Chapter4

Personal consequences of marriage:

1) Change of status.
2) Consortium omnis vitae.
3) Duty of support (reciprocal)

Change of status
 Affinity comes into exciting prohibiting certain relationships to
exist between a spouse and a blood relative.
 Spouses can not conclude a further marriage while their
marriage is still in existence.

 Common law previously stated that the father was assumed to

be the head of the household. (This has been abolished both
parties are treated equally.)

May assume husbands’ surname (Add to this)

 *Female= Double barrel surname or assume husband’s
surname as is.
 *Male = May assume wife’s surname ONLY upon permission
from – Director General of Home Affairs.

Minors attain majority when marrying (capacity to act)

If married in community of property permission from another spouse
is required before being able to act.
Intestate succession comes into existence:
 Spouse dies without a will the other spouse can share in the
deceased spouse’s estate.
 If the couple has children, they will receive 1/3 of the estate.
 In the case where two parties conclude a marriage and already
have children from previous relationships= the new spouse will
obtain parental responsibilities over the child.

Consortium
Reciprocal relationship = consortium omnis vitae
There is not a precise definition.
Due to changing characteristics of marriage as well as the fact that
marriage is indeed subjective.
Could rely of definitions given by
1) Hahlo= Physical, moral, and spiritual community of life.
2) T v T 1968 = A relationship that upholds the qualities or
components of companionship and self-giving brotherly love.
With these qualities would follow certain reciprocal duties.
3) Grobbelar v Havenga
o Describes rights, duties, and advantages relating to spouces in a
marriage.
o May include companionship, love, and sexual intercourse.
o Consortium is considered subjective.
o Legal protection does exist against the spouses as well as other
parties.
Protection between spouses.

o Marital communication is privileged =

o Spouses generally are not obligated to testify against each other
in open court. (In criminal and civil proceedings.)
o These rights cannot be protected simply by employing a court
order.
o Section 195 of the Criminal Procedural Act does however state
that spouses are obligated to testify against each other in cases
of:
o Child abuse.
o Insect.
o Perjury.
*ONLY REMEDY FOR LOSS OF CONSORTIUM IS TO GET A DIVORCE*
Protection against the third party.
If a spouse is killed/injured by a third party:
It would be a case of a delict nature.
No remedy for loss of consortium exists.
Can claim damages for patrimonial loss/ actual loss. (Loss of support)
In cases of harbouring, adultery, and enticement in other words
where a third party has interfered and may have caused a loss of
consortium.
Three actions a spouse can take:
 Enticement= Third-party convinced wife to leave common
home.
In the court of law, it must be proved that the third-party acted
intentionally to break the consortium.
If the spouse left, because of abuse it does not count as enticement.
 Harboring= a third party provides accommodation. (to break
consortium)
In case of abuse, the wife leaving the common home would not
constitute harboring.

 Adultery- Spouse commits adultery with a third party,

Can claim for loss of consortium.

Wiese V Moolan
Court decided marriage is worthy of protection against third parties,
spouses bound themselves voluntarily thus creates protection of
personality rights and adultery is an infringement of dignity and
personality rights.

RH V DE
CC went against a judgement made by the SCA concerning adultery.
It was held in the CC that, ‘” It is not reasonable to attach delictual
Liability to adultery; through this decision, it is confirmed the
abolition of the action. This action can therefore no longer be
instituted.

*HOWER, HARBORING AND ENTICEMENT REMAIN GROUNDS FOR

LOSS OF CONSORTIUM*
Personal Consequences of Marriage
Spousal maintenance.
 During the marriage.
 During the divorce proceedings.
 Pending divorce.
 After divorce and after the death of a deceased spouse (claimed
against the deceased estate.
 General rule.
 Need of support.
 Ability to support.
 Legal duty to support (marriage creates this regardless of the
matrimonial system the parties are married to.)
 Consequence reciprocal duty support (Pro Rata)
 Each spouse owes reciprocal support.
-The other spouse needs it.
-The other spouse can pay it.

