Family Law LWFL121 Chapter 7

Family Law LWFL121
Chapter 7
F R A NCO IS ST E E NK A MP
(PIHE DURBANVILLE CAMPUS)
FRANCOIS.STEENKAMP@PEARSON.COM
MS PowerPoint slides prepared by Francois Steenkamp (PIHE Durbanville Campus) francois.steenkamp@pearson.com

Personal consequences of civil marriage
• Read scenario on p. 259 (See Gammon v McClure, 1925 CPD 137)
• What do you think?
• 1. Is it legal for husbands to pack off their wives if they tire of them?
• 2. If a husband walks out on his wife, should he have a legal duty to support her
financially?
• 3. Would things be different if the wife walked out on her husband?
• 4. Do husbands and wives have a legal duty to live together?
• What does the law say?
• We are going to look at the personal consequences of civil marriage (also called
the ‘invariable consequences’)
• Couples cannot change or vary these legal consequences of their marital
relationship – They are inevitable and unchangeable (arising ex lege), the
moment the spouses marry
Personal consequences of civil marriage (cont.)
• The consortium omnis vitae:
• The most NB consequence of civil marriage
• Latin = ‘A partnership in all of life’
• According to Hahlo – ‘A physical, moral and spiritual community of life’
• Includes reciprocal duties between spouses to live together, be loyal and faithful
to one another, to assist and support each other, and to have sexual intercourse
with each other (and only each other)
• See Grobbelaar v Havenga quote on p. 260
• Harcourt J concluded that the consortium is ‘an abstraction compromising the
totality of a number of rights, duties and advantages accruing to spouses of a
marriage’
• In Dawood v Minister of Home Affairs 2000 (3) SA 936 (CC), the Constitutional
Court per O’Regan J held that, ‘In terms of common law, marriage creates a
physical, moral and spiritual community of life. This community of life includes
reciprocal obligations of cohabitation, fidelity and sexual intercourse’
• Descriptions of consortium omnis vitae = Recipe for a ‘good marriage’ according
to the boni mores of society (see p. 260)
• Consortium omnis vitae = Is a legal concept (comprising legally binding rights and
duties) which the spouses cannot avoid
• An agreement that spouses will not fulfil these obligations (e.g. a marriage of
convenience) is = contra bonos mores (i.e. against the good morals of society or
public policy), and unlawful
• Public policy = The principles, often unwritten, on which social laws are based
• In Wiese v Moolman consortium was accurately described as a broad, indefinable
concept that nevertheless has a well-understood meaning
• In Peter v Minister of Law and Order it was said that consortium is used ‘as an
umbrella word for all the legal rights of one spouse to the company, affection,
services and support of the other’
• Consortium is primarily protected in an indirect manner by the threat of divorce
• One spouse cannot enforce companionship, affection etc. by court order, or
obtain an interdict to prevent the other spouse from infringing the consortium
• Infringing = E.g. adultery, or leaving the matrimonial home
• Nor can the wronged spouse sue the other in delict for infringements of the
consortium
• Divorce is usually the only available remedy if no reasonable prospect of
restoration of a ‘normal marriage relationship’ is deemed possible
• Protection of the consortium omnis vitae:
• Unjustified interference by the state
• Adultery
• Loss of support
• Protection against unjustified state interference:
• In Dawood v Minister of Home Affairs the Constitutional Court relied on the consortium
concept to protect the marriage relationship from state interference
• The case was primarily concerned with the constitutionality of Section 25(9)(b) of the
Aliens Control Act (as amended)
• Home Affairs officials could extend or refuse to extend temporary residence permits for
foreigners who were married to South Africans
• Some spouses (one or both) were sometimes forced to leave the Republic in cases where
an extension was refused
• Poor people could often not afford the extension fees
• O’Reagan J held that the constitutional right to inherent human dignity protects the
marital consortium against state interference
• Cohabitation is an important part of the consortium and legislation which forces married
couples to live apart is unconstitutional, because violation of the marital consortium
violates the right to dignity
• Protection against private parties: The case of adultery
• Roman-Dutch law awarded husbands a delictual action against other men who
committed adultery with their wives (South African law then extended this remedy to
wives)
• Adultery was also a crime in Roman-Dutch law
• Both husbands and wives had a delictual action against 3rd parties who committed
adultery with their spouses
• Aggrieved spouses could use the actio iniuriarium to recover damages for infringement of
their honour or dignitas (contumelia)
• The application of this remedy (in these circumstances) has been controversial for a long
time
• Adultery is no longer a ground for divorce, but merely a factor that may indicate that the
marriage has broken down irretrievably
• Compare the court’s pronouncements in Wiese v Moolman with that of the Supreme
Court of Appeal and Constitutional Court in RH v DE
• When the Constitution, 1996 came into operation, commentators remarked that the
action for adultery potentially infringed constitutional rights to freedom of association,
privacy, and freedom of conscience and religion
• For a while (i.e. between 1996-2014) after the new Constitution, 1996 came into
operation, litigants continued to sue successfully for damages on the grounds of
adultery
• Spouses cannot sue each other in delict for adultery, so why extend this remedy to 3rd
parties?
