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Questions and Answers
Which act addresses the regulation of marriage in South Africa?
The Recognition of Customary Marriages Act was enacted in 2006.
False
What is a significant challenge caused by matrimonial pluralism in South Africa?
Legal uncertainty
The _____ Act addresses maintenance issues related to matrimonial matters.
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What type of marriages are particularly prejudiced due to piecemeal recognition?
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Match the act with its purpose:
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What must permanent life partners prove to qualify for spousal benefits?
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Intervention by the legislator regarding life partnerships is not being considered.
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Which of the following is considered a lawful termination of engagement?
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Unlawful termination of engagement allows for claiming damages.
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What must occur according to Sui generis regarding claims for specific performance in cases of engagement termination?
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A unilateral lawful repudiation of engagement must be based on _____ cause.
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Match the type of termination with its correct description:
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What type of losses can be claimed when terminated unlawfully?
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According to Guggenheim v Rosenbaum, a party cannot claim damages for losses incurred due to a broken engagement.
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In the case of unlawful termination, what must be demonstrated for a claim to be successful?
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What must the claimant prove in a delictual claim?
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A claim for prospective losses can still be made following the judgment in Cloete v Maritz.
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In the case of Van Jaarsveld v Bridges, what type of damages was Ms. Bridges claiming?
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The court will consider the __________ of the parties when making decisions regarding delictual damages.
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Match the following cases with their key issues:
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Which of the following is NOT a requirement for a delictual claim?
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It is considered illogical to attach more serious consequences to an engagement than to a marriage.
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What type of law do delictual damages primarily relate to?
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What is prohibited in the context of affinity relationships?
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Only adoptees can experience a legal fiction where they cannot marry their adoptive parents.
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What is the minimum marriageable age?
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The _____ Act addresses issues related to incest.
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Match the following terms with their correct definitions:
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Which relation is considered as consanguinity?
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Adopted children can marry other blood relatives of their adoptive parents.
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What does capacity to act mean in legal terms?
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Which of the following is NOT a requirement for a marriage under customary law?
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Foreign marriages are recognized in South Africa only if they are valid under South African law.
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What is the term used for a marriage that is considered to never have existed?
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A marriage is deemed valid if the parties can inherit intestate from each other and share a reciprocal duty of ________.
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Match the term with its definition:
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Which of the following is a characteristic of a void marriage?
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Spouses in a valid marriage can enter into another marriage without legal consequences.
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What is required for a marriage to be recognized as valid under the law where it was concluded?
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Study Notes
Relevant Legislation
- Marriage Act 25 of 1961: Governs civil marriages.
- Recognition of Customary Marriages Act 120 of 1998: Provides for recognition of customary marriages as legal in South Africa.
- Civil Union Act 17 of 2006: Legally recognizes same-sex relationships as equivalent to marriage.
- Divorce Act 70 of 1979: Provides legal framework for divorce proceedings.
- Mediation in Certain Divorce Matters Act 24 of 1987: Promotes mediation in divorce cases.
- Maintenance Act 99 of 1998: Sets out the legal framework for maintenance obligations.
Challenges of Matrimonial Pluralism
- Parallel Structures: Different systems of marriage recognition create confusion.
- Equality Issues: Varied legal systems lead to disparities in rights for different relationships.
- Discrimination: Differing systems can lead to discrimination based on race and religion.
- Legal Uncertainty: Complex legal framework creates uncertainty.
- Detriment to Vulnerable Members of Society: Uncertainty and complexity disproportionately affect vulnerable individuals.
- Piecemeal Recognition of Religious Marriages: Limited recognition of religious marriages and informal partnerships create legal inequalities.
Competency to Marry
- Capacity to Act: The legal ability to perform juristic acts.
- Lawfulness: Marriage must comply with legal requirements.
- Possibility of Performance: Circumstances allowing for the marriage to be performed must exist.
Lawful and Unlawful Termination of Engagement
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Lawful Termination:
- Marriage: Marriage starts, so the engagement ends.
- Death of Either Party: Engagement ends.
- Mutual Agreement: Parties agree to terminate.
- Withdrawal of Parental Consent: Required for minors.
- Unilateral Lawful Repudiation: Breaking the engagement for a valid legal reason (justa causa).
- No Damages Claimable: No compensation for the breach.
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Unlawful Termination:
- Breach of Promise: Failing to fulfill the promise to marry without just cause.
- Denying the Engagement: Denying the existence of the agreement to marry.
- Unreasonable Refusal to Marry: Refusal to marry without just cause.
- Engagement with a Third Party: Entering into an engagement with another person while still engaged.
- Intimate Relationship with a Third Party: Having an intimate relationship with someone else while engaged.
