FAMILY LAW

LWFLA W/ LOEDOLF
CHAPTER 1: family in 21st century SA

Huber says that there is either a perfect or imperfect household.

What is a family?
The scope of the state’s interest in, and protection, of personal relationships.

Types of families
1. Single mothers and single fathers – Many South African children are born to unmarried
mothers and never occupy the same household as their fathers. South African children are
more likely to be living with their biological mothers than their biological fathers. Where the
biological mother is not present due to death, single-father households have inescapably been
formed.
2. Extended families – In practice, many grandmothers and female relatives take on the role of
being the primary caregiver when the children’s mother is not resident in the household. More
than 20% of SA children are orphans.
3. Polygynous relationships – Contemporary South African family law provides for polygynous –
in some circumstances it is legal for a man to have more than one wife. The recognition of
Customary Marriages Act gives full legal recognition to existing and future customary
polygynous marriages. The Draft Muslim Marriages Bill also allows for recognition of customary
polygynous marriages. South African family law has thus moved away from the notion that
marriage can only take place between two people.
4. Unmarried families – These days many couples do not marry. Many couples and their
children function as a family outside the institution of marriage. Many couples live together in
intimate life-partnerships with people to whom they are not married.
5. Same-sex families – In twenty first century South Africa, same-sex couples are also entitled to
enter into marriages.
6. Child headed households – The Children’s Act provides that a household may be recognized
as a child headed household if; (a) The parent, guardian or permanent caregiver of the
household is terminally ill, has died or has abandoned the children in the household;(b) no
adult family member is available to provide care for the children in the household;(c)a child
over the age of 16yrs has assumed the role of caregiver in respect of the children in the
household; and (d) it is in the best interests of the children in the household. In 75% of child
headed households, the children rely on remittances from absent parents.

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7. Diverse families – Families come in many shapes and sizes. The definition of ‘family’ changes
as social practices and traditions change.

Families and the Constitution

The Constitution is the

supreme law, no law
may conflict
The Constitution is the supreme law, no law may conflict with it. Rules of family law and family
policy have been changed considerably so that South African family law conforms to the Bill of
Rights and other Constitutional values.
Ways the Constitutional requirements have impacted on Family law include:

The International
Covenant on Civil and
Political
1. Inherent human dignity and the right to family = The International Covenant on Civil and
Political rights provides that ‘family is the neutral and fundamental group unit of society
and is entitled to protection by society and the state’. The African Charter on Human
and Peoples Rights provides that ‘the family shall be the neutral unit and basis of
society. It shall be protected by the state’. The South African constitution does not
expressly provide a right to family life and does not expressly protect marriage or the
family. However, the most important constitutional protection for family is the right to
inherent human dignity inn section 10 of the Bill of Rights. The right to Human Dignity
has been defined as ‘Recognizing a right to dignity is an acknowledgement of the
intrinsic worth of human beings: human beings are entitled to be treated as worthy of
respect and concern’. Recognition of the right to inherent human dignity means that
everyone has the right to be treated with respect simply because he or she is human.
The Constitutional court has frequently relied on the right to dignity in family matters.
Marriage and other family relationships are of profound significance to the individuals

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 concerned; these matters go the very core of people’s personal choices about how they
wish to live out their lives. Marriage for example is a matter of defining significance for
many, if not most people, to prohibit such a relationship impairs the ability for the
individual to achieve personal fulfilment.
2. Embracing diversity = To penalize people for who and what they are is profoundly
disrespectful of the human personality and violators of equality. Respect for human
rights requires the affirmation of self, not the denial of self. Difference should not be the
basis for exclusion, marginalization and stigma. An aspect of recognizing and protecting

everyone’s equal worth and dignity is the obligation to recognize and accommodate
difference.
3. Marriage centrism = The Con Court has identified marriage as a relationship of
defining significance for many, if not most people, it is an honorable and profound
estate, it is a social institution of vital importance. Marriage is entitled to legal
protection and failure by the state to respect the marriage relationship is a violation of
the right to human dignity. But this does not mean that marriage is more important than
other relationships. In the constitutional era, South African family law accommodates
and embraces a far wider range of family forms than in the past. Pre-constitutional
South African family law was derived from Roman-Dutch law which privileged the
Christian religion over other religions, gave weaker or no rights to customary families,
gave no rights to unmarried families, criminalized same-sex families, men were regarded
as the heads of the house, punished adultery and regarded children as property of their
parents. Although the Con Court has showed a clear preference for marriage over
informal domestic partnerships, the court has also extended marital protection to
people involved in a wider range of marriages. However, the court has failed to extend
legal protection to people who have lived together for many years but have not
formalized their relationship as a marriage.
4. Equality, fairness and respect within the family = In terms of Huber’s model, wives are
legally inferior and are under their husband’s command, this model is inherently
unconstitutional because it discriminates on the grounds of sex or gender and also
violates the dignity rights of women. South African law now recognizes and legalizes
equality of the sexes within marriages. Marital power has been abolished, and spouse
have equal responsibilities and powers regarding their property. Nevertheless, in
practice, women’s position in society and in the economy is still not equal to that of
men, and for this reason it may still be necessary to treat women differently from men
in order to achieve substantive equality and a just outcome. In the Huber model, the
father also has parental power over his children. In terms of common law, fathers were
sole guardians of children born within marriage. In modern day SA law, both parents
share full parental responsibilities of their children including the duties of guardianship,
and the Children’s Act emphasizes parents’ responsibilities, rather than their powers.

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 Modern day SA law emphasizes children’s rights – indeed, it insists that these be
paramount in any matter concerning the child.

Objectives of family law

 Protection:
The state must ensure that family property is shared and distributed in an equitable
manner. Family law ensures that parents take care of their children both financially and
in other ways. The state must also protect family members from physical and other
forms of abuse within the family. Another importance of family law is to protect families
from outside interference, including unjustified interference by the state.
 Promote fairness within the family:
The law tries to ensure equitable distribution of resources between members of the
family. Married couples must support each other financially during the marriage and
there should be an equitable distribution of material assets when the marriage ends.
 Promote legal certainty and predictability:
The rules that govern various family relationship types thereby promote legal certainty
and predictability. End of marriages have matrimonial property rules and provisions of
the Divorce Act. Family law rules enable to understand legal nature of their relationships
with their children and legal responsibilities and promote certainty for outsiders with
dealings with family members and it helps 3rd parties with the identification of adults
with authority to assist minors with juristic acts.
 Value system for society:
Not value neutral and the constitutional values must govern the law’s regulation of
family relationships.
 Symbolism:
When the law endorses a family form, and this sends a powerful message that the
family is legitimate, valuable and worthy of the law’s acknowledgement and protection.
When law changes, peoples mind changes.

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CHAPTER 2: parent and child

The rights and best interest of the child

Section 28 of the Constitution set out the rights of children. The primary responsibilities for
fulfilling the constitutional rights to food, shelter and health care fall on the child’s parent/
other family. The Children’s Act is the legislative mechanism that gives effect to the rights of
children as set out in the Constitution and the international children’s rights treaties. The Act is
written from a human rights perspective that emphasizes the equality and dignity of children.
The child’s best interest is using the Children’s Act in all matters concerning the care, protection
and well-being of a child the standard that the child’s best interest is of paramount importance
must be applied. Section 7 of the Children’s Act provides a list that should be considered when
applying the best interests of the child standard, page 179. This is an elusive concept.

‘Paramount’ meaning.
It is ‘emphatic’ when coupled with the far-reaching phrase in every matter concerning the child.
The best interest of the child is supreme and trumps anyone else’s interest. This doesn’t mean
they’re absolute and they must be balanced against the constitutional rights of others. The CA
provides then with a voice. Page 183.

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Parental rights and responsibilities
Parents have rights and powers in order to fulfil their obligations to the kid. There are 4
parental rights and responsibilities:
1. Guardianship – deals with the administrative affairs of a child. The guardian must
administer and safeguard the child’s property and property interests, assist and
represent the child in administrative, contractual and other legal matters, give or refuse
consent in matter like marriage, adoption and removal from SA. The Guardianship Act
says a kid may have 2+ guardians, and they will act independently of each other, except
for some acts. The kid’s bio parents are ‘natural guardians. A legal guardian is someone
who has been appointed as the guardian of a child in a will or by a court.
2. Care – used instead of ‘custody’. Page 186. It includes the well-being of the kid,
maintaining sound relationship with the child and attend to the best interest of the
children. It also requires parents to protect their kid from maltreatment, abuse,
degradation and any other physical or emotional harm, and to respect, protect and
promote kids rights as in BoR. Chapter 8 is concerned with intervention in families
where kids are at risk of harm, regulates the removal (which need to focus on programs
developing parent’s skills and safeguard the well-being and best interest of their kids,
and non-violent forms of discipline.
3. Contact – uses this word instead of ‘accesses. It’s about maintaining a relationship
between a parent and a child when they no longer share the same house. Page 189.
4. Maintenance – means financial support rather than emotional support or by providing
for their kids either with needs or payment to these needs. It includes, living conditions,
finance, education, any needs, food, health and shelter. The parent-child support duty is
reciprocal. If a kid has 2 parents, they share support on a pro rata meaning proportional,
who makes more than pays more. This support doesn’t terminate at the age of majority
and can even claim after the age of majority but can be confined to necessaries. It only
terminates once you no longer need support. Support is only based on blood.

How to acquire parental rights and responsibilities

Biological get automatically, unmarried dads can in section 21, adopted is full rights as wells as
artificial insemination or surrogate mothers and section 22 provides that a mother or other
person who has parental rights may enter into a RandR agreement with another person, who
has an interest in the care, well-being and development of the child. Page 194.

Parental r&r of married and unmarried mothers

In section 29 of CA, the biological mother, married or not, has full parental r&r but if it’s a child-
mother, she wont be the guardian, her guardian will become the babies. A child born by a
married woman, comman law says the husband is the dad (pater est quem nuptiae
demonstrant) and this probability can be rebutted on a balance of probability like no sex,

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gestation period, sterile, condom, kid doesn’t look like me (exceptio plurium concubentium), she
slept with other men, dna test. Court can order scientific tests or not depending on the best
interest of the child. This excludes rape, incest and only being a donor.

Parental r&r of married and unmarried fathers

Section 20 of the act says that biological dads get full r&r is they are married to the kids mom or
if he was married to the kids mom at time of conception, birth or anytime between. Common
law says unmarried have no right to a child if they were not married to the mother, but they
still have the responsibility to financially support the child. Page 199. If they don’t get r&r in
section 21, they can in section22, if he enters into an agreement with the mom. They will then
share the r&r and this must be registered with the family advocate or made as an order of High
Court before taking effect. It can be terminated or amended by the family advocate or by the
court application, while only the high court may confirm, amend or terminate one that relates
to the guardianship of child. In section 23, it empowers the court to make an order assigning
the r&r to any person who has interest of the child, and they will consider the relationships
between the two, degree of commitment and contributions. Section 24 says the bio father will
always have an obligation to contribute to maintenance, even if no r&r.

Co-holders of parental r&r

1. Co-guardians = can exercise their duties independently but all consent is needed with
things like child marriage, adoption, application for a passport…
2. Sharing parental r&r = section 30 and 31 apply to all r&r when more than one person
holds these rights.
3. Parenting plans (section 33) = useful when they don’t live together. It helps avoid
conflict and disagreements about the r&r’s and help with a degree of certainty. Page
202. They must seek the help of an family advocate, social worker or psychologist, or
must seek mediation through a social worker or other suitably qualified person.
4. When you prevent one from exercising their r&r = section 35 says you will be guilty of
an offence and liable on conviction to a fine or to imprisonment for a period not
exceeding one year.

Termination, extension, suspension or restriction of parental r&r

A divorce court will make orders regarding custody/care, access/contact and maintenance. The
High Court is the upper guardian of all minors in its jurisdiction and has all power to intervene in
families and to curtail, suspend or terminate peps holding r&r. Page 204.

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CHAPTER 3: adoption, artificial fertilization and surrogate
motherhood

Adoption
Regulated by chapter 15 of CA. The purpose refers to the needs of kids, not the couple, so the
purposes are to protect and nurture kids by giving them a safe and healthy environment with
positive support and to promote the goals of permanency, by connecting the adopted kid to
other safe and nurturing family relationships which are intended to last a lifetime.

When can a child be adopted

Page 209. Doesn’t expressly cater for families in which the partner of the bio parent wants to
adopt the kid as a co-parent. A step-child could be regarded as abandoned and therefore
adoptable where the non-custodian parent has consented to an adoption and where the kid
has no contact with the parent/guardian/caregiver for a period over 3 months. An adoption
social worker must make an assessment to determine whether a child is adoptable.

Who can adopt?

Page 210. To find out if someone will be a good parent, you see whether they are fit and proper
to trusted to fulfil parental r&r, if they are willing and able to undertake, exercise and maintain
those r&r, over 18 and are properly assessed by a social worker. The social worker can take into

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account the cultural and community diversity of the adoptable child and prospective adoptive
parent and is they are not well off financially they may not be disqualified from a kid as they can
apply for a social grant.

Who must consent?

Page 211. Any person can withdraw their consent within 60 days of signed consent. Once they
do, the consent is final. The social worker must also counsel the child, where applicable.