Maintenance:
 Not limited to the matrimonial home.
 Subjective test:
 Amount of money earned.
 Standard of living.
 Cost of living.
 {FOOD, CLOTHING, MEDICAL SERVICES & OTHER NECESSARIES}
Matrimonial Home
 Accommodation is part of the duty to support.
 Both parties were legally allowed to stay in the matrimonial
home. (Not tied to matrimonial property system.)
  One can not legally evict their spouses from the home or
threaten to evict a spouse from the home. (Badenhorst v
Badenhorst.)
 The owner of the house/ renting spouse of the home in the
case of eviction must:
 Provide the spouse with alternative accommodation if evicted.
 Must have a sufficient reason (domestic violence.)
=Remedy for such eviction = Mandament of Spolie
(interdict)- can be used when the spouse does not have an
eviction order and does not follow the correct procedure.
(Takes law into their own hands.) The remedy restores the right
to use the home once again.

Termination of maintenance
1)Divorce

 Spousal maintenance can be claimed post-divorce.

 S1 Divorce Act – May make an order of maintenance from one spouse to another usually in
the case of the settlement of agreement between parties.

2)Living apart

 Duty of care continues even in the cases where spouses are living apart.
 Spouses living apart due to misconduct e.g harboring , adultery for example. Guilty party
loses their right to maintenance.

3)Death

 Maintenance of surviving spouses Act 27 of 1990.

 1990 Promulgated.
 A spouse can claim the estate.
 Only applicable if marriage had been dissolved due to death and not divorce.
 Maintenance continues up until the spouse’s death or if the spouse gets married.
 If wife remarries the duty of support is terminated and now falls upon the new person, this
spouse has married.

Claim:

Based on:

 Reasonable maintenance need. S2(1)

 Claim can be made by children. (INCLUDES ADOPTED CHILDREN)
 Children’s claims hold just as much weight as the spouses claim. S2(3) and S2(3)(d)
  Competing interests between child and surviving spouse, amount given may be reduced
equally if deemed fit.

Determinable factors of reasonable maintenance

 *The value of estate.

 *The earning capacity of the surviving spouse.
 *The age of the surviving spouse. (Would she still be able to work at her age.)
 *The duration of the marriage.
 *The standard of living during the marriage.

Liability against third parties.

 If a spouse enters a contract will be liable.

 Spouses being married in community of property, both parties are liable.
 Parties’ joint estate hold no assets. Both parties will be liable per their income or personal
liability (pro-rata)

The Third party may be held liable:

 Negortium gestio

Person outside of the marriage (Third party) acts on behalf of another spouse to cover the debt the
spouse may have incurred with the hopes the latter spouse will reimburse this party.

-A third party can claim back the money spent on the grounds of Negotiorum Gestio.

 Unjustified enrichment
o When a spouse obtains a patrimonial advantage at the expense of a third party.
o How it must be proved:
o Actual enrichment of the spouse must have taken place.
o The enrichment must be at the expense of the impoverished party.
o Enrichment must be unfounded.
o No law should exist at the time to stop the third party from being reimbursed.

Household necessaries (HN)

o Are goods and services purchased regarding the upkeep and maintenance of a home.
o Irrespective of the matrimonial property regime.
o Capacity to purchase HN.
o Existence of a valid marriage.
o Existence of a joint household.
o Services contract must be HN.
Determining rational of HN contract.

 The financing position of the spouse.

 Social status of spouses.
 Standard of living of spouses.
 The practice and customs in the area.
 Important cases: Reloomel v Ramsey & Voortrekker Winkels (Ko- Operatief) Bpk V Pretorius.

Existence of joint household.

 Living together does not mean a joint household.

 Difficult to prove.
 Spouses can not purchase household necessaries if a joint household does not exist.
 In a matter of spouses living apart , a spouse can still be held liable on negotiorun gestio.
 For= FOOD, ACCOMMODATION AND CLOTHING.

Requirements for the capacity to incur debts for household necessaries.

 Existence of a valid civil marriage.

 A joint household.
 Commodities indeed being household necessaries.

Difference between Duty of Support v Household necessaries.

 Picture what you deem as household expenses (clothing).

 If it is only of the benefit of one spouse, then it may not be considered household necessity.
 Anything outside your list will fall under the duty to support (litigation costs).

