Family Law– LPFA 3532

Unit 5: Consequences of Civil Marriages

Lecturer: Mrs A. L. Zender

11 August 2021
 Learning Outcomes:
By the end of this lesson, students should be able
to:

• Explain the concept invariable consequences; and

• describe what these invariable consequences are.

5.1 Invariable Consequences:
Chapter 5 Heaton & Kruger, from p. 41
• Once all the requirements for the formation of a civil marriage are
present and there exists no impediments that would render a
marriage void or voidable; and all formalities have been complied
with, the marriage is regarded as valid.
• There are consequences that arise out of a marriage which cannot be
changed by the spouses, they come into being automatically by
operation of law and cannot be excluded by the parties.
• They relate to the persons to the marriage and are the same whether
parties are married in community of property or out of community
of property.
1. The Status of the Parties

• Upon marriage, the status of parties undergoes a

fundamental change which affects their rights and duties in
relation to each other and the community.
• Once parties obtain the status of being married, this
means, inter alia the following:
 this therefore means that they cannot marry anyone
else while married to their current spouse;
 a relationship of affinity is created by the marriage
which may pose as impediments to marriage;
 spouses may inherit intestate from each other;
 any extramarital children the spouses had before they got
married are legitimized by the marriage;
 a reciprocal duty of support is created between the spouses;
 they have equal guardianship over the children born of the
marriage;
 where parties are married in community of property, their
capacity to act is limited;
 A spouse who was a minor before he or she got married
attains majority and sustains such even is the marriage is
subsequently dissolved. Section of the Children's Status Act
6 of 2006.
 2. Consortium Omnis Vitae
• The institution of marriage creates a consortium omnis vitae between the
spouses.
• consortium omnis vitae: "To live together as spouses"
• The consortium omnis vitae refers to all the duties which fall under the
relationship of married spouses – i.e. rights and duties.
Grobbelaar v Havenga 1964 (3) SA 522,
• consortium was defined as “an abstraction of the totality of a number of
rights, duties and advantages accruing to the spouse of the marriage and
this totality comprises of inter alia, companionship, love, affection,
comfort, mutual services and sexual intercourse”.
• In this sense, consortium is therefore an umbrella word for all the legal
rights between spouses.
• It cannot be enforced by a court order and parties cannot sue if they
feel they have been deprived of these rights.
• The only remedy an aggrieved spouse has lies in divorce.
• Before the Supreme Court decision in Sibonga v Chaka and Another
[2016] NASC 16 (19 August 2016), a third party who infringes the
consortium could have been sued in delict for damages and satisfaction
on the basis of adultery.
• Another ground for the suit would be that of harbouring the spouse of
another or enticement where the spouse has left the marital home.
 3. Spousal Maintenance
• Upon conclusion of a marriage, a reciprocal duty of support
comes into existence.
• It only comes to end when the marriage is terminated through
the death of a spouse or when the marriage is terminated by
divorce.
• The duty is reciprocal.
• This the means that each party to the marriage owes to the
other a duty of support and depending on the circumstances of
the case can be placed on either the wife or husband exclusively.
• At common law, the requirements for the duty of support are
that:
• There must be a valid marriage between the parties.
• The person claiming support must be in need of support.
• The person from whom the support is claimed must be able
to provide it.

• Spousal maintenance in addition includes a duty to purchase

household necessities.
• These two duties must be distinguished from each other.
• Household necessities are the everyday items which are required for
running a household.
• For example food, clothing, small pieces of furniture etc.
• A spouse will only be held liable for purchases made with regards to
household necessities where the party who made those purchases
has the capacity to make such purchases.

• The requirements for the capacity to purchase household necessaries are:

• The existence of a valid marriage.
• The existence of a joint household.
• The transaction must relate to household necessaries.
• The scope of this capacity to purchase household necessaries will
be determined by:
• The financial position of the spouses or the family.
• The social status of the spouses or the family.
• The standard of living of the spouses or family in the past, and
• The practices and customs in the area.
• The power of one spouse to bind the other for purchases made in
relation to household necessities will terminate when the
marriage is dissolved by death or divorce, or when the joint
household comes to an end.
• A spouse may apply for maintenance in terms of the
Maintenance Act 9 of 2003.
• The court will then make an enquiry as to whether there
is both a duty and ability to pay maintenance.
• Section 17 sets the types of orders the court may make.
• Section 47 further provides for application for appeal
where a party is not satisfied with the order made by the
court.
4. The Matrimonial Home
• While the spouses are married to each other, they are entitled to live in
the matrimonial home and use any assets therein whether or not the
spouses are married in community of property.

