
Section 10 provides that the court may, on application of such
spouse, order that payment be deferred.
The determent may be granted on such conditions as the court deems

just. Examples:
Payment in monthly instalments. Transfer of assets in lieu of money.

CLS cc ©
Family Law Notes
62
ALTERATION OF THE MATRIMINONIAL SYSTEM
The principle of immutability:
“Principle of immutability” means unchangeability, it means after the

conclusion of the marriage, the matrimonial property system chosen
by the spouses remains fixed and cannot be changed during the
subsistence of the marriage.
However, the position has been relaxed by Section 21 of the

Matrimonial Property Act, and it is now possible to change the
matrimonial property system that applies to the marriage.
Court Sanctioned Alteration of the Matrimonial Property System

in terms of Section 21 (1) of the Matrimonial Property Act
Section 21 (1) provides:
H & W may jointly apply to the court for leave to change their
matrimonial property system from whatever it is to whatever they
want it to be.
The court may grant consent to such change in any kind of marriage
contracted before or after the commencement of the Act.
Thus, it does not matter if they were married in or out of community
or before or after the Act.
The parties have to set out the proposed new system in a notarial
contract and the court has to approve this. (They must attach this
notarial contract to their application, in which they set out the
proposed system).
Example: if they were married in community, they can change to
complete separation or out of community with accrual.
One spouse cannot apply for variation of the Matrimonial Property
System.
Requirements:
1. There must be sound reasons for the proposed change.

2. Sufficient notice of the proposed change must be given to all the
creditors.
3. No other person must be prejudiced by the proposed change.
o Sound reason will depend on the facts and circumstances of

each case.
o Ex Parte Kros: The parties asserted that they had been
ignorant about the consequences of the matrimonial property
system (marriage in community) when they entered into the
marriage and that it was only after the marriage that they

CLS cc ©
Family Law Notes
63
realized that a marriage out of community would suit their

circumstances much better (GRANTED).
o Ex Parte Engelbrecht: The parties agreed before the marriage
that they would be married out of community but did not
enter into an ante-nuptial contract as they were under the
impression that the could simply tell the marriage officer of
their intention. When the marriage officer told them that
such a declaration of intent was not sufficient, they decided
to go ahead with the marriage as all the arrangements had
already been made (GRANTED).
o Ex Parte Coetzee et Uxor: The parties had concluded an ante-
nuptial contract from which community of property was
excluded on the insistence of the bride’s father, which they
themselves foresaw that their marriage could be unhappy
unless they were married in community of property on a
“share and share alike” basis (GRANTED).
o Ex Parte Burger: The spouses who were married out of
community of property without the accrual system, desired
that the accrual system apply to their marriage to ensure that
the wife be given a fair share of the growth of the husband’s
estate on dissolution of the marriage (GRANTED).
o From the cases that have come before the courts, it appears
that the courts readily find that the requirement of sound
reasons has been met.
4. Notice.
5. The financial position of the parties (set out their assets and
liab’s)
6. Sound reasons
7. Absence of prejudice
8. Domicile and residence.
It is not clear whether the courts can authorise an alteration of

the matrimonial property system with RETROSPECTIVE effect:
This means: the matrimonial property system is changed, not from the
date of the court order, but from the date of the marriage. Therefore
the change applies in respect of the past as well. Ex Parte Kros – was
possible.
Ex Parte Oosthuizen – was not possible.
In Kros: the applicants applied in terms of Section 21 (1) for their

property regime to be changed from in community of property to one
out of community of property with retrospective effect. Their reason
was that they had been ignorant about the legal position when they
entered into the marriage and they had not sought legal advice on the
implications and consequences of a marriage in community of
property. If they had known the implications, they would not have
married in community of property. The application was granted.

CLS cc ©
Family Law Notes
64
In Oosthuizen: the applicants applied in terms of Section 21 (1) to

have their matrimonial property regime changed from being in
community of property to complete separation of property with
retrospective effect. Retrospective alteration of the matrimonial
property system is impermissible. The application was dismissed.
Although Ex parte Oosthuizen is more in keeping with the wording of

Section 21 (1). Ex parte Kros is preferred, because it introduces
flexibility.
In Burger, the spouses applied to change their matrimonial property
regime from being out of community of property, to the accrual
system, with effect from the date of their marriage.
EX PARTE KROS – application in terms of section21 (1) of the

matrimonial property act.
The applicants applied in terms of section 21(1) of the matrimonial

property act for permission to change their matrimonial property
system from cop to separation of property with retroactive effect. They
were married in 1982 and one child was born of marriage. The wife
also had a child from a previous marriage. As reasons for the
proposed change, the applicants indicated that they had been
ignorant about the legal consequences of cop. Had they known what
those consequences and implications were, they would have not
married in cop. The wife intended to leave one third of her estate to
her husband and the balance to her children. This she could not do if
the matrimonial property system was not changed. Furthermore the
husband intended to start his own business, which could jeopardize
the assets the wife had brought into the joint estate, since they could
be attached should the business fail. The application was granted.
It should be borne in mind that it is no longer possible to introduce
the accrual system by means of the registration of a notorial contract
in terms of section 21(2) of the act.
EX PARTE OOSTHUIZEN – application in terms of section 21(1) of the

The applicants were married in cop. They subsequently applied in

terms of section 21(1) of the matrimonial property act for permission
to change their matrimonial property system from cop to separation of
property with the retroactive effect. The application was dismissed.
EX PARTE BURGER - application in terms of section 21(1) of the

The applicants were married out of cop in 1970. They later applied in
terms of section 21(1) of the matrimonial property act for leave to

CLS cc ©
Family Law Notes
65
introduce the accrual system as from the date of their marriage. The
order was granted. The judge was satisfied that A proposed action. He
was satisfied that sound reasons for the proposed change were given.
The one applicants assets exceed his liabilities by 3.2 million whereas
his spouses assets exceed her liabilities by r125 000. plainly therefore
the parties desire to ensure that in the event of dissolution of the
marriage the second applicant is accorded a fair share of the amount
by which the first applicants estate has appreciated in value since
they were married.
When spouses what to introduce the accrual system in terms of

Section 21 (1), the accrual system is based on the growth of each
spouse’s estate from the moment that the marriage is concluded until
the time the marriage is dissolved. This is the normal basis of the
accrual system. Therefore, the spouses must introduce the accrual
system from the date of the marriage. They cannot introduce it only
from the date of the Section 21 (1) order.
Concluded that because the spouses would merely be conforming to

the normal basis of the accrual system by introducing it from the date
of the marriage, this would not be introducing the accrual system with
retrospective effect.
The judge’s finding that the change does not occur retrospectively is
incorrect. If the change operates from the date of the marriage it is
with retrospective effect.
UNISA prefer the decision in Kros because it is more in keeping with
the spirit of the Matrimonial Property Act.
Extra-judicial alteration of the matrimonial property system
Spouses can change their matrimonial property system without going

to court with a Section 21 (1) application and implications:
(I.e. can the spouses merely enter into a contract in terms of which
they change their property system inter partes)?
Issue came before the court in Honey v Honey, where the court held
that parties cannot change their matrimonial property system in an
informal way.
HONEY V HONEY:
The parties concluded an ante-nuptial contract prior to the marriage,

which was notarially executed and registered in the deeds registry. A
few years after the marriage, the parties entered into a further written
agreement which was notarially executed but not registered in the
deeds registry and not entered into with the leave of the court in terms
of Section 21 (1). The contract purported to cancel the ANC concluded
before the marriage. The wife then sued the husband for divorce. The

CLS cc ©
Family Law Notes
66
court held that the agreement was void and unenforceable as between
the parties inter se as well as against third parties.
The view that the postnuptial contract between the spouses is void
because of Section 2 is incorrect, as Section 2 only deals with the
position when spouses are entering into an ante-nuptial contract.
Although it is clear that changes by the spouses inter se cannot bind
third parties, why should spouses who are married out of community
not be permitted to enter into a contract which is binding only as
between them.

CLS cc ©
Family Law Notes
67
POSSIBLE QUESTIONS
Mr and Mrs Tinkie are married out of community of property

subject to the accrual system. Their antenuptial contract has
been registered in the deeds registry. Two years after their
wedding they entered into a further contract, which was
notarially executed but not registered in the deeds registry,
neither was it concluded with leave of the court according to
section 21(1) of the Matrimonial Property Act 88 of 1984.
According to this second contract the accrual system was
excluded from the date of the parties’ wedding. Last year Mrs
Tinkie sued Mr Tinkie for a divorce. In her application Mrs Tinkie
relied on the postnuptial contract. Discuss critically with
reference to the relevant authority, whether this postnuptial
contract will be recognised by the court.
The facts are similar to those in Honey v Honey.

According to this case, spouses cannot change their matrimonial
property system without the court’s intervention even if they are
married out of community of property. The court held that the
contract was invalid and unenforceable between the parties as well as
against third parties because the immutability principle renders void
all postnuptial variations by the spouses of their matrimonial property
system which are not authorised by the court in terms of section 21(1)
of the Matrimonial Property Act. Unisa do not support this decision.
The court incorrectly relied on section 2 of the Matrimonial Property
Act. This section deals only with the position when spouses enter into
an antenuptial contract.
This section does not deal with postnuptial exclusions of, or
alterations to the accrual system. The changes by the spouses inter se
to the matrimonial property system cannot bind third parties. In the
past the immutability principle did not prohibit spouses who were
married out of community of property from entering into transactions
which had the effect of varying their matrimonial property system
between themselves.
They could for example enter into a universal partnership.
A universal partnership has an effect on the division of the spouses’
matrimonial property. No third party can be prejudiced by such an
agreement if it is binding only between the parties.
Mr and Mrs Kassim are married in community of property. Their

joint estate is currently worth R50 000. Mr Kassim has private
assets to the value of R10 000, while Mrs Kassim’s private assets
are worth only R6 000. During a cricket match their son
participated in over the weekend, Mrs Kassim insulted the
referee, Mr Grump. Mr Grump, who is also married in community
of property, now sues Mrs Kassim for R10 000 satisfaction for the
insulting remarks she made against him.

CLS cc ©
Family Law Notes
68
What form of consent does a person who is married in community

of property require from his or her spouse to institute legal
proceedings against another or defend legal proceedings
instituted by another person?
In terms of section 17(1) of the Matrimonial Property Act a spouse who

is married in community of property requires the written consent of
his spouse to institute legal proceedings against another person or to
defend legal proceedings instituted by another person.
Does this general rule regarding the capacity to litigate of

spouses married in community of property apply to Mrs Kassim
and Mr Grump?
No, the general rule is not applicable to Mr. Grump, because a spouse
may institute or defend legal proceedings without the other spouse’s
consent when the proceedings deal with the recovery of damages,
other than damages for patrimonial loss, due to the commission of a
delict against him or her.
Explain fully, with reference to authority, from which assets the

R10 000 satisfaction (for which Mrs Kassim is being sued) should
be paid.
Section 19 of the Matrimonial Property Act regulates the delictual

liability of spouses who are married in community of property. It
stipulates that when a spouse is liable for the payment of damages,
including satisfaction for a delict committed by him or her, the
creditor must recover the amount
• Firstly, from the separate property of the spouse who
committed the delict, and
• Secondly, if there is no separate property or when the
separate property is insufficient, from the joint estate.
The satisfaction will thus firstly come from Mrs. Kassim’s separate
assets of R6 000.
That leaves R4 000. That R4 000 will have to come from Mr. and Mrs.
Kassim’s joint estate.
The satisfaction can never be claimed from Mr. Kassim’s separate
assets.
Section 19: as far as such damages have been recovered from the joint
estate an adjustment will, upon the division of the joint estate, be
effected in favor of the innocent spouse (Mr. Kassim). Mr. Kassim will
therefore have a right to adjustment in respect of the part of the
satisfaction which is paid out of the joint estate.
If the joint estate is large enough upon the dissolution of the marriage
for the adjustment to be effected the innocent spouse will be
adequately protected. If the joint estate is too small for a total
adjustment to be effected the innocent spouse enjoys no protection.

CLS cc ©
Family Law Notes
69
Mr and Mrs Seaman got married in community of property in

1993. A week ago Mrs Seaman donated a priceless art collection,
which formed part of the spouses’ joint estate, to her friend, Mrs
Doubell. Owing to the fact that Mrs Seaman knew that Mr Seaman
would never have consented to the alienation of the art
collection, the transaction between Mrs Seaman and Mrs Doubell
took place without Mr Seaman’s knowledge. The art collection
was bought by the spouses as an investment.
Did Mrs Seaman act lawfully in terms of the provisions of section
15 of the Matrimonial Property Act 88 of 1984?
No. In terms of the provisions of section 15 of the Matrimonial

Property Act, Mrs. Seaman needed her husband’s written consent
without any further requirements, to enter into the transaction and
she acted without such consent.
Is the transaction between Mrs Seaman and Mrs Doubell valid?

Explain your answer with reference to legislation and relevant
case law
To determine whether the transaction between Mrs. Seaman and Mrs.

Doubell is valid, a distinction has to be made between the following
two cases:
(1) Where Mrs. Doubell did not know, or could not reasonably
have been expected to know that Mr. Seaman had to consent
to the transaction and that this consent was not obtained. In
terms of section 15(9) (a) of the Matrimonial Property Act it is
deemed in such a case that the transaction was entered into
with the required consent. In other words, in so far as the
third party is concerned, the transaction is valid and
enforceable.
(2) Where Mrs. Doubell knew or could reasonably have been
expected to know that Mr. Seaman’s consent was necessary
and had not been obtained. The Matrimonial Property Act is
silent on the validity of the transaction under these
circumstances. It seems that the transaction is void.
In Distillers Corporation Ltd v Modise it was held that the words
“cannot reasonably know” in section 15(9)(a) imply that the matter
must be considered from the point of view of the reasonable person
and that the conclusion at which the reasonable person would have
arrived must be reached.
In this case the reasonable person would probably have asked her
friend whether her spouse had consented. If the answer was no, the
third party would not enjoy the protection of section 15(9) (a) under
these circumstances. Mr. Seaman may then recover the coin collection
from Mrs. Doubell with the rei vindicatio.
Mr Seaman wants to divorce Mrs Seaman and invoke the remedy

provided for in section 15(9)(b) of the Matrimonial Property Act

CLS cc ©
Family Law Notes
70
88 of 1984. What does this remedy entail and which two

requirements must be met should Mr Seaman rely on it?
In terms of section 15(9)(b) of the Matrimonial Property Act the court

orders that an adjustment must be effected in favour of the innocent
spouse upon division of the joint estate.
This is a measure that will be exercised against Mrs. Seaman.
Requirements:
(1) The spouse (Mrs. Seaman) who concludes the transaction
with the third party, knows or ought reasonably to have
known, that the required consent would probably not be
obtained from the other spouse (Mr. Seaman) or that the
particular power has been suspended
(2) The transaction must be valid in terms of section 15(9)(a) of
the Matrimonial Property Act
(3) The joint estate has to suffer a loss as a result of the
transaction
Mr and Mrs Haigh were married in community of property. A

month ago Mrs Haigh donated a valuable stamp collection, which
formed part of the spouses’ joint estate, to her sister, Mrs Stow.
The transaction between Mrs Haigh and Mrs Stow took place
without Mr Haigh’s Knowledge. The stamp collection was
originally bought by the spouses as an investment. Answer the
following questions:
Did Mrs Haigh act lawfully in terms of the provisions of section
15 of the Matrimonial Property Act 88 of 1984?
No, Mrs. Haigh did not act lawfully. She needed her husband’s written
consent without any further requirements, to enter into the
transaction and she acted without such consent.
Is the transaction between Mrs Haigh and Mrs Stow valid?

Explain your answer with reference to legislation and relevant
case law
To determine whether the transaction between Mrs. Haigh and Mrs.

Stow is valid, a distinction has to be made between the following two
cases:
(1) Where Mrs. Stow did not know, or could not reasonably have
been expected to know that Mr. Haigh had to consent to the
transaction and that this consent was not obtained. In terms of
section 15(9) (a) of the Matrimonial Property Act it is deemed in
such a case that the transaction was entered into with the
required consent. In other words, in so far as the third party is
concerned, the transaction is valid and enforceable.
(2) Where Mrs. Stow knew or could reasonably have been expected
to know that Mr. Haigh’s consent was necessary and had not
been obtained. The Matrimonial Property Act is silent on the

CLS cc ©
Family Law Notes
71
validity of the transaction under these circumstances. It seems

that the transaction is void.
In Distillers Corporation Ltd v Modise it was held that the words

“cannot reasonably know” in section 15(9)(a) imply that the matter
must be considered from the point of view of the reasonable person
and that the conclusion at which the reasonable person would have
arrived must be reached.
In this case the reasonable person would probably have asked her
friend whether her spouse had consented. If the answer was no, the
third party would not enjoy the protection of section 15(9) (a) under
these circumstances. Mr. Haigh may then recover the stamp collection
from Mrs. Stow with the rei vindicatio.
The fundamental idea underlying the accrual system is that the

spouses who are married in terms of this system must share in
what they amassed together during the subsistence of their
marriage. Certain assets, however, are excluded from the accrual,
which means that the value of these assets is not taken in
account when the accrual is determined. Name the assets referred
to here.
• Any non-patrimonial damages a spouse receives during the

marriage do not form part of the accrual (i.e. satisfaction and
amounts received for pain and suffering)
• In their antenuptial contract the spouses can exclude any asset
from the accrual. The proceeds of such excluded assets and
assets which replace such excluded assets, or which are
acquired with their proceeds, are also excluded
• An inheritance, legacy or donation does not form part of the
accrual. Also excluded are the proceeds of such assets as well
as any asset which replaces the excluded asset or which is
acquired with its proceeds.
• Donations inter vivos (between living persons) between the
spouses are not taken into account as part of the estate of
either the donor or the donee
A few years ago Mr and Mrs Fender married out of community of

property with application of the accrual system. Mr Fender is a
extreme gambler. He spends most of his income on his gambling
and has also built up large gambling debts. In an effort to pay his
gambling debts he starts selling his assets without consulting Mrs
Fender. Mrs Fender has no assets of her own. When she discovers
that assets are disappearing from the matrimonial home she
confronts Mr Fender. Mr Fender tells Mrs Fender that it is none
of her business what he does with his own assets. Fully discuss
the statutory remedy which is available to Mrs Fender under
these circumstances

CLS cc ©
Family Law Notes
72
Sometimes one spouse uses his assets during the marriage in such a
way that the other spouse will be prejudiced. Section 8 (1) of the
Matrimonial Property Act provided that where one spouse seriously
prejudices the other spouse’s right to share in the accrual, the
prejudiced spouse can do the following:
Apply to the High Court for the immediate division of the accrual.
The court will only order such a division if it is satisfied that no other
person will be prejudiced. Section 8 (2) provides that:
If the court orders such a division, it also has the discretion to order
that the marriage will not in future be subject to the accrual system,
but will be subject to complete separation of the property. If the court
does not so order, it means the accrual system continues to apply, but
a new accrual comes into being.
Mr and Mrs Norel were married in community of property. Each of

them possessed certain assets before they were married. Indicate
which of the assets mentioned below form part of their joint
estate by simply answering “yes” or “no”.
Mrs Norel bought a house before she was married. Does the house
fall in the joint estate?
Yes
Mr Norel was awarded non-patrimonial damages in a delictual

action. Does the award for non-patrimonial damages fall in the
joint estate?
No
Does Mr Norel’s wedding ring fall in the joint estate?
No
Mr Norel inherited a house from his father that is still subject to

a usufruct in favour of his mother. Does the house fall in the joint
estate?
No
Mrs Norel inherited an amount of R31 000 from her mother. The
will stipulated that the money should fall outside the joint estate.
There were no further stipulations in the will. She invested the
money at an interest rate of 9, 5% per annum. Does the interest
form part of the joint estate?
Yes
Mr and Mrs Waren, who live in a gorgeous manor situated on a

very great estate in Muzenburg, were married in community of

CLS cc ©
Family Law Notes
73
property on 18 March 1988. The land and house fall within Mr

and Mrs Warren’s joint estate. Indicate which form of consent Mr
Warren requires from Mrs Warren for each of the following
transactions in terms of section 15 of the Matrimonial Property
Act 88 of 1984:
Mr Warren decides to subdivide the property and alienate the
subdivided section of the property. Which form of consent does
he require from Mrs Warren?
Prior written consent, attested by two competent witnesses, in respect

of each transaction separately.
Mr Po bought the subdivided property from Mr Warren. The only

way in which Mr Po can reach the street from his property is via
Mr and Mrs Warren’s property. Mr Warren intends to conclude a
contract with Mr Po in terms of which a servitude will be
registered over their property in favour of Po. Which form of
consent does Mr Ward require from Mrs Ward to conclude the
contract with Mr McBride?
Written consent, attested by two competent witnesses, in respect of

each transaction separately.
Indicate which form of consent Mr Warren requires from Mrs

Warren for the actual registration of the servitude (in (b)) in the
deeds office.
Prior written consent, attested by two competent witnesses, in respect

of each transaction separately.
Which remedy may Mr Warren use against Mrs Warren if she

unreasonably withholds her consent with regard to the
conclusion of the contracts in (a), (b) and (c)?
The court can authorise the transaction in terms of section 16(1) of

the Matrimonial Property Act 88 of 1984.(1) The court will only grant
consent if it is satisfied that a good reason exists for dispensing with
the other spouse’s consent.
Mr and Mrs Nike 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.
Mr and Mrs Nike may approach the high court in terms of section 88
of the Deeds Registries Act(1) for permission to have the contract
formally executed and registered postnuptially.