• BUT, in 2014 in the case of RH v DE, the Supreme Court of Appeal, and later the
Constitutional Court abolished the delictual action for cases of adultery
• Legal question: Should adultery be grounds for liability for the payment of damages?
• Supreme Court of Appeal = Abolished the action on the grounds that it was impossible
for the plaintiff to prove the ‘wrongfulness’ element (an element of a delict) of the actio
iniuriarum
• Constitutional Court = The law cannot impose liability for adultery because this would
infringe the constitutional rights of the adulterous couple, particularly their rights to
dignity, privacy, freedom of (intimate) association and security of the person
• Loss of support: The dependants’ action
• The reciprocal duty of support is an important aspect of the marital consortium
• This duty includes financial support and provision of services in the home
• ‘Dependants action’ = A spouse who loses spousal support through the negligent
act of a 3rd party that results in the death of the spouse can sue the third party in
delict
• The claimant can sue for patrimonial losses (monetary, property, assets)
• The dependants’ action is a delictual claim sui generis (unique)
• See Union Government v Lee (p. 262)
• See Union Government v Warneke (p. 263) (Services in the home were regarded as
patrimonial losses – Could be quantified)
• The Roman-Dutch writers described the dependants’ action as an action for
damages arising from the loss of the breadwinner brought by ‘the wife, children
and the like’
• The Warneke case extended this right to the husband
• This remedy was later limited only to cases where an ex lege right of support
from the deceased existed (e.g. a civil marriage, parent-child relationship)
• Some actions were rejected = E.g. step-mother’s claim (deceased stepchild
supported her financially; loss of an uncle's financial support was rejected; claims
solely based on contract, or customary marriages (not recognised then))
• In 1999, in the case of Santam Bpk v Henery the Supreme Court of Appeal held
that claims under the dependants’ action were not limited to claimants to whom
the deceased had an ex lege support duty
• The court held that the action could be extended to other financial dependants if
the following requirements were met:
• 1. The deceased had a duty to support the claimant
• 2. This duty was legally enforceable
• 3. The claimant’s right to support was worthy of legal protection (as determined
by the legal convictions, boni mores of society, public policy)
• See Amod v Multilateral Motor Vehicle Accidents Fund for full set of requirements
• E.g. In another case, the court allowed a claim from a ‘widow’ who had been
divorced from the deceased on the day of his death, but who had been legally
entitled to ongoing maintenance in terms of the divorce order
• Enforcing the consortium between the spouses:
• There is very little that the law can do to enforce certain aspects of the marital
relationship (Why would the law want to?)
• Spouses cannot sue each other to enforce consortium rights
• E.g. A spouse can't obtain a court order obliging the other spouse to be more
affectionate
• See Boon v Boon reference on p. 264
• Even when adultery was recognised as a delict (i.e. before 2014), spouses could
not sue each other in delict for committing adultery as this was seen as contra
bonos mores
• And for this reason could not get a court interdict forbidding their spouse from
meeting a lover, or having sexual intercourse with him or her (No wrongfulness =
No interdict)
• The delictual action for adultery has now been abolished (as noted previously)
• In most cases, the only viable remedy available is divorce
• The no-fault divorce regime in South Africa does not apportion blame and must
therefore not be construed as a punitive or compensatory remedy
• When does the law intervene in the personal relationship between married
people?