• It does not matter who pays the rent or who bought the house; this
right to stay in the matrimonial home is an invariable consequence of
the marriage.

• If one spouse threatens to interfere with that right, then the aggrieved
party can seek an interdict to stop that party.
• If it is not a threat but the one spouse has actually removed the other
one from the matrimonial home or has denied such other spouse access
to the house, then the prejudiced spouse can apply for a spoliation order
or what is referred to as mandament van spolie.
• by this, the spouse can be restored to the matrimonial home.
• It is an urgent remedy which will only be granted where the spouse has
been dispossessed of the right of occupation.
 5. Parental Authority
• The spouses have equal guardianship of the children.
6. Donations between Spouses
• Spouses may donate property to each other, subject to insolvency
legislation.
7. The Family Name
• A married woman may assume the surname of her husband if she so
wishes.
• The husband does not however have the same choice.
• This position was dealt with in Müller v The President of the Republic
of Namibia and Another 1999 NASC 2 200:
• Mr Müller married Ms Engelhard during 1996. Mr Müller wished to use his
wife's surname as his surname, rather than his own surname.
• In other words, they would have become Mr and Mrs Engelhard.
• To do this he would have to comply with the formalities prescribed by Section
9 of the Aliens Act 1937 ( certain sections repealed by the Immigration
Control Act of 1993).
• A woman on marriage is not obliged to comply with any
formalities, but may elect to use her husband's surname as her
surname (section 9(1 )(a)).
• Mr Müller applied to the High Court for on order that Section
9(1)(a) was unconstitutional.
• His main argument was that the section infringed his rights
under the Constitution to equality before the law and freedom
from discrimination on the grounds of sex (Article 10).
• He also asked that he be allowed to assume his wife’s surname.
• Mr Müller's application was dismissed by the High Court.
• He then appealed to the Supreme Court.
• The Supreme Court made a number of important findings.
• Under Article 10(1), legislation may treat persons differently if there is
a sensible or rational reason for the difference in treatment.
• The legislation must also have been enacted for a legitimate purpose.
• An example of a legitimate purpose, in this case, is to prevent persons
changing their surnames to avoid detection by the police.
• The test under Article 10(2) is, however, much stricter. If the
legislation treats persons differently on one of the grounds referred to
in Article 10(2) (for example, sex or race), and this difference in
treatment is discriminatory, then the legislation is contrary to Article
10 (2).
• The only exception is if it is covered by Article 23 i.e. "affirmative
action" legislation.
• To be discrimination, the different treatment must also have an
element of unjust or unfair treatment.
• The court will look at the effect of the discrimination on the person.
• Relevant factors include the person's position in society, whether he or
she was disadvantaged by racial discrimination in the past, whether
the, discrimination is based on a specified ground or not and whether
the discrimination affected the person's dignity.
• In applying the law to the facts, the court concluded that the different
treatment did not affect Mr Müller's dignity.
• He was also not a member of a previously disadvantaged group,
because he was a white male.
• The legislation was also necessary to establish a person's
identity for various purposes.
• The different treatment also reflected the tradition that a wife
used her husband's surname on marriage.
• Mr Müller was therefore not the victim of discrimination and
the Supreme Court ruled against Mr Müller.
8. Headship of the Family
• In the past, the position was that the husband was regarded as the
head of the household.
• The Married Persons Equality Act 1 of 1996 has however altered this
position – Section 2(1) (b) read with Section 3 (b).
• Marital power has been abolished and the wife has the same powers
and rights as the husband.
Readings for next class

• Variable consequences of marriages

– in and out of community - Heaton
and Kruger from p. 61
Thank You