CLS cc ©
Family Law Notes
74
Either Mr or Mrs Nike or both Mr and Mrs Nike, may make the
application.
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.
(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.
If the court authorises postnuptial execution and registration, the
contract has the same effect as a duly executed and registered
antenuptial contract.
The court may impose whatever conditions it deems suitable in
respect of the execution of the contract, and may specify the period
within which the executed contract must be registered in the deeds
registry.
Mr and Mrs Massey 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 Massey had any assets
at the time of the conclusion of their marriage. Mr Massey died
last week.
Mr Massey’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 a doctor.
Mrs Massey’s net estate at the time of Mr Massey’s death is
valued at R30 000 and includes inter alia the following:
• A coin 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 Massey
has an accrual claim against Mr Massey’s estate. Discuss your
answer by substantiating your calculations.
Because Mr and Mrs Massey 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. If the
spouses do not want the accrual system to apply they have to exclude
it expressly.
Because Mrs Massey’s estate shows the smaller accrual, she has a
claim against Mr Massey’s estate. Her accrual is calculated as follows:

CLS cc ©
Family Law Notes
75
Net value on dissolution R30 000

Minus net commencement value -R 0
Minus assets excluded from the accrual : -R10 000
The coin which she excluded from the accrual R2 000
Intestate inheritance R8 000
R10 000
Accrual R20 000
The accrual in Mr Massey’s estate is calculated as follows:
Minus net commencement value -R 0
Minus assets excluded from the accrual :-R10 000
Inheritance from his father R10 000
Accrual R90 000
(Damages in the amount of R15 000 for loss of income and R 20 000
for damages to motor vehicle are NOT EXCLUDED because they are
damages for patrimonial loss.)
The accrual of Mr Massey’s estate is calculated as follows:
Mrs Massey’s accrual claim = ½(R90 000 – R20 000)
= ½(R70 000)
Mrs Massey is therefore entitled to R35 000.
Mr and Mrs Noble got married out of community of property on

26 January 2002. They did not expressly exclude the accrual
system from their marriage. At the time of the conclusion of the
marriage Mr Noble’s liabilities exceeded his assets while Mrs
Noble had R5 000 in cash. Mr Noble died last week.
Mr Noble’s net estate at the time of his death is worth R50 000
and consists of the following:
• R15 000 which he received as satisfaction for pain and
suffering after being involved in a motor vehicle accident
• R12 000 which he received as compensation for damages
caused to his motor vehicle during the accident
• A computer to the value of R5 000 which he received as a
gift from his mother
• R18 000 which he earned on his own
Mrs Noble’s net estate at the time of Mr Noble’s death is worth

R30 000 and includes, inter alia, the following:
• R6 000 which she inherited intestate from her father
• A ring of the value of R4 000 which she received as a gift
from Mr Noble during the subsistence of the marriage
Suppose that during the subsistence of the marriage, money has
depreciated to such an extent that, in terms of the consumer
price index, R2, 00 now has the same value as R1, 00 had at the
beginning of the marriage.
Indicate, by doing the necessary calculations, whether Mrs Noble
has any claim against Mr Noble’s estate. Discuss your answer by
substantiating your calculations.

CLS cc ©
Family Law Notes
76
The accrual system automatically applies to all marriages out of

community of property and community of profit and loss, which are
concluded after 1 November 1984. If the spouses do not want the
accrual system to apply, they have to exclude it expressly.
The accrual in Mr. Noble’s estate is calculated as follows:

Minus net commencement value R0
liabilities exceeded assets, therefore deemed to be zero
Minus assets excluded from the accrual:
Satisfaction (R15 000)
Donation from third party (R5000) R20 000
(Damages in the amount of
R12 000 NOT EXCLUDED because
they are damages for patrimonial loss)
Accrual R30 000
The accrual in Mrs. Noble’s estate is calculated as follows:

Minus net commencement value:
Adapt commencement value with CPI
Accept that money was worth twice as much
at the commencement of the marriage as at its
dissolution
Thus R5 000 then adjusted to R10 000 now R10 000
Intestate inheritance (R6000)
Donation between spouses (R4000) R10 000
Accrual R10 000
Mrs. Noble’s estate has the smaller accrual and she has a right to
claim half the difference between the bigger and smaller accruals.
Mrs. Noble’s accrual claim = 0.5(R30 000 – R10 000)
= 0.5(R20 000)
= R10 000
Mrs. Noble is therefore entitled to R10 000
Mr and Mrs Kite got married out of community of property on 1

February 2002. They did not expressly exclude the accrual
system from their marriage. At the time of the conclusion of the
marriage Mr Kite’s liabilities exceeded his assets while Mrs Kite
had R5 000 in cash. Mr Kite died last week.
Mr Kite’s net estate at the time of his death is worth R50 000
and consists of the following:
• A laptop worth R5000 from his father
• R15 000 which he received as satisfaction for pain and
suffering after being involved in a motor vehicle accident

CLS cc ©
Family Law Notes
77
• R12 000 which he received as compensation for damages

caused to his motor vehicle during the accident
• A computer to the value of R5 000 which he received as a
gift from his father
• R18 000 which he earned on his own as an electrician
Mrs Kite’s net estate at the time of Mr Kite’s death is worth R30
000 and includes, inter alia, the following:
• R6 000 which she inherited intestate from her gran
• A coin of the value of R4 000 which she received as a gift
from Mr Kite during the subsistence of the marriage
Suppose that during the subsistence of the marriage, money has
depreciated to such an extent that, in terms of the consumer
price index, R2, 00 now has the same value as R1, 00 had at the
beginning of the marriage.
Indicate, by doing the necessary calculations, whether Mrs Kite
has any claim against Mr Kite’s estate. Discuss your answer by
substantiating your calculations.
The accrual system automatically applies to all marriages out of

community of property and community of profit and loss, which are
concluded after 1 November 1984. If the spouses do not want the
accrual system to apply, they have to exclude it expressly.

CLS cc ©
Family Law Notes
78
The accrual in Mr. Kite’s estate is calculated as follows:

Minus net commencement value R0
liabilities exceeded assets, therefore deemed to be zero
Satisfaction (R15 000)
Donation from third party (R5000) R20 000
(Damages in the amount of
R12 000 NOT EXCLUDED because
they are damages for patrimonial loss)
Accrual R30 000
The accrual in Mrs. Kite’s estate is calculated as follows:

Minus net commencement value:
Adapt commencement value with CPI
Accept that money was worth twice as much
at the commencement of the marriage as at its
dissolution
Thus R5 000 then adjusted to R10 000 now R10 000
Intestate inheritance (R6000)
Donation between spouses (R4000) R10 000
Accrual R10 000
Mrs. Kite’s estate has the smaller accrual and she has a right to claim
half the difference between the bigger and smaller accruals.
Mrs. Kite’s accrual claim = 0.5(R30 000 – R10 000)

= 0.5(R20 000)
= R10 000
Mrs. Kite is therefore entitled to R10 000

CLS cc ©
Family Law Notes
79
DISSOLUTION OF A MARRIAGE
3 ways in which a marriage can be dissolved:
By the death of one/both spouse.

Annulment of a voidable marriage.
Divorce.
DISSOULTION BY DEATH Of EITHER OR BOTH SPOUSES
Marriages in community of property
When the marriage comes to an end because of the death of a spouse,

the community of property between the spouses also comes to an end.
The joint estate is then dealt with by the executor in terms of the
Administration of Estates Act 66 of 1965.
The executor pays all debts owed by the joint estate and claims all
debts owed to the joint estate.
He or she then gives half of the estate to the surviving spouse.
The other half is given to the heirs of the predeceased spouse.
Marriage out of community of property
Ante-nuptial contracts are not terminated by the death of either of the

parties, and marriage settlements which remain outstanding must be
implemented.
The executor winds up only the estate of the deceased spouse.
Maintenance of Surviving Spouses Act 27 of 1990
The Maintenance of Surviving Spouses Act determines that in certain

circumstances, the surviving spouse holds a claim for maintenance
against the estate of the deceased spouse.
Section 2 (1) of the Act determines that if the marriage is dissolved by

death after the commencement of the Act, the surviving spouse has a
claim against the estate of the deceased spouse for the provision of his
reasonable maintenance needs until death or remarriage in so far as
he is unable to provide therefore from his own means or earnings.
The claim arises regardless of the matrimonial property system which

operated in the marriage.
However, the claim arises only in so far as the surviving spouse is
unable to provide for her reasonable maintenance needs from his own
means and earnings.
The surviving spouse shall not, however, have a right of recourse
against any person to whom money or property has already been paid.

CLS cc ©
Family Law Notes
80
The following factors must be taken into account in considering the

surviving spouse’s reasonable maintenance needs:
• The amount in the deceased estate available for distribution
amongst heirs and legatees.
• The existing and expected means, earning capacity, financial
needs and obligations of the surviving spouse and the
• The standard of living of the surviving spouse during the
subsistence of the marriage and his age on the death of the
deceased.
• The duration of the marriage.
• The surviving spouse’s age at the time of the deceased’s death.
• Any other relevant factor.
The surviving spouse’s claim takes the same order of precedence

against the estate as a claim for maintenance of a dependent child.
If the surviving spouse’s claim and that of the dependent child
compete with each other, such claims will be reduced proportionately.
FELDMAN V OSHRY
The SCA found that maintenance in a lump sum could indeed be

awarded by the court in terms of the Maintenance of Surviving
Spouses Act as nothing in this Act prevents such an award. The court
said that “the difficulties with estimating an appropriate lump sum
award by reference to certain assumptions that might later prove to be
unfounded do not present insurmountable difficulties. In delictual
claims, for example, damages in relation to loss of support are estimated
with regard to the life expectancy of a claimant and on the basis of other
assumptions. There too, total accuracy can never be assured. Courts do
the best they can. This does not mean that a court assessing a claim for
maintenance should not take these factors into account in the totality of
the presented circumstances in deciding an appropriate award.”
The executor of the estate has the power to enter into an agreement
with the surviving spouse so as to settle her maintenance claim, such
as:
1. Create a trust.
2. Transfer assets of the deceased estate to the surviving spouse or
trust.
3. Impose an obligation on the heir.
The position of surviving customary, Muslim and Hindu marriages
Although the Maintenance of Surviving Spouses Act does not

expressly indicate that it applies to surviving customary, Muslim or
Hindu spouses, it is self evident that the recognition afforded to

CLS cc ©
Family Law Notes
81
customary marriages has brought surviving customary spouses within

the ambit of the Act.
Thus, all the surviving customary wives may lodge a claim for
maintenance against the husband’s estate.
If the maintenance claims of the surviving customary wives compete
with one another and there are insufficient resources from which they
can be met, the claims would all be reduced proportionately.
Similarly, the words “survivor” and “spouse” include a Muslim or a

Hindu surviving spouse. (Daniels v Campbell, Govender v Ragavayah)
GOVENDER,
The question before the court was whether a spouse in a monogamous

Hindu marriage would be regarded as a spouse in terms of S1 of the
Intestate Succession Act – in other words, is a monogamous Hindu
marriage recognised as a marriage for the purposes of succession?
The court referred to Daniels, Hassam, Gory and Volks and held that
in not recognising the rights of a spouse in a Hindu marriage would
amount to unjustifiable unfair discrimination.
The court in Hassam v Jacobs, recognised this application to a

polygynous Muslim marriage.
HASSAM V JACOBS:
The applicant was married to the deceased according to Muslim law.

After her husband’s death she claimed a share in his estate. The
respondent, in his capacity as executor of the estate, rejected the
applicant’s claim that she could inherit intestate from the estate of the
deceased. The executor argued that the applicant did not qualify as a
“survivor” or “spouse” in terms of the Intestate Succession Act 81 of
1987 or the Maintenance of the Surviving Spouses Act 27 of 1990
since the marriage was polygamous. The applicant sought an order
declaring that she was the spouse of the deceased and that the
surviving spouses in a polygamous Muslim marriage enjoy the same
privileges as surviving spouses in a de facto monogamous Muslim
marriage in terms of the provisions of the Intestate Succession Act
and the Maintenance of the Surviving Spouses Act. In the alternative
she sought an order declaring certain provisions in these two Acts
unconstitutional. The court referred to Daniels v Campbell where it
was held that the ordinary meaning of the word “spouse”
encompasses a party to a Muslim marriage. In the Daniels case the
Constitutional court emphasised that its judgment applied only to
spouses in monogamous Muslim marriages, and only in respect of the
Intestate Succession Act and the Maintenance of the Surviving
Spouses Act. In the Hassam case the court held that the words
“spouse” and “survivor” in the Intestate Succession Act and the
Maintenance of the Surviving Spouses Act should also include widows

CLS cc ©
Family Law Notes
82
in polygamous marriages otherwise it would amount to unfair

discrimination against widows in such marriages. In this case the
court therefore extended the recognition afforded in Daniels v
Campbell to monogamous Muslim marriages, to polygamous Muslim
marriages.
The constitutional court’s interpretation will probably be applied to

surviving spouses in polygynous Hindu marriages; otherwise there
would be unequal protection and benefit.
The position of surviving life partners
ROBINSON V VOLKS
A woman lived with a man in a life partnership for approximately 12

years prior to his death. She claimed maintenance from his deceased
estate.
The CPD declared Section 1 unconstitutional to the degree that it fails
to include permanent life partners within the ambit of the Act.
The court held that to exclude a permanent life partner from a
maintenance claim, violates the equality clause and infringes the right
to dignity of surviving life partners.
To correct the unconstitutionality, the court made a reading-in order
which includes a permanent life partnership in the definition of
“marriage” and deems a permanent life partner to be a spouse.
However, as a declaration of unconstitutionality is of no force unless
confirmed by the constitutional court, the CC did not confirm this
order and held that people in life partnerships cannot benefit from
each other in terms of intestate succession as they had the
opportunity to enter into a valid marriage and they didn’t.

CLS cc ©
Family Law Notes
83
DIVORCE
GROUNDS FOR DIVORCE
The old divorce law was based on the fault principle.
The Grounds for Divorce
Section 3 of the Divorce Act provides that a marriage may be dissolved

by a court by a decree of divorce and the only grounds on which such
a decree may be granted are:
1) The irretrievable breakdown of the marriage (Section 4).

2) Mental illness or continuous unconsciousness of a party to the
marriage (Section 5).
Irretrievable Breakdown of the marriage as a ground for divorce –

Section 4
The question whether a marriage has broken down irretrievably, is

simply a question of fact which must be answered in the light of all
the available evidence.
The criteria laid down in Section 4
Section 4 (1) expressly provides that the 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.
It is clear that Section 4 (1) lays down two requirements:

o the marriage relationship must no longer be normal, and
o There should be no prospect of the restoration of a normal
marriage relationship between the spouses.
Thus, it must be determined when a marital relationship is no longer

normal.
I.e. when one or both of the spouses act in such a way that the
consortium is terminated or seriously disrupted, one can say that a
normal marital relationship no longer exists between the spouses.
The test used by the courts to determine whether consortium has
been terminated involves subjective as well as objective elements.
A purely objective approach means:

The court pays attention to the facts and circumstances of the
marriage in Q only, without taking into consideration the reasons why
the plaintiff is suing for divorce.

CLS cc ©
Family Law Notes
84
A purely subjective approach means:

The court pays attention only of the fact that the plaintiff is applying
for divorce, without considering the history of the marriage or the
present state of the marriage (i.e. the marriage has broken down the
moment plaintiff institutes action for divorce.
According to Unisa, the correct approach is a combination of both

approaches.
The guidelines in Section 4 (2)
In addition to the criteria contained in Section 4 (1) of the Divorce Act,

Section 4 (2) of the Act provides three examples of situations which
may indicate that a marriage has broken down irretrievably, namely:
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 date of institution of action.
2. The fact that the defendant has committed adultery and plaintiff
finds it irreconcilable with a continued marital relationship.
3. The fact that the defendant has been declared an habitual criminal
by a court and is serving a prison sentence as a result.
In respect of the discussion on the first guideline (continued

separation), two important aspects must be noted, namely:
1. When a spouse relies on this guideline only, he will have to prove

that there has been no cohabitation for an uninterrupted period of
a least one year.
2. The separation refers to termination of consortium between the
spouses and not to geographic separation. It is therefore not
necessary to prove that the spouses are not living in the same
house or even in the same room. Once the consortium between the
spouses has been terminated for longer than one year, this
guideline has been met
Divorce on the ground of mental illness or continuous

unconsciousness – Section 5
The circumstances which the plaintiff must prove in order to obtain a

divorce on the ground of the defendant’s mental illness are set out in
Section 5 (1) as:
1. The defendant has been admitted to an institution as a patient, or

is being detained as a state patient, or as a mentally ill convicted
prisoner.
2. The defendant has not been unconditionally discharged from the
institution for a continuous period of two years immediately prior
to the institution of the divorce action.

CLS cc ©
Family Law Notes
85
3. There is no reasonable prospect, according to the evidence of at

least 2 psychiatrists that the defendant will be cured.
The circumstances which the plaintiff must prove in order to obtain a

divorce on the ground of the defendant’s continuous
unconsciousness, are set out in Section 5 (2) as:
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 of the defendant’s regaining
consciousness and 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 connection between Section 4 and Section 5
The question now arises whether a person who wants to divorce his
mentally ill or unconscious spouse, must make the divorce application
in terms of Section 5 or whether the application can also be made in
terms of Section 4.
o In Dickinson v Dickinson the court stated that Section 4 could be
applied.(Here the wife was a mental patient)
o In Krige v Smit the court made the order in terms of Section 4
(Here the husband had been semi-conscious for almost 2 years).
o In Smit v Smit the wide view of Dickinson and Krige was rejected
by the court a quo. The court a quo stated that where a spouse is
mentally ill/unconscious, the divorce can only be granted in terms
of S5. On appeal to the full bench this decision was reversed.
o In Ott v Raubenheimer the court granted the divorce in terms of
S4. (The defendant was mentally ill).
SMIT V SMIT – the relationship between sections 4 and 5 of the

divorce act.
The appellant instituted divorce proceedings in terms of section 4 of

the divorce act after his wife had been physically disabled for 6 ½
years and had been in an institution for infirm persons for approx. 5
½ years. He did not allege that he no longer loved his wife. He argued
that because of her condition ,he enjoyed virtually no consortium
privileges , no real marriage relationship existed between them and
there was no prospect of restoration of a normal marital relationship.
The appellant was unsuccessful in the court a quo. His appeal to the
full bench was successful. If a person wants to divorce his or her
unconscious or mentally ill spouse, the question arises whether the
divorce claim action must be instituted in terms of section 5 of the
divorce act or whether section 4 of the divorce act must be invoked.

