FMR 121 Notes 2024 Family Law PDF

1 Pass & Prosper FMR 121 NOTES 2024 Family Law in Overview Context of the ❖ Family law is part of Private Law which falls under substantive Law in General law. ❖ It is classified as a subdivision of Private Law...

1 Pass & Prosper FMR 121 NOTES 2024 Family Law in Overview Context of the ❖ Family law is part of Private Law which falls under substantive Law in General law. ❖ It is classified as a subdivision of Private Law ❖ It regulates relationships between legal subjects on a horizontal level ❖ Deals which rights and duties of persons in a familial relationship. Defining Family Law (NB) ❖ That part of private law which regulates the legal relationship between husband and wife as well as the legal relationship between parents (or guardians) and children ❖ Two Components Matrimonial Law Law of Parent and Child Objectives of Family Law (NB) ❖ Protection ❖ Promotion of fairness and equality ❖ Promotion of legal certainty ❖ Creating a value system ❖ Symbolism The Concept of Overview ‘Family’ ❖ The ‘nuclear family’ Heterosexual marriage with one or more children. Ex. 1 Mother and 1 Father + Kids ❖ Marriage Act 25 of 1961 Gave effect to monogamous heterosexual marriages and cultivated the nuclear family. Application of Family Law ❖ The rules of family law did not apply to: People who chose not to get married People who could not get married in terms of the Marriage Act The Outdated Nature of the Above Approach ❖ The Choice argument Disclaimer: These notes are provided by Pass and Prosper for free and are drafted by Pass and Prosper tutors for their own studying benefit. These notes are not sold for profit and therefore, there may occasionally be minor mistakes. In such an event, please contact the tutor to effect the correction. Note we are in no way affiliated or a branch of the UP Law Faculty as we are an independent service.  2 Pass & Prosper Volks v Robinson ▪ Not prescribed ▪ Case dealt with interpretation and constitutionality of section 2(1) of the Marriage Act ▪ Woman argued that she should be able to claim maintenance because they lived as a married couple ▪ They had the option to marry as they were a heterosexual couple. ▪ She was thus not entitled to claim maintenance as they had the chance to marry and chose not to ▪ Therefore, they did not inherit the benefits of the convention of marriage ❖ Position of same-sex couples Minister of Home Affairs v Fourie ▪ The case concluded that the law at the time unfairly discriminated against same-sex couples on the ground of their sexual orientation by not permitting them to get married in terms of the Marriage Act. ▪ The Civil Union Act 17 of 2006 addressed this shortcoming, recognizing same-sex civil unions. ▪ The Civil Union Act still allows heterosexual couples to marry in terms of it. The Impact of Overview the Constitution ❖ Transformation of matrimonial law by the Constitution Important Sections ❖ Section 9 – Equality Section 9(1) – Everyone is equal before the law and has the right to equal protection and benefit of the law. Section 9(3) – The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds including race, gender, sex, pregnancy, marital status, ethnic or social origin, color, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth. ❖ Section 10 – The Right to Human Dignity Everyone has inherent dignity and the right to have their dignity respected and protected. ❖ Section 15 – The right to Freedom of religion, belief and opinion Section 15(1) – Everyone has the right to freedom of conscience, religion, thought, belief and opinion. Section 15(3)(a) – This section does not prevent legislation recognizing – Disclaimer: These notes are provided by Pass and Prosper for free and are drafted by Pass and Prosper tutors for their own studying benefit. These notes are not sold for profit and therefore, there may occasionally be minor mistakes. In such an event, please contact the tutor to effect the correction. Note we are in no way affiliated or a branch of the UP Law Faculty as we are an independent service.  3 Pass & Prosper (i) marriages concluded under any tradition, or a system ▪ of religious, personal or family law; or ▪ (ii) systems of personal and family law under any tradition, or adhered to by persons professing a particular religion. Section 15(3)(b) – Recognition in terms of paragraph (a) must be consistent with this section and the other provisions of the Constitution. ❖ Section 31 – Cultural, religious and linguistic communities Section 31(1) – Persons belonging to a cultural, religious or linguistic community may not be denied the right, with other members of that community – ▪ (a) to enjoy their culture, practice their religion and use their language; and ▪ (b) to form, join and maintain cultural, religious and linguistic associations and other organs of civil society. Effect of Entrenchment of these Rights ❖ With these rights entrenched in the Constitution, the State could no longer justify the matrimonial regime that recognized and catered for only one type of marriage as provided for in the Marriage Act. ❖ Examples? Religious Marriages (Muslim Marriages) Customary Marriage Permanent Life Partnerships Same-sex marriages Expanding the Customary Marriages Scope of Family ❖ Legal recognition of Customary Marriages Law ❖ Recognition of Customary Marriages Act 120 of 1998 (RCMA) ❖ Customary marriage = a marriage concluded in terms of customary law. ❖ RCMA abolishes marital power of husband and pronounces husband and wife to have equal dignity and capacity in the marriage enterprise. ❖ Formal recognition of the practice of polygynous marriages Polygamy = Multiple Partners Polygyny = One Man and many women. Polyandry = One Woman and many men. ❖ South Africa only recognizes polygyny. Developments ❖ Life Partnerships Ad hoc recognition and protection Disclaimer: These notes are provided by Pass and Prosper for free and are drafted by Pass and Prosper tutors for their own studying benefit. These notes are not sold for profit and therefore, there may occasionally be minor mistakes. In such an event, please contact the tutor to effect the correction. Note we are in no way affiliated or a branch of the UP Law Faculty as we are an independent service.  4 Pass & Prosper Same sex partnerships were afforded some protection. ▪ Because unlike heterosexual couples, they did not have the choice to marry. ▪ Thus, a partner to a same-sex life partnership could be recognized as a dependent for maintenance purposes. Heterosexual partnerships afforded less such protection. At this stage recognition and protection is partial. Volks v Robinson ▪ Found that heterosexual life partners were not entitled to maintenance due to the fact that they had the choice to marry but did not. Bwanya v Master of the High Court, Cape Town and Others ▪ Extended the piecemeal statutory recognition of life partners as spouses for the purposes of the Intestate Succession Act and the Maintenance of Surviving Spouses Act. ▪ They overturned the judgement in Volks and found both these statutes unconstitutional to the extent that they do not include both heterosexual and homosexual permanent life partners within the definition of spouse and survivor in the Acts, respectively. ▪ The Court ordered that these terms be read in to include permanent life partners that had undertaken reciprocal duties of support. ❖ Religious Marriages The Constitutional Court has recognized parties to a Muslim marriage as spouses before. However, religious marriages are still not formally recognized in South Africa. Muslim marriages are argued to be unconstitutional by Heaten and Kruger due to: ▪ Polygynous nature ▪ Short maintenance period (can only claim for 3 months following end of the marriage). ▪ Iddah (period a woman must wait before remarrying after dissolution). Women’s Legal Centre Trust v President of the Republic of South Africa and Others ▪ Confirmed the unconstitutionality of the definition of marriage, the Marriage Act and the Divorce Act to the extent that they do not recognize marriages solemnized in accordance with Sharia law as valid marriages in South Africa. Disclaimer: These notes are provided by Pass and Prosper for free and are drafted by Pass and Prosper tutors for their own studying benefit. These notes are not sold for profit and therefore, there may occasionally be minor mistakes. In such an event, please contact the tutor to effect the correction. Note we are in no way affiliated or a branch of the UP Law Faculty as we are an independent service.  5 Pass & Prosper ▪ Constitutional Court suspended the order of invalidity for 24 months to allow the legislator to enact new legislation. ▪ It is unclear what will happen should the legislator fail to do so before 28 June 2024. Formally Type of union Marriages Civil unions Customary Recognized Marriages Unions Relationships Monogamous Monogamous Polygynous Recognized Heterosexual Homosexual Monogamous by this union Couples Only and Heterosexual Heterosexual Couples Couples Legislation Marriage Act Civil Union Recognition of that governs Act Customary the union Marriages Act Partially Type of union Religious Marriages Life partnerships / recognized Domestic Unions Partnerships Relationships Dependent on the Monogamous Recognized by this tenets of the Homosexual and union particular religion Heterosexual couples. Legislation that No legislation is No legislation at governs the union present. See present. See Muslim Marriages Domestic Bill. Partnerships Bill. Anticipated Overview Developments ❖ South Africa has adopted a pluralistic system of matrimonial law due to expanding options to formalize a relationship. ❖ This implies the recognition of different systems or institutions of marriage in the same national jurisdiction. ❖ Thus, instead of a harmonized system of marriage in South Africa, there exists parallel structures that stand side by side. ❖ The conflict between these different marriage laws have created legal uncertainty, confusion and inequality. Relevant Legislation to Consider ❖ Marriage Act 25 of 1961 ❖ Recognition of Customary Marriages Act 120 of 1998 ❖ Civil Union Act 17 of 2006 ❖ Divorce Act 70 of 1979 Disclaimer: These notes are provided by Pass and Prosper for free and are drafted by Pass and Prosper tutors for their own studying benefit. These notes are not sold for profit and therefore, there may occasionally be minor mistakes. In such an event, please contact the tutor to effect the correction. Note we are in no way affiliated or a branch of the UP Law Faculty as we are an independent service.  