Family Law

LWFLA1-44
Week 2: Lecture 1
henry.strauss@eduvos.com

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 Week 2
Engagements & Requirements for Civil Marriage

2.1 Identify the requirements for a valid engagement.

2.2 Explain how an engagement is terminated and its

legal consequences.

2.3 Discuss the concept of breach of promise to marry

and remedies available to an aggrieved party.

2.4 Identify and discuss the requirements and

formalities required for a civil marriage.

2.5 Apply the above principles to a given set of facts

with reference to legal authority.
Law

Common law & the contents

Capacity

Termination

Breach of contract

Damages

Return of engagement gifts

The fate of children

 What does the law say?
The law does attach certain consequences to the contract of engagement and to

The breach of this promise to marry

The Supreme Court of Appeal has recently questioned whether engagement

should enjoy any form of legal status and whether breach of engagement should
result in damages

The law has not been changed yet

4
Activity
Discussion

Engagements, for purposes of civil marriages in South Africa,

are governed by the common law

You will go into breakout rooms & discuss this statement

Must have capacity to become engage and to be married

Not having the capacity to marry certain other people because they are too closely related

People cannot validly promise to marry someone if they are still married to otherpeople
(i.e. in terms of either party)

Children below the age of puberty (12 for girls and 14 for boys) have no capacity to marry

A contract involving a child below the age of puberty is void ab initio (from its inception)

Minors over the age of puberty require their guardians’ consent to conclude a civil marriage

Minors cannot be bound to a contract of engagement unless their guardian has consented to the
marriage
Questions for Discussion
Discussion

Should parental consent be withdrawn before a marriage, what

Withdrawn
happens to the engagement?

When is the permission of the Minister of Home Affairs

Home Affairs
required to conclude a civil marriage?

A legal scholar suggests that the contract of engagement will

Sinclair
not be binding on a minor until what happens?
 8

Termination of
engagement
contract
 The death of either of
The couple’s marriage
the parties

Withdrawal of
A mutual agreement
parental consent
to terminate the
when one of the
engagement
parties is a minor

A unilateral (from one

party only) and
justified termination,
Breach of promise
based on a sound
reason (i.e. justa
causa)
Breach of
contract 10
Unilateral but justified termination based on justa/iusta
causa (just cause, lawful grounds)

= I.e. a fact or occurrence which renders the prospect of a successful marriage unlikely

May result in lawful termination by one party, even

though the other party still wants to get married This Photo by Unknown Author is licensed under CC BY-NC-
ND

Having an affair Becomes Becomes an

Develops a Commits a
with someone impotent or alcoholic or
chronic disease serious crime
else sterile/infertile drug addict

This Photo by Unknown Author is licensed under CC BY

Questions for Discussion

Look at this picture, the two people are engaged and for some reason
the woman gained a lot of weight, will the man have a justa causa to not get married anymore?
 Name Name Name
Title Title Title

9/3/20XX Presentation Title 13

 Breach of contract

Claim specific Damages for breach

performance of contract

Courts no longer Claims for actual Positive

orderspecific losses (negative interesse
performance, and interesse)
they take a
somewhat different Van Jaarsveld Guggenheim
approach to the v Bridges v Rosenbaum
award of damages for
breach of contract
A remedy used to claim compensation (satisfaction) for
non-patrimonial loss (a loss not involving money), caused
by the intentional infringement of personality interests.
The purpose of the actio iniuriarium is to protect a
plaintiff against wrongful and intentional infringements of
their personality interests,
which include the right to corpus (bodily integrity),
dignitas (dignity) and fama (reputation) –
It protects against injury (iniuria) to your person
(sentimental damages)
10/10/23 15
Reconsidering
damages for
termination of
engagement

10/10/23 16
17
• Innocent party retains same, guilty party has to
return

Non-returnable

• Innocent party retains same, guilty party has to

return

18
10/10/23 19
Questions for Discussion
Discussion

Discuss

What happens to children that are born out of engagement?

 Requirements
for Civil Marriage

Chapter 5