Donations between spouses

 Historically donations between spouses were prohibited.

 Could be used as a means to avoid creditors (S 21 of the insolvency act wishes to limit the
possibility of prejudice to third parties).
 The prohibition was abolished by section 22 of the Matrimonial Property.
 Donations before the act are now considered valid.

Chapter 5: The Patrimonial consequences of Marriage

SU 5: VARIABLE CONSEQUENCES OF MARRIAGE: Universal Community of Property and Profit and
Loss (In CoP)
What are the choices?

 In community of property
 Out of community of property.

-Without accrual.

-With accrual.

Matrimonial property law

 Determines the patrimonial or financial consequences of concluding and dissolving a

marriage.
 In south Africa it is regulated by statutory law.
 Rules of matrimonial property law regulate the financial relationship between spouses (inter
partes) during and after the marriage.

Variable and invariable consequences of marriage.

Patrimonial consequences of entering into a marriage = Variable consequences of marriage.

Prospective spouses have some degree of freedom regarding the choice of matrimonial property
system applicable to their marriage.

Prospective spouses must exercise their choice in the prescribed manner through the execution of an
antenuptial contract.

If fail to indicate preference for particular system regulating their marriage, then the marriage will be
in community of property.

Since commencement of the Matrimonial Property Act on 1 November 1984

Spouses can choose between the following matrimonial property system.

 In community if property.
 Out of community of property excluding community of profit and loss(without the accrual
system )
 Out of community of property with the accrual system.

Marriage in community of property.

 Edelstein case: The basis of community of property is the Frankish notion of colaboratio, in
other words, whatever spouses acquire during the marriage, they do so by reason of their
combined but specialized efforts.
 In our law, the solemnisation of marriage has consequences of in community of property
and of profit and loss, unless the parties have excluded it by means of an antenuptial
contract beforehand.
 Rebuttable presumption that they are married in community of property.
Legal nature & Foundation of community of property.

(Assets and liabilities of joint estate)

(Liabilities of joint estate)

Rule:

 Spouses become tied-owners in undivided and invisible half-shares of all assets and liabilities
they have at time of marriage, as well as assets and liabilities they acquire during the
marriage.
 Thus upon marriage, their estate merges automatically into one joint estate for the duration
of the marriage.
 Upon dissolution = Liabilities are settled from the joint estate and the balance of the joint
estate is then redistributed between the parties equally.
 Estate Sayle case (Skelton 81)

Matrimonial system and customary marriages

Under customary law it is possible for polygynous marriage to be in community of property in

respect of one wife and to be out of community of property in respect of all other wives.

Only possible in the following circumstances.

 If the marriage became polygynous after the commencement of the Recognition of

Customary Marriage act= Husband married his second wife after the commencement of the
act.
 If the husband failed to obtain court approval of an antenuptial contract to regulate his
polygynous marriages as required under 7(6) of the Act.

No Community of property:

 Valid antenuptial contract (Community of property & community of profit and loss are
excluded in it.)
 Valid postnuptial notarial contract (in which community of property and community of profit
and loss are excluded) S21 Matrimonial Property Act 1 November 1984.
 Husband’s lex domicile.
 Black Administrative Act 38 of 1927 & Marriage and Matrimonial Property Law Amendment
Act 1988- Sithole judgement 2020.
 Where minors marry without consent and without an antenuptial contract, court has wide
discretion.
Separate assets not part of Joint estate

1. Assets excluded in an antenuptial contract.

2. Assets excluded by will or deed of donation.
3. Assets subject to a fidei commissum or usufruct.
4. Jocalia(engagement gifts)
5. Benefits under the Friendly Societies Act.
6. Non- patrimonial damages received by one spouse. S18(a) Matrimonial Property Act.
7. Damages as a result of personal injury inflicted by the other spouse- Van der Merwe v Raf.
8. Costs in a matrimonial action.