6 Pass & Prosper ❖ Mediation in Certain Divorce Matters Act 24 of 1987 ❖ Maintenance Act 99 of 1998 Challenges as a result of the Matrimonial Regime ❖ South Africa is subject to Matrimonial Pluralism. ❖ Confusion is caused due to the parallel structures. ❖ Equality is difficult to establish because of the amount of different systems. ❖ Different rights for different relationships. ❖ Discrimination on the bases of race and religion. ❖ Legal uncertainty ❖ It is to the detriment of vulnerable members of society. Effect of Piecemeal Recognition of Religious Marriages ❖ Both religious marriages and informal life partnerships are severely prejudiced by this form of recognition. ❖ To qualify for spousal benefits, permanent life partners must prove: They were in a permanent life partnership. Undertook reciprocal duties of support during the existence of the partnership. ❖ Life partners have been recognized as spouses at the death of their partners, but those who separate before death don’t receive the same benefits. ❖ The uneven and inadequate protection afforded to especially women in life partnerships is seen as a violation of their dignity, and hampers the achievement of substantial equality. ❖ EW v VH Intervention by the legislator has been in the pipeline for a while and is generally seen as the best way forward. The South African Law Reform Commission (SALRC) has been engaged for several years in researching, receiving submissions and developing proposals for legislative reform to regulate informal life partnerships. Discussion Paper 152: Single Marriage Statute (under Project 144) → Proposes considerably more far-reaching legislative developments than the Domestic Partnerships Bill. SALRC has proposed the unification of the marriage laws in South Africa by passing a single marriage Act. It provides for Draft Legislation in the form of: ▪ Protected Relationships Bill Disclaimer: These notes are provided by Pass and Prosper for free and are drafted by Pass and Prosper tutors for their own studying benefit. These notes are not sold for profit and therefore, there may occasionally be minor mistakes. In such an event, please contact the tutor to effect the correction. Note we are in no way affiliated or a branch of the UP Law Faculty as we are an independent service.  7 Pass & Prosper ▪ Recognition and Registration of Marriages and Life Partnerships Bill. The objects of the Bills ❖ To Rationalize the marriage laws pertaining to all types of relationships. ❖ To prescribe validity requirements ❖ To provide for the registration of protected relationships or marriages and life partnerships; ❖ To provide formal recognition of protected relationships or marriages and life partnerships, so as to facilitate and enable enforcement of rights. Additional Recognition ❖ The Single Marriage Statute proposed would additionally recognize: Any subsisting monogamous or polygynous marriage or relationship concluded or entered into in terms of the tenets of any religion or culture before or after the commencement of this Act. Any life partnership where the parties cohabit and have assumed permanent responsibility for supporting each other. Project 100 ▪ SALRC has embarked on separate but related investigations into matrimonial property and spousal support and maintenance. The Divorce Amendment Act 1 of 2024 (NB) ❖ Helps to protect partners to a Muslim marriage in South Africa. ❖ Particularly Women and Children that are often vulnerable members of the family. Terminology Overview ❖ May be confusing as different terms are often used for the same concepts. ❖ An example is the term life partnership. Umbrella term → For all formally recognized marriages and civil unions as well as informal, as yet unrecognized life partnerships. Disclaimer: These notes are provided by Pass and Prosper for free and are drafted by Pass and Prosper tutors for their own studying benefit. These notes are not sold for profit and therefore, there may occasionally be minor mistakes. In such an event, please contact the tutor to effect the correction. Note we are in no way affiliated or a branch of the UP Law Faculty as we are an independent service.  