CLS cc ©
Family Law Notes
86
Conflicting judgments have been delivered on this issue. (Dickinson v

Dickinson – section 4, krige v smit – section 5)
Hahlo 351 – whenever a spouse is mentally ill or continuously
unconscious within the meaning of section 5 the likelihood is that the
marriage will also have broken down irretrievably within the meaning
of section 4. even when the breakdown of a marriage was due to
mental illness or continues unconsiness, a decree of divorce can be
granted on the grounds of irretrievable breakdown under section 4.
Thus, it appears that in cases where the spouse is mentally ill, the
plaintiff can rely on Section 4 and Section 5.
Barnard states that if all the elements of Section 5 are present, the
plaintiff can only rely of Section 5 not Section 4.
Hahlo believes the plaintiff can rely on Section 4 or Section 5 because
the likelihood is that the marriage would have broken down
irretrievably anyway.
Does the court have a discretion to grant or refuse a decree of

divorce?
o In Smit v Smit the court was prepared to recognize such a

discretion.
o In Schwartz v Schwartz the appellate division stated obiter that the
court does not have such a discretion. If it is proved that a
marriage has broken down irretrievably, the divorce must be
granted.
o In Levy v Levy the view of Schwartz was adopted by the appellate
division, and Smit expressly rejected.
The court has discretion to refuse a decree of divorce:

Section 5 (A) has been inserted into the Divorce Act in terms of which
a court of law now has the power to refuse to grant a divorce if the
spouse’s religion bind them first to initiate a divorce according to their
faith before a secular divorce will have full effect.
This is where, in terms of their religion, they will not be able to
remarry unless the marriage is also dissolved in terms of their
religion.
The court now has the discretion to refuse a decree of divorce if, as a
result of religious prescriptions, one or both spouses will not be able
to remarry once the court has granted a decree of divorce.
In this manner, the courts can now assist a Jewish woman whose
husband refuses to grant her a divorce in terms of the Jewish faith.
If the husband refuses to give her a divorce under Jewish law, she
cannot remarry in the eyes of her religion.
In Amar v Amar the judge issued a divorce but ordered the husband
who was unwilling to co-operate in obtaining a Jewish divorce, to pay
maintenance to his wife (who was otherwise not entitled to

CLS cc ©
Family Law Notes
87
maintenance) until such time as their marriage was terminated by the

granting of a Jewish divorce.
It has been argued that Section 5 (A) violates the right to equality, but
according to Cronje this should be rejected. Equality does not mean
all people should be treated alike. It requires that those who are alike
should be treated alike.
Section 5(A) may possibly also infringe the right to freedom of religion,
but it is submitted that the limitation is justifiable as the purpose of
the limitation is the achievement of real equality.

CLS cc ©
Family Law Notes
88
CONSEQUENCES OF DIVORCE
The consequences of divorce primarily affect the patrimony of the

spouses, that is, the division of their assets, the payment of
maintenance and the interests of the children.
Although divorce is not longer fault based, 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.
In most divorces the parties come to any agreement about the
consequences of the marriage.
If the spouses come to such an agreement and put it in writing, they
can ask the court to make it part of the court order (in terms of
Section 7 (1).
The Patrimony of the Spouses
The effect of divorce on the division of the spouses’ property depends

on two things:
(1) the matrimonial property system of the spouses (i.e. whether
they were married in or out of community of and whether the
accrual system applies if they were married out of community).
(2) Whether the court orders forfeiture of benefits (forfeiture of
benefits is discussed in the next study unit).
Pension interests
In terms of Section 7 (7) (a) of the Divorce Act, a party to a divorce
action may now share in the pension interest of the other party.
The pension interest of each spouse is deemed to be part of his or her
estate for the purposes of division of the joint estate (if the spouses are
married in community), sharing the accrual (if the accrual system
applies), forfeiture of patrimonial benefits, maintenance, and
redistribution of assets (where this is applicable).
o In Sempapalele v Sempapalele the court incorrectly held that a
pension interest is not an asset in the spouse’s estate.
o This view was rejected in Maharai v Maharai.
The value of a spouse’s pension interest is calculated in the following

manner:
o If the spouse is a member of a pension fund, the pension interest
is the benefit to which the spouse would have been entitled had
he terminated his membership of the fund on the date of the
divorce.
o If the spouse is a member of a retirement annuity, the pension
interest is equal to all his contributions to the retirement annuity
fund up to the date of the divorce, together with simple interest.

CLS cc ©
Family Law Notes
89
o The amount of the pension interest deemed to be part of a

spouse’s estate is reduced “by an amount of his pension interest
to which another party is entitled by virtue of a previous divorce”.
o This means that if a person is getting divorced for a second time,
the amount of the pension interest deemed to be part of his or her
estate, for purposes of the second divorce, is reduced by any
amount of the pension interest which has been paid to or
awarded to his or her first spouse.
o The Divorce Act also empowers the court to order the pension or
retirement annuity fund to pay any part of the fund, which is due
to the spouse of the member DIRECTLY to that spouse when the
annuity accrues to the member.
o The court may also order the Fund to make an endorsement on
its records that portion be paid directly to the spouse.
o 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.
o The Act does not provide for payment of interest (the pension
benefit will therefore be worth very little by the time it is paid to
him/her.
o It is further of the utmost importance that you should note that
the Act expressly states that the spouses’ pension interests will
not be taken into account if they were married on or after 1
November 1984 out of community of property and of profit and
loss and without the accrual system in terms of an ante-nuptial
contract.
NB!!! THE PENSION FUNDS AMENDMENT ACT 11 OF 2007 AND

THE FINANCIAL SERVICES LAWS GENERAL AMENDMENT ACT 22
of 2008
Take note of the shortcomings of the Divorce Act with regard to the
division of pension interests: namely that the Act does not make
provision for growth or the payment of interest on the portion of the
pension benefit which is to be paid to the non-member spouse. The
pension benefit apportioned to the non-member spouse will be worth
very little by the time it is paid to him or her.
The Pension Funds Amendment Act came into operation on 13

September 2007 and changes the current position with regard to
payment of the pension benefit in terms of section 7(8) of the Divorce
Act in the following way:
The non-member spouse no longer has to wait until the member
retires before his or her (that is the non-member’s) share of the
pension benefit accrues to the non-member according to a divorce
order. The non-member now has the following options:
1. he or she can request the pension fund to pay the benefit in cash
to him or her; or
2. request that the benefit is transferred to an approved pension fund
of his or her choice.

CLS cc ©
Family Law Notes
90
The Amendment Act, unfortunately, does not make it clear whether

this provision applies retrospectively, that is, with respect to divorce
orders made prior to 13 September 2007 or whether it only applies to
divorce orders made after 13 September 2007. Consequently, the
legislature thought it proper to inter alia address this uncertainty in
the Financial Services Laws General Amendment Act 22 of 2008. This
Act makes it clear that the provision (that the non-member spouse
may upon divorce take his or her apportioned benefit or have it
transferred to an approved pension fund) is indeed retroactive.
Section 37 D (4):
(a) the portion of the pension interest assigned to the non-member
spouse in terms of a decree of divorce or decree for dissolution of a
customary marriage is deemed to accrue to the member on the
date on which the decree is granted.
(b)
i) The pension fund must, within 45 days of submission of the
court order by the non-member spouse, request the non-
member spouse to elect if the amount to be deducted must be
paid directly to him / her, or if it must be transferred to a
pension fund on his / her behalf.
ii) The non-member spouse must within 120 days of being
requested to make an election, inform the pension fund of how
the amount is to be dealt with.
iii)The pension fund must pay or transfer the amount within 60
days of being informed of how the amount must be dealt.
iv) In the event that the non-member spouse fails to make an
election or identify the pension fund to which the amount
should be transferred within the period referred to, the pension
fund must pay the amount directly to the non-member spouse
within 30 days of the expiry of that period.
The meaning and calculation of “pension interest”
Value of spouse’s pension interest is calculated as follows:

1. If the spouse is a member of a pension fund other than a
retirement annuity fun, the pension interest is the benefit to
which the spouse would have been entitled had he / she
terminated his membership of the fund on the date of the
divorce by resigning from his / her employment.
2. If the spouse is a member of a retirement annuity fund, the
pension interest is equal to all the spouse’s contributions to the
fund up to the date of the divorce, with annual simple interest.
The difference between a pension interest and a pension benefit:

A pension interest is an interest which has not yet accrued by the
time of the divorce – it thus excludes a withdrawal benefit which
accrues to a spouse prior to the divorce. The Divorce Act relates to
pension interest.

CLS cc ©
Family Law Notes
91
A pension benefit which accrues to a spouse during the marriage falls

into his estate just like any other asset. If a spouse receives a lump
sum pension payment as well as a monthly pension as a result of the
termination of his membership to the fund before the divorce, both
amounts fall into his estate at the time of divorce and must be taken
into account upon the divorce.
Thus, pension interest = unaccrued interest, and a pension benefit
relates to a benefit which has accrued and become part of the pension
fund member’s estate.

CLS cc ©
Family Law Notes
92
SECTION 9: FORFEITURE OF PATRIMONIAL BENEFITS
What is it?
According to Singh, the guilty spouse forfeited all benefits because the
law could not allow an individual to benefit financially from a marriage
that had broken down due to his/her fault.
Requirements:
1. Duration of the marriage.
2. Circumstances which led to the breakdown of the marriage.
3. Any substantial misconduct on the part of either spouse.
Do these requirements have to be cumulative?

According to Matyila, these factors had to all be present when asking
for a forfeiture order. But according to the SCA case of Wijker, these
factors do not all need to be present and that although misconduct
was no longer a requirement for the order, it still remains a factor to
be considered.
In Wijker, the court stated that the factors prescribed in Sec 9 of Divorce Act
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. Justness & fairness is no reason to
deviate from matrimonial property system
WIJKER V WIJKER – forfeiture of patrimonial benefits
The parties were married in cop for some 35 years. During the
subsistence of their marriage the wife started and ran a successful
business , estate agency. Initially she held half of the shares in the
estate agency and her husband the other half. Her husband
subsequently transferred the shares to her so that she could obtain a
tax benefit. The spouses agreed that he could have the shares back if
and when he wanted. However when he asked for the shares back she
refused to do so because she did not have high regard for his business
sense and feared that he would use his the shares to further his own
interests. As a result of his wife’s persistent refusal to return the
shares ,he sued for divorce. In a counterclaim she claimed a forfeiture
order against him in respect of his shares in the estate agency and
certain assets purchased from income derived from the business. In
the court a quo a divorce order was granted against the wife and
forfeiture order was made against the husband. The husband
appealed against the forfeiture order , inter alia, on the ground that
forfeiture should not have been decreed because the trial court had
made no finding of substantial misconduct on his part. He also alleged
that the trial court had misdirected itself in blaming him for the

CLS cc ©
Family Law Notes
93
breakdown of the marriage in considering it unfair that he should

share in his wife’s business. The appellate division (now SC of appeal)
held that the forfeiture order should not have been made and
accordingly upheld the husbands appeal.
This case at long last settled the dispute about whether the 3 factors
that are set out in section 9(1) of the divorce act must all be present
before a forfeiture order can be granted and particularly whether
substantial misconduct is a prerequisite for the making of a forfeiture
order.
factors of partial of total forfeiture are the duration of the marriage,
the circumstances which led to the breakdown of marriage, any
substantial misconduct on the part of either spouse, 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.
When will forfeiture be granted?

In terms of s9 (1), an order for forfeiture 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.
Section 9(1) does not however provide for fairness.
The benefits which can be forfeited:

This does not mean that a spouse loses his own assets!
It entails that the spouse loses his claim he has to the other spouse’s
assets.
If the marriage is in COP, the spouse against whom the order is made
receives only those assets he/she brought into the estate. If he/she
brought more than half of the assets into the estate, she/he will still
only get half of the joint estate.
If the marriage is out of COP, the benefits that can be forfeited are the
spouse’s share of the assets brought into the marriage, or acquired as
a result of the other spouse’s effort. Examples include: right to share
in accrual, benefits from a succession clause, and marriage
settlements.
What then is a patrimonial benefit?
Watt:
The husband and wife married out of COP. During marriage he
donated house to wife that he bought with his own money.
When they got divorced, he claimed that the house was a patrimonial
benefit that had to be forfeited by the wife. The wife claimed the house
was not a patrimonial benefit.

CLS cc ©
Family Law Notes
94
The court held that the house, because it was donated DURING THE
MARRIAGE, was not a patrimonial benefit that is forfeited in terms of
s9. Thus, according to s9, and Watt, only benefits acquired in terms of
the parties ANC (thus things donated etc in the ANC and not stuff
acquired DURING the marriage can be forfeited, thus because the
house was given to the wife during the marriage, she did not forfeit it).
WATT V WATT –forfeiture of patrimonial benefits
The spouses were married out of cop . during the course of the
marriage the husband donated a house to the wife. In a joint
application the spouses applied for certain questions of law to be
decided before evidence was led in their divorce action. They agreed
that the husband alone had contributed the purchase price of the
property as well as amounts expended on the improvements to the
property that the value of the property had escalated since it was
registered in the wife’s name. the court had to decide whether the
house was a patrimonial benefit as contemplated in section 9(1) of the
divorce act. If the answer was in the negative, the court had to rule on
whether any contributions to the purchase price or improvements
were patrimonial benefits which could be forfeited and whether the
escalation in value was a patrimonial benefit which could be forfeited.
The husband contended that the answers to these questions were in
the affirmative while the wife contended they were negative. The court
held that the house , the husband’s contributions and the escalation
of price were not patrimonial benefits of the marriage.
This case deals with the question of whether the patrimonial benefits
of a marriage out of cop which may be forfeited are limited to benefits
which are conferred in the spouse’s anc or whether benefits acquired
during the subsistence of the marriage are also subject to forfeiture.
The court was of the opinion that the patrimonial benefit of a marriage
out of cop are fixed at marriage by the terms of the anc. These accords
with the weight of RDL
Hahlo: case incorrect. He says “marriage” is ambiguous – it can mean

the actual ceremony, or the relationship. The phrase “benefits of the
marriage” must mean benefits derived from a marriage as a continual
relationship – thus including donations etc given in the ANC and
during the marriage. Thus the house, in casu, would be a patrimonial
benefit to be forfeited.
Sinclair and Kaganas: case correct. They feel “marriage” means the
parties property regime, thus only property acquired according to their
regime can be forfeited (thus in cop, out cop etc).
Persad, Toho, Moremi and Koza differ in that these cases feel that
benefits acquired during the marriage can be forfeited too.

CLS cc ©
Family Law Notes
95
SECTION 7(3) – (6): REDISTRIBUTION OF ASSETS
What is it?
The court can sometimes make an order that the assets of the richer
spouse be transferred to the poorer spouse.
The prerequisites: Section 7(3):

1. the spouses must be married out of community excluding profit
and loss BEFORE 1 NOVEMBER 1984 if they are white or
2. if they are black, married out of COP before 1988.
The requirements: Section 7(4):

Once prerequisites met then the court will exercise its discretion on
the following requirements:
1. A spouse must have contributed directly or indirectly to the
maintenance or growth of the other spouse’s estate.
2. The court must be satisfied that, because of such contribution,
it would be just and equitable to make the order.
The nature of the contribution made:
The rendering of services like working in husband’s shop without pay.

The saving of expenses that would otherwise have been incurred
(nanny, sewing, cooking, and looking after the kids).
Or in any other manner.
o In Beaumont, court said s7 (4) IS wide enough to cover the

‘ordinary duties’ of a wife. But Sonnekus feels that she should
not be remunerated for the ‘ordinary wifely duties’!
o In Kritzinger: husband got transferred to New York but because
his wife was doing well in her career, he chose not to go so she
could succeed at her job. On their divorce, he claimed
redistribution based on the fact that he stayed in SA and so
contributed to the growth of this wife’s estate. The AD said that
the contribution had to be a POSITIVE ACT! So him NOT going,
did not qualify.
o In Katz: the AD said that the contribution need NOT have a
monetary value.
BEAUMONT V BEAUMONT – redistribution order in terms of section

7(3) of the divorce act.
The spouses were married in 1964. before their wedding they entered
into an anc which excluded community of property, profit and loss.
When they married, neither spouse had any assets. Twenty years later
the husband sued the wife for a divorce. At that stage he had an
estate valued at R450 000 and his wife had only R10 000. during the
subsistence of the marriage his wife kept house for him and the
children and fulfilled all the tasks of a wife and mother. She also

CLS cc ©
Family Law Notes
96
assisted him in his business without receiving any remuneration.

When he instituted divorce proceedings, his wife instituted a
counterclaim for redistribution of assets in terms of section 7(3) of the
divorce act. The court a quo granted her claim and awarded her R150
000 of his estate and maintenance. He unsuccessfully appealed
against this order.
This was the first decision by the SCA on redistribution of assets in
terms of section 7(3) – 7(6) of the divorce act. The first important point
the court made deal with whether one third of the spouse’s
matrimonial property should be transferred to the spouse with the
smaller estate if redistribution is ordered. The court a quo referred to
the one third rule or guidelines of English law. The purpose of this
section of 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. These sections empowers 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
equity which could flow from failure of the law to recognize a right of a
spouse upon divorce to claim an adjustment of a disparity between
the respective assets of the spouse which is incommensurate with
their respective contributions during the subsistence of the marriage.
Beaumont v Beaumont – one third rule – appellate division held that
our courts decision in terms of section 7(3) of the divorce act should
not be restricted by the one third rule or any other starting points
(such as the principle of an equal division). When the court considers
a redistribution order the court has to make an assessment of what is
just, having regard to the factors specifically mentioned in the act and
whatever else the court deems relevant
KRITZINGER V KRITZINGER – redistribution order in terms of

section 7(3) of the divorce act.
The spouses married out of cop in 1967. The wife was the managing
director of clicks and the husband was a legal adviser to Mobil oil in
Cape Town. At some point during the subsistence of the marriage the
husband was offered a post at the head office of Mobil Oil in New York
but he declined the offer because moving to New York would have
been detrimental to his wife’s career. She earned twice as much as he
did and contributed twice as much to the acquisition and
maintenance of the party’s matrimonial home. Both parties
contributed to their joint living expenses. In 1985 the wife sued the
husband for divorce. At this stage her estate was worth approx. 690
000 and her husband was worth approx. R275 000. she inter alia
claimed transfer of R109 000, which represented half of the net value
of the spouses matrimonial home, which was registered in her
husbands name. She based her claim on section 7 (3) of the divorce

CLS cc ©
Family Law Notes
97
act and alleged that the amount represented her contribution towards
the acquisition ,improvement and maintenance of the matrimonial
home and her contributions towards the payment of the bond
installments. Her husband denied that it would be just and equitable
to transfer any of his assets to his wife. He countersued for a divorce
and alleged that the irretrievable breakdown of the marriage was due
to his wife’s committing adultery with a certain Mr Green. He further
claimed transfer of R200 000 of his wife’s assets to him. He alleged
that he was entitled to the transfer as he had contributed indirectly to
the maintenance of increase of her estate by not settling overseas and
thus forfeiting promotion in order to further her career in which
increased the value of her estate by approx.. R600 000. the court a
quo dismissed the wife’s claim for transfer of assets and allowed the
husbands counterclaim for transfer of R200 000. the wife successfully
appealed this decision.
The first important point the court made was that a claim for
redistribution of assets should generally not be considered on a global
approach. The 2 claims should be considered separately to ensure
that each claim gets the attention it deserves. There might be cases
were the facts relevant to both claims are interrelated. Secondly the
court emphasized that although marriage is a partnership of a kind
this does not mean that marriage has the same consequences of a
partnership in the legal sense. The spouse who avers that a
partnership in the legal sense was formed between the spouses must
prove this and the mere fact that both spouses contributed to the
common household will not constitute sufficient proof. The third point
which should be noted deals with the role that fault plays in relation
to redistribution, in this case the appellate division (*now SCA)
referred to Beaumont v Beaumont and accepted that fault could be
considered in deciding whether a redistribution order should be
granted. The facts of the case did not however indicate that there was
a “conspicuous disparity of fault” between the spouses and therefore
fault could not be regarded as a significant factor.
KATZ V KATZ –redistribution order in terms of section 7(3) of the

divorce act.
The spouses married out of cop in 1964. In September 1986 the wife
instituted a divorce action. She inter alia claimed the selling price of
the spouse’s matrimonial home (R278000) which was registered in her
name, maintenance, and half of her husband’s assets. As the time of
the divorce, the husbands estate was valued at R7.5 million while
apart from the house the wife had R750 000.the husband made a
clean break settlement offer in which he undertook to pay his wife
R750 000. she rejected his offer. In the court a quo the husband was
ordered to pay the selling price of the house as well as R3.5 million to
his wife. The husband appealed this decision. He did not object to the
part of the order relating to the payment of the selling price of the

CLS cc ©
Family Law Notes
98
home. He only objected to being ordered to transfer R3.5 million. The

appeal was upheld.
section 7(4) covers the requirements for a redistribution order –
spouse must have directly or indirectly contributed to the
maintenance or increase of the others spouse’s estate during the
subsistence of the marriage and the court must be satisfied that by
reason of such contribution it would be equitable and just to make a
redistribution order (discretionary). It further 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 husbands estate. A monetary
value need not be placed on contribution.
Other considerations the court can take into account: Section 7(5):
o The existing means and obligations of the parties;

o Any donations made by one to the other during the marriage;
o Any forfeiture order made and
o Any other factor the court feels to take into account. (also looks
at misconduct)
Other factors also include:
- Exchange rate variations between the date of the valuation of
the spouses’ overseas properties and the date of the court’s
order (Kirkland)
- A material unforeseen deviation from the value the spouses
had agreed upon in respect of certain assets
- The need for finality in litigation
- The need not to jeopardise the financial survival of the
business which constitute a large part of the wealth of one of
the spouses (Bezuidenhout)
- The fiscal implications of compelling a spouse to sell
particular assets in order to be able to pay an amount to his
or her spouse in terms of the redistribution order
- The implications of selling property which served as security
for credit facilities granted to the spouse who has to transfer
assets or money in terms of the redistribution order.
Assets which can be considered for purposes of a redistribution order:

All assets which fall into a spouse’s estate can be taken into account.
This includes assets inherited or received as a donation. (Jordaan,
Buttner, Kirkland, Beira)
A loan which has been made to a child and which the lender does not
intend to recover is not considered an asset in the lender’s estate.
(Kirkland)
The applicant need not have made any contribution to the specific
asset for it to be taken into account on a redistribution order. The

CLS cc ©
Family Law Notes
99
mere fact that the applicant made a contribution to the respondent’s

estate is sufficient. (Jordaan)
The court has a wide discretion.
o In Webster the parties were married in COP and got divorced.