Gathering info about required consent, and giving notice of proposed adoption
Section 237, once a kid can be adopted, the clerk of the kids court must gather info for the
proposed adoption. The clerk has to locate all persons who’s consent is needed and must
establish their names and addresses. They may call upon the assistance of the Director-General
of Home Affairs to access info contained in the registration of the child and may gather info
from the social worker involved in the adoption. Once they have all this, the presiding officer of
the kids court must w/out delay cause the sheriff to serve notice on each person whose consent
is required. These people must also request the person give or withhold consent. If you fail to
do this in 30 days, they have consented.

When is consent not required

Page 212. It’s not needed when the kid is an orphan and has no guardian or caregiver who is
willing and able to adopt the child and the court is provided with death certificates.

How do you give consent?

In writing and signed in the presence of a presiding officer of the kids court. Consent of the kid
must also be signed in the presence of a presiding officer of the kid court. This consent must be
verified by presiding officer and must be filled by the clerk of the kid court pending an adoption
application. If consent is given outside the Republic, it must be in writing and signed in the
presence of a prescribed person and verified by them.

Post-adoption agreements
Section 234 says the agreement may provide for communication and visitation and even
medical info about the kid. It may not be entered into without consent of the kid if the kid is of
an age, maturity and stage of development to understand the implications of such agreement.
The parties must be assisted in preparing the post-adoption social worker by the social worker
facilitating the adoption of the child and counsel them about the implications.

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Freeing orders
They divest/free bio parents/guardians from parental r&r pending adoption and relieves a
parent/guardian from duties to contribute towards maintenance of kid pending the adoption,
unless court says otherwise.

Procedural requirements when applying for an adoption order

Must be made to kid’s court, accompanied by an adoption social worker’s report which must
have info on whether the kid is adoptable, if in the best interest of the child and medical info on
the kid, accompanied by the social workers assessment of the prospective parents and a letter
by the provincial head of social development recommending the adoption. The clerk of kid
court must submit all needed docs to the court and must have the written consent to the
adoption filed with the clerk, written responses or failure to respond to requests made in
regard to gathering info and any info that may assist.

Courts consideration in an adoption application

Page 214. Those factors can include the nature of the relationship during the last 2 years and
any findings in court and the prospects of a sound relationship developing without consent in
the immediate future.

Effects of an adoption order

The adopted kid is the kid of the adopted parents for all purposes. Its identical legal relationship
and the legal ties between the bio family are cut. There could be a post-adoption agreement
which gives the bio parents and kid the rights to communicate with each other.

Canceling an adoption order

Page 216. Notice of the rescission of an adoption order must be given to the adoptive parent,
all persons who have consented to the adoption or withheld consent, to the central authority in
inter-country adoptions and to any person who has sufficient interest in the case.
The effects of cancelling this is that all r&rs are terminated and those who were previously
terminated are restored.
An adopted kid may access info from the adoption register once they turn 18 and so can the bio
parent but only if the adoptive parents and kid give their consent in writing.

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Artificial fertilization/ insemination
Page 218. Whenever a woman is AF, any kid born of that woman is regarded as the kid. There
are no rights, duties or obligations between kid born and person who gave their gametes unless
that person is the birth mom or the husband of the birth mom at the time of AF. A kid born
from this, or the guardian of the kid, is entitled to access any medical info concerning the kids
genetic parents once the kid is 18+. The Director-General of Health or any other specified
person specified by regulation may require a person to get counselling before getting the info.

Surrogate Motherhood
This is a woman who undertakes to be AF in order to have the kid for another set of parents,
called commissioning parents.

Surrogate Motherhood Agreement

A contract between SM and CP where its states that the SM will be AFed for have a kid for the
CP, where the SM agrees to hand over the kid to the CP once it born, with the intention that the
kid becomes the CP’s kid. It must be in writing and confirmed by the High Court within
jurisdiction of where the CP are domiciled. When a woman gives birth to an AF, she is regarded
as the kids mom for all purposes. The only time she won’t is when she is an SM in terms of a
valid SM agreement.

Consent required
If the CP is married or in a permanent relationship, the written consent of the partner must be
given, and this person must become a party to the surrogate agreement

Genetic origin of the child

A SM will only be valid if the gametes of the CP are used for conceiving the baby. The baby must
be the genetic child of the CP, even though the SM will be pregnant and give birth. Page 221.

Status of child born of surrogate motherhood agreement

The kid is regarded as the child of the CP from birth. The SM must hand over the kid to the CP
as soon as reasonably possible after birth. The kid will have no claim for maintenance or
succession against the SM, the husband or any relatives.

Termination of surrogate motherhood agreement

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They may terminate the agreement at any time before the child is 60 days old, by filling a
written notice with the court. The court must terminate the agreement if after the hearing, he
court concludes that the SM has voluntarily terminated the agreement and understands the
effect of this. Prior notice of the hearing must be given to all parties to the agreement and the
court may also issue any other appropriate order if it is in the best interest of the child. The SM
incurs no liability to the CP for terminating the agreement, except for payments which they
made to her in terms of section 301.
Page 224.

CHAPTER 4: engagements

Common law and the consent of engagement

It is a legally binding agreement, in a reciprocal promise or contract between a man and a
woman to marry each other, either on a specific date or on some undetermined future date,
but within a reasonable period. There is an implied agreement that the parties will not become
intimately involved with other people, will not conduct themselves in a manner that will
threaten the prospect of a happy future marriage.

Capacity to conclude a contract of enegagement

Determined by the persons general capacity to perform juristic acts. Minors need consent from
parents and Minister of Home Affairs and if that consent it taken away, then the engagement is
automatically terminated.

Breach of the contract of engagement

 If they refuses to go through with the wedding or delays it without good reason.
 One party marries another person during the subsistence of engagement.
 If you have sex with someone else
 Ill-treat the other
 Break it off without iusta causa
The party who withdraws becomes potentially liable for contractual and delictual damages. The
breach of promise to marry causes of actions are:

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 1. Breach of contract = this is personal so, it would be contra bonos mores to enforce a
contract (engagement) to enter into another contract (marriage) even though the threat
of possible legal action. Damages can be positive or negative interesse. You can also
claim for actual losses. Usually courts awarding damages will breach of contract only
award damages for positive introversion as it is aimed at putting the plaintiff in the
position he or she would have been if the contract had been properly carried out. Quote
do not usually award negative for breach of contract as they do not award damages
aimed at putting the plaintiff in the position they would have been if they had not
entered into their contract in the first place.
2. Delictual damages/action iniuriarum = the court told that a fiance could bring about a
dialectical claim to claim a monetary compensation (solatium) for the infringement of
personality rights.
The general purpose of engagement periods is to allow the party to discover under the
official protection of the law and within a socially acceptable framework, whether or not
they can pursue their relationship in a manner that will be successful in the formal bonds of
marriage.

Return of the engagement gifts (pg 235)

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CHAPTER 5: requirements for civil marriage

What is a civil marriage?

The civil marriage is a marriage in terms of the Marriage Act or the civil union act. Civil
marriages are now permitted between same sex couples and thus civil marriage must be
redefined as a legally recognised voluntary union for life of two people to the exclusion of all
others. This form of marriage is based on the traditional common law marriage discussed by old
Roman Dutch authorities.

Requirements for civil marriage

1. Capacity
you must have the capacity to marry each other. A marriage will only be valid if the
person poor putting to marry is able to give a valid expression of war and is able to
understand the legal nature and consequences of his or her actions and may be
restricted on the ground of age or an existing marriage. If you're mainly ill you have no
capacity to marry and children below the age of puberty have no capacity to marry
either. People who are so severely intoxicated that they are unable to understand the
legal natural consequences of their acts also have no capacity to act and therefore no
capacity to marry. Civil marriage is a monogamous union of two people a person may
not conclude a civil marriage if they are already civilly married somebody else or
married to someone else in terms of customary law. Simple marriage to more than one
person at this time is illegal and constitutes the crime of bigamy. Some people have full

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 capacity to marry but can't marry each other and this is called relative incapacity to
marry. People who are too closely related to each other may not marry each other
period the law distinguishes between blood relationships [relationships of
consanguinity] And relationships created by marriage [relationships of affinity]. The law
also distinguishes between direct lines of descent and people who are collaterals.
People are related in the Direct Line if they are the ancestor or descendant of each
other period people are collaterals if they have a common ancestor but are not related
in the direct lines being siblings cousins aunts and nephews. The closest degree of
collateral relationship is 2 degrees. Siblings are related to each other in the second
degree. Relationships of affinity may be in Direct Line or may be collateral. The blood
relatives of each spouse are not legally related to each other. People may not marry
anyone to whom they are related by blood in their Direct Line. It is never permissible for
people to marry their parents, children, grandparents or grandchildren. People may
marry their collateral bride levison, provided that there are four or more degrees of
relationships between them. Blood collaterals in the second degree may never marry
being siblings. Blood collateral in the third degree may never marry for example when
uncle. Blood collateral in the fourth degree like first cousins may marry and so may
anyone who is distantly related. This rule also applies if the people are related by half
blood. People may not marry anyone to whom this farce is related by blood in the Direct
Line and this prohibited dictation persists after the marriage has ended. There are no
prohibitions on marrying the collaterals of a former spouse. Only opposite sex couples
can marry in terms of the Marriage Act.
2. Consensus
A civil marriage is a voluntary union of two people. People can only inherit each other if
they voluntarily consent. This must be informed consent and people must understand
the material aspects of their marriage and give consent to them. People would not have
voluntarily informed consent if they are unable to give consent because they lack the
capacity to do so, they were forced into the marriage due to just race or intimidation or
their consent was based on a material mistake. People who are mentally ill or severely
intoxicated cannot give consent. Metus or Duress or intimidation says that there will be
no voluntary consent to marriage if a party is forced through these things. They can
have the marriage null if they show that the fear was sufficient enough and serious
enough to invalidate consent and the fear was reasonable and the fear arose from
circumstances for which this party was not responsible. Few of her saying appearance
feelings or being disinherited will not be sufficient enough to invalidate consent. It is not
necessary for the spouses to have been involved in the threatening conduct or even
know about it as the threat could come from strangers or created by political conditions.
A marriage will be voidable if one or both of the spouses made a mysterial mistake. It is
a requirement for a valid marriage the spouses voluntarily give consent to marry and
marry each other. A mistake about the nature of the juristic act is an error in negotio.
This would occur if one of the spouses did not realize they were concluding a marriage.
A mistake as to the identity of the other party to the marriage is in an error in

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 personam. A marriage may be voidable if one of the spouses has misrepresented certain
important facts that go to the heart of the marriage health.
3. Formalities = A marriage was undertaken in a public and formal way. Failure to adhere
to some of the formalities may render the marriage void. A civil marriage must be
solemnised by a duty appointed marriage officer. Any person who wishes to object to
proposed marriage must largely objection with the marriage officer who will solemnise
the meet Ting. Their marriage officer must investigate the matter. No marriage often
officer may solemnize a civil marriage unless the parties in question produce their
identity documents all the prescribed affidavit. A civil matter doge will only be valid if
the format of the wedding ceremony and the vars exchange have been approved by the
minister. This will be the case if the ceremony includes the marriage formula as saved
out by either the Marriage Act or the civil union act. Marriage vows is that the couple
must publicly agree to be married to each other the wording of the formula must also
make it clear that the parties to the marriage must represent when vows are exchanged.
After this the parties must give each other their right hand and their art it delete and the
marriage officer must declare the marriage solemnised in the following words on page
247. A civil marriage or only be married will only be valid if they are at least two
competent witnesses present. Civil marriages must be registered in the manner
prescribed in the marriage or civil union act as applicable to the marriage concerned.
The essential elements is that the marriage officer, the parties to the marriage and to
competent witnesses sign the marriage.