Liabilities of joint estate

 Prenuptial liabilities that exist before the marriage such as contractual, delictual ,
maintenance duties etc.
-Contractual debts= Equal control of spouses, both can bind joint estate if required consent.
-Delictual debts =
o S19 Matrimonial Property Act – When a spouse is liable for damages or a
contribution towards damages for a delict, he/she committed, the creditor must
recover the amount as follows:
o Firstly, from the separate property of the spouse who committed the delict.
o Secondly, if there is no or insufficient separate property, from the joint estate, an
adjustment must then be made in favour of the other spouse upon division of the
joint estate.
o The separate assets of the spouse who committed the delict must first be exhausted
before joint assets may be seized.
 Postnuptial liabilities concluded during marriage.
 Suretyship- one spouse who is married in community of property cannot stand surety for the
other spouse’s debt because those debts are joint debts and in our law a person cannot
stand surety for his/her own debt.
Delictual claims by/ against spouses.

o No-one may be held liable for the delicts of another.

o COP there is only one joint estate, spouse who committed the delict does not own a separate
estate.
o Joint estate bound by delicts of one of the spouses, the innocent spouse will also be
penalised.
o Cannot be tolerated that the aggrieved person is without remedy simply because the
perpetrator is married in community of property does not have separate estate.
o S18(b) and S19 Matrimonial Property Act brought clarity in this regard.
o (a) Notwithstanding the fact that a spouse damage in respect of bodily injuries suffered by
him or her and attributable either wholly or in part to the fault of that spouse and these
damages do not fall into the joint estate but become the separate property of the injured
spouse.

Matrimonial Property Act permits a spouse who is married in community of property to recover
damages in respect of bodily injuries caused either wholly or partly by the other spouse from that
spouse.

Injured spouse can therefore hold his/her spouse or spouse’s insurer, liable for damages resulting
from e.g. motor vehicle accident.

Amount recovered- Van der Merwe v Raf – Amendment of S18(b) MPA

 Claiming the Debts from the joint estate

 Where one spouse has contracted debt on behalf of the joint estate (with required
consent) the creditor can bring suit against both spouses or only against the spouse
who has incurred the debt.
 The spouse who has not incurred the debt cannot be sued alone.
 If debt was for household expenses of common houses , the spouses are jointly and
severable liable- irrespective of which spouse incurred the debt.
 A spouse who has contracted a debt that relates solely to his or her own separate
estate is the only one who can be sued for the repayment thereof.

Claiming debts of the joint estate after dissolution

 Antenuptial contracts debts- only from spouse who incurred debt.

 ^50% right of recourse from other spouse.
 Postnuptial contractual debt – from spouse who incurred or 50% from each of the (ex)
spouses.
 If household necessaries- 50% right of course is paid in full.
 Antenuptial or postnuptial delictual debts- only from original debtor.
 No right of recourse.

Effect of insolvency of joint estate

 S174 of the matrimonial property act- An application for the sequestration of the joint estate
must be brought against both spouses and both spouses must apply for the voluntary
surrender of the joint estate.
 S11 Insolvency Amendment Act 122 of 1993- both spouses should be parties to insolvency
proceedings but if the person applying for sequestration can prove that he/she took
reasonable, but unsuccessful, steps to determine whether the debtor was married in
community of property and what the name and address of his/her spouse are, then the
application for sequestration will not be turned down solely because of the existence of a
joint estate.
 Marital Power
 As a result of marital power, H married in community of
property was the administrator of the joint estate and he also
had to enter into contracts binding the joint estate.
 He utilised the capital from the joint estate to settle debts and
instituted claims on behalf of the joint estate or be sued as
administrator of the joint estate.
 The wife more or less the same position as a minor.
 She had limited capacity to act and could enter into contracts
only with the husband’s consent or assistance or as publica
mercatrix.
 Clear disadvantage for women.
 Voet “the wife is bound to the contract of the husband, even if
the contract is foolish, or morally reprehensible”.
Marital Power to joint management
 S12 MPA brought an end to traditional system of marital power
where the husband has exclusive control over the joint estate.
 S14 of MPA – spouses same (limited) power.
 New system of equal control- based on both spouses’ capacity
to freely perform juristic acts that are binding to the joint
estate.
 Independent management however limited by statutory
exceptions.
 Sometimes consent is required for certain juristic acts.