• 1. Criminal conduct (e.g. domestic violence, rape, stalking etc.)
• 2. Financial aspects (e.g. reciprocal duty of spousal support)
• Reciprocal duty of support:
• See scenario on p. 259 (Charles, Ida Gammon & Daniel McClure (wife’s brother))
• The wife’s brother was correct to believe that the husband had a legal duty to
support his wife
• The brother successfully sued the husband for the necessary maintenance
(support) that he had provided to his sister (the wife)
• Duty to support = Invariable consequence of civil marriage (arises ex lege) as soon
as the couple marries
• The duty of spousal support is an important part of the consortium
• This duty applies to all civil marriages regardless of the matrimonial property
system chosen by the parties
• In practice, however, where parties are married in community of property, the
duty to support will usually be met through the joint estate
• General principles of the common-law duty of support:
• See p. 265
• In terms of the common law, reciprocal duties of support arise between people
when:
• 1. There is a particular kind of legal relationship between them
• 2. The person from whom support is claimed has the necessary means to supply
this support
• 3. The person who is claiming support is in need of support
• Duties of support are usually reciprocal (both parties have a duty to support each
other)
• Married spouses must support each other on a pro rata (proportional) basis
according to their means
• There are two main ways of providing ‘support’ in common law
• 1. Providing financial support (money)
• 2. Performing certain kinds of services (e.g. looking after children or doing
housework)
• One spouse works outside the home? = He/she has the primary responsibility of
financial support
• The other spouse will fulfill his/her support obligations in other ways
• Scope and content of duty of support:
• What kinds of things fall within the duty of support?
• E.g. food, clothing, accommodation, other day-to-day necessaries, litigation
expenses, medical and dental expenses etc.
• Duty of support is determined by the couple’s standard of living (and not merely
the bare necessities)
• The spouse that earns more, must provide more support (proportionally)
• See Young v Coleman reference on p. 266
• See examples of what would fall within a wealthy husband’s duty of support
(Davison v Davison 2005 JOL 13473 (T)) – Post-divorce maintenance claim
• See Gammon v McClure examples on p. 266
• Enforcing the duty of support between the spouses:
• If a spouse fails to provide adequate spousal support, the other spouse can
approach the court for a maintenance order
• The High Court has jurisdiction to order maintenance, but most people use the
‘speedier and cheaper alternative procedure’ provided for in the Maintenance Act
• Maintenance Act = Empowers courts to make maintenance orders, and also
provides both civil and criminal sanctions for non-compliance
• As a general rule, spouses cannot claim ‘arrear maintenance’ from each other for
periods during which their spouse failed to provide support
• Logic? = If spouses managed to support themselves during these time, they
didn’t need support (unless debt was incurred to provide for maintenance, then
arrears may be claimed) – Ex post facto determination
• Spouses may also claim arrears due in terms of a maintenance order
• Termination of the duty of support:
• When does the spousal duty to support end?
• When the marriage ends, the common law duty of spousal support also falls
away
• Since 1990, surviving spouses have a claim against the estates of their deceased
spouses for provision of their reasonable maintenance (if they are unable to
support themselves)
• Spousal support duties subsist for as long as the marriage lasts, even if spouses
live apart
• Unless: Spouse has deserted, or left the home without a valid reason (then
he/she cannot claim support from deserted spouse)
• The deserting spouse (guilty party) = Retains his or her duty to support the
deserted spouse (the one who was deserted)
• If a spouse was forced to leave due to misconduct = The spouse who is at fault
must still provide support to the innocent spouse (the latter can choose whether
or not to continue to provide support)
• Who is at fault?
• Guilty party = Must continue to provide support
• Separated by mutual consent = Both must support each other
• Liability to 3rd parties who have provided spousal support:
• What happens if a 3rd party provided support?