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CHAPTER 6: void, voidable and putative marriages

A void marriage was

never a marriage
• A marriage which Is
null and void ab initio is
not a marriage at all; in
principle none of the
legal consequences of
marriage attach to it
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o A void marriage has
never come into
existence in the eyes
of the law and the
parties had never
entered into the a
marriage
• For the sake of legal
certainty an application
for a declaration of nullity
is usually made to
a court
o The court confirms the
existing state of affairs

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by making a declaratory
order
• The courts have
discretionary power to
declare a void marriage
valid
o The general rule that a
void marriage cannot be
made valid is subject to
certain
statutory qualification
o If a minor marries
without the consent
required from the
minister of home affairs,

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the marriage is void
§ The minister may
grant the permission
retrospectively with the
effect that
the marriage becomes
valid
A void marriage was
never a marriage
• A marriage which Is
null and void ab initio is
not a marriage at all; in
principle none of the
legal consequences of
marriage attach to it

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o A void marriage has
never come into
existence in the eyes
of the law and the
parties had never
entered into the a
marriage
• For the sake of legal
certainty an application
for a declaration of nullity
is usually made to
a court
o The court confirms the
existing state of affairs

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by making a declaratory
order
• The courts have
discretionary power to
declare a void marriage
valid
o The general rule that a
void marriage cannot be
made valid is subject to
certain
statutory qualification
o If a minor marries
without the consent
required from the
minister of home affairs,

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the marriage is void
§ The minister may
grant the permission
retrospectively with the
effect that
the marriage becomes
valid
A void marriage was
never a marriage
• A marriage which Is
null and void ab initio is
not a marriage at all; in
principle none of the
legal consequences of
marriage attach to it

24
o A void marriage has
never come into
existence in the eyes
of the law and the
parties had never
entered into the a
marriage
• For the sake of legal
certainty an application
for a declaration of nullity
is usually made to
a court
o The court confirms the
existing state of affairs

25
by making a declaratory
order
• The courts have
discretionary power to
declare a void marriage
valid
o The general rule that a
void marriage cannot be
made valid is subject to
certain
statutory qualification
o If a minor marries
without the consent
required from the
minister of home affairs,

26
the marriage is void
§ The minister may
grant the permission
retrospectively with the
effect that
the marriage becomes
valid
Void marriages
 A void marriage was never a marriage.
 A marriage which is null and void ab inito is not a marriage at all, in principle none of the
legal consequences of marriage attach to it.
A void marriage has never come into existence in the eyes of the law and the
Parties had never entered into the marriage.
 For legal certainty, an application for a declaration of nullity is usually made to a court.
The court confirms the existing state of affairs by making a declaratory order
 The courts have discretionary power to declare a void marriage valid.
The general rule that a void marriage cannot be made valid is subject to
Certain statutory qualification.
If a minor marries without consent from the minister of home affairs, the
Marriage is void. The minister may grant the permission retrospectively
With the effect that the marriage becomes valid.

1.1 Legal Consequences of a void marriage

A void marriage has no existence; it is as if the couple had never married. None of the usual
legal consequences of civil marriage will arise. Each of the parties retains his or her legal status
as an unmarried person.
1.2 Grounds for nullity of marriage

27
o None of the usual legal
consequences of civil
marriage will arise
o Each of the parties
retains his or her legal
status as an unmarried
person
o None of the usual legal
consequences of civil
marriage will arise
o Each of the parties
retains his or her legal
status as an unmarried
person

28
o None of the usual legal
consequences of civil
marriage will arise
o Each of the parties
retains his or her legal
status as an unmarried
person
o None of the usual legal
consequences of civil
marriage will arise
o Each of the parties
retains his or her legal
status as an unmarried
person

29
o None of the usual legal
consequences of civil
marriage will arise
o Each of the parties
retains his or her legal
status as an unmarried
person
o None of the usual legal
consequences of civil
marriage will arise
o Each of the parties
retains his or her legal
status as an unmarried
person

30
o None of the usual legal
consequences of civil
marriage will arise
o Each of the parties
retains his or her legal
status as an unmarried
person
A marriage is void if the parties don’t have capacity to marry or the capacity to marry each
other such as parties below the age of puberty, one of the parties was mentally disable/ill at the
time of the weddings, they’re related… A marriage will also be void if it doesn’t comply with
important formal requirement s for the conclusion of a civil marriage as set out in the acts.
Examples of non-compliance with formal requirements that render a marriage void:
§ The marriage was solemnized by someone who is not a competent marriage officer.
§ The marriage was not solemnized in the presence of two competent witnesses.
A marriage should only be void on the grounds of non-compliance with formalities where some
material formality is not complied with. There needs to be witnesses to the wedding ceremony
otherwise marriage is rendered as void.

Voidable Marriages
A voidable marriage is a marriage. A voidable marriage is valid for all purposes unless and until
the court grants a decree of nullity on the grounds of a defect which already existed at the time
of the marriage ceremony. A void marriage suffers from a critical defect. A serious defect that
the marriage does not come into existence A voidable marriage:
 Suffered from some less important defect at the time it was entered.
 Not critical enough to render the marriage void.

31
  Because of the defect, one of both of the parties can apply to the court to have the
marriage annulled (Until the marriage is annulled, the voidable marriage continues as a
valid marriage and has all the usual consequences of a valid civil marriage)
 If marriage is not set aside (It continues as a valid marriage with all the usual legal
consequences of civil marriage)
 An annulment is based on the circumstances that existed at the time the couple
married.
 A divorce is based on circumstances that arose during the marriage.
1.1 Legal consequences of voidable marriages
A voidable marriage is a valid marriage in all respect until it is set aside by the court o if
neither of the parties applies to the court for an annulment, the marriage will remain in
force and will have all the legal consequences of a valid civil marriage.
IF and when the court issues a decree of annulment, the marriage is ‘cancelled’. The
decree of annulment is retrospective. The legal position is as if the marriage had never
taken place. The parties are in the same position they would have been if the marriage
had not existed. Children born of a voidable marriage o Children are regarded as the
children of married parents. An action for the annulment of a voidable marriage can
only be instituted by specific people (grounds).
1.2 Grounds for voidability
Minority, Section 24(A)(1) of the marriage Act
Material mistake o Error in personam o Error in negotio
Duress
Concealed existing pregnancy
Impotence o Inability to have sexual intercourse. They have to have been unaware at the
time of the marriage. Cannot apply if the impotence is curable or temporary.
Sterility. Inability to procreate(infertile). Usually based on fraudulent concealment of the
sterility.

Putative Marriages
Putative marriage is a void marriage. This marriage cannot be saved or transformed into a valid
marriage. Deemed putative if one or both of the parties to the marriage was unaware of the
critical defect rendering the marriage void at the time of the wedding, if the parties to a void
marriage went through the appearance of a marriage ceremony and one or both of them did so
in bona fide belief that they were entering into a valid marriage, the relationship between them
is a putative marriage.
1.1 Requirements:
Void marriage will only be treated as a putative marriage if one or both parties believed in
good faith that they were entering into a valid civil marriage, one or both parties must be
unaware of the defect which rendered their marriage void. It was also necessary for the
marriage to have complied strictly with the prescribed formalities for civil marriage. A

32
 marriage can still be deemed a putative marriage even if the formal requirements are not
strictly complied with, the marriage must have been contracted openly and in accordance
with rituals and ceremonies not inconsistent with our law.
1.2 Consequences:
A putative marriage remains a void marriage, and the court has no discretion to declare it
valid. If the court deems the marriage a putative marriage, certain legal consequences will
nevertheless arise from the marriage.
1.3 Children:
Children born in this marriage are regarded as children born within marriage. Once court
declares the marriage putative, a declaratory order is made so that the children of the
marriage must be regarded as the children of married parents.
1.4 Property rights of the parties:
What is the difference between an original void marriage and a void marriage that is
deemed to be a putative marriage? The effect on the spouses marital property, this
depends on which of the spouses were in good faith, and on whether or not the spouses
concluded an antenuptial contract, where both parties acted in good faith: If the spouses
did not conclude an antenuptial contract, the marriage is deemed to have been in
community of property and the putative joint estate is divided equally between them § If
the spouses concluded an antenuptial contract, either of the spouses may enforce any
obligations due under the contract. If only one of the spouses acted in good faith o If the
spouses did not conclude an antenuptial contract, the marriage will be deemed to be in the
community of property if this favours the innocent party o If the spouses did conclude an
antenuptial contract, the innocent party can choose to enforce the terms of the contract.

CHAPTER 7: personal consequences of civil marriage

The Consortium Onmis Vitae

Marriage creates a C.O.V. between the spouses. Translates as “a partnership in all of life” C.O.V.
includes material and immaterial things. C.O.V. = a physical, moral & spiritual community of life.
Rights include: (i) Love (ii) Affection (ii) Comfort (iv) Mutual services (v) Sexual intercourse (vi)
Live together (vii) Loyal & faithful to each other (viii) Assist & support each other
Grobbelaar v Havenga defined C.O.V. as an abstraction comprising the totality of a number of
rights, duties and advantages accruing to the spouses of a marriage. See also Dawood v

33
Minister of Home Affairs 2000 (3) SA 936 (CC) where it was held: (i) In terms of CL, marriage
creates a physical, moral & spiritual community of life. (ii) This includes reciprocal obligations of
cohabitation, fidelity & sexual intercourse. NB to note that C.O.V. is a legal concept. It creates
legally binding rights & duties which the spouses cannot avoid. Therefore, an agreement
between the spouses that they will not fulfil their consortium duties will be invalid on the
grounds that it is against public policy.
1.1 Protection of the C.O.V.
C.O.V. enjoys legal protection. Law provides remedies for loss of & damage to the C.O.V.
Law protects the C.O.V. from threatened interference.
- Protecting the C.O.V. against outside interference
(a) Protection against unjustified state interference In Dawood v Minister of Home Affairs
the CC relied on the consortium concept to protect the marriage relationship from state
interference as the constitutionality of section 25(9) (b) of the Aliens Control Act was
challenged. CC held that legislation which forces married couples to live apart is
unconstitutional, as the violation of the marital consortium violates their rights to dignity.

(b) Protection against private parties: the case of adultery Pre September 2014: Both H & W
had a delictual claim against 3rd parties who commit adultery with their spouses. IOW 3rd
parties who infringe C.O.V. can be sued in delict. Aggrieved spouse can use the actio
iniuriarum to recover damages for wounded feelings as well as the infringement of their
honour or dignitas (contumelia). The delictual action for adultery has been controversial.
With the shift to no-fault divorce in 1979, the continued existence of the action for adultery
was questioned. Reason: 1stly, spouse could bring a delictual action against 3rd parties but
there was no delictual action against the adulterous spouse. 2ndly, adultery was not a
ground for divorce after 1979. After the 1996 Constitution, action for adultery may be
challenged that it violates the 3rd party’s and the other spouse’s constitutional right to
freedom of association, privacy and freedom of conscience & religion. H/e adultery as an
actionable delict in post-constitutional SA was confirmed Wiese v Moolman 2009 (3) SA 122
(T). Court held: (i) The spouses voluntarily ltd their rights to freedom of association and
freedom to use their bodies. (ii) Marriage was a legitimate limitation on the rights of 3rd
parties. (iii) Failure to provide an adequate remedy may well constitute inadequate
protection of the aggrieved spouse’s right to human dignity. (iv) Any interference with the
marital consortium was a dignity violation. In exceptional circumstances, an aggrieved
spouse might also be granted an interdict against a 3rd party, forbidding him from
consorting with his spouse. H/e courts are reluctant to grant this remedy. Post September
2014: NB! RH v DE: A delictual claim for damages based on adultery against 3rd parties no
longer forms part of SA law. 3.1.2 Loss of support Reciprocal spousal duty of support is an
NB aspect of C.O.V. Duty of support included financial support & provision of services in the
home. A spouse who loses the spousal support through the negligent act of a 3rd party
which results in the death of the spouse can sue the 3rd party in delict using the actio legis
Aquiliae.

34
Loss of support
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. ‘Dependents 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 dependents’ action is a delictual claim sui generis
(unique). The Roman-Dutch writers described the dependents’ action for damages arising from
the loss of the breadwinner brought by ‘the wife, children and the like’. The Wameke 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). In 1999, in the case of Santam Bpk v Henery the Supreme Court of Appeal held
that claims under the dependents’ 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
dependents 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).
 Enforcing the consortium between the spouses: There is very little the law can do to
enforce some aspects of the marital relationship. Spouses cannot sue each other to
enforce consortium rights. (e.g a spouse can’t get a court order forcing the other to be
more affectionate) Even when adultery was recognized as a delict before 2014, spouses
couldn’t 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 sex with them (no wrongfulness = no interdict). The no-
fault regime in SA doesn’t apportion blame and must therefore not be constructed as a
putative or compensatory remedy. The law will intervene when:
1. Criminal conduct like abuse, rape and stalking.
2. Financial aspects like the reciprocal duty of spousal support.

Reciprocal duty of support

Duty to support = invariable consequence of a civil marriage (arises ex lege) as soon as a couple
marries. The duty to support is an important part of the consortium and this duty applies to all
civil marriages regardless of the matrimonial property system chosen by the parties. In practice,
where parties are married in community of property, the duty to support will usually be met
through the joint estate.

35
General principles of the common-law of support are:
1. There is a certain 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 needs support.
Married spouses must support each other on a pro rata (proportional) basis according to their
means. The main ways of providing support in common law is: financial and acts of service.
Scope and Content of duty of support include:
 Things like food, clothing, accommodation, other day-to-day necessaries all fall within
duty of support.
 Duty of support is determined by the couple’s standard of living (not merely the bare
necessities). The spouse that earns more, must provide more support. See Young v
Coleman on pg 266 and Davison v Davison 2005 JOL 13473 (T)- post-divorce
maintenance claim.
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 provides both
civil and criminal sanctions for non-compliance. As a rule, spouses cannot claim ‘arrear
maintenance’ from each other for period during which their spouse failed to procide
support.
 Logic = if spouses managed to support themselves during this 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

Spousal duty to support ends 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. 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) Those at fault will be: Guilty party =

36
Must continue to provide support or Separated by mutual consent = Both must support each
other.

Liability to 3rd parties who have provided spousal support

1. 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’ while 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’.

