Study Unit 4: Personal Consequences of Marriage PDF

**Study Unit 4** **Personal Consequences of Marriage** (A) **Invariable and variable consequences of marriage** (B) **Status of the spouses and diverse personal consequences of marriage** (C) **Consortium Omnis Vitae** (D) **Reciprocal spousal maintenance** (DI) **General principles of sp...

**Study Unit 4** **Personal Consequences of Marriage** (A) **Invariable and variable consequences of marriage** (B) **Status of the spouses and diverse personal consequences of marriage** (C) **Consortium Omnis Vitae** (D) **Reciprocal spousal maintenance** (DI) **General principles of spousal maintenance** (DII) **Household necessaries** (E) **Donations between spouses** (A) **Invariable and variable consequences of marriage** **Difference between variable and invariable consequences?** Invariable = personal consequences Variable = patrimonial consequences **Personal consequences of marriage include:** Change in status Consortium Omnis Vitae Reciprocal duty of support **Invariable consequences apply automatically by operation of law** **Patrimonial consequences are variable because spouses may choose the matrimonial property system that will be applicable to their marriage** (B) **Status of the spouse and diverse personal consequences of marriage** **Consequences of marriage** Relationship of affinity between spouses and each other's blood relations Prohibited to enter into further marriages Minors attains majority through marriage Creates intestate succession rights between spouses Parents become holders of parental responsibilities and rights Community of property restricts spouses' capacity to enter certain transactions (C) **Consortium Omnis Vitae** **The creation of special reciprocal relationship** A physical, moral and spiritual community of life (Hahlo) Results in duties of cohabitation, mutual assistance and support, fidelity and loyalty (T v T) It also includes companionship, love, affection, comfort, mutual services, and sexual intercourse (Grobbelaar v Havenga) **Protection of consortium** Against other spouse? Marital communication is generally regarded as privileged Domestic violence protection order Criminal/Delictual liability for injuries inflicted Against third parties? Enticement, harbouring & adultery (position has changed with DE v RH) Establishes marital privilege regarding court proceedings However, while a spouse cannot be compelled to testify against the other spouse, nonetheless, spouses are competent to testify against each other Protection against 3rd party interference **Types of actions** Enticement -- third party enticing a spouse to leave the other spouse by influencing the spouse to such an extent that = loyalty towards the spouse is threatened Harbouring -- accommodation, with wrongful intention to sever the marital relationship Adultery -- commit adultery (NOT ANYMORE!) It is no longer possible to litigate on the basis of loss of consortium based on adultery (RH v DE) (D) **Reciprocal spousal maintenance** (DI) **General Principles** Reciprocal duty of support exists from the date of marriage This duty exists irrespective of the chosen matrimonial property system Each spouse must contribute pro-rata in accordance with their respective means A claim for maintenance depends of the need of one spouse and the ability of the other to provide such maintenance This duty is dissolved by death (or even divorce) The effects of divorce, death or separation on the duty of support Normally comes to an end when marriage dissolves **Exceptions** Agreement to maintain (in terms of the Divorce Act) Maintenance after death (in terms of the Maintenance of Surviving Spouses Act) Dependant on spouse's ability to provide for him/herself (s 2(1)) Dependant on consideration of factors on s 3 Duty of support may be dependant on the fault of the spouses. Parties may agree to an amount of spousal maintenance on divorce The court may order one party to pay spousal maintenance to the other on divorce The joint estate of parties married in community of property can be held liable for the debts incurred by one of the spouses Such liability may also arise based on: Negotiorum gestion and Unjustified Enrichment Community of property results jointly and several liability for household debts, irrespective of who contracted the debt The liability of spouses for debts incurred **General** Contracting spouse liable in contract **Where parties married in cop:** Joint estate will be liable for debt Where no assets in joint estate Each spouse liable on pro rata basis should they have separate assets 3rd party may hold non-contracting spouse liable on the basis of: Negotiorum gestio Unjustified enrichment The liability of spouses for debts incurred **Negotiorum gestio** 'the voluntary management by one person (the negotiorum gestor) of the affairs of another (the dominus negotii) Crux: intention to manage the affairs of another Without the consent or knowledge of the latter May relate to the payment of debts, maintenance of spouse or children **Requirements:** useful/necessary and reasonable manner and renders account The liability of spouses for debts incurred Unjustified enrichment The principle of unjustified enrichment is that where non-supporting spouse, unjustly obtains a patrimonial advantage at the expense of a third party the enriched spouse must then reimburse the impoverished one **The liability of spouses for debts incurred** Requirements: Must be enrichment Enrichment must be at the expense of a third party Must be unfounded **T**here must be no rule of law that denies the right of restitution of the impoverished **Example:** May claim within the ambit of the maintenance duty between spouses (DII) **Household necessaries** General principles (see also s 23 Matrimonial Property Act) Part of the duty of support (sometimes overlaps) **In community of property:** Spouses held jointly & severally liable for debts incurred for household necessaries, irrespective of who purchased the goods **Out of community of property:** Spouses held jointly & severally liable (duty to contribute pro rata) No right of recourse for any excess contribution, unless contractually provided for by the spouses **Requirements for liability:** Valid marriage Joint household Household necessaries purchased are reasonably necessary **What are reasonable household necessaries?** Dependant on facts Reloomel v Ramsay Court took a subjective approach as it looked at the facts the dealer was aware or should reasonably been aware of Voortrekker Winkels (Ko-op) Bpk v Pretorius Court followed an objective approach Was not necessaries as the family had enough clothing and she had disserted her husband Note difference between subjective & objective approaches **Circumstances the courts will take into account:** The financial position and means of spouses / family The social status of the spouses / family The standard of living of the spouses / family (NB) Practices and customs in the area Power terminated when marriage is dissolved, joint household comes to an end, through a court order See s 16(2) MPA (permits a court to suspend the power of one spouse) and possibility of an interdict in terms of the common law (E) **Donations between spouses** Prior to s 22 MPA: Donations prohibited between spouses Rationale? Potentially prejudice 3rd parties S 22 MPA: No transaction before or after the commencement of the Act is void or voidable merely because it amounts to a donation between spouses Donations now valid Retrospective effect S 21 Insolvency Act still protects 3rd parties (see Snyman v Rheeder NO) Does not affect reversion clauses in ANCs