• See Gammon v McClure on p. 267
• The brother of the wife successfully sued the husband (who forced his wife to
leave) i.e. for the material (patrimonial) support which the brother provided to
his sister (the wife)
• Claims can be brought on the basis of unjustified enrichment or negotiorum
gestio
• Negotiorum gestio:
• A negotiorum gestio is someone who acts on his or her own authority in managing
the affairs of someone else (the dominus negotii)
• This action is available when the negotiorum gestio has incurred ‘necessary or
useful expenses’ in the course of looking after someone else’s affairs in a
‘reasonable manner…and with the intention of managing the affairs of the
dominus negotii…rather…than with a view to his/her own benefit’
• Unauthorised expenditure = Arises only when the person whose affairs are being
managed is unaware of the situation and was thus unable to give consent
• The action is not available when the dominus negotii has expressly forbidden the
transaction(s) concerned
• See requirements on p. 268
• See Hahlo’s discussion of Gammon v McClure on pp. 268-269
• The court in Gammon, however, relied on unjustified enrichment
• Unjustified enrichment:
• The negotiorum gestio must be aware that he/she was managing the affairs of
someone else
• The remedy of negotiorum gestio will not be available where a person provides
support without being aware of the circumstances (e.g. strangers like
shopkeepers etc.)
• See discussion of Excell v Douglas on p. 269
• In general, a person will have an action on the grounds of unjustified enrichment
where ‘one person’s estate is increased at the expense of another without legal
cause’ (justa causa)
• See basic requirements and application of the principles on pp. 269-270
• Defences against 3rd parties:
• 1. No duty to support at all
• 2. The expense was not reasonable and falls outside of the ambit of support
• 3. The duty of support has already been fulfilled
• 4. Defences based on the particular remedies:
• Defences against negotiorum gestio action: E.g. proving that some requirements
haven’t been met, e.g. had expressly forbidding the expenditure, that expenses
were not reasonable, necessary or useful etc.
• Defences against unjustified enrichment claim: E.g. Defendant was not enriched
at plaintiff’s expense, or there is a valid legal reason for the enrichment
• Liability to 3rd parties = A spouse killed via the negligent action of a 3rd party? –
The 3rd party may be liable in delict (on the grounds of loss of support)
• Managing the common household: Household necessaries
• Spouses married in terms of the civil law share responsibilities for managing their
common household
• Roman-Dutch writers = Man was always the head of the household
• ‘Superior-power’ was exercised by the husband
• Wife = ‘Joint-though-inferior’ manager
• See examples on p. 271
• See quote from Voet on p. 271
• ‘When a woman marries, regardless of her age, she is ‘thrown back by the very
fact of marriage into the ranks of minors’ (Voet)
• What are your views?
• Wives are given the power to bind their husbands in contract, where necessary,
for the management of the common household
• Without the husband’s assistance or consent or knowledge
• This right persists in modern South African law (both spouses can bind each
other in contract in these circumstances)
• Spouses share the duty to pay for items and services necessary for the running of
the joint household on a pro rata basis according to their means
• Household necessaries:
• Items and services required for the running of the ‘joint household’ are usually
referred to as ‘household necessaries’
• See discussion on p. 272
• Duty to pay for ‘household necessaries’:
• Regardless of the matrimonial property system/regime, both spouses share the
duty to pay for items and services
• In community of property = Expenses paid from joint estate
• Out of community of property = Pro rata share (according to their means)
• See comments regarding Matrimonial Property Act (married before and after the
enactment) on p. 273
• Power to bind the other spouse in contract for provision of ‘household
necessaries’:
• Spouses are jointly and severally (together and individually) liable to 3rd parties
for debts incurred for ‘household necessaries’
• Creditors can choose which spouse to sue for the full amount, or can sue them
together (i.e. the spouse who actually incurred the debt, or the one who didn’t,
or both together)
• This right is not based on agency, but on the invariable consequences of a civil
marriage (of which this is one such consequence)
• Requirements for the power to incur debts for household necessaries:
• Spouses will only be able to bind each other in contract for the purchase of
household necessaries if certain requirements are met:
• 1. A civil marriage exists
• 2. A joint household (see Reloomel v Ramsay & Excell v Douglas)
• 3. The items must be ‘household necessaries’ (see Voortekkerwinkels (Ko-
operatief) Bpk v Pretorius)
• See discussion on p. 274
• Boberg = Look at the ‘class of good’ – The type of thing which is usually required
by a particular household
• Voortrekkerwinkels = Does the household really need this particular item today?
• Defences against claims on provision of household necessaries:
• Read the rest of the sections on household necessaries on pp. 275-276
• Self-explanatory content!
• See Reloomel v Ramsay on p. 275 (specifically the notice to shopkeepers!)