Unauthorized 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. The requirements are:
 The expenses were necessary or useful.
 It was done in a reasonable manner.
 It was done with the intention of managing the affairs of the dominus negotii, rather
than for the benefit of the gestor.
 The dominus negotii was unaware of the transaction but had not expressly forbidden it.
2. 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.)
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). The requirements are:
 The defendant has been factually enriched, & plaintiff has been factually
impoverished.
 There is a casual link between the defendant’s enrichment and the plaintiff’s
impoverishment (the plaintiff has been enriched at the plaintiff’s expense)
 There is no valid legal reason that justifies the enrichment of the defendant at the
plaintiff’s expense, or which justifies the retention of the enrichment by the defendant.
3. Defenses against 3rd parties
1. No duty to support all.
2. The expenses 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 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:

37
 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. ‘When a woman
marries, regardless of her age, she is ‘thrown back by the very fact of marriage into the ranks of
minors’ (Voet). 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’.
 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)
 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
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 consequences).
 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)
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 item today?

38
  Defences against claims based on provision of household necessaries = 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 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. 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 spoile has to show.
Circumstances in which the court may order the ejectment of a spouse:
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. A protection order usually also has a pre-isseud warrant of
arrest appended to it.

39
Parental rights and responsibilities
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 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.

CHAPTER 8: martial property

What is martial property?

Property owned by people who are married to each other. Set of rules dictating who owns the
property and who owes the debts. Marital home, cars, clothes, debts, everything. The chosen

40
matrimonial property system regulates the couple’s debts. This unit is only applicable to civil
marriages entered into according to the Marriage Act but also applies to civil partners it to the
Civil Union Act. The importance of this is:
The chosen matrimonial property system will have an impact on the following scenarios:
o When the marriage ends through death or divorce.
o If one or both spouses become bankrupt.
o When spouses sell or donate things to third parties.

3martial property systems

o In community of property, in community of profit and loss. (In COP)
o Out of community of property, out of community of profit and loss without accrual. (Out of
COP)
o Out of community of property, out of community of profit and loss with accrual.

Marriages in community of property

The default matrimonial property system. The spouses become joint owners of all property
they owned before the marriage. Also default for customary marriages if 1 wife. The in-
community-of-property-system is the default matrimonial property system in South African civil
law. This means that if a couple marries in South Africa, they will be married in community of
property, unless:
 The couple signs an antenuptial contract which states that they do not wish to be married in
community of property.
 Post-antenuptial contract
 The husband is domiciled in another county where the default matrimonial system is out of
community of property.

Sharing everything:
The basic rule of the in-community-of-property system are that: Couples share
everything. Assets and Debts. When the marriage ends, the joint estate is automatically divided
in half. Each spouse receives their half-share, regardless of how much money they put into the
joint estate or how much they have spent during the marriage. Indivisible half share:
o Not like you can physically cut the cars in half and each take one.

41
o It makes no difference who entered the marriage with more.
o Can’t “lend” your husband money because it’s his too.
Separate property: assets that don’t fall into the joint estate:
Assets excluded by antenuptial contract. Assets excluded in a will or deed of donation. Assets
subject to a fideicommissum or usufruct. Jocalia (engagement gifts). Delictual damages from
third parties for non-patrimonial loss. Delictual damages compensation for bodily injury
inflicted by the other spouse. Other exclusions.
Liability for debts:
This is the main disadvantage of an in-community-of-property-system. If one of the spouses
goes into business and gets into debt, creditors can recover all the money owned to them from
the joint estate. This means that the couple could be left with nothing.
JOINT AND SEVERABLE LIABILITY
In marriages out of community of property, the other spouse's estate is protected from
the bankrupt spouse’s creditors. Exception: money owed by a spouse for a delict committed
against a 3 rd party.

Delicts committed by or against spouses married in COP

1. When a spouse pays delictual damages to a 3rd party = General principle of law: no
person should be held responsible for another person’s wrongdoing.
Section 19 Matrimonial Property Act –adjustment at division of matrimonial property.
“Innocent spouse”
Rule: spouses cannot sue each other for delict except in terms of a delict. s 19
Delictual debt:
o Creditor must recover debt as follows:
o Claim from the 1 spouse Separate property,
o If the separate property is insufficient, he/she claims from Joint estate
2. Section 18(a) of the Matrimonial Property Act = Non-patrimonial damages do not
compensate for losses incurred by the joint estate –they are personal to the injured
spouse i.e., spouse gets hit by a car, the medical payments (patrimonial) will be part of
the joint estate, but the pain and suffering claim will not. Non-patrimonial damages do
not fall into the joint estate –it will be the separate property of the spouse to whom
they are awarded.
3. When spouses commit delict against each other = Section 18(b) of the Matrimonial
Property Act. Spouses may sue each other in delict for ALL damages that result from
bodily injuries caused by the other spouse: that is, spouses married in community of
property may now sue their husband or wife in delict for both patrimonial and non-
patrimonial damages resulting from bodily injuries.

42
Administration of the joint estate
Section 11 of the Matrimonial Property Act: abolishes marital power –husbands and wives are
now in the same legal position.
Section 15 of the Matrimonial Property Act: regulates the administration of the joint estate for
couples married in community of property. Spouses have equal power to administer the estate
à any administration without consent except for those listed in 15(2) and (3)
Transactions that need spousal consent: Spouses need the consent of the other spouse for
certain important activities that might have significant impact on the joint estate:
1. Section 15(2) activities: written consent
2. Section 15(3) activities: consent does not need to be in writing
Contracts are not binding on the spouse unless ratified within a reasonable time.
Spouses do not have the legal capacity to pass ownership: Remedies of non-consenting spouse:
o Rei vindicatio (get property back)
o Condictio sine causa specialis (enrichment)
o Actio Paulianautilis (spouse donated in fraud of interests of another spouse)
Types of consent needed:
1. S15 (2) Prior written consent, attested by 2 witnesses for each transaction:
Alienating / burdening immovable property.
Suretyship.
{NO RATIFICATION}
2. Written consent, attested by 2 witnesses for each transaction:
Entering a contract to alienate / burden / confer real rights on immovable property.
Receiving credit under a credit agreement.
Buying immovable property under a contract of sale.
{CAN BE RATIFIED}
3. Written consent:
Alienating / pledging / ceding shares / stocks / debentures / bonds / insurance policies /
mortgage bonds / fixed deposits in a financial institution.
Alienating / pledging investment assets. E.g., jewels, stamps, coins, paintings.
Withdraw money from bank account in another spouse’s name.
Instituting legal proceedings not related to business / trade / profession.
{CAN BE RATIFIED}
4. 15(3) Oral or tacit consent:
Consent can be given in any way.
Alienating / pledging household effects (e.g., furniture, curtains, and cutlery).

43
 Receiving money which is owed to the other spouse for: remuneration, income from a
separate property, interest or dividends on shares / investments / policies, an
inheritance, donation, bursary / prize.
Donating an asset from the joint estate to a third party IF unreasonable to other
spouse’s interest (so you don’t need your wife’s permission to give your friend a
birthday present, but you’ll need her permission before you donate your car to the
SPCA).
If a spouse performs the tasks listed in s15(2) as a part of their profession (in the
ordinary course of business) then they do not need the required consent.
Consent not obtained:
Protection of third parties:
Section 15(9)(a) of the Matrimonial Property Act.
Bona fide third party i.e., if a third party entered the contract without knowing that consent
was not obtained. –contract is valid.
The third party is only Bona fide if he could not reasonably have known that consent was
required / not given i.e., husband gave mistress a car, not enough that she didn’t know he
needed consent of his wife, but she would need to NOT REASONABLY know consent was
required (i.e., he told her he was single and ready to mingle) Protection of the spouses between
themselves: Statutory remedies:
1. Right to adjustment on dissolution Section (15(9)(b)) – read eg on page 307 - 308
2. Immediate division of joint estate.
3. Dispensing with consent by court order.
4. Suspension of spouse’s powers ito estate
Consent is unreasonably withheld by a Spouse – the court can step in and give consent (NOT
THE MINISTER OF HOME AFFAIRS PLEASE)
When one of the spouses deals with the joint estate in an irresponsible way, the law provides
the following protection:
o Immediate division of the joint estate in terms of section 20
o Suspension of a spouse’s powers in terms of section 16(2)
o Interdicts
o Adjustment
o Prodigal declaration

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Capacity to litigate when married in COP
Section 17 of the Matrimonial Property Act. Spouses require written consent of the other
spouse before they can bring or defend a court case. The 3 expectations are:
1. Matter iro separate property
2. Non-pat delictual damages
3. Matters relating to their business, trade, or profession

Marriages out COP

The presumption that marriage is in community of property is rebutted by drawing an ANC.
The antenuptial contract:
Section 87 of the Deeds Registries Act:
1. Attested by a notary; and
2. Registered in a Deeds registry within 3 months of execution (or within extended period
allowed by a court)
3. If requirements did not meet it is only valid inter parties but not against 3rdparties.

Section 88[post nuptial contract]:

1. The parties must have agreed to the terms of the contract before marriage and intended the
document to be an ante nuptial contract.
2. Good reason for failure to register it before marriage.
3. Application is made within a reasonable time after finding out there is a problem.
You can thus change your matrimonial regime via the Deeds Registries Act and the Matrimonial
Property Act. Minors must be assisted otherwise the contract is VOID and can’t be ratified.

Marriages out COP without accrual

spouses share nothing; they are almost like legal strangers to each other. Have separate
estates. If spouses wish to be married out of community of property, must conclude
antenuptial contract. If they do not want the accrual system to be applicable to their marriage,
they must also exclude the accrual system in their antenuptial contract. The reciprocal duty to
support each other and to contribute to household necessaries are still applicable to marriages
out of community of property. Can still be joint owners of property.

45
Marriages out COP with accrual
A postponed community of property, which only comes into play at the dissolution of the
marriage. The spouses share the accrual at the dissolution of marriage. Comes into operation ex
lege to all marriage out of COP after 1 st November 1984 (that’s why if you wanted to exclude
it, you had to specifically say so in your ANC) ‘Accrual’ means ‘growth’ or ‘increase’. This system
allows the spouses to share the financial gains or growth of their estates that accrued during
the marriage. Section 3(1) of Matrimonial Property Act provides that at the end of the
marriage, the spouse whose estate has grown more than the other spouse’s estate must share
half of his or her comparative gains with the other spouse.
Originally created because of “stay at home moms” and the wage gap between men and
women. These women still “contributed” to the estate, looking after children (don’t need an
aupair) cooking and cleaning means the husband could focus on work.
Calculation of accrual:
1. Calculate how much each spouse’s estates has grown during the marriage (if a spouse’s
estate has decreased in value there is no growth, thus the accrual value is zero). Net estate of a
spouse at the END of the marriage [dissolution] MINUS Net estate of a spouse at
COMMENCEMENT of the marriage (start of marriage).
2. If one spouse’s estate has grown more than the other spouse's estate, work out how
much more one spouse’s estate has grown that the other.
3. The spouse whose estate has grown less is entitled to half of the amount calculated in (2)
above.
In other words, this spouse is entitled to half the amount by which the growth of the other
spouse’s estate exceeds hers.
The following assets are excluded from accrual calculations:
 Non-patrimonial delictual damages
 Assets excluded in antenuptial contract
 Inheritance / legacy / donation that a spouse receives during marriage (also
replacement value thereof)
 Donations between spouses
 Costs in the matrimonial action
 Jocalia: Engagement gifts
E.g. Husband commencement value = R 100 000.00. Wife commencement value = R 50 000.00
Husband end value = R 1 000 000.00. Wife end value = R 20 000.00
Husband growth = R 900 000.00
Wife accrual = R 0
Difference = R 900 000.00

46
Half the difference = R 450 000.00
Husband pays wife R450 000.00

Protection of a spouse’s right to share in accrual:

8(1) of the Matrimonial Property Act: Application to the High court for immediate division of
accrual. Court can divide it anyway it sees fit and may also order permanent separation of
property. Otherwise, accrual continues. Common law remedies if you can prove intent to
prejudice. Are the same as the ones for marriages in COP. Liability for household expenses = pro
rata ito salary
Altering the matrimonial property regime:
Section 21 of the Matrimonial Property Act makes provision for the changing of the chosen
matrimonial property system AFTER marriage. The parties must jointly apply to court. The
court may grant this application if it is satisfied that:
o There are sound reasons for the proposed change,
o The spouses have given sufficient notice of the proposed change to all their creditors, and
o No other person will be prejudiced by the proposed change.
S 88 vs s 21

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CHAPTER 9: dissolution of civil marriages

Personal consequences of dissolution of marriage

The personal consequences are terminated when the marriage ends:
(i) Consortium omnis vitae
(ii) (ii) Duty of support (can claim maintenance ito Divorce Act or Maintenance of
Surviving Spouses Act)
The personal consequences are NOT terminated when the marriage ends:
(i) Majority status is retained
(ii) (ii) Relationships by affinity are not dissolved
3 ways in which marriage is dissolved:
(i) Death of one or both spouses
(ii) Annulment of a voidable marriage
(iii) Divorce

Division of the marital property when the marriage is dissolved by death

1. Marriages in COP:
When one or both spouses die, both the marriage and the community of property
between the spouses end. Each of the spouses receives half of the joint estate. Death of
one of the spouses gives rise to cumbersome & inconvenient administrative challenges.
In terms of the Administration of Estates Act 66 of 1965, control of the joint estate is
transferred to the executor for winding up before the surviving spouse receives her half.
This means that the surviving spouse is only permitted to deal with the assets in the
joint estate for specified purposes unless she has the consent of the Master of the High
Court to do otherwise. Surviving spouse can deal with the joint estate for funeral
expenses or reasonable maintenance. Executor pays all debts owing by the joint estate
and collects debts owed to the joint estate. Gives half of the balance to the surviving
spouse. Remainder is given to the heirs This regime has disadvantages that are evident
upon the death of one of the spouses:
(i) Executor can/must liquidate some/all of the joint estate’s assets to meet
creditors’ claims
(ii) Executor can/must liquidate some/all of the joint estate’s assets to pay heirs in
order to give effect to a will.
(iii) Control of the joint estate is removed from the surviving spouse.
Often this deprives the surviving spouse of his/her only shelter or means of income as if
there are insufficient liquid assets to accommodate bequests in a will , then it may be

48
 necessary to liquidate the matrimonial home in order to pay out testamentary
beneficiaries.
2. Marriages out COP:
ANC is not terminated by death of one or both spouses. Only terminated once the last
of the obligations has been fulfilled, eg: pactum successorium Executor only deals with
the estate of the deceased spouse. If the surviving spouse has any claim against the
deceased estate, he/she must lodge a claim with the executor. Includes a claim for
household necessaries if the spouses were:
(i) Married before 1984; or
(ii) Married after 1984 but agreed to the right of recourse in their ANC.
3. Marriages out COP with accrual:
Accrual is calculated and paid at the end of the marriage. If the accrual applies and the
surviving spouse’s accrual is smaller than that of the deceased’s, the surviving spouse
must lodge his/her claim with the executor. If the surviving spouse’s accrual is more
than that of the deceased, then the executor must claim a share from the surviving
spouse.