Independent management
 The general point of departure is that spouses may perform all
juristic acts independently without any mutual consent and that
juristic acts so performed will bind the joint estate.
 Impossible to compile a closed list.
  Examples: Stock exchange transactions- listed securities.
 Ordinary course of business.
 Deposits to own banking account.
Joint management
MPA makes provision for four categories of juristic acts where spouses need
to obtain each other's consent:
1. Informal consent
2. Written consent
3. Written attested consent
4. Prior written attested consent
Self study: Skelton & Carnelley 90-92 NB
Q: Do you understand the detail?
Q: Will you be able to recognize / link type of consent to a particular
transaction?

Joint management (summary)

Informal consent (tacit/oral)

 Alienation/burdening furniture and household effects
 Receiving money due to other spouse (earnings / inheritances /
donations)
Written consent
 Alienation/burdening shares / stocks / investment
 Joint estate investments
 Withdrawal from account of other spouse.

• Written attested consent

• Contract for alienation/ burdening – joint immovable
property
• Credit agreement
• Contract for purchase of immovable property
• Prior written attested …
• Actual alienation/ burdening of immovable
• Contract of surety
• NOTE: Ratification NOT possible
Protection of Third Parties

• In instances where Act requires joint management spouses have no

capacity to act unilaterally.
• A juristic act performed without the requisite consent would normally be
regarded as void due to a lack of contractual capacity.
rd
• The 3 party who enters into an agreement with the spouse would
normally have no contractual remedies available.
• S 15(9)(a) MPA – exceptions when can be valid even if no consent…
rd
• 3 party does not know / cannot reasonably be expected
to know – no consent required or obtained
• Visser v Hull – protection falls away if do not take
reasonable steps

Protection for spouses against each other.

• There is a risk that spouses married in CoP as tied owners of the joint
estate and with equal management capacity could severely jeopardize
each other's interest in the joint estate.
• What can a spouse do if the other spouse acts negligent, reckless or
with intent to jeopardise the joint estate?
STATUTORY AND COMMON LAW MEASURES

Protective measures for spouses in community of property

(1) COMMON LAW PROTECTIVE MEASURES

Based on fraud and with the intention to prejudice the other

Not available if one spouse enters into an unwise transaction which prejudices the other
spouse
Burden of prove - heavy
If prejudiced spouse consented to the alienation, he/she cannot invoke the common-law
remedies even if the other spouse’s intention was to defraud him/her by way of the
transaction.

Skelton & Carnelley 95-6

1) The interdict.
2) The action Pauliana utilis.
 3) Right of recourse.
Protective measures for spouses in community of property

(2) STATUTORY PROTECTIVE MEASURES (Menzies)

i) Statutory right to adjustment upon dissolution of joint estate

 S 15(9)(b) MPA - spouse enters into a transaction with a 3rd party while he/she
knows or ought to reasonably know that his/her spouse will probably not consent to
the transaction.

 If the joint estate suffers a loss as a result of the transaction, an adjustment must be
effected upon division of the joint estate in favour of the spouse whose consent was
not obtained (right of recourse).

 Same applies if the spouse enters into the transaction while his/her power to deal with
the joint estate has been suspended
ii) Dispensing with the other spouse's consent

 If the required spousal consent cannot be obtained for some reason or another and
the court is satisfied that a good reason exists for dispensing with the other spouse's
consent, it may authorise the transaction i.t.o a16(1) of the MPA.

 The section also empowers the court to dispense with the consent of a spouse who
unreasonably withholds consent.

Capacity to litigate in community of property.

LIMITED CAPACITY TO LITIGATE

S 17 MPA – restriction on the capacity to litigate of spouses married in CoP - only inter partes
application.
In principle – spouse is not allowed to institute legal proceedings against a third person or to
defend legal proceedings instituted by a third person without the written consent of the
other spouse unless one of the exceptions to this general rule applies.
Statutory exceptions:

 Proceedings pertaining to the separate estate of the one spouse

 Claiming non-patrimonial damages for a delict committed against one spouse;
 A matter pertaining to the occupation, trade or business of a spouse.
 S 17(4) MPA – an application for the sequestration of the joint
estate must be brought against both spouses and both spouses
must apply for the voluntary surrender of the joint estate.