Then got remarried 3 months later out of COP. This marriage
also failed. The defendant asked the court to take into
consideration certain aspects of the first marriage into account
for the purposes of the redistribution order. The court decided
that s7 (5) – any other factor – was wide enough to allow the
court to take the first marriage into account. The wife already
got half the joint estate from the 1st marriage in COP and asked
for, and got, redistribution from the dissolution of the 2nd
marriage.
o In Kirkland, the capitalised value of a husband’s interests in a
retirement annuity from which he derived a monthly income
was taken into account for the purpose of a redistribution order.
o In Badenhorst, the SCA held that just because assets have been
transferred to a trust and vest in trustees does not per se
exclude them from being considered. However, a claim that
trust assets must be included in the estate of one of the parties
will succeed only if there is evidence that such party controlled
the trust and but for the trust would have acquired and owned
the asset in his own name. Control must however, be de facto –
the founder controls the trust.
In this case the husband had full control of the trust assets and
used the trust as a vehicle for his business activities. He and his
brother were the trustees and he had the right to discharge his
brother and appoint someone else as co-trustee. The capital
beneficiaries of the trust were the husband’s children. The
husband was an income beneficiary. The beneficiaries rights
vested on a date determined by the trustee, and the trustees
had an unfettered discretion to deal with the trust assets and
income. In conducting the affairs of the trust, the husband
seldom consulted his brother and paid little attention to the
difference between the trust assets and his own.
The SCA held that ‘but for’ the trust, ownership in all the assets
would have vested in the respondent. The court therefore added
the trust assets to the value of the husband’s estate in
calculating the amount to be awarded to his wife.
o In Brunette, the wife wanted the court upon divorce to regard
the trust assets as the assets of business without distinguishing
between the assets of the partnership and those of the trust.
The court had to consider same by looking at how the trusts
had be administered in the past and to enable the court to do
so, they had to join the husband in his capacity as trustee.
o In Beira the wife inherited a large sum of money in terms of a
trust, and when the benefit would accrue, she’d be wealthy, but

CLS cc ©
Family Law Notes
100
the court refused to take this into account when deciding on the
redistribution – something fortuitous that has not yet vested
was not taken into account.
o In van Zummeren the husband was given a house from his
father and the wife had made valuable contributions to it for 16
years, but the court included it in the redistribution order.
o In Jordaan, the husband owned a farm he inherited from his
parents and had a trust (which was his alter ego) and the wife
did not contribute towards the farm itself, but stayed home to
care for their retarded child, so the court decided that the farm
and trust should be considered in the order. This seems to
conflict with van Zummeren, as in this case, she did make
valuable contributions to the house, whereas in Jordaan she
didn’t, but due to s7(5) – any other factor – the court felt that
she would have had she not been caring for the child.
Regarding FAULT with redistribution – the court in Beaumont said

that it could be taken into account but only in so far as it caused the
breakdown of the marriage especially if it was GROSS AND
PROLONGED.
In Buttner v Buttner, The SCA confirmed this approach to misconduct

and further held that if both parties are blameworthy, the court will
not take misconduct into account unless there is an imbalance in the
parties’ conduct that would make it inequitable to ignore their degrees
of blameworthiness.
EQUITY AND JUSTICE are considered here.
A redistribution order can’t be made against a party who has no

assets. (Redgard)
The clean break principle:

Beaumont – the court felt that the financial obligations of each party
should terminate as soon as possible after divorce.
Our legislation does not contain a clean break provision but the AD
did not regard the concept as foreign to our law.
This principle can be applied as long as it does not lead to unfairness.
This can be achieved by awarding a redistribution order and NO
maintenance order, but will depend on the facts of each case.
Plus the parties must have enough money to achieve this.
The interrelationship between S7(2) and S7(3) and the clean break
principle:
Beaumont: the court may not disregard the possibility of issuing a
maintenance order when considering redistribution. The court must
decide whether equity and justice would be best served if only a
maintenance order, or only an order for redistribution, or both were
issued.

CLS cc ©
Family Law Notes
101
In Esterhuizen, the court held that S7(3) actually serves two distinct
purposes, one being compassion of a spouse for past contributions
rendered to the maintenance or increase of the other spouse’s estate,
and another being provision for the applicant spouse’s maintenance
needs.
The court held that because redistribution serves these two distinct
purposes, a redistribution order can be made in respect of foreign
marriages in so far as that order provides purely for a spouse’s
maintenance needs.
It is submitted that this part of the decision is wrong:
1. The result of this dictum is that spouses in a very limited
category of cases can, in effect, obtain a lump-sum maintenance
award by way of a redistribution order.
2. The implication of this dictum is that a redistribution order
amounts to two separate orders that have been rolled into one –
one being an order dealing with the division of the parties’
matrimonial property and the other being a maintenance order.
But this does not mean that the redistribution order thereby becomes
two orders rolled into one – an interrelationship between the two
different orders does not mean that one becomes the other.
How much should be transferred to the poorer spouse?

In English law, the starting point is one third of the richer spouse’s
estate is transferred to the poorer spouse as redistribution.
This is merely a guideline in SA.
In Beaumont, the court refused to accept this as a starting point and

also refused to have any starting point, as, when deciding how much
must be transferred, the court must see what is just and take into
account all the relevant factors and the facts of each case.
The AD required that the court should start “with a clean slate” and
then fill in “the void by looking at all the relevant facts and working
through all the considerations, and finally exercising a discretion as to
what would be just.”
In Childs, the court held that equality should be the yardstick in

redistribution orders. In casu, both spouses had worked outside the
home for most of the marriage, but the wife was unable to build up an
estate of her own as she spent her income on domestic expenses. The
court found no reason to depart from equality of division and
accordingly awarded the wife half the net value of her husband’s
estate.
In Bezuidenhout, the SCA rejected equal sharing as a starting point

and reiterated that the court must start with a clean slate. In this
case, the wife, inter alia, preformed the domestic duties, worked for a
third party, entertained her husband’s friends and customers and
assisted her husband in his business. She later worked in his

CLS cc ©
Family Law Notes
102
business full time. The court expressed the view that the traditional
role of a housewife should not be undervalued simply because it is not
measurable in terms of money and stated that this role must be taken
into account. However, when it came to making an award in favour of
the wife, the court solely considered the wife’s participation in the
family business. She was thus, penalised for bearing the double
burden of being a homemaker and a businesswoman. As her role in
making the business a success was less than that of her husbands,
the court only awarded her 40 percent of the combined value of the
spouses assets.
In Kirkland, the court made a 50:50 division of the spouses combined

assets and ordered the wife to transfer money to the husband in order
to achieve this. The court did not view this as a rejection of the
principle of equality but merely held that the principle did not fit the
facts.
In Joubert, the wife had preformed domestic services, made financial

contributions towards the purchase of the couple’s two homes and
had also given up her job after the birth of the couple’s first child
because her husband no longer wanted her to work. The wife was
awarded a third of the combined assets.
In Badenhorst, the wife had preformed the traditional role of mother

and had also assisted her husband on their farm. She later became a
successful estate agent. The court also reverted to the decision of
awarding roughly one third / two thirds.
In view of the constitutional objective of gender equality, the court

preference of one third / two third division is unacceptable as it
suggests that even though a home maker and care givers services
qualify as a contribution, financial and business contributions are
more valuable.
The court in Buttner highlights this where the court ordered a

husband to pay 50 percent of the amount that was left of the net
proceeds of the sale of the spouses home to the wife. The husband
was a quantity surveyor and businessman, while the wife took care of
the domestics and the children. When their first child was born she
resigned from work (as agreed by both spouses). After the birth of
their second child, she was at times employed as a part time travel
agent and estate agent. During the marriage the parties shared their
income and regarded all assets acquired as joint assets. The court
concluded that fairness demands that effect be given to the principle
of equal sharing.
Form redistribution can take:

o Payment of a lump sum
o Payment of a sum of money instead of assets

CLS cc ©
Family Law Notes
103
o Payment of interest
o The giving of security
o Payment by instalments.
So from the Beaumont case, 5 NB aspects (criterion for establishing

the extent of the redistribution):
o The one third rule (here the court awards 1/3 of the total value
of one spouses assets to the other spouse with the smaller
estate. In our law the 1/3 rule has found no favour)
o The clean break principle
o What is a contribution (deals with the nature of the contribution
which entitles an applicant to redistribution)
o The role of misconduct – gross and prolonged and
o The link between redistribution and maintenance.
BUTTNER V BUTTNER
The court ordered a husband to pay 50 percent of the amount that

was left of the net proceeds of the sale of the spouses home to the
wife. The husband was a quantity surveyor and businessman, while
the wife took care of the domestics and the children. When their first
child was born she resigned from work (as agreed by both spouses).
After the birth of their second child, she was at times employed as a
part time travel agent and estate agent. During the marriage the
parties shared their income and regarded all assets acquired as joint
assets. The court concluded that fairness demands that effect be given
to the principle of equal sharing.
BADENHORST V BADENHORST
The SCA held that just because assets have been transferred to a
trust and vest in trustees does not per se exclude them from being
considered. However, a claim that trust assets must be included in
the estate of one of the parties will succeed only if there is evidence
that such party controlled the trust and but for the trust would have
acquired and owned the asset in his own name. Control must
however, be de facto – the founder controls the trust.
In this case the husband had full control of the trust assets and used
the trust as a vehicle for his business activities. He and his brother
were the trustees and he had the right to discharge his brother and
appoint someone else as co-trustee. The capital beneficiaries of the
trust were the husband’s children. The husband was an income
beneficiary. The beneficiaries rights vested on a date determined by
the trustee, and the trustees had an unfettered discretion to deal with
the trust assets and income. In conducting the affairs of the trust, the
husband seldom consulted his brother and paid little attention to the
difference between the trust assets and his own.

CLS cc ©
Family Law Notes
104
The SCA held that ‘but for’ the trust, ownership in all the assets would
have vested in the respondent. The court therefore added the trust
assets to the value of the husband’s estate in calculating the amount
to be awarded to his wife.
The court also noted that the wife had preformed the traditional role of
mother and had also assisted her husband on their farm. She later
became a successful estate agent. The court also reverted to the
decision of awarding roughly one third / two thirds.
Difference between forfeiture and redistribution
Source of law: Forfeiture: S9;

Redistribution: S7(3) – (6)
Area of application: Forfeiture: any type of marriage;
Redistribution: marriages out of COP without
accrual entered into before 1 November 1984
for whites and 2 December 1988 for blacks.
Meaning: Forfeiture: one spouse forfeits his / her claim
against the other;
Redistribution: one spouse has a claim
against the other.
Requirements: Forfeiture: consider the three factors and one
party will be unduly benefited in relation to
the other in the absence of the order;
Redistribution: direct or indirect contribution
to the growth or maintenance of the other
spouse and it is just and equitable to make
the order.

CLS cc ©
Family Law Notes
105
SECTION 7(1) – (2): MAINTENANCE
Section 7(1): the spouses agree in their divorce settlement as to the

amount and period of the maintenance and this is added into the
divorce order.
Section 7(2): no agreement reached – so court to decide taking various

factors into account.
When a court is asked to decide on the maintenance order, it takes

various factors into account (to decide amount etc) like
o The spouses’ ages
o Their prospective earning capacities
o The length of their marriage
o Their financial needs
o If conduct on either side caused the breakdown
o Their standard of living during the marriage
o Any redistribution order awarded
o Any other factor.
In Pillay the court held that maintenance would not be awarded easily
if the applicant is young, in good health, there are no children born of
the marriage or if the marriage was extremely short.
Move away from permanent maintenance:

On divorce, it’s usually expected that women go out and get
employment.
So the courts today grant rehabilitative maintenance.
So women who did not work during their marriages, but are able to
find work after divorce, are awarded a form of maintenance, rehab
maintenance, that will be given to them for a short period so they can
be trained or re-trained and get work.
In Kroon – court held that NO NOTIONAL EARNING CAPACITY will be

attributed to a woman who has no skills to allow her to be trained etc
after divorce – look at factors like her age, standard of living while
married, health, length of marriage, how long has she been absent
from the working market and her commitment to the care of her
young children.
KROON V KROON – maintenance for a spouse upon divorce.
The parties were married out of cop. They had 3 children of school
going age, which attended private schools as day pupils and lived with
their mother in the matrimonial home. The matrimonial home ,which
is worth R125 000 was registered in the wife’s name. the husband
lived in a townhouse, which was worth approx. R70 000. the wife sued
for divorce and inter alia claimed maintenance for herself at R1000
per month and for each child at R500 per month. She also wanted the

CLS cc ©
Family Law Notes
106
maintenance to be increased annually in accordance with the inflation

rate. She further claimed an order that the husband pay the children’s
educational, medical and dental expenses and to pay maintenance,
but asked the court to determine the amount. He further lodged a
counterclaim in which he asked the wife to transfer an undivided half
share of the matrimonial home to him or to sell the home and pay half
share of the proceeds to him . the court rejected the counterclaim and
ordered the husband to pay maintenance but at a lesser rate than the
wife claimed. This case addresses a number of important points.
Firstly it is important to note the courts emphasis on the fact that the
parties conduct is irrelevant in respect of the granting of the divorce
order but that it can be relevant for purposes of deciding on
maintenance. Another important point is that the order was framed in
such a way as to place strong pressure on the wife to sell the
matrimonial home in order to acquire a means of income for herself.
The court order was framed in such a way that the wife was obliged to
sell the matrimonial home to increase her means. Permanent
maintenance will not be awarded to a woman who can support herself
or who can be trained and 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 the
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 the young children.
Lump sum maintenance: today courts can award lump sum

maintenance. This is according to court decisions and the new
maintenance act.
An example is Zwiegelaar, where the court ordered the husband to pay
R8000-00 per month to the wife and a lump sum of R25000-00 for
household necessaries.
In Feldman v Oshry, the SCA found that maintenance in a lump sum
could indeed be awarded by the court as damages in relation to loss of
support are estimated with regard to the life expectancy of a claimant
and on the basis of other assumptions.
Token maintenance: this is asked for at the divorce hearing, because

if maintenance is not asked for then, one may never get one after that.
So the courts can award token maintenance to s spouse who doesn’t
really need maintenance now but may need it in the future. It will be a
small monthly amount like R1 per month. Then this amount can be
increased to real maintenance on application when it’s needed.
In Qoza, the court held that factors in s7(2) must be taken into
account in order to decide whether there is a need for maintenance to
be paid, and if so, by whom to whom. Also, what amount has to be
paid and the period for which it must be paid. Token maintenance
order should thus not be made unless it’s shown that the order is
needed. This was approved by Buttner, and the order for token

CLS cc ©
Family Law Notes
107
maintenance cannot be made as a matter of course, but made only if

the factors of s7(2) apply.
Rescission, suspension and variation of the order:

The maintenance order can be varied, cancelled or suspended upon
application by a spouse, for SUFFICIENT REASONS.
What are sufficient reasons depends on the facts of each case.
Changed circumstances can only be taken into account if the changes
are substantial.
In Havenga, the court said changed circumstances, if not material will

not justify a variation of the order.
The court must make an order that is just and not one based on
financial equity between the parties (Reid).
In Sparks, one party tried to vary the order merely because he was
dissatisfied with it – court said not sufficient reason.
If the paying spouse got remarried and so asks for a variation of the
maintenance order to his ex, this won’t be sufficient reason, as he’s
voluntarily taken on extra financial responsibilities – “feathering a
second nest”.
Inflation seems to not be a sufficient reason.
The payer of maintenance pays until the other party remarries or dies.
But if she lives with someone, and doesn’t marry him, her ex still has
to pay the maintenance, thus a dum custa clause can be added into
the maintenance agreement that even if she lives with someone, the
maintenance will end, as if she married him.
In Botha, the court described the purpose of rehab maintenance as

enabling the spouse who has been disadvantaged or disabled in some
way by the marriage, to be economically revived, and reintroduced to
the ability to be part of a normal economic life. The court thus
required a causal connection between the marriage and the spouse’s
inability to be self-supporting. Here, the court stated that the wife
didn’t need rehab maintenance as there was not evidence that she
was less able to support herself, and she was not awarded any
maintenance at all.
In Kooverjee: court held that although the courts generally limit the
rehab maintenance periods to 6-18 months, a proper analysis of the
rationale behind awarding it will not address the achievement of self
sufficiency. This dictum has then caused courts to adopt a more
realistic approach to the period it takes for the spouse who has the
lower earning capacity to become financially self sufficient. The court
looked at:
o the high standard of living the spouses had during the
marriage;
o the husband’s ability to maintain their standard of living;

CLS cc ©
Family Law Notes
108
o the fact that the couple’s children were cared for by the mom
(which was in their best interests);
Thus the court said the maintenance would decrease every 2 years, as
the kids grew older, until the kids were completing their tertiary
education or 10 years whichever came first.
Termination of maintenance orders:

o Comes to end on date stipulated in agreement;
o On death of the person receiving the payments
o On the remarriage of the person receiving the payments
o The question of whether it ends on the death of the payer is
conflicting:
Hodges: ends on the death of the payer and

Copelowitz: the person receiving the maintenance has a claim against
the deceased payer’s estate. This view was preferred for many years
but then in Kruger v Goss (2010) (SCA): the court favoured the
judgment of Hodges – marriage ends on death and there is no
absolute right and a party cannot insist on maintenenace.

CLS cc ©
Family Law Notes
109
POSSIBLE QUESTIONS
Is the Maintenance of Surviving Spouses Act 27 of 1990

applicable to Muslim marriages?
The Maintenance of Surviving Spouses Act does not expressly indicate

that it applies to surviving Muslim spouses. In respect of
monogamous Muslim marriages the majority of the judges in the
constitutional court held in Daniels v Campbell 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.”
This restricted interpretation was discriminatory and no longer
sustainable in view of the Constitution of the Republic of South Africa,
1996. 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. The court
emphasised that its judgment applies only to monogamous Muslim
marriages, as the issue before it concerned only a monogamous
Muslim marriage. However, the Constitutional court’s interpretation
will in future probably be applied to surviving spouses in polygamous
Muslim marriages too, 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.
In 1996 Mr and Mrs Lulli were married in South Africa out of

community of property with application of the accrual system,
after they had met each other abroad at a legal conference.
Before the marriage Mrs Lulli practiced as an attorney in Italy.
However, since the marriage she has not worked again because
her legal qualifications are not recognised in South Africa. Mr
Lulli has been a public prosecutor for the past 17 years. He earns
a good salary and is also a member of the government’s
retirement fund. Although Mr Lulli works full-time, he is just as
actively involved in the daily life of their sons, who were born of
the marriage, as Mrs Lulli. Mr and Mrs Lulli were happily married
until a month ago, when Mr Lulli acknowledged that he was
actually homosexual, and moved in with his friend, Mr Ling.
Shortly thereafter Mr Lulli sued Mrs Lulli for a divorce, as he
wished to get married to Mr Ling as soon as possible. In the
summons he offers to pay an amount of money to Mrs Lulli in
settlement of her accrual claim and requests joint physical
custody of their sons. Mrs Lulli opposes the divorce. She denies
that the marriage has broken down irretrievably and feels that Mr
Lulli should get his life in order and return to her and the boys. In
the event that Mr Lulli is not prepared to do so, she claims that

CLS cc ©
Family Law Notes
110
the amount of money that he offers her should be increased, as it

is clear that his pension interest was not considered in the
calculation of this amount. She also claims that custody of the
boys should be awarded to her, since she wishes to return with
the boys to Italy, where she can practice as an attorney again and
enjoy the support of her family.
Which legal concept is used in our law to determine when a
marriage relationship is no longer normal? Also give a description
of this concept and refer to a case in which the concept was
described.
The question whether a marriage has broken down irretrievably, is

simply a question of fact, which must be answered in the light of all
the available evidence.
The criteria laid down in Section 4
Section 4 (1) expressly provides that the 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.
It is clear that Section 4 (1) lays down two requirements:
* the marriage relationship must no longer be normal, and
* there should be no prospect of the restoration of a normal
marriage relationship between the spouses.
Thus, it must be determined when a marital relationship is no longer
normal.
i.e. when one or both of the spouses act in such a way that the
consortium is terminated or seriously disrupted, one can say that a
normal marital relationship no longer exists between the spouses. The
case where the consortium was described was Grobelaar. The test
used by the courts to determine whether consortium has been
terminated involves subjective as well as objective elements.
Can Mrs Lulli claim that Mr Lulli’s pension interest must be

considered in the calculation of her accrual claim? Explain your
answer with reference to the relevant legislation and case law.
Section 7 (7)(a) of the Divorce Act: a party to a divorce action may now
share in the pension interest of the other party.
The pension interest of each spouse is deemed to be part of his or her
estate for the purposes of division of the joint estate (if the spouses are
married in community), sharing the accrual (if the accrual system
applies), forfeiture of patrimonial benefits, maintenance, and
redistribution of assets (where this is applicable). In Sempapalele v
Sempapalele the court incorrectly held that a pension interest is not
an asset in the spouse’s estate. This view was rejected in Maharai v
Maharai.