Claims of the surviving spouse

1. Claims based on inheritance:
The terms of a valid will must be carried. The deceased estate will be distributed in
accordance with the testator’s wishes. Testators are free to leave their estate to
whomever they please. Testator is free to disinherit his spouse if they so choose. A will
which bequeaths the entire estate of the deceased to charity & leaves a spouse with
nothing is legal. If the deceased dies intestate the estate will devolve it to the rules of
intestate succession as set out in the Intestate Succession Act.
2. Claims based on the Maintenance of Surviving Spouses Act:
If a testator has disinherited the surviving spouse, the latter can lodge a claim for
maintenance against the deceased spouse’s estate ito Maintenance of Surviving
Spouses Act. Regulates by S2(1) of the MSSA. A successful claim under the MSSA has the
result that the amounts available to beneficiaries in a will must be reduced. Surviving
spouses have a claim for his/her reasonable maintenance needs until his/her death or
remarriage to the extent that she cannot provide for these needs from her own means
and earnings. When determining reasonable means, following factors are taken into
account: (i) Amount available in deceased estate for distribution to heirs; (ii) Surviving
spouse’s existing and expected means; (iii) Earning capacity, financial needs and
obligations; (iv) Duration of the marriage; (v) Surviving spouse’s standard of living during
the marriage; (vi) Surviving spouse’s age at the time of the deceased’s death; and (vii)
Any other relevant factor. MSSA attempts to ensure that the surviving spouse is not left
with insufficient means for their reasonable maintenance needs if there are sufficient
funds available for this in the deceased estate. H/e, the claim is determined by the

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 means available for payment of maintenance & on the needs of the claimant. Claims will
be curtailed by the amount available in the deceased estate. The claim of the surviving
spouse will be reduced or denied if he has other means of support. Deceased children
also have a claim against the estate for the reasonable maintenance needs. Surviving
spouse’s claim & dependent children’s claim have the same order of preference as that
of a dependent child. If these compete and there are not enough resources to satisfy
both, then it’s reduced proportionally. Executor can enter into an agreement with the
surviving spouse and heirs to settle the claim by:
i) creating a trust,
ii) transferring assets to the surviving spouse, or
iii) imposing an obligation on the heirs

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CHAPTER 10: grounds for divorce

Divorce as a widespread social and legal practice

Divorce was very rare 200 years ago. Some 100 years ago it was still very uncommon. Today it is
widespread and common. The economic emancipation of women is one explanation for the
increased divorce rate (women are no longer ‘forced’ to stay in unhappy marriages) There is
now less of a social stigma attached to divorce. Increased personal expectations of marriage
(people marry for love). When romance wanes, people might start looking elsewhere. Today, it
is much easier to get a divorce than it once was.

What is the purpose of divorce law?

Divorce law centers on minimizing the harm divorce can do to families. Its purpose is wide and
humane, aimed at promoting s0cial stability, focused on reducing hostility, protecting the best
interest of the children involved and implementing equitable financial measures that protect
the economic interests of the children and spouses.
1. Promote social stability:
Society and the government have an interest in social stability. Constitutional Court =
Recognized the family as the core social institution promoting stable
communities & nations (see Dawood v Minister of Home Affairs and other cases
referred to in footnotes on p. 333)
One goal of family law is to promote and protect (especially nuclear) families. In the
past, the government made it very difficult to get a divorce (in some cases, it was
impossible to obtain). Another purpose of divorce was to punish guilty spouses, e.g., by
taking away their children (or financial penalties when the marital property was
divided). Fault-based divorce systems were almost universally present until the 1960s
(then it began to be questioned by policy makers). Previously, some or other ‘marital
fault’ was required (e.g., adultery or desertion). But, oftentimes no one was particularly
at fault (e.g., people simply grew tired of each other, or grew apart). It was then realized
that stringent divorce laws did not, in fact, promote healthy and stable communities.
Why continue a shell of a marriage when the relationship had irretrievably broken
down? If divorce was too difficult, couples who separated and formed new attachments
were unable to marry new partners, this was problematic. Making it too difficult to
obtain a divorce may actively impede the formation of (other, future, potential) happy
families.
2. Protect the economic interest of the spouses:
A divorced family usually has less money than a family that lives together. It is
(generally) less expensive to run one household. Women, especially tend to suffer
economic hardship post-divorce. A measure of economic sufficiency (for both spouses)

51
 must be ensured. The distribution of property, and possible awards for spousal
maintenance after divorce, must be both fair and realistic.
3. Protect the best interests of the children:
Divorce can be extremely stressful for everyone in the family. This includes the period
leading up to the divorce, the divorce process, & aftermath of divorce. Children are
particularly vulnerable. In SA, more than 50% of all divorces involve children under the
age of 18. In 2012, the parents of 19 713 children divorced. The best interests of
children are paramount when deciding for children after divorce. The negative impact of
divorce (especially on children) must be minimized as much as possible.
4. Provide divorce procedures that are efficient and inexpensive:
No point in dragging out the process of divorce. Little point wrangling over very last cent
of the marital property. Such behavior usually just increases the legal fees involving
attorneys/advocates and the court etc. Economically vulnerable spouses and dependent
children need to be protected. The rules need to be reasonably certain, promoting legal
predictability and encourage spouses to settle matters out of court (e.g., via mediation).
The court must maintain a certain amount of discretion so that it can respond to the
circumstances of each family.
5. Provide divorce procedures that don’t escalate hostility and bitterness:
Divorce is usually a stressful and distressing process for the couple concerned. It has
been explained as ‘going through hell’. Divorce laws and procedures should not
exacerbate hostility and bitterness between spouses (especially where children are
involved). Spouses with children will almost always have an ongoing personal and
financial relationship with each other after divorce. The law should try to ensure that
this relationship is as co-operative and civilized as possible.

Grounds for divorce

The Divorce Act 70 of 1979 is NB. There is now a system of no-fault divorce, making the grounds
for divorce considerably less onerous for the parties concerned than was the case prior to 1979.
 The move from fault-based divorce to no-fault divorce = Before 1979, SA had a ‘fault-
based’ divorce system. Back then, divorce was only possible if one spouse was guilty of a
marital fault and the other spouse sued him or her for divorce (e.g., adultery, malicious
desertion).
 Grounds for divorce in terms of the Divorce Act 70 of 1979 = Section 3 of the Act
provides that a court may grant a decree of divorce. It specifies that there are only 2
grounds for divorce:
1. The irretrievable breakdown of the marriage (Section 4) and
2. Mental illness or continuous unconsciousness (Section 5)
In terms of the 1979 Divorce Act, fault has become ‘irrelevant in considering whether or
not a divorce should be granted’.

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  The irretrievable breakdown of marriage (section 4(1) ) = Section 4(1) provides that the
court may grant a divorce on the grounds of the irretrievable breakdown of marriage, if
it is satisfied that the marriage has reached a ‘state of disintegration’, and that there is
‘no reasonable prospect’ of restoring a ‘normal marriage relationship’ between the
spouses. When a spouse sues for divorce, it is not enough for him/her to say that he/she
is unhappy in the marriage. He or she must prove that:
1. The marital relationship has disintegrated to the point where it is no longer a ‘normal
marriage relationship’ and
2. There is no reasonable prospect of restoring a ‘normal marriage relationship’ in the
future.
The Appellate Division (SCA) has held that it is inappropriate for a court to consider what
might happen if a decree of divorce were refused. Such speculative guesswork serves no
purpose. The divorce court’s task was to consider whether the marriage had broken
down and whether there was any prospect of restoring a normal marriage relationship
between the spouses. Must the court consider these factors objectively or subjectively?
(i.e., from the perspective of the spouses themselves, or purely based on the
circumstances/facts?) The court in Schwartz held that it must consider both the
subjective feelings of the parties and the objective circumstances prevailing. A similar
approach was followed in Naidoo v Naidoo where the court held that it is important to
have regard to the subjective views of the spouses about their marriage (but objective
circumstances/facts must also be considered). The law on this issue seems to be settled
now. In practice, divorce courts will invariably conclude that a marriage has broken
down irretrievable if both spouses say that they don’t want to be married anymore.
Even if one spouse wants to save the marriage, the court will probably grants the decree
of divorce if the other spouse is determined to end the marriage (and can provide some
objective reason for their choice). Section 4(2) of the Divorce Act provides that subject
to Section 4(1), and without excluding any other relevant evidence, the court may
accept evidence of the following as proof that the marriage has irretrievably broken
down:
A. The parties have not lived together as husband and wife for a continuous period of at
least one year immediately prior to the date of the institution of the divorce action.
B. The defendant has committed adultery, and that the plaintiff finds it irreconcilable
with a continued marriage relationship, or
C. That the defendant has in terms of a sentence of a court been declared a habitual
criminal and is undergoing imprisonment because of such sentence. It is important to
note that none of these things are grounds for divorce anymore. Section 3 makes it clear
that the only grounds for divorce are the no-fault grounds of irretrievable breakdown of
the marriage as set out in Section 4(1), and mental illness or continuous
unconsciousness as set out in Section 5.
 Mental illness or continuous unconsciousness (section 5) = Two special grounds for
divorce are listed under this section:
1. Mental illness (Section 5(1))

53
 2. Continuous unconsciousness (Section 5(2))
Expert evidence must be led (by medical experts, sometimes court-appointed) Section 9
of the Divorce Act: makes it clear that forfeiture of patrimonial benefits is possible only
when a decree of divorce is granted on the grounds of irretrievable breakdown.
Forfeiture is not available if the divorce is granted on the grounds of Section 5.
 Does the court have discretion to refuse to grant a divorce? = In the Schwartz case,
counsel argued that the word ‘may’ implied that the court has a discretion to refuse to
grant the divorce (suggesting the court has some discretion to refuse to grant the
divorce). The Appellate Division (now SCA) did not accept this argument. The appeals
court held that if Parliament had intended the court to have this discretionary power, it
should have said so expressly. THUS: If the court finds that the marriage has broken
down irretrievably, the court does not have discretion to refuse the divorce. If the court
believes that there is a reasonable prospect of the couple rebuilding a normal marriage
relationship, the court will not be satisfied that the marriage has broken down
irretrievably. In such a situation, the court will not have the power to grant a divorce at
all (this almost never happens in practice, only in theory!).
Section 4(3): The court may postpone the divorce proceedings if it appears to the court that
there is a reasonable possibility that the spouses may become reconciled through marriage
counselling or further reflection.
Section 5(A): This section now provides that a court may refuse to grant a civil divorce if it
appears that a spouse who has the power to procure a religious divorce, has failed to take
the necessary steps (not limited only to people of the Jewish faith anymore).
Section 6: This section is worded peremptorily (in final terms, not open to challenge) A
decree of divorce ‘shall not’ be granted until the court is:
1. Satisfied that the arrangements made for the children of the marriage are ‘satisfactory’ and
2. The court has considered the report and recommendations of the Family Advocate.

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CHAPTER 11: economic consequences of divorce

Economic context of divorce

Standard of living. Female-headed households (financial difficulty). Women spending years out
of the workforce. Second-marriage children vs. first-marriage children. Women in poor
communities disproportionally affected. Motherhood penalty:
o One of the objectives of divorce law = Ensure a measure of economic sufficiency for both
spouses and their dependent children. ‘Career assets’ – For many couples the most valuable
assets they have. Spouses who sacrificed their careers and who have minimal earning power
ought to be compensated (might have to be ongoing). Does divorce make ex-wives poorer than
ex-husbands:
o Refer to the case of Bannatyne v Bannatyne 2003 (2) SA 363 (CC)
o It is almost always the mothers who become the custodial parent that has to care for the
children
o Financial burden
o Double disadvantage (burden) = Overburdened in terms of responsibilities & under-
resourced in terms of means.
o Fathers? Mostly remain actively employed and enriched.