- Wrongful Conduct: Conduct constituting a breach of the engagement.
- Damages Claimable: Compensation for the breach can be sought.
Guggenheim v Rosenbaum 1961 4 SA 21 (W)
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Facts: A couple met in New York and agreed to marry in South Africa. The woman moved, sold her belongings, and changed her life based on the promise of marriage. The man then refused to marry her.
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Claim for Damages (Contract):
- Real Damages: Compensating for actual expenses and losses incurred in anticipation of marriage.
- Prospective Losses: Compensation for future losses caused by the breach.
- Positive Interesse: Aims to place the wronged party in the position they would have been in had the agreement been fulfilled.
- Sui Generis: Courts cannot order specific performance (forcing the parties to marry).
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Claim for Satisfaction (Delict):
- Infringement of Personality Rights: Breach of promise can infringe on personal rights.
- Actio Injuriarum: Lawsuit for intentional wrongful acts.
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Requirements:
- Proving the defendant committed a delict.
- Proving the defendant intended to injure.
Delictual Damages
- Discretion of the Court: Courts have discretion in awarding damages.
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Factors Considered:
- Manner and Motive of the Breach: Circumstances and intentions surrounding the breach.
- Social Status of the Parties: Social standing and financial circumstances.
- Life Experience of the Parties: Age, maturity, and previous life experiences.
Van Jaarsveld v Bridges (SCA)
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Obiter Remarks:
- Questions the constitutionality of holding individuals liable for contractual obligations related to marriage.
- Argued that it is illogical to impose severer consequences on broken engagements than on divorce.
- Acknowledges the changing social and moral values.
- Highlights the need for reevaluation of claims for future losses.
- Draws a distinction between broken engagement vs. divorce.
Cloete v Maritz
- Held: Claims for prospective losses (future losses) are no longer permitted. This decision is from the Western Cape and is not yet binding.
Application to the Civil Union Act
- Affinity: The legal relationship between a spouse and their spouse's blood relatives.
- Effect: Applicability begins after the dissolution of the marriage (divorce or death).
- Ascending and Descending Line: Applies to parents, grandparents, children, and grandchildren.
- Affinity in the Direct Line: Direct relatives (parents, children) are prohibited from marrying.
- Affinity in the Collateral Line: No prohibition on marriage to collateral relatives (siblings, aunts, uncles).
Adoption
- Children's Act: Governs adoption.
- Legal Fiction: Adopts a legal fiction where a child is treated as the biological child of the adoptive parents.
- Prohibition: Adopted children cannot marry their adoptive parents.
- Other Relatives: The prohibition does not extend to other blood relatives of the adoptive parents.
- Void Marriage: A marriage between an adoptive parent and an adopted child is considered void.
Incest
- Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007: Outlaws incestuous relationships.
Glossary of Terms
- Capacity to Act: The legal ability to perform legally recognized acts.
- Consent: Permission. Not to be confused with consensus.
- Minimum Marriageable Age: The youngest age at which a person can legally marry.
- Guardian: A person responsible for assisting a minor with legal acts.
- Ratification: After-the-fact consent to an action previously performed.
Lawfulness
- Impediment: An obstacle or prohibition.
- Consanguinity: Blood relationship.
Customary Marriages
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Requirements:
- Consent of the bride.
- Consent of the bride's father or guardian.
- Lobolo Payment: Traditional payment from the groom's family to the bride's family.
- Handing Over the Bride: Formal transfer of the bride to the groom's family.
- Consent of Existing Wives: If the groom is already married in a polygamous marriage.
Foreign Marriages
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Recognition: A civil marriage performed abroad will be recognized in South Africa if it:
- Is valid according to the law and formalities of the place where it was held.
- Does not violate South African public policy.
Valid, Void, and Voidable Marriages
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Valid Marriage: Legally recognized marriage with all necessary legal requirements fulfilled.
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Consequences:
- Children are considered legitimate.
- Reciprocal duty of maintenance between the parties.
- Parties can inherit from each other.
- Spouses cannot marry anyone else.
- Change in legal status to married.
- Matrimonial property system applies.
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Consequences:
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Void Marriage: Marriage that does not legally exist.
- Void Ab Initio: Never existed from the beginning.
- Declaratory Order: Court order confirming the void marriage.
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Consequences:
- Parties remain unmarried.
- Children are not considered legitimate.
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Voidable Marriage: Initially valid, but subject to legal challenge and potential annulment at the request of one or both spouses.
- Examples: Fraud, force, duress, or mental incapacity.
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Description
Test your knowledge of significant legislation governing marriage in South Africa, including the Marriage Act, Recognition of Customary Marriages Act, and others. Explore the challenges posed by matrimonial pluralism and the legal uncertainties that arise from multiple marriage systems.