CLS cc ©
Family Law Notes
111
The value of a spouse’s pension interest is calculated in the following

manner:
If the spouse is a member of a pension fund, the pension interest is
the benefit to which the spouse would have been entitled had he
terminated his membership of the fund on the date of the divorce.
If the spouse is a member of a retirement annuity, the pension
interest is equal to all his contributions to the retirement annuity fund
up to the date of the divorce, together with simple interest. The
amount of the pension interest deemed to be part of a spouse’s estate
is reduced by an amount of his pension interest to which another
party is entitled by virtue of a previous divorce.
This means that if a person is getting divorced for a second time, the
amount of the pension interest deemed to be part of his or her estate,
for purposes of the second divorce, is reduced by any amount of the
pension interest which has been paid to or awarded to his or her first
spouse. The Divorce Act also empowers the court to order the pension
or retirement annuity fund to pay any part of the fund which is due to
the spouse of the member directly to that spouse when the annuity
accrues to the member. The court may also order the Fund to make
an endorsement on its records that portion be paid directly to the
spouse.
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. The
Act does not provide for payment of interest (the pension benefit will
therefore be worth very little by the time it is paid to him/her.
It is further of the utmost importance that you should note that the
Act expressly states that the spouses’ pension interests will not be
taken into account if they were married on or after 1 November 1984
out of community of property and of profit and loss and without the
accrual system in terms of an ante-nuptial contract.
Mr and Mrs Smith got married out of community of property in

2005. During the first four years of marriage, the couple was
extremely happy. As a emblem of his love for her, Mr Smith
donated a luxurious porsche to Mrs Smith on their fourth
wedding anniversary. Nothing is mentioned about this donation
in the spouses’ antenuptial contract. On 31 March 2011 Mrs
Smith informed Mr Smith she was involved in an intimate
relationship with her gym instructor, Mr Miles, and that she
wanted to divorce Mr Smith. After that, the spouses no longer
shared a bedroom and although they still shared the same house,
they rarely communicated. In September 2011, Mrs Smith ended
their relationship with Mr Miles in order to reunite with Mr
Smith. Although they were happy for the first 5 months, Mrs
Smith realised that reconciliation between herself and Mr Smith
was impossible and that she wanted to spend the rest of her life
with Mr Miles. Since January 2012 Mrs Smith has been living

CLS cc ©
Family Law Notes
112
with Mr Miles. She plans to sue Mr Smith for a divorce at the end
of March 2012.
Mrs Smith has been informed that she can sue Mr Smith for a
divorce on the ground of irretrievable breakdown of the marriage.
When is a marriage considered to have been irretrievably broken
down? Name the criteria laid down by section 4(1) of the Divorce
Act 70 of 1979 in this regard.
Section 4(1) 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
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 or wife for a continuous period of at least one year
immediately prior to the date of the institution of the divorce
action.
Which two aspects does Mrs Smith need to prove to the court, if
she wishes to rely on this guideline only?
Mrs. Smith will have to prove that

o There has been no cohabitation for an uninterrupted period of at
least one year
o Even though they were living in the same house, the consortium
between them had been terminated – the issue is not
geographical separation
Why would Mrs Smith not be able to rely on this guideline?
The separation was not uninterrupted – the spouses attempted to

bring about a reconciliation within the one year period.
Would Mr and Mrs Smith 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
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.
Mr Smith informed Mrs Smith that he intends to oppose the

divorce action and request a forfeiture order in terms of section 9

CLS cc ©
Family Law Notes
113
of the Divorce Act 70 of 1979. Mrs Smith wishes to know from

you whether the car which Mr Smith 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.
It is unclear whether benefits acquired during the subsistence of the

marriage and which were 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.
What does a redistribution order entail? Explain very briefly.
The court can sometimes make an order that the assets of the richer
spouse be transferred to the poorer spouse.
May the court grant a redistribution order if the spouses were

married in community of property?
No
One of the requirements for 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
1. A spouse must have contributed directly or indirectly to the

maintenance or growth of the other spouse’s estate

CLS cc ©
Family Law Notes
114
2. The court must be satisfied that, because of such contribution, it

would be just and equitable to make the order.
3. The rendering of services like working in husband’s shop without
pay.
4. The saving of expenses that would otherwise have been incurred
(nanny, sewing, cooking, and looking after the kids).
5. Or in any other manner
Briefly explain the meaning of the “clean break” principle. Also

explain whether it is applied in our law.
The clean break principle:

Beaumont – the court felt that the financial obligations of each party
should terminate as soon as possible after divorce.
As long as it does not lead to unfairness.
This can be achieved by awarding a redistribution order and NO
maintenance order, but will depend on the facts of each case.
Plus the parties must have enough money to achieve this. The courts
strive for this, so is applied in our law.
What is “nominal maintenance” and why is it granted?
Nominal maintenance is a small monthly amount such as R1 or R5

awarded in a divorce to a spouse who is not in need of maintenance
upon divorce, but who may need maintenance in the future.
The reason why courts make orders for token maintenance is that
maintenance cannot be made in favour of a spouse after the marriage
has been terminated by divorce.
Briefly explain the meaning of “rehabilitative maintenance”.
Maintenance that is awarded to a spouse upon divorce for a limited

period to enable him or her to get a job or to be trained or retrained.
Awarded in Kroon v Kroon.
Name the factors that should be taken into account in

considering the surviving spouse’s reasonable maintenance
needs.
The following factors must be taken into account in considering the

surviving spouse’s reasonable maintenance needs:
• The amount in the deceased estate available for distribution
amongst heirs and legatees.
• The existing and expected means, earning capacity, financial
needs and obligations of the surviving spouse and the
• The standard of living of the surviving spouse during the
subsistence of the marriage and his age on the death of the
deceased.

CLS cc ©
Family Law Notes
115

• The surviving spouse’s age at the time of the deceased’s death.
• Any other relevant factor
Distinguish between a redistribution order in terms of section

7(3)-(6) of the Divorce Act and a forfeiture order in terms of
section 9 of the Divorce Act by briefly explaining what each
entails.
A redistribution order is applicable to marriages out of community of

property without the accrual system concluded before 1 November
1984 or before the coming into operation of the Marriage and
Matrimonial Property Law Amendment Act (on 2 December 1988)
where the spouses did not enter into an agreement concerning the
division of their assets. A forfeiture order is applicable to marriages in
community of property as well as marriages out of community of
property with or without the accrual system irrespective of when the
marriage was concluded. With a redistribution order one spouse has a
claim against the other. With a forfeiture order one spouse forfeits his
or her claim against the other.
Requirements:
The requirements for a redistribution order:
• 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.
• The court must be satisfied that, by reason of such contribution,
it would be equitable and just to make a redistribution order.
The requirements for a forfeiture order:
The three factors in section 9 must be considered
• The circumstances which led to the breakdown of the marriage.
• Any substantial misconduct on the part of either spouse.
One party will be unduly benefited in relation to the other in absence
of an order.
Mrs Rees plans to ask the court to grant a redistribution order in

her favour in terms of section 7(3)-(6) of the Divorce Act 70 of
1979. Have the prerequisites for the granting of a redistribution
order been met in this case? Briefly motivate your answer.
Yes, Mr and Mrs Rees were married prior to the commencement of

the Matrimonial Property Act on 1 November 1984, with an
antenuptial contract which excludes community of property,
community of profit and loss and accrual sharing in any form and
they have not entered into an agreement on the division of their
assets.

CLS cc ©
Family Law Notes
116
Distinguish between “lump sum maintenance” and “token

maintenance”.
Lump sum maintenance: today courts can award lump sum

maintenance. This is according to court decisions and the new
maintenance act.
An example is Zwiegelaar, where the court ordered the husband to pay
R8000-00 per month to the wife and a lump sum of R25000-00 for
household necessaries.
In Feldman v Oshry, the SCA found that maintenance in a lump sum
could indeed be awarded by the court as damages in relation to loss of
support are estimated with regard to the life expectancy of a claimant
and on the basis of other assumptions.
Token maintenance: this is asked for at the divorce hearing, because if

maintenance is not asked for then, one may never get one after that.
So the courts can award token maintenance to s spouse who doesn’t
really need maintenance now but may need it in the future. It will be a
small monthly amount like R1 per month. Then this amount can be
increased to real maintenance on application when it’s needed.
How does a maintenance order terminate?
o Comes to end on date stipulated in agreement;

o On death of the person receiving the payments
o On the remarriage of the person receiving the payments
The question of whether it ends on the death of the payer is

conflicting: Hodges: ends on the death of the payer and
Copelowitz: the person receiving the maintenance has a claim against
the deceased payer’s estate.
According to Goss it should terminate.
Explain what is meant by a “dum custa” clause.
The payer of maintenance pays until the other party remarries or dies.
But if she lives with someone, and doesn’t marry him, her ex still has
to pay the maintenance, thus a dum custa clause can be added into
the maintenance agreement that even if she lives with someone, the
maintenance will end, as if she married him.
Mr and Mrs Boussoni, both Asians, got married on 10 June 1980

in terms of the old standard-form antenuptial contract. Mrs
Boussoni, a secretary, never possessed any valuable assets. In
1985, Mrs Boussoni was offered a post as a secretary at a lawyer’s
office in Bloem. She declined this offer in order to further her
husband’s career as a doctor in Lenasia, where they lived. Mr
Boussoni contributed towards Mrs Boussoni’s maintenance until

CLS cc ©
Family Law Notes
117
she recently left him because their marriage had broken down
irretrievably. Although Mr Boussoni had no assets at the time of
entering into marriage, his estate is today worth R600 000. Mrs
Boussoni, however, still does not possess any valuable assets. Mrs
Boussoni now sues Mr Boussoni for a divorce. Owing to the fact
that the spouses can reach no agreement on the division of their
assets, Mrs Boussoni also requests a redistribution order as
contemplated in sections 7(3)-(6) of the Divorce Act 70 of 1979.
One of the requirements for 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. State
the ways in which one spouse can, in terms of section 7(4) of the
Divorce Act 70 1979, contribute to the maintenance or increase
of the other spouse’s estate.
In terms of section 7(4) of the Divorce Act contributions may be made

by:
• The rendering of services (for example where the wife worked in
her husband’s shop, without any compensation), or
• 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
• In any other manner
Does Mrs Boussoni’s behaviour, that is, declining the offer to

work in Bloem in order to further Mr Boussoni’s career in
Lenasia, qualify as a contribution? Answer “Yes” or “No” and
substantiate your answer with reference to relevant case law.
No. Declining an offer to work in Bloem in order to further Mr.

Boussoni’s career, does not qualify as a contribution since the
Appellate Division decided in Kritzinger v Kritzinger that normally only
a positive act would constitute a contribution. Merely to refrain from
action therefore does not qualify as a contribution to the growth or
maintenance of the other spouse’s estate.
Suppose Mrs Boussoni did not work at all during the subsistence
of the marriage but took care of their disabled child and managed
the household. Explain, with reference to the opinion of
Sonnekus and relevant case law, whether her contribution as a
housewife qualifies as a contribution.
Sonnekus asserts that there are certain common-law duties which

rest on each spouse and that it is the wife’s primary duty to perform
her traditional role as wife and mother by managing the household
and caring for her husband and the children. According to him a
spouse, in this case a wife that only performs these common-law

CLS cc ©
Family Law Notes
118
duties as a housewife has not made a contribution to her husband’s

estate that entitles her to a redistribution order.
In Beaumont v Beaumont the Appellate Division firmly rejected

Sonnekus’s point of view and found that the meaning of the words in
section 7(4) of the Divorce Act is wide enough to embrace the duties of
the housewife. This approach was also followed in Jordaan v Jordaan
where it was expressly decided that the wife had made her
contribution by managing the household and caring for the children.
It is thus clear that Mrs. Boussoni had made her contribution in
terms of section 7(4) of the Divorce Act by performing her common-law
duties as a housewife.
Mr and Mrs Bothma married out of community of property in

2000. In 2003 Mr Bothma bought a Mercedes for Mrs Botha as a
gift. The spouses’ antenuptial contract makes no mention of this
donation.
Mr Bothma sued Mrs Bothma for divorce last week when he
discovered that she has been having an affair with the pool boy,
Pablo. Mr Bothma also requested a forfeiture order in terms of
section 9 of the Divorce Act 70 of 1979 against Mrs Bothma.
Name the three factors contained in section 9(1) of the Divorce
Act that a court has to take into account when making a
forfeiture order.
(i)The duration of the marriage.

(ii) The circumstances which led to the breakdown of the
marriage.
(iii) Any substantial misconduct on the part of either spouse.
Fully discuss, with reference to case law and the opinions of legal
authors, whether the jeep (which Mrs Bothma received as a gift
from Mr Bothma during the subsistence of their marriage) will be
regarded as a patrimonial benefit of the marriage which Mrs
Bothma may have to forfeit upon divorce.
It is unclear whether benefits acquired during the subsistence of the

marriage and which were not conferred in the couple’s antenuptial
contract, such as the jeep in this case, can be forfeited.
In Watt v Watt the court was of the opinion that the patrimonial
benefits of a marriage out of community of property are fixed at
marriage by the terms of the parties’ antenuptial contract - in other
words, only benefits mentioned in the antenuptial contract are subject
to forfeiture.
This decision accords with the weight of Roman-Dutch authority.
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

CLS cc ©
Family Law Notes
119
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. In Persad v Persad, Toho v Diepmeadow City Council and
Moremi v Moremi the court adopted the latter approach in the context
of marriages in community of property and held that the right to
occupy premises in terms of a tenancy, a residential permit and a
statutory lease that was conferred on the spouses against whom the
forfeiture order operated but in respect of which the other spouse had
paid the rent could be forfeited – in other words, assets acquired
during the subsistence 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.
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.
Mr and Mrs Berman concluded a marriage in accordance with the

Jewish faith, in addition to a South African civil marriage. Mrs
Berman, who for the past three years has been having an affair
with her gynaecologist, Dr Jacobs, sued Mr Berman for divorce.
She wishes to marry Dr Jacobs as soon as possible because she is
expecting his baby. Mr Berman, however, informed Mrs Berman
that he would never grant her a Jewish religious divorce (a get).
Answer the following questions:
How does the South African divorce address the dilemma Mrs
Berman faces, namely that Mr Berman refuses to grant her a get?
Answer this question with reference to section 5A of the Divorce
Act 70 of 1979.
In terms of section 5A of the Divorce Act, 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.
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.
Amar v Amar.

CLS cc ©
Family Law Notes
120
The court issued a divorce decree in terms of the Divorce Act, but
ordered the husband who was unwilling to co-operate in obtaining a
Jewish divorce to pay maintenance to his wife until such time as their
marriage was terminated by the granting of a Jewish divorce.
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.
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.
In an ordinary divorce 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
Is the so-called one-third “rule” part of our law? Explain with

reference to case law.
No. Although this rule was applied in Beaumont v Beaumont, the

appellate division in Beaumont v Beaumont rejected the one-third
starting point, which was often applied in English law and for that
matter all other starting points. The court made it clear that a court’s
discretion in terms of section 7(3) should not be limited by laying
down guidelines and that the facts of the case together with all the
considerations that the court deems to be relevant, should determine
the outcome of each case. According to the court the most important
feature of our legislation, which the courts must take into account
when exercising their discretion, is the court’s assessment of what is
“just” having regard to the factors specifically mentioned in the Act
and to “any other factor which should in the opinion of the court be
taken into account”.
However, in Joubert v Joubert confirmed an order in which the court a
quo had awarded only one third of the husband’s assets to the wife.
The court concluded that the court a quo had made its award after
fully and precisely considering all the facts of the case and had
therefore not exercised its judicial discretion improperly. The court
accordingly found no reason to set the one third/two thirds division
aside.
Mr and Mrs Wilson were married in June 1984 in terms of the old
standard form antenuptial contract. At no stage did they make
the accrual system applicable to their marriage. Since they were
married, Mrs Wilson was a housewife managing the household and
raising the couple’s two children (a 9-year-old disabled daughter,
Darlene, and a 17-year-old boy, Koos). Mr and Mrs Wilson now

CLS cc ©
Family Law Notes
121
wish to get divorced and agree that Mrs Wilson will have custody
of Darlene and Mr Wilson custody of Koos, but that they will
exercise joint guardianship over both children. Mrs Wilson plans
to immigrate with Darlene to Canada once the divorce has been
finalised, since there is a greater access to schools for disabled
children there. The spouses, however, cannot reach consensus on
the division of their assets. Mrs Wilson has a BCOMPT degree, but
foresees that it would be difficult to find a job since she has no
working experience. Although Mr Wilson had no assets at the
time of entering into marriage, he is currently a wealthy property
developer who also inherited a dairy from his father in 1989, and
from which he accumulates profit to this day. Owing to her
numerous obligations towards her children and the household,
Mrs Wilson seldom visited the dairy and had no interest in the
dairy activities.
Because Mrs Wilson has never earned her own income and has
always been financially dependent on Mr Wilson, she has no
assets at present. She wishes to request the court to grant a
redistribution order in terms of section 7(3)-(6) of the Divorce Act
70 of 1979 in her favour.
State the prerequisites for the granting of a redistribution order

and indicate whether they are met in this case.
The prerequisites for the granting of a redistribution order is that the

parties to the divorce action
o Should have been married before the commencement of the
Matrimonial Property Act, in other words, before 1 November
1984, and should have concluded an antenuptial contract
excluding community of property, community of property and
loss, and accrual sharing in any form, or
o Prior to the commencement of the Marriage and Matrimonial
Property Law Amendment Act, in other words, before 2
December 1988, in terms of section 22(6) of the Black
Administration Act, as it existed immediately prior to its repeal
by Act 3 of 1988, in other words subject to complete separation
of property
o They should not have entered into an agreement concerning the
division of their assets
The prerequisites are met in this case.
One of the requirements for granting a redistribution order is that

the spouse who requests it should have contributed directly or
indirectly to the maintenance or increase of the other spouse’s
estate during the subsistence of the marriage. Does Mrs Wilson
meet the requirement? Answer “Yes” or “No” and substantiate
your answer with reference to one court decision. (You need to
give the name of the court case and briefly state the decision).

CLS cc ©
Family Law Notes
122
Yes, Mrs. Wilson meets this requirement.