Written agreements (section 7(1) ) and the shadow of the law

In terms of Section 7(1) of the Divorce Act. A court granting a decree of divorce may make an
order for the division of the marital assets or for payment of spousal maintenance in terms of a
written agreement between the parties. Can be called a ‘consent paper’ or ‘deed of
settlement’. Private divorce settlements take place ‘in the shadow of the law’. Settlements are
encouraged in practice to avoid protracted litigation and clogging of the court rolls.

Dividing the property according to the matrimonial property system.

Includes rules about how the property must be divided at the end of the marriage. Does the
accrual system apply? What about couples married out of community of property without the
accrual system? Sometimes a court will make an order departing from the ordinary rules for
dividing the property. Section 9 of the Divorce Act deals with forfeiture of benefits, and Section
7 (3) deals with transfer orders. Many couples have little money at the end of the marriage (and
a lot of debt usually!).

55
Forfeiture of patrimonial benefits of the marriage (section 9(1) )
Section 9(1) of the Divorce Act: When a decree of divorce is granted on the ground of the
irretrievable break-down of a marriage. The court may take an order that the patrimonial
benefits of the marriage be forfeited by one party in favor of the other, either wholly or in part,
having regard to the duration of the marriage, the circumstances which gave rise to the break-
down thereof and any substantial misconduct on the part of either of the parties, is satisfied
that, if the order for forfeiture is not made, that one party will in relation to the other be unduly
benefited. How does forfeiture work? (See diagrams on pp. 346-348).
When will the court order benefits?
See Rousalis v Rousalis 1980 (3) SA 446 (C); Watt v Watt 1984 (2) SA 455 (W). If the court is
satisfied that a spouse has ‘unduly benefitted’. In some cases, the court may decide that one of
the spouses must not derive an unfair financial benefit from being married to someone.
How does the court decide if a spouse will be unduly benefitted?
Section 9(1) mandates courts to consider 3 factors before granting a forfeiture order:
1. The duration of the marriage
2. The circumstances which gave rise to the break-down thereof
3. And any substantial misconduct on the part of either of the parties
Even though fault is no longer a ground for divorce, it nonetheless remains an important
consideration when a court is called upon to make an order of forfeiture of patrimonial
benefits.

Transfer of assets (section 7 (3) )

Divorce Act, Section 7(4): An order under subsection (3) shall not be granted unless the court is
satisfied that is equitable and just by reason of the fact the party in whose favor the order
granted, contributed directly or indirectly to the maintenance or increase of the estate of the
other party during the subsistence of the marriage, either by rendering of services, or the
saving expenses which would otherwise have been incurred, or in any other manner.

Spousal maintenance after divorce (section 7(2) )

The awards are based on the needs of the claimant ex-spouse. The court will order the spouse
who leaves the marriage with better opportunities to earn money to assist the other spouse
financially. These awards are rare and generally the quantum’s have been ‘very low’. Death and
remarries.
The ‘clean break’ model: This represents a shift from previous assumptions of a ‘dependent
wife’.

56
Reasons to award spousal maintenance:
1. It is in the best interests of the children to have a stay-at-home mother.
2. The ex-wife cannot find work now.
3. The ex-wife will never find work.
4. It is a form of compensation for the years invested in the marriage.
Section 7(2): This Section provides for ongoing spousal maintenance after divorce.
Changing a spousal maintenance order: Spousal maintenance awarded in terms of Section 7(2)
is awarded only until the recipient spouse dies or remarries. If an ex-wife finds a new husband,
her first husband will no longer be obliged to pay maintenance to her. Applications for variation
of maintenance orders do not have to be made to the High Court, they can be made to the
Maintenance Court in terms of the Maintenance Act 99 of 1998.
Pension interests: A spouse’s pension interest is a significant aspect of his/her patrimony
(estate). See Section 7(7) of the Act. See Old Mutual Life Assurance Co (SA) Ltd v Swemmer;
Sempapalele v Sempapalele; Maharaj v Maharaj; Government Employees Pension Fund v
Naidoo.
Pension interests: See Section 7(8) of the Act.

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CHAPTER 12: children after divorce

What is an order for ‘care’ or ‘custody’?

Divorce Act: ‘custody’
Children’s Act: ‘care’ Change in terminology has created confusion for courts.
Wheeler v Wheeler [2011] 2 All SA 459 (KZP):
(i) New terminology has not necessarily replaced the old terminology
(ii) H/e, new terminology is preferred to avoid confusion.
(iii) Court avoided the old terminology altogether.
In practical terms, the court must decide which of the parents:
(i) The child should live with after divorce;
(ii) Will be responsible for the long-term decisions about the child’s education, religious
upbringing or medical care;
(iii) Will be responsible for decisions on aspects of the child’s daily life.
The court can award:
1. Sole care to one of the parents
(a) I.O.W. children will live with that parent
(b) That parent will have parental responsibilities associated with decisions about the
children’s upbringing, education, medical care & daily care.
(c) Section 31(2) of the CA requires a parent to give due consideration to ‘any views &
wishes expressed by any co-holder of P.R.R. when taking major decisions involving the
child.
(d) Even if a parent has been given sole care, the other parent will usually retain some
P.R.R. eg, maintenance & guardianship.
(e) The parent with sole care must consider the views of the other parent before making
major decisions as defined ito section 31(1)(b), eg, before making a decision to relocate
to another city.
(f) H/e, the parent with sole care can make decisions independently of the other parent
on most aspects of the child’s care & upbringing.
2. Joint care to both parents
(a) Joint legal care = (1) Children will reside with one of the parents. (2) H/e, both parents will
share responsibility for making decisions about NB aspects of the child’s life such as education
& medical care. (3) The parent with whom the child resides will be responsible for the day-to-
day decisions concerning the child’s activities.

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(b) Joint physical care (1) The children reside with both of their parents. (2) Eg, child might stay
with one parent from Sunday to Wednesday & with the other parent from Thursday to
Saturday.
When parents have both joint legal & physical care of the child, they share responsibility for:
(i) NB long-range decisions involving the child &
(ii) Day-to-day decisions while the child is staying with them.
CA promotes sharing of P.R.R. A presumption of joint care appears to promote gender equality.
It recognizes the valuable contribution made by both parents. It also promotes the child’s
constitutional right to family care. H/e, joint care arrangements do not necessarily result in
more equitable sharing of parenting or improve the position of working mothers. Joint care
therefore does not suit every family. Joint care only works if the parents are: (i) Committed to
making it work (ii) Co-operate with each other. Joint care should be ruled out altogether if there
is a history of domestic violence. Parental co-operation may be eased & enhanced through a
parenting plan (s33 of the CA). Divorce court is not obliged to make an express order regarding
‘custody’ or ‘care’. If no order is made in this regard, parents will retain their responsibilities &
rights to care, contact, guardianship & maintenance acquired it the CA.

What is an order for ‘contact’ or ‘access’

Divorce Act: ‘access’
CA: ‘contact’
‘Contact’ it CA includes:
(i) Face to face visits
(ii) Regular communication through the telephone or any other form of communication.
Thus a relationship where parent & child become ‘Facebook friends’ might qualify as a form of
contact ito the CA. H/e, courts will usually order more meaningful forms of contact, eg
weekend visits & longer visits during school holidays. ‘Contact’ = parental responsibility rather
than parental right. Similarly, from the child’s side ‘contact’ = right & not an obligation.

Maintenance orders
Parental duty of support is not changed by divorce. Ito available divorce procedures, parent
with whom the child resides can only apply & receive maintenance on the child’s behalf if the
child is a minor at the time of divorce. The maintenance order can continue after the child
attains majority. H/e, if the child is a major at the time the divorce case comes to court, the
child must claim maintenance on his own behalf. The parent with whom the child resides has
no locus standi to do so on the dependent child’s behalf.

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Guardianship
General rule: both parents retain guardianship responsibilities wrt their children after divorce.
H/e, the DA provides that sole guardianship can be granted to one of the parents, if this is in
the best interests of the children. Consequence of sole:
(i) Only the sole guardian’s consent is required for activities listed in section 18(3)(c).
(ii) Other parent is no longer the guardian & will not be able to assist & consent t the
child’s juristic acts or administer the child’s property.
Awards of sole guardianship are extremely rare. Can be granted under the ff circumstances:
(i) Parent has absconded & cannot be traced.
(ii) Parent is unfit eg, psychiatric disorder or convicted of a violent crime involving the child.

Arrangements for children and the child’s best interest standard

Divorce courts apply the interests of the child standard when deciding issues of ‘custody’ &
‘access’. These matters are now subject to the Constitution & the CA. Both acts provide that the
child’s best interests are of paramount importance in every matter concerning the child.
1. What are the child’s best interest?
Courts must apply the factors set out in section 7 of the CA where they are relevant.
Courts first examine the particular circumstances of the children involved, & consider all
the relevant factors in order to reach decisions which best serve the interests of
children. Section 7 does not include the child’s own views as a factor for consideration
when deciding the best interests of the child. H/e, ito section 10 of the CA, the child has
a right to participate in the decision making if the child is sufficiently mature to do so.
2. How do we ascertain the child’s best interest? Procedural mechanisms
Court is guided by the child’s best interests. SA law implemented mechanisms which
provide divorce courts with reliable information in order to make meaningful &
informed decisions. SA divorce procedures have tried to ensure that child-related
disputes are resolved quickly & with minimal confrontation. Section 6(4) of the CA
emphasises this approach by providing that in any matter concerning a child: (a) An
approach conducive to conciliation & problem-solving should be ff & a confrontational
approach should be avoided; & (b) A delay in any action/decision to be taken must be
avoided as far as possible.
 The Mediation in Certain Divorce Matters Act 24 of 1987 = Divorce process became
more child-focussed through the MCDMA. MCDMA established the office of the Family
Advocate (FA). Role of the FA:
(i) Investigates the welfare of children in divorce & care-related matters.
(ii) Compiles reports of these investigations for the court.
(iii) Provides the court with information about the child & family concerned.

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 (iv) Functions as a channel of communication between the 2 parents & the child &
the parents.
FA = trained lawyer (advocate) & has family law experience. FA must be fit for
appointment due to his / her experience in the adjudication or settlement of family
matters FA can request investigations into the care & contact arrangements made by
divorcing parents. Inquiries are conducted by the FA’s staff of family counsellors who
are trained social workers. FA must institute an enquiry into the welfare of children
affected by a divorce matter if requested to do so by either the court or one of the
parties. In addition the FA’s Office reviews & monitors all settlement agreements &
court documentation involving minor or dependent children. This is done to ascertain
whether the arrangements contained in these documents are prima facie in the
children’s best interests. If the settlement agreement seems troubling, the Office can
institute an enquiry & compile a report for the court. If the FA has compiled a report,
the divorce court is obliged to consider it before making orders regarding the children.
H/e, the court must reach its own decision on the welfare of the children & is not
obliged to follow the FA recommendations. Can reject them completely, in part or
accept his factual findings but make an order that differs materially from his
recommendations Family advocate may also appear at the trial or hearing of a divorce
application May introduce any relevant evidence and cross-examine witnesses.
 Mediation = Divorcing couple can involve an outside mediator to assist them in reaching
agreement on the patrimonial aspects of their divorce. Mediators can also assist parents
to agree on post-divorce arrangements for their children. Dept of Justice has also
recognised the advantage of mediation. Recent court decisions have stressed that
mediation should be preferred over litigation in family disputes.
(i) Brownlee case reported as MB v NB 2010 (3) SA 220 (GSJ)
Fees of the lawyers involved were capped because they failed to advise their
clients to mediate their dispute before resorting to litigation.  Very NB judgment
because Brassey AJ focuses on the NB of mediation in family matters.  Judgment
suggests that family law attorneys must encourage mediation rather than resort
to expensive adversarial litigation.
(ii) FS v JJ 2011 (3) SA 126 (SCA)
 Judgment in (i) above was endorsed.  Held that mediation was a useful way of
avoiding protracted & expensive legal battles.  Furthermore, litigation should
not necessarily be a 1st resort.
CA has 22 sections requiring parties to involve mediators or to use other forms of
outside assistance. Dept of Justice has tried to make mediation more affordable &
accessible by providing mediation through the FA’s Office. Couples who can afford to,
can make use of private mediators. Child-inclusive mediation is one way of ensuring that
children can express their views on those parts of the divorce matter that concern them.
Mediation is not always appropriate for the settlement of family disputes. Mediation is

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 inappropriate in the ff instances: (i) History of family violence or child abuse (ii) Case
involves complicated legal questions (iii) Case involves large amounts of money.
 Involving or representing children = NB for children to have a voice in family separation
matters. Children have a fundamental interest in post-divorce arrangements which
involve them. Therefore, the courts cannot one-sidedly determine what would be in the
best interests of the children without consulting them in some way. SA also has
obligations to hear the child’s views under international treaties. Article 12 of the UN
Convention on the Rights of the Child (1989) gives children the right to express their
views in all matters that affect them. The children’s opinions on how they want to live
their own lives, should be given due weight in accordance with their age & maturity.
This position is reflected in section 10 of the CA. The views of the child will not
necessarily be decisive, but must nevertheless be given due consideration by the
decision-makers concerned. The CA provides that children should participate in an
‘appropriate way’. Adversarial litigation is not regarded as the optimal method of
involving the children or obtaining their views. Children’s participation best
implemented through mediation or the FA’s Office. In some instances it might be
necessary or preferable for the child to participate in the litigation. Section 6(4) of the
Divorce Act provides that a court may appoint a legal practitioner to represent a child in
divorce proceedings & order one or both parents to bear the costs. In addition, section
28(1)(h) gives children a constitutional right to have a stateappointed legal counsel
assigned to them at the state’s expense in civil proceedings that affect them if
substantial injustice would otherwise result. Soller NO v G 2003 (5) SA 430 (W) Ex parte
Van Niekerk: In re Van Niekerk v Van Niekerk [2005] JOL 14218 (T) Legal Aid Board v R
2009 (2) SA 262 (D) 5.2.4 Non-intervention: Let the parents decide Legal commentators
have criticised over-intervention of the courts & other state agencies in parents’
agreements regarding care of their children after divorce. For eg, courts do not usually
have the power to regulate arrangements made for children with intact parents. Courts
in this instance only intervene when it is clear that the children require the state’s
protection. Argued that no outsider can know the children’s needs as well as parents
can. Furthermore, no outsider can have as intimate a knowledge of each party’s
strengths & weaknesses as a parent. Parents are thus best placed to make decisions
about care & should therefore not be required to incur the expense/inconvenience of
an outside tribunal. In most divorce cases, parents reach agreement on post-divorce
arrangements for their children without involving the FA’s Office or requiring
adjudication by the courts. Where necessary or appropriate mediation can assist the
parents on reaching an amicable, child-focused agreement.