• Take notice that: A High Court has the competency to suspend the power of a
spouse married in community of property i.e. to deal with the joint estate, on
good cause shown
• The overlap between the duty of support and the duty to provide household
necessaries:
• Read this section on p. 276
• Creditors have a contractual claim against spouses, but only if the 3 requirements
(noted supra) are met
• See the ‘Using Law’ box on p. 277 – Do the activity by yourself
• The matrimonial home:
• Cohabitation is one of the consortium rights and duties of married persons
• In principle, neither spouse may evict the other one from the matrimonial home,
or in any way disturb his or her possession or use of the residence
• This rule applies regardless of the matrimonial property regime & regardless of
who owns the house
• The right extends to possession and use of the household furniture
• Where one spouse threatens the other’s undisturbed possession and use of the
matrimonial home, or the household effects, the threatened spouse can apply
for a court interdict (mandatory or prohibitory) to prevent this
• Already ejected from household, or had your property dispossessed? =
Mandament van spolie (Roma-Dutch law) is the appropriate remedy
• See discussions of Oglodzinski v Oglodzinsky & Ross v Ross on p. 277
• See ‘Obiter’ box p. 278 regarding the mandament van spolie
• Mandament van spolie = The mandament van spolie (also known as the spoliation
remedy, or the mandament) is an ancient remedy available to any person who is
dispossessed unlawfully without a court order, or authorising legislation for the
dispossession, or consent
• Very basically, there are (generally speaking) 2 requirements that a dispossessed
person needs to prove in order to succeed in court: 1. Showing that there was
actual dispossession and 2. that that dispossession was unlawful
• In Van Rhyn and Others NNO v Fleurbaix Farm (Pty) Ltd 2013 (5) SA 521 (WCC) the
court described the mandament of spolie as follows: ‘The mandament van spolie is
directed at restoring possession to a party which has been unlawfully
dispossessed. It is a robust (quick) remedy directed at restoring the status quo
ante, irrespective of the merits of any underlying contest concerning entitlement
to possession of the object or right in issue; peaceful and undisturbed possession
of the thing concerned and the unlawful despoilment (deprivation of possession)
thereof are all that an applicant for a mandament van spolie has to show…’
• Circumstances in which the court may order the ejectment of a spouse:
• See Lovell v Lovell reference on p. 278
• ‘Very drastic remedy’ – Only to be ordered in appropriate cases (e.g. domestic
violence, clear and present threat to safety etc.)
• Always important to take cognisance of the best interest of the child principle
• In terms of the Domestic Violence Act 116 of 1998 = A spouse may apply for a
protection order
• A protection order may prohibit one of the spouses from entering the
matrimonial home or living in it (depending on the magistrate’s order)
• A protection order usually also has a pre-issued warrant of arrest appended to it
• Parental responsibility and rights:
• In terms of the Child Care Act, married parents acquire full parental rights and
responsibilities in respect of the children born of the marriage
• Other consequences of marriage: The ‘marital status’
• 1. Bigamy is a criminal offence (you cannot be married to two different people at the
same time in terms of the Marriage Act, Civil Union Act, or Recognition of Customary
Marriages Act), or enter into a civil partnership simultaneously with more than one
person
• 2. Marriage creates a right of intestate succession (if no last will and testament exists)
between spouses
• 3. If a minor marries together with the relevant consent, his or her minority status is
terminated (called emancipation) even if the marriage ends before he or she turns 18
• 4. Marriage creates relationships of affinity (already discussed)
• 5. If married in community of property = Spouses are limited in their capacity to perform
some juristic acts
• See discussion regarding surnames on p. 279
• Can a double-barrelled surname be non-chronologically sequential?
• What about the differential treatment of men who want to adopt their wife’s
(maiden) surname?
• Civil Union partners may adopt each other’s surnames (applies to both male and
female partners in such unions) – Why this discrimination?
• Read the ‘Obiter’ box on pp. 279-280
• Husband’s ‘headship of the family’ (as so-called bonos paterfamilias) should be
deemed to be unconstitutional
• END

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Family Law LWFL121

MS PowerPoint slides prepared by Francois Steenkamp (PIHE Durbanville Campus) francois.steenkamp@pearson.com

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