In Beaumont v Beaumont the Appellate Division held that the wording
of section 7(4) of the Divorce Act is wide enough to embrace the
performance of the “ordinary duties” of looking after the home and
caring for the family, and by doing so the wife undoubtedly renders
services and saves expenses which necessarily contribute to the
maintenance or increase of her husband’s estate.
Explain whether the farm which Mr Wilson inherited would be

taken into account by the court in terms of section 7(5) (d) of the
Divorce Act 70 of 1979 for purposes of the redistribution order
The wide scope of the court’s discretion with regard to redistribution is

highlighted by section 7(5)(d) of the Divorce Act which permits the
court to consider “any other factor” in the exercise of its power to
make a redistribution order.
In Beira v Beira it was held that something fortuitous such as an
unexpected inheritance cannot be brought into issue.
In Van Zummeren v Van Zummeren, on the other hand, it was found
that although the parties’ matrimonial home was a gift made to the
husband by his father, it could be included in the redistribution order
because the wife had for 16 years made valuable contributions
towards preservation and enhancement of the property. In this way
she had rendered services which had benefited and contributed to the
maintenance of her husband’s estate.
Although the respective results of the decisions in Beira and Van

Zummeren appear to be conflicting, they can be reconciled by
focussing, not on the type of asset which the dispute relates to, but
rather on the issue whether the other spouse actually made a
contribution to that asset. In other words, it is not the type of asset,
but rather the issue whether the other spouse made a contribution to
that asset, which determines whether a particular asset can be
considered for purposes of a redistribution order.
The facts of each case with regard to the applicant’s contribution to

particular assets will therefore determine which assets will be
considered for purposes of a redistribution order.
In Jordaan v Jordaan the court made a distinction between the

accrual system and redistribution orders. The court referred to section
5 of the Matrimonial Property Act, in terms of which an inheritance, a
legacy or a donation which accrued to a spouse during the
subsistence of the marriage is specifically excluded from the accrual.
Because section 7(3) of the Divorce Act contains no such exclusions
the court held that the farm Mr. Jordaan had inherited should be
taken into account for the purposes of a redistribution order, as long
as it was just and equitable to do so. On this point, the court referred

CLS cc ©
Family Law Notes
123
to the Van Zummeren case in which it was held that the qualifying
factor which determines whether an asset can be taken into account
for the purposes of a redistribution order is to be found not in the
causa underlying the acquisition of the asset, but rather in whether
the other spouse had made contributions to that specific asset.
Contrary to Van Zummeren, the plaintiff in the present case (Mrs.
Jordaan) had made no contributions to the farm. The court, however,
pointed out that it could hardly have been expected of Mrs. Jordaan,
who had had to care for her and Mr. Jordaan’s disabled child, that
she should visit the farm on a regular basis. The court held that she
had made her contribution by remaining at home and caring for her
children, thereby enabling her husband to oversee the farming
operations.
No definite answer, but in terms of the decision in Jordaan the
inheritance in the Smith case will in all probability be taken into
consideration.
Mrs Wilson realises that because of her qualifications she will not
be entitled to permanent maintenance. However, she wishes to
know from you whether she will be entitled to any other form of
maintenance. Fully advise her with reference to authority.
She will probably be entitled to rehabilitative maintenance.

Such rehabilitative maintenance will support the spouse to whom it is
awarded for a certain/temporary period of time in order to enable
him/her to be trained or retrained.
In Kroon v Kroon the court held that

o Rehabilitative maintenance could be considered if it is likely
that a spouse can be trained or retrained for a job, occupation
or profession and the spouse will therefore be able to provide
his/her own support
o In order to determine whether rehabilitative maintenance
should be granted no notional earning capacity will be
attributed to a spouses who does not have the necessary skills
that will enable him/her to be trained or retrained for a job,
occupation or profession after divorce
o The following factors should be taken into account by the court
when it considers the spouse’s employability: the spouse’s age,
state of health, duration of the marriage, the spouse’s standard
of living during the marriage, the length of the relevant spouse’s
absence from the labour market, whether he/she has any
marketable skills, and his/her commitment to the care of
young children
Rehabilitative maintenance was also granted in V v V
What type of information regarding Mr and Mrs Kyle’s divorce

action may be published? Answer this question with reference to

CLS cc ©
Family Law Notes
124
the limitation imposed by section 12 of the Divorce Act 70 of

1979 on the publication of particulars of divorce actions. You
should also mention when the limitation does not apply
In terms of the limitation section 12 of the Divorce Act imposes on the

publication of the particulars of divorce actions, only the following
information on divorce actions may be published:
(1) The names of the parties to a divorce action, and/or
(2) The fact that a divorce action between the parties is pending
in a court of law, and/or
(3) The order of the court
No other particulars of the divorce action which may come to light in

the course of such an action may be made publicly known or
published for the information of the public or any section of the
public.
The limitation on the publication of particulars of divorce actions does
not apply to the publication of particulars or information
(1) For the purposes of the administration of justice
(2) In a bona fide law report which does not form part of any
other publication than a series of reports of the proceedings
in our courts of law
(3) For the advancement of or use in a particular profession or
science

CLS cc ©
Family Law Notes
125
CONSEQUENCES OF DIVORCE ON THE CHILDREN
Best interests of the child (S28(2)):

In McCall, the court looked at factors like
1. Emotional ties and love between parent and child
2. Parents’ ability to communicate with the child
3. Parents’ ability to provide for the child etc.
MCCALL V MCCALL – factors to be considered in determining what is

in the Childs best interests in the context of custody.
When the parties divorced, they entered into a settlement agreement

which was made an order of court. In terms of this agreement custody
of the couples 2 children was awarded to the mother. The agreement
also provided for the appointment of a psychologist to provide
counselling to all family members to monitor them on an ongoing
basis to investigate the best interests of the children and to advise
accordingly. The psychologist recommended that the son, Rowan, be
placed in his father’s custody. The Childs mother did not agree with
this recommendation , hence the application. The court upheld that
Rowan should be placed in his father’s custody.
In terms of common law the criterion for determining any matter
involving custody of or access to a child is the Childs best interests.
Section 28(2) of the constitution confirms and entrenches this
criterion as paramount in all matters regarding a child.
This is embodied in the Mediation in Certain Divorce Matters Act.

In terms of this act, the best interests of the child are paramount.
The main aim of the Divorce Act – s6 – is that provision is made for
the children, that a family advocate has investigated and made a
report, arrangements were made for the children that were in their
best interests etc.
In terms of the MCDM Act – a family advocate must investigate and
make a report to the court on the welfare of the children, and the
court can then consider the report when deciding the fate of the
children.
INTERESTS OF THE CHILDREN OF DIVORCING PARENTS

The following principles guide the implementation of all legislation
applicable to children and all proceedings, actions and decisions by
any organ of state in any matter concerning a child or children in
general. These principles are therefore also applicable in divorce
proceedings.
The Children’s Act requires that all proceedings, actions or decisions

in a matter concerning a child must:
o respect, protect, promote and fulfil the child’s rights set out in the
Bill of Rights, the best interests of the child standard set out in

CLS cc ©
Family Law Notes
126
section 7 and the rights and principles set out in the Children’s Act
(subject to any lawful limitation)
o respect the child’s inherent dignity
o treat the child fairly and equitably
o protect the child from unfair discrimination on any ground,
including the grounds of the health status or disability of the child
or a family member of the child,
o recognise a child’s need for development and to engage in play and
other recreational activities appropriate to the child’s age
o recognise a child’s disability and create an enabling environment to
respond to the special needs that the child has (s 6(2))
Having regard to the child’s age, maturity and stage of development,

the child and a person who has parental responsibilities and rights in
respect of that child must be informed of any action or decision taken
in a matter concerning the child which significantly affects the child (s
6(5)). If it is in the best interest of the child, the child’s family must be
provided with an opportunity to express their views in any matter
concerning the child (s 6(3)). Furthermore every child who is of such
an age, maturity and stage of development as to be able to participate
has the right to participate in an appropriate way in any matter that
concerns him or her. The child’s views must be given due
consideration (s 10). An approach which is conducive to conciliation
and problem-solving should be followed in all matters concerning the
child. A confrontational approach should be avoided. A delay in any
action or decision must be avoided (s 6(4)).
Section 9 of the Children’s Act states that in all matters concerning a
child the best interest of the child is of paramount importance.
Section 7 of the Act contains factors to determine the best interest of
the child. They are applicable when the Children’s Act requires that
the best interest of the child standard should be applied. Section 6(2)
clearly states that all proceedings, actions or decisions in a matter
concerning a child must respect, protect, promote and fulfil the best
interests of the child standard. The factors will therefore have to be
considered when the court has to assign parental responsibilities and
rights on divorce.
The Children’s Act also makes special provision for children with
disabilities and chronic illnesses (s 11).
The Mediation in Certain Divorce Matters Act 24 of 1987

In terms of section 6(4) of the Children’s Act an approach which is
conducive to conciliation and problem-solving should be followed in
any matter concerning a child, and a confrontational approach should
be avoided. The Act therefore promotes a conciliation and problem-
solving approach although this does not necessarily mean that
mediation must be used. Other sections of the Act encourage or even
prescribe mediation but these sections are either not yet in operation
or they do not apply to divorce matters.

CLS cc ©
Family Law Notes
127
In Van Vuuren: the court indicated that a family advocate ought to

apply for an order authorising an enquiry if one of the following are
envisaged:
1. Care of a young child will not be given to the mom
2. Siblings will be separated.
3. Care will be awarded to a person other than the child’s parents.
Etc.
VAN VUUREN V VAN VUUREN – circumstances in which the family

advocates ought to institute an investigation.
Upon their divorce, the parties entered into an agreement in terms of

which their children would spend certain weekends and school
holidays with their father. The court had difficulties with the
agreement , inter alia because the of the fathers alcohol problems and
postponed the case for a day. The next day the plaintiff requested that
the case be postponed indefinitely and that the family advocate be
ordered to investigate the matter. The court postponed the case and
ordered the family advocate to investigate the matters of custody and
access.
This case is important because it contains guidelines on when a
family advocate ought to investigate the arrangements regarding the
children. De Villiers J indicated that a family advocate ought to apply
for an order authorizing an enquiry if it is envisage that:
custody of a young child will not be awarded to the child mother
siblings will be separated
custody will be awarded to a person other than the child’s
parents
an arrangement regarding custody or access will be made which
is prima facie not in the child best interest.
Aspects the court may regulate:

S6(3) of the Divorce Act provides that the court which makes the
divorce order may make any order it deems fit in respect of the
maintenance needs of a dependent child of the marriage or the
“custody or guardianship of or access to” a minor child of the
marriage.
In Wheeler, the PMB court came to the conclusion that it would be

preferred if the terminology of the Children’s Act be used in divorce
proceedings – thus, care, guardianship and contact. The court should
make an order that both parents will have full parental rights and
responsibilities and rights but that the child shall reside with a
particular parent and that parent shall have the responsibilities and
rights to maintain contact with the child.

CLS cc ©
Family Law Notes
128
GUARDIANSHIP:
Means a person’s capacity to administer the assets, property,

business concerns etc and assist minor’s to enter into contracts and
marriages.
Both parents have guardianship over children born of their marriage.

At divorce, guardianship generally remains with both parents unless a
court awards sole guardianship to one of them. According to the new
Children’s Act, another guardian may be appointed along with the
parents.
If a parent gets sole guardianship, he/she has the right to consent to

the minor’s marriage, removal of the minor from SA, application for a
passport etc.
If both parents have joint care, both of them need to consent to the
removal of the minor from SA. So if one parent wants to take the
minor outside SA, the permission of the other parent is needed as well
as of another guardian if there is one, unless the court orders
otherwise.
The Guardianship Act was repealed by the Children’s Act. The

Children’s Act uses the term “guardianship” in the narrow sense (s
18(2)). Guardianship in the narrow sense does not include custody (or
care). The Children’s Act does not use the legitimacy of a child to
determine guardianship. Both parents have guardianship if they were
married to each other at the time of the child’s conception or birth or
any intervening time. As a general rule both parents should still retain
guardianship upon divorce. If more than one person has guardianship
either one may exercise any aspect of guardianship independently,
unless any Act, legal rule or the court provides otherwise (ss 18(4) and
30(1) of the Children’s Act). The consent of all the guardians is
necessary for the transactions listed in section 18(3) (c) of the
Children’s Act.
CARE:
Means a person’s capacity to have actual, physical control of the

minor, minor lives with them, person supports minor, school, sports,
sleep etc.
If the parents are married, both of them have care.

On divorce, the court can make an award regarding care – in the best
interests of the child.
In McCall, the court looked at the previously mentioned factors to
decide on the best interests of the child regarding care.
In the past, the courts used the “maternal preference rule” regarding
the care of small children – went to the mother.

CLS cc ©
Family Law Notes
129
This rule was rejected in van der Linde and Madiehe which is in
accordance with the equality clause in our Constitution.
In van der Linde – court said mom’s can be good dads and dad’s can
be good moms.
In Madiehe, court said custody (now care) is not a gender privilege or
right but a responsibility to be earned. This was confirmed in
Critchfield – who warned that it would be unconstitutional to place
unfair weight upon maternity when balancing up all the factors, and
that the court must remind itself that maternity can never be, WILLY-
NILLY, the only consideration of importance when deciding on custody
(now care).
4 types of care:
1. Sole care
2. Deferred/postponed care
3. Split/divided care
4. Joint care (Corris)
In Krugel, the court rejected that joint custody (now care) is not in the
best interests of the child, court had a more liberal approach to the
granting of joint custody (now care)– as long as the parents are both
fit and proper persons, they should have equal say in their kids’
upbringing.
KRUGEL V KRUGEL –joint custody (now care).
The parties married in 1993 and divorced in 1996. They remarried in

1997 and again divorced in 1999. Two children were born of their first
marriage. They were joint legal custodians of the children by virtue of
settlement agreement which was made an order of court upon their
second divorce, but the father was granted physical custody. While
residing in Cape Town the father applied for sole custody. The parties
had previously been involved in litigation with regard to custody and
the father averred that in view of their history of custody claims and
animosity between them, they could not work together and act in the
best interest of the children. He also argued that the fact that he had
moved to Cape Town made it impossible for them to exercise joint
custody. The children’s mother opposed the application. She conceded
that the children should continue residing with their father. She
brought a counter-application in which she sought extended access to
the children. She maintained that the father had moved to Cape Town
without her consent and that the move was unlawful as the parties
had joint custody. She further argued that the father had moved with
the specific intention of frustrating her rights regarding her children
and to minimize her influence over them. She contended that the
father was attempting to sabotage joint custody in order to use the
fact that joint custody was not working as a reason for changing the
joint custody order. The court dismissed the father’s application and
partly granted the mothers counter application.

CLS cc ©
Family Law Notes
130
In deciding whether or not to order joint custody, the court has to

consider whether input from both parents “even if that input is at
times disharmonious”, is not preferable to an uninvolved parent
UNISA feel that a court should not as a rule, order joint care if one of
the party’s has committed/threatens to commit domestic violence.
If a child is emotionally and intellectually mature, he may decide
which parent has care.
CONTACT:
This is what the non-care giving parent may be awarded by the court.
Structured contact may be granted – times, frequency etc.
The court can restrict the non-care giver’s contact, order that it be
supervised, postpone it if the non-care giver is in recovery for drugs
etc, and can even deny contact.
Restricted contact example: van Rooyen where a lesbian mother

wanted access (now contact) to her kids, her fitness as a mother was
NEVER in issue, and the judge made remarks about her lifestyle and
how homosexuality was abnormal and unacceptable. He granted her
access (now contact) but imposed conditions – female partner
excluded from bedroom on visits by children, and for holidays, she
was excluded from the house altogether.
Since Bill of Rights, V v V: judge criticised van Rooyen saying that it’s
wrong to describe homosexuality as abnormal. The children’s rights
are paramount. Judge granted joint custody (now care) – and that the
kids live with both parents and judge for themselves which parents’
lifestyles was less harmful.
After divorce, both parents have to maintain the children of the

marriage.

CLS cc ©
Family Law Notes
131
OTHER FORMS OF UNIONS
Customary marriages
There are 3 types of indigenous marriages:
1. traditional indigenous marriage (very unspecialised, entered into
between groups by groups),
2. the customary union (also unspecialised entered into by girl,
boy and girl’s dad) and
3. the customary marriage (the recognised marriage in terms of the
Recognition of Customary Marriages Act, from 15 November
2000, all marriages entered into between blacks under
customary law is a CM).
The proprietary consequences of monogamous customary marriages

entered into during or before the coming into operation of the Act are
the same as in the case of civil marriages.
Proprietary consequences of polygymous customary marriages entered
into before the coming into operation of the Act are determined by
traditional customary law, while the proprietary consequences of
polygymous customary marriages entered into after the coming into
operation of the Act are regulated by the Act.
The wife’s status was, in the old 2 marriages (TIM and CU) one of a
perpetual minor and guardianship over her was transferred from her
father to her husband on the marriage. The RCMA has now abolished
this. The wife how has, on the basis of equality with her husband, the
full capacity to conclude agreements…..
The TIM and CU could not be dissolved by the courts, but the CM has
to be dissolved by a competent court by divorce on the ground of
irretrievable breakdown. Death does not dissolve this marriage. If the
husband or the wife died, he/she could be substituted for. The “seed
raiser” substituted for the wife. Children born of the seed raiser are
deemed the kids of the deceased wife’s house.
The constitutional issues arising out of these marriages are the issues
of lobollo and polygamy.
There are views that the payment of lobollo unfairly discriminates
against women and violates their right to dignity. It amount to buying
a woman. This view has generally been rejected though. Lobollo does
not violate the woman’s rights, it merely compensates her family for
the loss of a daughter, validates and stabilises their marriage and
binds the 2 family groups to the ancestors.
Muslim and Hindu marriages:

Many acts today include Muslim and Hindu marriages and thus are
beginning to recognise the spouses as spouses.
Example: Daniels v Campbell, the constitutional court held that a
surviving spouse in a monogamous Muslim marriage qualifies as a

CLS cc ©
Family Law Notes
132
spouse and survivor in terms of the Intestate Succession Act and the
Maintenance of Surviving Spouse’s Act.
In Ryland v Edros – court said contractual obligations flowing from a
factual monogamous Muslim marriage can be recognised and enforced
as between the parties despite the fact that it’s potentially
polygamous.
In Ismail, the court said due to the fact that Muslim marriages are
potentially polygamous, none of the contractual obligations flowing
from it could be recognised.
In Amod v MMVAF, the SCA extended a dependant’s action for loss of
support to the surviving spouse of a monogamous Muslim marriage.
The court held that it’s not the fact that the parties are lawfully
married that’s important but the fact that the deceased had a legal
duty to support her.
The constitution and Muslim marriages – 2 issues are freedom of
religion and sex and gender equality.
The application of the extension of the word spouse was extended to

polygymous Muslim marriages in Hassam v Jacobs.
HASSAM:
The applicant was married to the deceased according to Muslim law.

After her husband’s death she claimed a share in his estate. The
respondent, in his capacity as executor of the estate, rejected the
applicant’s claim that she could inherit intestate from the estate of the
deceased.
The executor argued that the applicant did not qualify as a “survivor”
or “spouse” in terms of the Intestate Succession Act or the
Maintenance of the Surviving Spouses Act since the marriage was
polygamous. The applicant sought an order declaring that she was the
spouse of the deceased and that the surviving spouses in a
polygamous Muslim marriage enjoy the same privileges as surviving
spouses in a de facto monogamous Muslim marriage in terms of the
provisions of the Intestate Succession Act and the Maintenance of the
Surviving Spouses Act. In the alternative she sought an order
declaring certain provisions in these two Acts unconstitutional.
The court referred to Daniels v Campbell where it was held that the
ordinary meaning of the word “spouse” encompasses a party to a
Muslim marriage. In the Daniels case the Constitutional court
emphasised that its judgment applied only to spouses in monogamous
Muslim marriages, and only in respect of the Intestate Succession Act
and the Maintenance of the Surviving Spouses Act. In the Hassam
case the court held that the words “spouse” and “survivor” in the
Intestate Succession Act and the Maintenance of the Surviving
Spouses Act should also include widows in polygamous marriages
otherwise it would amount to unfair discrimination against widows in
such marriages. In this case the court therefore extended the

CLS cc ©
Family Law Notes
133
recognition afforded in Daniels v Campbell to monogamous Muslim

marriages, to polygamous Muslim marriages.
The Acts which afforded recognition to Muslim marriages for specific

purposes by including religious marriages in the ambit of the
legislation are also applicable to Hindu marriages. (Govender v
Ragavayah).
In Govender, the question before the court was whether a spouse in a

monogamous Hindu marriage would be regarded as a spouse in terms
of S1 of the Intestate Succession Act – in other words, is a
monogamous Hindu marriage recognised as a marriage for the
purposes of succession? The court referred to Daniels, Hassam, Gory
and Volks and held that in not recognising the rights of a spouse in a
Hindu marriage would amount to unjustifiable unfair discrimination.
Although polygyny is very rare under Hindu marriages today, the

constitutional court’s interpretation will probably be applied to
surviving spouses in polygynous Hindu marriages; otherwise there
would be unequal protection and benefit.
Heterosexual and same-sex life partnerships:
No legal consequences of marriage automatically ensue if couple live

together and don’t get married.
Legislation and courts have extended some of the consequences of
marriage to same sex and heterosexual life partnerships.
Several Acts treat heterosexual life partners and spouses alike.
In Robinson, the High Court in the Cape declared s1 of the

Maintenance of Surviving Spouse Act unconstitutional as it failed to
include permanent life partners and this infringed on s9. The judge
thus read words into “spouse”, “survivor” and “marriage” to include
permanent life partners. This decision was however, not confirmed by
the CC.
In Volks v Robinson the CC found that differentiating between a

spouse and a heterosexual life partner by excluding life partner from a
maintenance claim against the estate of his / her deceased life
partners estate does not constitute unfair discrimination nor does it
violate the survivors dignity.
Regarding same sex life partners:

In Langemaat, the judge held that the police force’s medical scheme
was to include a lesbian police officer’s partner in the scheme.