Parents rights and interest

The child’s best interests are not the only interests of NB. Parents also have rights & interests.
Sometimes the rights & interests of the child must yield to those of the parent. Interests of the
parents may also conflict with each other. Eg, where the parent who has sole care of the child

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wants to relocate to another city or country, & the other parent is obliged to remain behind.
Jackson v Jackson 2002 (2)SA 303 (SCA) F v F 2006 (3) SA 42 (SCA) B v M 2006 (9) BCLR 1034 (W)
HG v CG 2010(3) SA 352 (ECP)

In terms of Huber’s
model, wives are
legally inferior and are

Although the Con

Court has showed a
clear preference for

63
The Con Court has
identified marriage as
a relationship of
5 . An aspect of
recognizing and
protecting
everyone’s equal

The Constitutional
court has frequently
relied on the

64
Recognition of the
right to inherent
human dignity

1. life:

CHAPTER 13: customary marriages

Nature of customary marriages

• Recognition of Customary Marriages Act (‘the Recognition Act’) o A customary marriages
‘means a marriage concluded in accordance with customary law as ‘the customs and usages
traditionally observed among the indigenous African peoples of SA and which form part of the
culture of those peoples’.
• Traditional customs of homogenous African peoples of SA are not homogenous
• Most NB characteristics of traditional customary marriages include:

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 o An emphasis on the linkage of the families → Co-operation and involvement of the
families of the bride and groom is usually an important element in the formation of customary
marriages
o The possibility of polygyny → Many SA communities practised polygyny → This is a martial
system which allows men to have more than one wife simultaneously → It is no longer a part of
customary law
o Communal ownership of martial (or homestead) property → Traditionally, a homestead’s
property was managed by the homestead head → The wife or wives of the homestead head
would have access to the property and could make use of it

Legal status of customary marriages

• A primary objective of the Recognition Act is to o Legislate full legal Recognition for customary
marriages within the SA legal system
• Customary marriages have the same status and standing as non-customary civil marriages
• This is a significant change from the colonial and apartheid periods
o Before the Recognition Act § Customary marriages were termed ‘customary unions’
and had limited legal standing within the civil legal system § Customary marriages could not be
recognized as ‘true marriages’ because they were potentially polygynous
• Customary law is now a source of South African law
• S211(3) of constitution o Courts must apply customary law where applicable
• Rules of customary law which discriminate on the grounds of gender are prima facie
unconstitutional
o Customary marriage cannot infringe s 9(3) of the constitution
• Rules of customary law that discriminate against women include:
o Provisions regulating property o Women are ‘perpetual minors under the tutelage of
the fathers, husbands or the head of the extended family’.

• Marital power within customary marriages are abolished by the Recognition Act

Requirements for formation of a valid customary marriage

The Recognition Act sets out 3 fundamental requirements for the formation of valid customary
marriages entered into after the commencement of the Act:
o The prospective spouses must be above the age of 18

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 o The prospective spouses must both consent to be married to each other under
customary law and
o The marriage must be negotiated and entered into or celebrated in accordance with
customary law
• The first 2 raise conceptual difficulties and operate in a similar way to requirements for the
conclusion of a valid civil marriage
• Traditional customary law o Consent of the spouses themselves was not necessarily required
o The spouses’ voluntary consent is now an indispensable requirement for the formation of a
valid customary marriage
• Minors under the age of 18
o Permitted to marry if they have the consent of their guardians and the Minister of Home
Affairs § The legal consequences of failure to obtain consent
• These are governed by the Marriage Act

1. A marriage negotiated and entered into or celebrated in accordance with customary

law:
• The 3rd requirement set out in sec 3(1) has given rise to several high court cases
• The courts must determine the particular customary requirements applicable to the
marriage in dispute before they can decide whether or not the customary requirements
have been validly satisfied
• The following typical requirements for formation of a valid marriage ‘in accordance
with customary law’ emerge from the recent case law:
o The families of the bride and groom must negotiate and agree to the marriage
§ Negotiations are usually conducted by senior men in each of the families → It appears
that women can conduct these negotiations if no senior man available
o The families must negotiate and agree on the amount of lobolo to be paid in
respect of the marriage § Lobolo is property in cash or kind which is prospective
husband or the head of his family undertakes to give to the head of the prospective
wife’s family in consideration of a customary marriage § Lobolo often takes the form of
money § Lobolo is also paid on different times depending on the communities §
Requirement → The family of the bride has reached an agreement with the groom or his
family concerning the amount of lobolo that will be transferred
o There must be a formal ‘handing over’ of the bride § Marriage is usually
celebrated with a formal ceremony
2. Prohibited degrees of relationships:
• Sec 3(6) of Recognition Act
o Provides that spouses may not conclude a customary marriage if they are
prohibited from marrying each other in terms of the applicable rules of customary law
because of their relationship by blood of affinity
• Zulu customary law

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 o Strictly prohibited to marry a blood relative of any kind, no matter how distant
• Some members of the same clan cannot marry as it is forbidden even if there is no
particular relationship of blood or affinity.
3. Existing civil marriages:
• Sec 10(4)
o People who are involved in a civil marriage may not enter into a customary
marriage during the subsistence of the civil marriage
o The customary marriage will then be void
4. Requirements for the formation of a polygynous marriages:
• A marriage to a second or subsequent wife must meet all the requirements set out
above
o It must satisfy the requirements of sec 7(6) § This provides that if a husband to
a customary marriage wishes to enter into a further customary marriage with another
woman, he must make an application to the court to approve a written contract
regulating the matrimonial property system applicable to his existing and future
marriages § All interested parties must be joined in this application, particularly the
husband’s existing wife or wives and the prospective space
o Section7 § This section ensures that existing wives will be consulted before their
husband concludes additional marriages and existing wives must appear before the
court when it considers the contract governing the patrimonial consequences of the
polygynous marriage § The existing wife can refuse to enter in to the contract referred
to in sec 7(6) and thus exercise a veto power over a proposed additional marriage

Registration of the marriage

• The purpose of registration of the marriage
o Is to make the existence of customary marriages more certain and to make their
existence easier to prove
• Sec 4 of the Recognition Act
o Provides that spouses in a customary marriage have a duty to ensure that their
marriage is registered and sets out the procedural requirements for registration
• Customary marriages entered into after the commencement of the Act must be registered
within a period of 3 months after the conclusion of the marriage or within such longer period as
the minister may prescribe from time to time
o Cases of customary marriages entered into before the commencement of the Act, the
marriage must be registered within a period of 12 months after the Act’s commencement, or
within such longer period as the minister may prescribe
o If the registering officer is satisfied that the spouses concluded a valid customary
marriage, § He or she must register the marriage by recording the identity of the spouses, the

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date of the marriage, any lobolo agreed to and any other prescribed particulars and must issue
the spouses a certificate of registration
o If the registering officer is not satisfied that a valid customary marriage was entered
into, he or she must refuse to register the marriage
o A certificate of registration of a customary marriage constitutes prima facie proof of
the existence of a customary marriage and of the particulars contained in the certificate
o Sec 4(7) § Empowers the court to cancel the registration of a customary marriage
upon application made to that court and upon investigation instituted by the court § Ndlovu v
Mokoena case
• The court held that the registration officer had erred in registering the
marriage, and ordered the cancellation of the registration certificate
• Registration is compulsory
• There are no penalities for non-compliance with the registration
requirements and failure to register a customary marriage does not affect the validity of that
marriage

Personal consequences of marriage

• Sec 6 of the Recognition Act
o provides for the equal status and capacity of the spouses
o a wife in a customary marriage has, on the basis of equality with her husband and
subject to the matrimonial property system governing the marriage, 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 that she might have at customary law § the
possible limitations on wife’s capacity to Act arise primarily from sec 15 of the matrimonial
property Act and apply equally to husbands
• the abolition of marital power and equalisation of the spouses’ status and capacity is one of
the important changes to the traditional patriarchal nature of customary marriage
• the Recognition Act also expressly abolishes the perpetual minority of wives in customary
marriages by specifying that the age of majority set down by civil law will apply to wives in
customary marriages

Matrimonial Property System

The matrimonial property system applicable to a customary marriage depends on whether the
marriage is monogamous or polygynous.
1. Monogamous marriages:
Sec 7

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 o Sets out the patrimonial consequences of customary marriages
o The patrimonial consequences of monogamous customary marriages are
regulated in the same way as civil marriages: if the spouses do not execute an
antenuptial contract, the marriage will be in community or property, and the sections of
matrimonial property Act regulating in COP marriages will apply
• If the spouses do enter into an antenuptial contract, the terms of the contract will
regulate their matrimonial property regime
• The Act does not refer to the accrual system in sec 7(2) and does not expressly provide
that chapter 1 of the matrimonial property Act will apply to customary marriages that
are out of community of property
• Sec 2 of the matrimonial property Act provides that ‘every marriage out of COP’
entered into after the commencement date of the Act ‘is subject to the accrual system.’
o If the spouses in a customary marriage enter into an ANC that excludes COP, their
marriage will be subject to the accrual system unless it is expressly excluded
• Gumede case
2. Polygamous marriages:
• A husband in an existing customary marriage who wishes to enter into a marriage with
another woman must apply to the court for approval of a contract regulating the
matrimonial property of his marriage
• All interested parties, particularly his existing wives and prospective wife must be
joined in the proceedings
• The court has discretion to approve the proposed contract or approve it subject to
amendment or conditions
• The court may also refuse the application if in its opinion ‘the interests of any of the
parties involved would not be sufficiently safeguarded by means of the proposed
contract
• When considering the application, the court must take into account all the relevant
circumstances of the family groups that would be affected if the application were
granted o If the husband is currently married in COP, or out of COP subject to the
accrual system, the court must terminate the matrimonial property system concerned
and divide the matrimonial property between the spouses
• The court must ensure an equitable distribution of the matrimonial property
• The Act provides no guidelines on which matrimonial property system would be
deemed appropriate in the context of new polygynous marriages o Legal commentators
are agreed that the only logical possibility would be for the marriages to be OUT of COP
• Codified official customary matrimonial property systems in which husbands become
sole owner of all the marital property are unconstitutional and the in COP and accrual
systems appear to be unworkable in a polygynous context
• Patrimonial consequences of polygynous customary marriages concluded before the
commencement of the Act are presently governed by customary law
o Sec 7(1) of the Recognition Act provides for this
o Gumede case

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Divorce
• Section 8 of the Recognition Act regulates the dissolution of customary marriages by divorce
• Many of its provisions are based on similar provisions in the Divorce Act
• Divorce may only be granted by a court and in accordance with sec 8
• The Act has the effect of abolishing customary procedures for dissolving marriages by divorce,
although it does not prohibit or limit the roles of traditional leaders or family groups in
mediating any marital dispute in accordance with customary law before the marriage is
dissolved by a court
1. Grounds for divorce:
The Recognition Act provides that a customary marriage may be dissolved by divorce
only on the grounds or irretrievable breakdown it if is satisfied that the marriage
relationship between the parties has reached such a state of disintegration that there is
no reasonable prospect of the restoration of a normal marriage relationship between
them.
2. Children and divorce:
• The Act provides that sec 6 of the divorce Act and the mediation in certain divorce
matters Act apply to divorces in terms of the Recognition Act
• The Recognition Act expressly provides that the court may make an order with regard
to the custody or guardianship of any minor child of the marriage
o The Act further provides when making any order for the payment of
maintenance, the court may take into account any provision or arrangement made in
accordance with customary law
• The constitutional children’s rights clause and the provisions of the Children’s Act
apply to all children, regardless of whether or not their parents are married in terms of
customary law or civil law
3. Economic consequences of divorce:
• The Recognition Act purports to make many sections of the divorce Act that regulates
the economic consequences of divorce directly applicable to customary divorces
• Section 8(4)(a)
o Provides that a court granting a decree of divorce for a customary marriage has
the powers contemplated in sections 7 and 9 of the divorce Act
• The divorce Act was designed to regulate civil law marriages and it will not always be
appropriate to apply its provisions in the same way in the context of customary
marriages
• Gumede case
• Sec 7(3) of divorce Act
o Of divorce Act empowers the court to order the transfer of assets from one
spouse to the other when dissolving a civil marriage by divorce
o It application is limited to marriages out of COP entered into before the
commencement of the matrimonial property Act

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 o Gumede case

Converting a customary marriage into a civil marriage

• It is not unusual for a couple to conclude a civil marriage and also to engage in traditional
practices connected with the formation of a customary marriage such as the transfer of lobolo
of a traditional wedding
• Before the Recognition Act
o This created few difficulties within the civil legal system, because only the civil marriage
was recognised
o Now both forms of marriage have equal status, it s necessary to formulate rules for
couples who engage in both civil and customary practices
• People who are married in terms of customary law may not conclude a civil marriage
o The exception to this general rule is that coupfles who are married to each other in
terms of a monogamous customary marriage may marry each other in terms of civil law
o If they do this, the customary marriage will be converted into a civil law marriage
• Couples who are married to each other in terms of the civil law may not enter into a valid
customary marriage with each other
o They may of course still practice traditional customs such as the transfer of lobolo, but
their customary marriage will not be recognised in terms of SA law

CHAPTER 15: civil union

What is a civil union?