CLS cc ©
Family Law Notes
134
In J v Director General, a lesbian couple had twins by implanting

one of the partner’s eggs into the other partner and having the egg
fertilised by a donor sperm. The partners tried to have the babies
registered with the birth mother as “mother” and the partner as
“parent”. In terms of s5 of the Children’s Status Act, a baby born via
in vitro fertilisation to married spouses was legitimate (now a child
born of married parents) and both parents were the registered parents
whereas a child born to a woman in a same sex life partnership was
not.
The lesbian couple thus attacked the constitutionality of this.
The court then found this to be unconstitutional and that the
discrimination of this act could not be justified.
The Children’s Act repealed the Children’s Status Act. Section 40 of

the Children’s Act re-enacts s5 of the Children’s Status Act without
incorporating the amendments the constitutional court brought
about.
In terms of the Civil Union Act any reference to marriage in any law or
the common law includes a Civil Union. S40 of the Children’s Act thus
automatically applies to same-sex couples who have entered into a
civil union, but does not apply to same-sex partners who fall outside
the scope of the Civil Union Act.
The result is that a child born from artificial fertilisation of a woman

who is a civil union partner covered by s40, the child is a child born
from married parents.
If however, the woman was in a same-sex partnership not solemnised

in accordance with the Civil Union Act, her same-sex life partner won’t
acquire parental responsibilities and rights with regards the child –
she will have to adopt the child to acquire parental responsibilities
and rights.
In Du Toit, the legislation prohibiting lesbians from adopting were

declared unconstitutional, this included the Guardianship Act. The
Guardianship Act was repealed by the Children’s Status Act – father
and mother are not referred to any longer to allow for the inclusion of
lesbian and gay parents, so it is now termed “where more than one
person has guardianship”.
A civil union
The Civil Union Act 17 of 2006, which came into operation on 30

November 2006, applies to same-sex and heterosexual couples. It inter
alia allows same-sex and heterosexual couples to enter into a
marriage in terms of the Act or a civil partnership in terms of the Act.
It uses the collective noun "civil union" for marriages and civil

CLS cc ©
Family Law Notes
135
partnerships that are concluded in terms of the Act. A civil union is

defined as "the voluntary union of two persons who are both 18 years
of age or older, which is solemnised 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"
(s 1).
Civil union partners can choose whether they want to call their union
a marriage or a civil partnership (s 11(1)). Regardless of the name they
choose, the union has the same consequences as a marriage in terms
of the Marriage Act 25 of 1961, that is, a civil marriage (s 13(1)).
The Civil Union Act further equates any reference to "marriage" and to
"husband", "wife" or "spouse" in any law other than the Marriage Act
or the Recognition of Customary Marriages Act 120 of 1998 to a
reference to "civil union" and "civil union partner", respectively (s
13(2)).
In other words, any Act apart from the Marriage Act and Recognition
of Customary Marriages Act that refers to "marriage", "husband",
"wife" or "spouse" automatically applies to a civil union and civil union
partners.
A civil union partner may not conclude a civil or a customary marriage
(s 8(2)).
Legal requirements:
o Both parties must have the capacity to act: 18 years or older –
there are no exceptions.
o Agreement: both parties must have intention to enter into a civil
union.
o Lawfulness: monogamous (neither party may be a partner in
more than one marriage – civil / customary and there must be
no other legal prohibition)
o Prescribed formalities: marriage officer must solemnise the
marriage (but no marriage officer who belongs to a religious
denomination or organisation can be compelled to solemnise a
same-sex civil union).
o The marriage should be registered.
Constitutionality:
Minister of Home Affairs v Fourie: the court order the legislature to
afford same-sex couples the status, benefits & responsibilities
accorded to opposite sex couples.
In Fourie v Minister of Home Affairs, a lesbian couple attacked the

common law prohibition on same sex marriages and the SCA held that
the common law definition of “marriage” was unconstitutional as it
restricted the marriage of persons of the same sex. The court opened
up the definition to allow marriages of persons of the same sex. Same
sex couples must meet the requirements set by the Marriage Act for a
valid marriage. The Marriage Act refers to “husband” and “wife” same-

CLS cc ©
Family Law Notes
136
sex couples can still not be married by a marriage officer who uses
that marriage formula. The Marriage Act however allows marriage
officers who are ministers of religion or who hold a responsible
position in a religious denomination or organisation to follow the
marriage formula, which is usually observed by that denomination or
organisation if the particular formula has been approved by the
Minister of Home Affairs.
In Gory: the constitutional court confirmed an order by the high court

declaring section 1(1) of the Intestate Succession Act 81 of 1987
unconstitutional insofar as it does not provide for a permanent same-
sex life partner to inherit automatically, as a spouse would, when the
other partner dies without a will. The court further upheld the high
court’s reading in of the words "or partner in a permanent same-sex
life partnership in which the partners have undertaken reciprocal
duties of support" after the word "spouse", wherever it appears in the
section. The constitutional court held that the order of constitutional
invalidity should, in the main, operate retrospectively. It however
imposed limitations aimed at reducing the risk of disruption in the
administration of deceased estates and protecting the position of bona
fide third parties.
The subsequent enactment of the Civil Union Act has limited the field
of application of this decision, for same-sex couples who enter into a
marriage or civil partnership in terms of the Civil Union Act in any
event enjoy all the rights of spouses in a civil marriage.
Furthermore, section 13(2) of the Civil Union Act equates any
reference to "spouse" in any law other than the Marriage Act and the
Recognition of Customary Marriages Act to a reference to "civil union
partner".

CLS cc ©
Family Law Notes
137
CHILDREN’S RIGHTS AND PARENTS’ RESPONSIBILITIES AND

RIGHTS
Children’s rights and parental authority:

The Children’s act uses the term parental responsibilities and rights
rather than parental authority.
The parental responsibilities and rights include the responsibility and
right to care for and maintain contact with the child, to act as
guardian and contribute to maintenance of the child.
The Act does not use legitimate, illegitimate etc.

It rather selects the marital status of the father thus referring to
married or unmarried fathers.
Marriage includes civil and religious and customary marriages.
Legitimate = child born of a marriage and
illegitimate = child born of unmarried parents.
Mother has parental responsibilities and rights by giving birth to the

child.
A married father acquires these if he is the child’s biological father.
And is married to the child’s mother or was married to her at time of
child’s conception and birth.
The Children’s Act repeals the Natural Father’s Born out of Wedlock
Act. An unmarried father now obtains parental rights and
responsibilities if he is the child’s natural father and is living with the
child’s mother in a permanent life partnership. Regardless of whether
he is living with the mother or has lived with the mother he obtains
these rights and responsibilities if he consents to be identified as the
child’s father or pay damages according to customary law, contributes
or has attempted to contribute to the child’s upbringing for a
reasonable period etc.
A person can acquire these rights etc by adoption.
LEGAL AID BOARD v SR AND ANOTHER:
This case deals with the appointment of a legal representative for a

minor in terms of section 28(1)(h) of the Constitution of the Republic
of South Africa, 1996. In this case, SR, a minor child, whose parents
were involved in a divorce action about her care, requested help.
Following this request, the Legal Aid Board appointed a senior
attorney to represent SR. The child’s mother objected to the
appointment on the ground that only the child’s lawful guardian, a
person who has parental responsibilities and rights in respect of the
child or the court can appoint a legal representative for the child.
However, the court held that the Legal Aid Board had the authority to
provide legal assistance to a child at the expense of the State in terms
of section 28(1)(h) in certain circumstances. The court further held
that the Legal Aid Board could appoint a legal representative for the
child without authority from a third person or from the court, since

CLS cc ©
Family Law Notes
138
substantial injustice would have resulted if SR was not afforded legal

representation.
Parental responsibilities and rights:
Guardianship:
The Guardianship Act and the Children’s Status Act were replaced by
the Children’s Act.
The parental responsibilities and rights a person may have in respect
of a child include the right to act as guardian.
A guardian has to administer and safeguard a child’s property and
property interests and assist or represent the child in legal matters. If
more than one person has guardianship either one of them may
exercise any aspect of guardianship independently unless the Act or
court etc provides otherwise.
But the consent of all the child’s guardians is necessary for the
following:
o The child’s marriage
o The child’s adoption
o The child’s removal or departure from SA
o Application for child’s passport
o Alienation or encumbrance (mortgage) of any Immovable
property of the child.
A co-holder of parental responsibilities and rights may not surrender

or transfer such rights to another co-holder or anyone else.
He may allow another co-holder or person to exercise all or any other
responsibilities and rights on his behalf.
Before a person who has these rights can make a major decision
involving the child, he must have consideration to any wishes and
views of the child – looking at child’s age, maturity and stage of
development.
A major decision is:
o in connection with abovementioned list
o affecting contact between the child and a co-holder of parental
rights and responsibilities
o regarding the assignment of guardianship/care by the sole
guardian or parent who has sole care, to another person.
o which is likely to significantly change or adversely affect the
child’s living conditions, education, health, personal relations
with parent etc or child’s well being in general.
Having regard to child’s age, maturity, stage of development etc, the

child and the person who has these rights must be informed of any
action or decision taken in a matter concerning the child which
significantly affects the child. Every child who is of an age and
maturity and stage of development that is able to participate has the

CLS cc ©
Family Law Notes
139
right to participate in an appropriate way in any matter that concerns

him. Child’s views must be given consideration.
If the biological mother of a child is an unmarried child – i.e. under

18, her guardian is the guardian of her child if the biological father of
the child does not have guardianship over the child. When mom
becomes a major, she acquires guardianship over the child.
Administration of a child’s estate = includes receiving all money owed

to the child and the payment of debts, the receipt of movable property
and the registration of immovable property.
A person who donates/bequeaths property to child can exclude the

property from the parents’ control.
The parent is not entitled to payment for the administration of the
child’s estate.
Assistance in the performance of juristic acts = as long as parent acts
openly and in good faith, the parent can assist the child in a juristic
act in which the parent’s own interests are involved.
Care:
This is the capacity to physically have the child with him and control
and supervise the child’s daily life.
Caring, supporting and leading the child.
Upbringing, health, education, emotional well-being, etc.
The Children’s Act replaced the term custody with care.
But custody in other Acts is still referred to as custody.
Contact:
The Act replaces access with contact.
But still called access in other acts.
S28.Termination, extension, suspension or restriction of parental

responsibilities and rights
1. A person referred to in subsection (3) may apply to the High
Court, a divorce court in a divorce matter or a children’s court for
an order –
a. suspending for a period, or terminating, any or all of the parental
responsibilities and rights which a specific person has in respect
of a child; or
b. extending or circumscribing the exercise by that person of any or
all of the parental responsibilities and rights that person has in
respect of a child.
2. An application in terms of subsection (1) may be combined with
an application in terms of section 23 for the assignment of
contact and care in respect of the child to the applicant in terms
of that section.
3. An application for an order referred to in subsection (1) may be
brought –

CLS cc ©
Family Law Notes
140
a. by a co-holder of parental responsibilities and rights in respect of

the child;
b. by any other person having a sufficient interest in the care,
protection, well-being or development of the child
c. by the child, acting with leave of the court
d. in the child’s interest by any other person, acting with leave of
the court; or
e. by a family advocate or the representative of any interested organ
of state.
4. When considering such application the court must take into
account –
a. the best interests of the child
b. the relationship between the child and the person whose parental
responsibilities and rights are being challenged;
c. the degree of commitment that the person has shown towards the
child; and
d. any other fact that should, in the opinion of the court, be taken
into account
Ways of acquiring parental responsibilities and rights:

• Birth.
• Marriage or civil union with the child’s mother at the time of the
child’s conception or birth or any intervening time.
• A marriage or civil union between the child’s parents after the
child’s birth.
• A permanent life partnership between the parents at the time of
the child’s birth.
• A parental responsibilities and rights agreement.
• Assignment by an order of court
• Appointment in a will.
• Adoption:
o Process whereby parental responsibilities and rights over a child
are terminated and vested in another.
o Requirements briefly include that the child must be under 18,
and can be adopted by spouses or same sex partners or widows
and widowers, person married to child’s parent or the natural
father of a child born of an unmarried man.
o In past only South African citizens could adopt SA baby – this
fallen away in Fitzpatrick.
o Best interest of child again paramount.
o Consent to be obtained from both parents of child born of a
marriage, both parents of child born of unmarried man if he has
acknowledged in writing he is the father.
Judicial interference with parental authority:

The Guardianship Act been replaced with the Children’s Act.
In Jackson, the SCA rejected the view that the child’s best interests
must be weighed against the parent’s rights. The child’s best interests
must always be the determining factor.

CLS cc ©
Family Law Notes
141
S45: Pending the establishment of family courts by an Act of

Parliament, the High Courts and Divorce Courts have exclusive
jurisdiction over the following matters contemplated in this Act:
a. The guardianship of a child
b. the assignment, exercise, extension, restriction, suspension or
termination of guardianship in respect of a child
c. artificial fertilization
d. the departure, removal or abduction of a child from the Republic
e. applications requiring the return of a child to the Republic from
abroad;
f. the age of majority or the contractual or legal capacity of a child;
g. the safeguarding of a child’s interest in property; and
h. surrogate motherhood.
Nothing in this Act shall be construed as limiting the inherent

jurisdiction of the High Court as upper guardian of all children,
Termination of parental responsibilities and rights:

o child’s death,
o parent’s death,
o child becomes a major
o court order.

CLS cc ©
Family Law Notes
142
DUTY OF SUPPORT
The duty arises from the child’s birth.

Whether born of a marriage or not.
Both parents to support the child according to their respective means.
Duty extends independently of parental responsibilities and rights so
parents have a duty for as long as child unable to support himself and
as long as the parents are able to support.
In Glicksman, court made it clear that a parent’s duty to support his

child continues for as long as child is unable to support himself.
GLIKSMAN V TALEKINSKY – the duty of a parent to support his or

her major child.
The applicant was a widow who had 6 children ranging from the ages
of 8 months to 11 years. She claimed 176 pounds pm as maintenance
from her father (that is the respondent) who offered to pay 90 pounds.
Her father was financially able to support her. During her marriage
the applicant and her husband had a high standard of living, but their
financial situation deteriorated to such an extent that her husband
was declared insolvent. He died while still insolvent and the applicant
was left without any means to support herself and her children. The
court ordered the respondent to pay the applicant 90 pounds pm as a
contribution towards her maintenance.
A parent’s duty to support his or her child continues for as long as the
child is unable to support his or her self and the parent is able to pay
maintenance. The duty does not necessarily come to an need when
the child becomes a major.
A major child claiming maintenance bears the burden of proving the
he or she is in need of maintenance.
Other parties duty of support
Grandparent’s duty of support:

If parents can’t maintain child and grandparents can, both sides must
do so.
Use to be only maternal side (Motan), but in Petersen, said that rule
unconstitutional and now duty passes to both paternal and maternal
grandparents.
MOTAN V JOOSUB
Appellant married respondent’s son by Muslim rites. She &

respondent’s son had 4 children who were minors at time action came
before court. As union btw appellant & respondent’s son didn’t
constitute a valid marriage – children were extra-marital. Appellant
claimed maintenance from respondent for children. She averred that
respondent (paternal grandfather of children) was liable to support his

CLS cc ©
Family Law Notes
143
son’s extra-marital children. Respondent denied any liability.

Appellant excepted to this plea – exception was dismissed & it was
held that paternal grandfather of extra-martial children was under no
duty to support them. Appellant appealed against this decision.
Appeal dismissed.
Sibling’s duty:
If neither parents nor grandparents can support child, duty falls on
brothers and sisters of child according to their means. Also applies to
half-siblings.
Stepparent’s duty:
no duty as the duty rests on blood relation not affinity.
The concept of the duty

The duty includes food, medical care, accommodation, education etc.
To calculate the amount of the duty – look at child’s age, needs,
health, parent’s means, incomes and social status.
This duty is reciprocal – a child born of married parents must support
his parents and grandparents.
The position is unsure regarding child born of unmarried parents.
Termination of the duty

o When the child becomes adopted,
o becomes self-supporting
o when the child dies (it does not terminate on the death of the
supporter)

CLS cc ©
Family Law Notes
144
POSSIBLE QUESTIONS
Name the three requirements for a valid customary marriage.
For a customary marriage entered into after the commencement of

this Act to be valid -
The prospective spouses
(i) Must both be over 18
(ii) Must both consent to be married to each other under
customary law.
The marriage must be celebrated in accordance with customary law.
Will the delivery of lobolo continue under the Recognition of

Customary marriages Act 120 of 1998?
Yes as the parties must celebrate their marriage in accordance with

customary laws
Briefly discuss the duty of support.
The duty arises from the child’s birth. Whether born of a marriage or
not. Both parents to support the child according to their respective
means. Duty extends independently of parental responsibilities and
rights so parents have a duty for as long as child unable to support
himself and as long as the parents are able to support.
In Glicksman, court made it clear that a parent’s duty to support his
child continues for as long as child is unable to support himself.
Grandparent’s duty of support:
If parents can’t maintain child and grandparents can, both sides must
do so. Use to be only maternal side (Mootan), but in Petersen, said
that rule unconstitutional and now duty passes to both paternal and
maternal grandparents.
Sibling’s duty:
If neither parents nor grandparents can support child, duty falls on
brothers and sisters of child according to their means. Also applies to
half-siblings.
Stepparent’s duty:
no duty as the duty rests on blood relation not affinity.
The duty includes food, medical care, accommodation, education etc.
To calculate the amount of the duty – look at child’s age, needs,
health, parent’s means, incomes and social status.
This duty is reciprocal – a child born of married parents must support
his parents and grandparents.
The position is unsure regarding child born of unmarried parents.
Termination of the duty occurs
o When the child becomes adopted,
o becomes self-supporting
o when the child dies (it does not terminate on the death of the
supporter).

CLS cc ©
Family Law Notes
145
Name the ways of acquiring parental responsibilities and rights.
• Birth.
• Marriage or civil union with the child’s mother at the time of the
child’s conception or birth or any intervening time.
• A marriage or civil union between the child’s parents after the
child’s birth.
• A permanent life partnership between the parents at the time of
the child’s birth.
• A parental responsibilities and rights agreement.
• Assignment by an order of court
• Appointment in a will.
• Adoption
The Children’s Act 38 of 2005 repeals the Natural Fathers of

Children Born out of Wedlock Act 86 of 1997. When does an
unmarried father obtain parental responsibilities and rights in
terms of the Children’s Act?
An unmarried father now obtains parental responsibilities and rights

if he is the child’s biological father and is living with the child’s mother
in a permanent life partnership at the time of the child’s birth.
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
or pays damages in terms of customary law, contributes or has
attempted in good faith to contribute to the child’s upbringing for a
reasonable period; and contributes or has attempted in good faith to
contribute towards the expenses in connection with the maintenance
of the child for a reasonable period.
Vuyo has customary wives, Thandi and Bongi, whom he married

in 1997 and 1999 respectively. Thandi is Vuyo’s chief wife at
customary law. Bongi refuses to give any recognition to Thandi’s
superior status. She argues that since the Recognition of
Customary Marriages Act 120 of 1998 came into operation, she
and Thandi have equal status. She also informed Vuyo that in
terms of this new legislation she is no longer subject to his
authority. Vuyo wishes to know from you how the Recognition of
Customary Marriages Act changed the status of a wife in a
customary marriage. Advise Vuyo by explaining to him what the
Act provides regarding the wife’s status and how it has changed
the status of multiple wives of one man.
Until the coming into operation of the Recognition of Customary

Marriages Act 120 of 1998 a number of restrictions existed regarding
the capacity of a wife in a customary marriage. These restrictions

CLS cc ©
Family Law Notes
146
mean that she could not acquire property and had no capacity to act
or litigate unless she was assisted by her husband.
These restrictions no longer apply due to the fact that the Act
abolished the wife’s status of perpetual minority and her husband’s
guardianship over her.
Section 6 of the Act states 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.
This rule, in terms of which the wife in a customary marriage has the
same status as her husband, applies regardless of the number of
wives a man has. It appears that wives do not, at customary law, all
occupy the same rank.
One interpretation is that because all the wives have the same status
as their husband, there can be no distinction according to rank.
Another is that, although the Act creates equality between husband
and wife, the phrase “in addition to any rights that she may have at
customary law” implies that the relative status of each wife remains
unaltered so that, for example, the chief wife retains the customary
rights associated with her superior status.
Unisa submit that the latter interpretation is the better one.
Mrs Rees wants to marry Ms Champ after her divorce. She was
however informed that the Civil Union Act 17 of 2006 only
provides for civil partnerships which do not have the same
consequences as a marriage in terms of the Marriage Act 25 of
1961. Is this statement true? Briefly explain your answer with
reference to the contents of the Civil Union Act.
The statement is incorrect. In terms of section 11(1) of the Civil Union

Act 17 of 2006 civil union partners can choose whether they want to
call their union a marriage or a civil partnership. Regardless of the
name they choose, the union has the same consequences as a
marriage in terms of the Marriage Act 25 of 1961, that is a civil
marriage (section 13(1)). The Civil Union Act further equates any
reference to “marriage” and to “husband”, “wife” or “spouse” in any
law other than the Marriage Act or the Recognition of Customary
Marriages Act to a reference to “civil union” and “civil union partner”,
respectively.
Which important constitutional value is relevant with regard to

both the issue of the recognition of customary marriages and the
issue of the recognition of Muslim marriages?
Equality

CLS cc ©
Family Law Notes
147
Which practices regarding customary marriages are said to

infringe the constitutional value intended in Question 7(a)?
Explain briefly.
There are views that the payment of lobollo unfairly discriminates

against women and violates their right to dignity. It amount to buying
a woman. This view has generally been rejected though. Lobollo does
not violate the woman’s rights, it merely compensates her family for
the loss of a daughter, validates and stabilises their marriage and
binds the 2 family groups to the ancestors.
Briefly explain whether the infringement of the constitutional

value intended in Question 7(a) can be justified in terms of
section 36 of the Constitution of the Republic of South Africa.
On the basis of the right to culture and the belief in the ancestors, the
right could be argued to be justified by being limited.
Is a man who is a party to a customary marriage, entitled to enter

into a civil marriage at a later stage? Answer this question with
reference to authority.
The Recognition of Customary Marriages Act 120 of 1998 provides

that spouses who are parties to a customary marriage may not later
enter into a civil marriage except with each other and, before they can
enter into a civil marriage with each other, the husband’s other
customary marriages (if any) must first be dissolved.
Name 4 types of care orders
4 types of care:
1. Sole care
2. Deferred/postponed care
3. Split/divided care
4. Joint care (Corris)
After nine years of marriage Mr Natt informed his wife that he

was homosexual and wished to get divorced. He also told her that
as soon as their divorce was finalised, he intended to move in
with his friend whom he had been having intimate relationship
for the past year. Mr and Mrs Natt agreed that Mrs Natt would get
custody of their three minor children. Mrs Natt also agreed that
Mr Natt could have contact with the children on condition that
they should not be exposed to their father’s homosexual
relationship. During the divorce proceedings Mrs Natt insists that
Mr Natt’s access rights be restricted. She wants the court to
make it clear that, when the children visit him or sleep over at
his place, Mr Natt’s friend should not be present.

CLS cc ©
Family Law Notes
148
In Van Rooyen v Van Rooyen, a decision filled with judgemental

remarks about the abnormality and unacceptability of
homosexual relationships, the court made a restrictive order
similar to that requested by Mrs Natt. Do you think that the court
would, in Mr and Mrs Natt’s case, follow the same approach as in
Van Rooyen and make a similar order? Substantiate your answer
with reference to authority.
No, the court ought not to deliver a judgment similar to the one in Van
Rooyen since that judgment was delivered before the Bill of Rights
became part of our law.
In Van Rooyen v Van Rooyen the court argued that the children’s best
interests could not be served by allowing them to be exposed to their
mother’s homosexual relationship.
Even though the decision was apparently based on the children’s best
interests a similar order would in all probability today be declared
unconstitutional on the ground that it constitutes unfair
discrimination on the ground of sexual orientation and infringes the
right to freedom of association.
Also in the more recent case of V v V the court criticised the judge’s
remarks in Van Rooyen and held that, in the light of the equality
clause in the Constitution, it is wrong in law to describe homosexual
orientation as abnormal.
The court pointed out that to restrict a person’s access rights in such
a way because of his or her lifestyle would be unfair towards him or
her and the children. The court held that, as the child’s rights are
paramount, “situations may well arise where the best interests of the
child require that action is taken for the benefit of the child which
effectively cuts across the parent’s rights”.
In the light of the afore-mentioned the court should be careful as to
how it formulates its judgement about the reasons why access is
restricted. The court would probably not restrict Mr. Natt’s access
rights because of his homosexuality.
In 1983 Mr and Mrs Rees were married out of community of

property and community of profit and loss (without the accrual
system). Mrs Rees supported Mr Rees by selling vitamins and
health bars while he got his business off the ground. He is
currently a wealthy businessman. They have four minor children.
Mr Rees wants to divorce Mrs Rees because he has discovered
that Mrs Rees is having an affair with his aerobics instructor, Ms
Champ.
Mr Rees, 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 Cronjé’s constitutional arguments, whether this maternal
preference is still, or ought to be, applied by our courts.

CLS cc ©
Family Law Notes
149
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).
In Van der Linde v Van der Linde 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 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 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.
UNISA: 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.
Furthermore, the Convention on the Rights of the Child require
recognition of the common responsibilities of parents for the
upbringing and development of their children. 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
paramount.
Briefly explain the duties of the family advocate and indicate

with reference to case law when the family advocate ought to
apply to the court to be appointed.
In terms of the Mediation in Certain Divorce Matters Act, after the

institution of a divorce action, or after an application has been lodged
for the variation, rescission or suspension of an order made in terms
of the Divorce Act with regard to custody, guardianship or access, the
family advocate must, if so requested by a party to the proceedings or
by the court, institute an enquiry. If the family advocate had not been
requested to institute an enquiry, but nevertheless deems it in the

CLS cc ©
Family Law Notes
150
interests of the child, he or she may ask the court to authorise the
institution of an enquiry. The purpose of the enquiry is to enable the
family advocate to furnish the court with a report and
recommendations on any matter concerning the welfare of each minor
or dependent child of the marriage.
The family advocate may also, if he or she deems it in the interests of
the child, appear at the trial of any divorce action or the hearing of
any application. If the court requests the family advocate to appear at
a divorce trial or the hearing of an application, the family advocate
must do so.
The family advocate is empowered to adduce any available evidence
relevant to the action or application and to cross-examine witnesses.
In terms of Van Vuuren v Van Vuuren the family advocate, in this case,
ought to ask the court for authorisation to institute an enquiry since
the parents plan to separate the children from each other.

CLS cc ©
Family Law Notes
151
GUARDIANSHIP AND CURATORSHIP
Guardianship
The testamentary guardian: The Children’s Act permits a parent who
is a sole guardian of the child to appoint a person as the child’s
guardian in the event of the parent’s death.
If unmarried parents have joint guardianship in terms of the Act one

parent can appoint a testamentary guardian only if the other parent is
already dead or has been deprived of guardianship. Position thus the
same as in respect of married parents.
The assumed tutor: he may in turn appoint a guardian to assist him

in the exercise of the guardianship of a minor.
The guardian appointed in this way is the assumed guardian.
This is the power of assumption/substitution.
Tutor dative: high court as upper guardian of all minors may appoint
a guardian called tutor dative.
Supposed or putative guardian: person acts as guardian while under

impression that he is the guardian and turns out he is not. Here the
court can ratify the supposed guardian’s consents.
Requirements for appointment as guardian:

o must be over 18,
o not be under curatorship,
o must not have been a witness to the will if a testamentary
guardian,
o court must not have declared him unfit as a guardian and
o provide security.
Guardian’s rights and duties include:

o acting bona fide,
o acting in the minor’s best interests,
o avoid conflicts with his own and the minor’s interest,
o must assist and represent the minor in litigation and contracts,
o entitled to remuneration.
Termination of guardianship:
o on death of minor,
o death of guardian,
o attainment of majority,
o time for appointment lapses,
o completion of tasks,
o resignation etc.

CLS cc ©
Family Law Notes
152
Curatorship:
This means the officially supervised care for the person and the estate
of someone, if for some reason is incapable of managing their own
affairs.
If appointed over someone’s estate, called curator bonis.

If over person, called curator personae
If for litigation, called curator ad litem.
Types include:
curator nominate, if testator leaves property to minor, insane person
or prodigal, this curator administers the property.
The curator assumed, the curator nominate can appoint someone to

help him or act on his behalf, called curator assumed.
The curator dative appointed by high court.
The curator ad litem, for litigation purposes, usually for insane

persons and unborn children.
The requirements for appointment:

same as guardian.
Termination:
same as guardian.

CLS cc ©
Family Law Notes
153
POSSIBLE QUESTIONS
Briefly explain the meaning of the following terms:
Tutor dative
Both the high court as upper guardian of all minors and the master of
the high court may, if the interests of a minor require it appoint a
guardian to the minor. An example is if property accrues to a minor
while he or she is neither under parental authority nor under
guardianship or Curatorship.
Curator ad litem
This is someone who assists a person who is unable independently to

be involved in litigation, for purposes of that litigation. Examples are
unborn children, mentally ill persons and minors who are involved in
litigation against their parents
Briefly explain what is understood by the term “curatorship”.
Curatorship refers to the officially supervised care for the person and
the estate, or only the estate, of someone who, for some reason or
other (such as minority, old age, mental or physical illness, or
prodigality) is incapable of managing his or her own affairs.

CLS cc ©
Family Law Notes
154
NOTE THE FOLLOWING CASES AND THEIR IMPORTANT

ELEMENTS
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:-
o Claim for damages for breach of
contract
o 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
Fourie vs Minister of Home
marriage ceremony, wont be able to get
Affairs
married.
A:- Lawfulness of persons of the same-sex
to marry
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)

CLS cc ©
Family Law Notes
155
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
Moola vs Aulsebrook
born from 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
Peter vs Minister of Law & rights of one spouse to the company,
Order affection, services & support of the other
A:- Consortium omnis vitae

CLS cc ©
Family Law Notes
156
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:-
o Must be valid marriage between
partners
o Parties must share joint household
Excell vs Douglas
o 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

CLS cc ©
Family Law Notes
157
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.
Bannatyne vs 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)
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

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
Nedbank vs van Zyl 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
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
Reeder vs Softline
the estate.
A:- When & how accrual takes place –
Distinction between claim & right

CLS cc ©
Family Law Notes
158
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
Schwartz vs Schwartz
attitude of parties to 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

CLS cc ©
Family Law Notes
159
F:- Factors prescribed in Sec 9 of

Divorce Act 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
Wijker vs Wijker granted if the court is satisfied that
in the absence of the order, one spouse
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
Watt vs Watt
spouse’s estate, benefits by virtue of a
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
Beaumont vs Beaumont
this a factor that has to be taken
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

CLS cc ©
Family Law Notes
160
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 /
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 /
Contribution need not be of monetary
nature
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.
A:- Maintenance of spouses – the move
away from permanent maintenance
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 &
Pommerel vs Pommerel making an equitable distribution of the
available income.
A:- Maintenance of spouses – the move
away from permanent maintenance
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”

CLS cc ©
Family Law Notes
161
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:-
o Custody of a young child wont be
awarded to the mother
o Siblings will be separated
Van Vuuren vs van Vuuren
o Custody will be awarded to a person
other than the parent
o 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
mother can be just as good a “father” as the
Krugel vs Krugel
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
Maintenance of Surviving Spouses Act
A:- Muslim Marriages – Statutory
recognition

CLS cc ©
Family Law Notes
162
NOTE THESE CLAUSES REFERRING TO SPECIFIC CASES
The court does not have a discretion to refuse a divorce if one of the
grounds of divorce is proven.
Levy v Levy
Section 7(7) of the Divorce Act did not change the rule that a pension
interest is not an asset in a spouse’s estate, but only provides a
mechanism for parties to divorce proceedings to have access to each
other’s pension interests.
Sempapalele v Sempapalele
The court issued a divorce decree in terms of the Divorce Act, but
ordered the husband to pay maintenance to his wife (who was not
otherwise entitled to maintenance) until such time as he co-operated
in obtaining a Jewish religious divorce as well
Amar v Amar
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
Coetzee v Coetzee
Pension interests are part of the assets of the parties to divorce

proceedings for purposes of the division of assets.
Maharaj v Maharaj
The court held that the matrimonial property system of spouses can
be altered retroactively by the court to create flexibility
Ex parte Krös
The court held that spouses cannot change their matrimonial property
system without the court’s intervention, even if they are married out of
community or property
Honey v Honey
The court adopted a strict approach and held that the court does not
have the power to change the matrimonial property system with
retroactive effect.
Ex parte Oosthuizen

CLS cc ©
Family Law Notes
163
According to the court the words “sound reasons” for the alteration of
the matrimonial property system must be interpreted according to
their ordinary grammatical meaning
Ex parte Engelbrecht et Uxor
The court held that if spouses want to introduce the accrual system in
terms of section 21(1) they must apply the “normal basis of the
accrual system” as provided for in chapter I of the Act
Ex parte Burger
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 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
Kroon v Kroon
Changed circumstances are not a prerequisite for the changing of a

maintenance order after divorce
Havenga v Havenga
A maintenance order made in terms of section 7(2) of the Divorce Act

70 of 1979 comes to an end upon the death of the party who has to
pay maintenance
Hodges v Couborough

CLS cc ©
Family Law Notes
164
COURTS CASES FOR REFERENCE:
1. Van der linder v van der linde – the court declared that mothers
are not necessary better able to be good parents on a day to day
basis. The court stated that because of the physical demands made
on court further held that ‘mothering’ refers to caring for a Childs
physical and emotional well being and that it forms part not only of
the mother’s role but also the fathers. The court emphasized 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 Childs
biological mother and conversely a mother can be just as good as a
child’s biological father.
2. Levy v Levy – court does not have a discretion to refuse a divorce

if one of the grounds for divorce is proven
3. Sempalele v Sempalele – divorce act did not change the rule that
a pension interest is not an asset in a spouse’s estate but only
provides a mechanism for parties to divorce proceedings to have
access to each others pension interest.
4. Amar v Amar – The court issued a divorce decree in terms of the

divorce act but ordered the husband to pay maintenance to his
wife(who has not otherwise entitled to maintenance)until such time
as he cooperated in obtaining a Jewish religious divorce as well.
5. 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.
6. Maharaj v Maharaj – pension interests are part of the assets of the

parties of a divorce proceedings for purposes of the division of their
assets.
7. Persad v Persad, Toho v Diepmeadow city council & Moremi v

Moremi – marriages in community of property held the right to
occupy premises in terms of tenancy, a residential permit and
statutory lease that was conferred on the spouse against whom the
forfeiture order operated but iro which the other spouse had paid
the rent could be forfeited – assets acquired during the subsistence
of the marriage can also be forfeited.
8. Koza v Koza – the court assumed without deciding the issue that
in a marriage in cop the patrimonial benefits of the marriage are
not restricted to those benefits which are conferred in the anc
9. Kirkland v Kirkland - the capitalised value of a husband’s

interests in a retirement annuity from which he derived a monthly

CLS cc ©
Family Law Notes
165
income was taken into account for the purpose of a redistribution

order. The court made a 50:50 division of the spouses combined
assets and ordered the wife to transfer money to the husband in
order to achieve this.
10. Brunette v Brunette - the wife wanted the court upon divorce
to regard the trust assets as the assets of business without
distinguishing between the assets of the partnership and those of
the trust. The court had to consider same by looking at how the
trusts had be administered in the past and to enable the court to
do so, they had to join the husband in his capacity as trustee.
11. Beira v Beira - the wife inherited a large sum of money in terms
of a trust, and when the benefit would accrue, she’d be wealthy,
but the court refused to take this into account when deciding on
the redistribution – something fortuitous that has not yet vested
was not taken into account.
12. Van Zummeren v Van Zummeren - the husband was given a

house from his father and the wife had made valuable
contributions to it for 16 years, but the court included it in the
redistribution order.
13. Jordaan v Jordaan - the husband owned a farm he inherited

from his parents and had a trust (which was his alter ego) and the
wife did not contribute towards the farm itself, but stayed home to
care for their retarded child, so the court decided that the farm and
trust should be considered in the order. This seems to conflict with
van Zummeren, as in this case, she did make valuable
contributions to the house, whereas in Jordaan she didn’t, but due
to s7(5) – any other factor – the court felt that she would have had
she not been caring for the child.
14. Childs v Childs - both spouses had worked outside the home
for most of the marriage, but the wife was unable to build up an
estate of her own as she spent her income on domestic expenses.
The court found no reason to depart from equality of division and
accordingly awarded the wife half the net value of her husband’s
estate.
15. Joubert v Joubert - the wife had preformed domestic services,

made financial contributions towards the purchase of the couple’s
two homes and had also given up her job after the birth of the
couple’s first child because her husband no longer wanted her to
work. The wife was awarded a third of the combined assets.
16. Madeihe v Madeihe – court emphasized 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

CLS cc ©
Family Law Notes
166
physical demands made on a mother in carrying the child and

giving birth, the court may well, in case of doubt favour mother.
17. Ex parte Critchfield – 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 custody
award. The court however warned that it would be unconstitutional
to place undue weight upon ,maternity when balancing it against
the other relevant factors and that the court must astute to remind
itself that maternity can never be will-nilly ,the only consideration
of any importance in determining the custody of young children.
18. Petersen v Maintenance Officer – court held that paternal

grandparents are indeed liable for maintenance in respect of their
son’s extramarital child (if the child’s parents are unable to support
him/her
19. Guggenheim v Guggenheim – compensating for part of her

prospective loss and all expenditure incurred.
20. Martens v Martens - is was held that simulated marriages or so

called marriages of convenience are perfectly valid

FAMILY Law Pack

Uploaded by

Document Information

Original Description:

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

FAMILY Law Pack

Uploaded by

Copyright:

Available Formats

CLS cc ©

Family Law Notes

FAMILY LAW NOTES

An engagement is not like a normal contract!!!

A valid engagement is not a prerequisite for the conclusion of a valid

Requirements for a valid engagement

The four requirements:

A material mistake renders an engagement void.

Critical Law Studies cc ©

Misrepresentation is not only committed by positive false

Two examples of a mistake: Error in persona (mistaken identity) and

A misrepresentation occurs where one of the parties to the contract

A misrepresentation is material if it is of such a nature as to seriously

Example of a material misrepresentation:

Making a false representation.

In Schnaar v Jansen: the man cancelled his engagement after

Critical Law Studies cc ©

SCHNAAR V JANSEN – breach of promise to marry – justa causa.

(ii) Capacity to Act

If a minor gets engaged, he needs the necessary consent from

Ratification ex post facto is also sufficient.

Both parties must be unmarried.

(iv) Possibility of performance

They must not be under the age of puberty.

Critical Law Studies cc ©

The Content and Consequences of Engagement

If a date for the marriage has been determined, then there is a

The date can be changed by mutual agreement.

If no date has been determined, it is tacitly understood that the

Because an engagement is an agreement to marry, it requires the

Termination of the Engagement

Six ways in which an engagement can be terminated.

Critical Law Studies cc ©

A justa causa is a fact or occurrence which comes about AFTER the

A simple realisation by one of the parties that he or she no longer

4 examples of a justa causa

a) Breach of promise. Unlawful termination of engagement.

A party can claim satisfaction when his honour, dignity and

Four actions available after termination of the engagement:

1. Action for damages based on the breach.

Critical Law Studies cc ©

Action for damages

Positive interest means - Damages which will place him in a

In the case of breach of promise, however, damages are calculated on

Negative interest mean - actual monetary loss because of

Guggenheim: A divorced woman, while living in New York, met the

Critical Law Studies cc ©

GUGGENHEIM V ROSENBAUM – breach of promise to marry –

In 1943 the plaintiff was divorced at Reno in the American state of

Critical Law Studies cc ©

Plaintiffs claim for damages was decided as follows:

Action for satisfaction based on iniuria

For the innocent party to be successful with this action, he must be

1. That his feelings were hurt or dignity wounded.

To arrive at an amount to be awarded, the court takes into account

Case law where the court granted satisfaction for personality

Critical Law Studies cc ©

first terminating the engagement

Return of engagement gifts – The rules applicable

Sponsalitia largitas - All gifts made with the marriage in view.

Arrhae sponsalitiae - Engagement ring and gifts presented to show the

Satisfaction and damages on the ground of seduction