• The civil union act provides for the legal recognition of civil marriages and civil partnerships,
which are referred to as civil unions
• A civil union means the voluntary union of 2 persons who are both 18 years old or older,
which is solemnised and registered by way of either a marriage or civil partnership, to the
exclusion, while it lasts of all others.
• Civil union act is extended to both different sex and same sex couples since it is a voluntary
union between two persons regardless of their sexual orientation or gender identity

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Who can solemnise a civil marriage or a civil partnership in terms of the civil union
act?
• Any marriage officer recognised in sec2 of the Marriage Act may solemnise a civil union.
• Any minister of religion or person holding a responsible position in any designated religious
institution or religious organisation may apply in writing to the minister to be designated as a
marriage officer in terms o the civil union act.
• The minister must from time to time publish the names of religious institutions which have
been granted the right to solemnise civil unions in the government gazette.
o If the minister revokes the designation this too must be published in the
government gazette.

When can a marriage officer refuse to solemnise a civil marriage or a civil

partnership?
• In terms of the marriage act
o Ministers of religion may refuse to solemnise a marriage if it does not conform to their
particular religious beliefs
o The act does not permit state-appointed marriage officers (such as magistrates) to
refuse to solemnise marriages on conscientious grounds
• Section 6 of the civil union act
o Provides that ex-officio marriage officers may in writing inform the minister that
they object to solemnising civil unions between persons of the same sex, on the ground of
conscience, religion and belief
o Marriage officers who have done this shall not be compelled to solemnise such civil
unions

Who is allowed to get married or civil partnered in terms of the civil union act?
• Any person who is over the age of 18 years
• A marriage officer may not solemnise a civil union unless each of the parties produce to the
marriage officer his or her identity documents or they give the marriage officer a prescribed
affidavit
• Any party to the civil union who has been married previously under the marriage act, or the
customary marriage act or the civil union act must present a certified copy of the divorce order
or death certificate of the former spouse or partner to the marriage officer as proof that the
previous marriage or civil union has been terminated

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 o What this means is that any person who is already married or has a civil
partnership may not enter into a second civil union
o Any person who is currently under the marriage act or recognition of customary
marriages act may not register a civil union

Can a person object to a proposed civil union?

• In terms of section 9(1) of the civil union act, an objection must be lodged in writing with the
marriage officer who is to solemnise the marriage.
• Upon receipt of such objection the marriage officer must inquire into the grounds of the
objection.
o If he or she is satisfied that no lawful impediment exists to the proposed civil union
the marriage officer may solemnise the civil union
• However, if the marriage officer has doubts and is not completely satisfied he or she may
refuse to solemnise the civil union and the reasons for such a refusal must be placed on record
in writing

What is the civil union solemnisation formula?

• When people are about to get married and they stand before the marriage officer, it is at this
stage of the civil union formalities that the parties have to choose whether their civil union
should be known as a ‘marriage’ or ‘civil partnership.
• During the solemnisation of the civil union the marriage officer will pose the following
questions to each of the parties separately.
• To every question each party will have to answer in the affirmative:
o Do you declare that as far as you know there is no lawful impediment to your
proposed marriage/civil partnership with partner here present, and that you call all here
present to witness that you take your partner as your lawful spouse/civil partner?
o And thereupon the parties must give each other the right hand and the marriage
officer concerned must declare the marriage or civil partnership, as the case may be,
solemnised in the following words: § I declare that so and so here present have been lawfully
joined in a marriage/civil partnership

How is a civil union registered?

• Each partner must individually and in writing declare their willingness to enter into a civil
union and in the presence of two witnesses sign the prescribed document. The marriage officer
and the 2 witnesses must also sign the prescribed document to certify that the parties have
entered into a civil union

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• The marriage officer must issue the couple with a registration certificate which reflects their
civil union of choice of either a marriage or civil partnership.
• This is the only substantive legal consequence of the distinction between a marriage and civil
partnership; otherwise there is no other substantive legal consequence from the parties’ choice
of terminology.
• The registration certificate serves as prima facie proof that a valid civil marriage or
partnership exists between the couple

What are the legal consequences of a civil union?

• The legal consequences of a civil marriage or civil partnership in terms of the civil union act
are exactly the same as the consequences which flow from a marriage in terms of the marriage
act
• In terms of s13(1) of the civil unions act
o All existing legalisation and the common law in which references are made to marriage,
spouse, husband and wife will include those couples who have entered into either a civil
marriage or civil partnership in terms of the civil union act
• Despite the fact that same-sex couples can now marry under the civil union act and enjoy the
same statue, benefits and responsibilities that married couples enjoy under the marriage act,
the lived reality, and choice to marry is not available to many same-sex couples.
• There have for instance, been many incidences of ‘corrective rape’ in SA
o This is a situation where men rape lesbian women to ‘cure them of their sexual
orientation § These women bear the fear that if they marry they will most probably be killed
• We must also be aware that there are many same sex couples who deplore the gendered
nature of marriage and do not want to provoke in the institution of marriage under the civil
union act

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CHAPTER 17: domestic violence

Who can apply for a protection order?

 Domestic Violence Act = any person who is in a domestic relationship and who has
suffered domestic violence.
 The law allows persons like social workers, teachers and police officers on behalf of a
person who has suffered DV. They are called the complainant. The person accused is
called the respondent.

Who is in a domestic relationship?

A relationship between a complainant and respondent in:

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 a. Are/were married
b. They live/d together in a relationship in the nature of marriage, even if not or unable to
marry
c. They are parents of a child or have parental rights for that child
d. Are family members related by consanguinity, affinity or adoption
e. Are/were engaged, dating or customary relationship including actual or perceived
romantic, intimate or sexual relationship
f. Share/d the same resident
Daffy v Daffy SCA.

Forms of domestic violence

1. Physical abuse
2. Sexual abuse
3. Emotional, verbal and psychological abuse
4. Economic abuse
5. Intimidation
6. Harassment
7. Stalking
8. Damage to property
9. Entry into complainant residence without consent where parties do not share same
resident
10. Any other controlling or abusive behavior towards a complainant

How do you stop the abuse? Protection orders

 The application for a protection order is covered by Section 4 of DV Act.
 Section 4(3), someone else apply but this can only be made with the written consent of
the complainant, except where the complainant is a minor, mentally retarred,
unconscious or a person whom the court is satisfied is unable to provide consent.
 Section 4(4), provides that any minor or any person acting on behalf of a minor may
make application for a protection order without the assistance of a parent, guardian, or
any other person.
 When a complainant reports an incident of domestic violence, the affidavit should
include: a history of the abuse, a description of the most recent incident of abuse,
evidence of any medical attention sought by the complainant as a result of the current
incidents or previous incidents or any other evidence that shows an act domestic
violence has taken place, the complainants knowledge of any previous criminal record
of their respondent and the complainants knowledge of any orders against the
respondent with regards to family violence, Protection Orders or maintenance orders.

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  The application may also be accompanied by supporting affidavits from persons who
have knowledge of the matter concerned. The application and the affidavit must be
lodged with the clerk of the Claude, who in turn submits the application and the
affidavit to the court.

Considering the application

when a court considers an application which involves the welfare of any minor or dependent
child, the surgeon circumstances promote, and we have family advocate is available, it may
cause an investigation to be carried out by the family advocates. Such an investigation is
contemplated in the mediation in search and divorce matters act 24 of 1987.

Issuing the interim protection order

the court will issue an interim protection order if it is satisfied that there is a prima facie
evidence that the respondent is committing or has committed an act of domestic violence and
undue hardship may be suffered by the complainant as a result of such domestic violence even
protection order is not issued immediately. The interim protection order must be served on the
respondent together with the complainant's application and the record of any evidence
submitted. It warns the respondent not to commit any acts of domestic violence against the
complainant and may be accompanied by a warrant of arrest and threat of detention if he fails
to abide by the order. Once the interim protection order has been served or upon the receipt of
a return of service the clerk of the court must serve on the complainant a certified copy of this
interim protection order and the original warrant of arrest. Both the complainant and
respondent will be required to appear in court on a return date specified by the court. On the
stage the respondent will be called upon to show reasons why a protection order should not be
issued.

Issuing the protection order

in terms of section 11 of the act only the following may be present and the proceedings:
- officers of the court
- the parties to the proceedings
- any person bringing an application on behalf of the complainant
- any legal representative representing any party to the proceeding
- witnesses
- not more than three persons for the purpose of providing support to the complainant or
their respondent
- any person whom the court permits to be present
the court may exclude any person from attending any part of the proceeding if it is satisfied
that it is in the interest of justice. The court also has the discretion to hear the proceedings in

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the camera. The act for the states that no person shall publish in any manner any information
which might directly or indirectly reveal the identity of any party to the proceeding. Should any
person contravene this prohibition on publication they may be guilty of an offence and liable on
conviction to a fine or imprisonment not exceeding two years or to both a fine and
imprisonment. The court was issued a final protection order if it finds on a balance of
probabilities that the respondent has committed or is committing an act of domestic violence.
In terms of section one of the act the court may by means of the protection order prohibit the
respondent from:
a. Committing any act of domestic violence
b. enlisting the help of another person to commit any such act
c. entering residence shade by the complainant and the respondent
d. entering A specified part of such shade residence
e. entering the complainants residence
f. preventing the complainant who ordinarily lives or lived in a shaded residence from
entering or remaining in that space or space specified part of the shade residence
g. committing any act as specified in the protection order
h. entering the complainants place of employment

can a protection order be varied or set aside

the complainant or the respondent may apply for variation or setting aside of the protection
order no I didn't written notice to the other party and the court. The court can do this if it is
satisfied that good cause has been shown to do so but the court will not grant such an
application to the complainant unless it is satisfied that the application is made voluntarily and
freely.

Roll of the police

Any member of the South African police services at the scene of the domestic violence or when
an incident of domestic violence is reported must determine whether the complainant is in
danger and take the necessary steps to protect the complainant from further harm. Once the
scene has been secured the police officials must give assistance to the complainant that they all
recently able to give in the circumstance. If it is reasonably possible to do so the police official
must hand a written notice to the complainant and explain the contents of the notice and this
notice must be provided to the complainant in an official language of their choice. The police
also have a role in ensuring that the terms of the Protection Orders are adhered to. Once the
protection order has been served on the respondent the police have responsibility to respond
at once to any notice from the replant that the respondent is not complying with its provisions.
When the police officials consider whether or not the complainant may suffer imminent harm
they must take the following account according to Section 8 five of the domestic violence act:
- the risk to the safety, health or well-being of the complainant

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 - the seriousness of the conduct comprising an alleged breach of the protection order
- the length of time since the allegation breach occurred
if the police official is of the opinion that they were an insufficient grounds to arrest the
respondent they must immediately hand a written notice to the respondent. This notice
specifies the name address and occupation or status of the respondent. In terms of section 72A
of the act the court may order a member of the South African police service to seize any arm or
dangerous weapon in the possession or under control of the respondent. Or domestic violence
incidences that are reported to police must be recorded in a domestic violence register.
Incidents of domestic violence are usually recorded as part of these statistics dealing with
assault to do with grievous bodily harm, rape and attempted murder. Many victims are not
aware of their alert to apply to a protection order and many women stay with the perpetrator
of the abuse because they are economically dependent on the perpetrator or fear with their
lives

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