8 Pass & Prosper Narrow Use → As in Bwanya the courts use the term to refer to exclusively informal life partnerships that do not include religious marriages. ❖ Terms like family and spouse are also constantly evolving. Specific Terms and their Meaning ❖ Nuclear Family (NB) Heterosexual Couple in terms of Marriage Act (Monogamous) Children ❖ Civil Marriage (NB) Concluded in terms of the Marriage Act 25 of 1961 Traditional Marriage Man and Woman Monogamous Heterosexual ❖ Civil Union (NB) In terms of the Civil Union Act 17 of 2006 Heterosexual and Homosexual Unions Monogamous ❖ Civil Union Partner Person who has concluded a marriage under the Civil Union Act. Falls under the broad definition of a spouse. ❖ Customary Marriage (NB) Concluded in terms of the RCMA. Allows for polygynous marriages. ❖ Cohabitative Relationship A relationship where the parties live together but they are not married. Same as a domestic partnership. Sames as an informal intimate life partnership. ❖ Common Law Marriage Incorrect term usually used when referring to an informal intimate (domestic) partnership. No such institution in SA Law. ❖ Domestic Partnership The same as a Cohabitative relationship. Same as informal intimate life partnership. ❖ Religious marriage (NB) Concluded in terms of religious tenets. Muslim Marriages for example. ❖ Formally Recognized Life Partnership Disclaimer: These notes are provided by Pass and Prosper for free and are drafted by Pass and Prosper tutors for their own studying benefit. These notes are not sold for profit and therefore, there may occasionally be minor mistakes. In such an event, please contact the tutor to effect the correction. Note we are in no way affiliated or a branch of the UP Law Faculty as we are an independent service.  9 Pass & Prosper Concluded under the Marriage Act or the Civil Union Act or the RCMA. ❖ Informal Intimate Life Partnership Includes partnerships which are not formally recognized, such as religious marriages and domestic partnership. ❖ Life partnership (Wide vs Narrow) (NB) Wide ▪ All formally recognized marriages and informal cohabiting life partners. Narrow ▪ Informal life partnerships and cohabiting partners only. Generally ▪ Indicates an intimate life partnership of 2 persons. ❖ Matrimonial Law The laws that govern matrimony or marriage. ❖ Monogamy (NB) Marriage which only allows a party to have one partner. ❖ Polygamy (NB) Polygyny ▪ One Man with many wives. Polyandry ▪ One Woman with many husbands. ❖ Spouse (NB) A person who is married. ❖ Matrimonial Pluralism (NB) Due to different statutes governing marriages in South Africa, we recognize multiple systems which exist together in our society simultaneously. Points to Consider ❖ The aim is to simplify, without sacrificing clarity and authenticity. ❖ Marriage is no longer the only formally recognized union (consider Civil Unions). Therefore: Marriage = Including Civil Union Spouse = Including civil union partner. ❖ However, marriage is the overarching term that will be used. Section 13(2) of the Civil Union Act ▪ (a) marriage in any other law, including the common law, includes with such changes as may be required by the context a civil union; and ▪ (b) husband, wife or spouse in any other law, including the common law, includes a civil union partner. Disclaimer: These notes are provided by Pass and Prosper for free and are drafted by Pass and Prosper tutors for their own studying benefit. These notes are not sold for profit and therefore, there may occasionally be minor mistakes. In such an event, please contact the tutor to effect the correction. Note we are in no way affiliated or a branch of the UP Law Faculty as we are an independent service.  10 Pass & Prosper ❖ Marriage thus includes: Traditional Marriage Civil Unions Customary Marriages ❖ Marriage does not include: Religious Marriage concluded in terms of religious law; or An informal permanent life partnership \ ❖ The above distinction is only temporary. ▪ The Constitutional Court has established that it only persists pending the enactment of legislation to formally recognize Muslim Marriages. ❖ Family law is thus, in a transitional phase in terms of both: The Substantive Law The Terminology used. The Marriage Overview Bill ❖ Content of the Marriage Bill Marriageable Age ▪ Bill states it is 18 and you cannot marry younger. Categories of marriage ▪ Monogamy ▪ Polygyny Polygynous Marriages Marriage Officers Solemnization and registration Matrimonial Property Dissolution of Marriage Offences and Penalties ▪ Section 17(1) → Concluding a marriage with a minor is an offence. Domestic partnerships ▪ Not mentioned. Positives and Negatives ❖ Positives Progress has been made. ❖ Negatives The Bill may not pass Disclaimer: These notes are provided by Pass and Prosper for free and are drafted by Pass and Prosper tutors for their own studying benefit. These notes are not sold for profit and therefore, there may occasionally be minor mistakes. In such an event, please contact the tutor to effect the correction. Note we are in no way affiliated or a branch of the UP Law Faculty as we are an independent service.  11 Pass & Prosper Theme 2 – The Law Relating to Life Partnerships Introduction Overview ❖ Currently SA Law only recognizes 3 matrimonial institutions Civil Marriage (Marriage Act) Civil Union (Civil Union Act) Customary Marriage (RCMA) ❖ Requirements of Civil Marriage and Civil Union are near identical. ❖ Customary marriage is juxtaposed to the other 2. The Overview Engagement ❖ It is an agreement to enter a marriage. ❖ Involves the: Importance Nature Requirements Consequences ❖ These requirements differ between civil and customary conventions of marriage. ❖ Consider the following: Validity Requirements Consequences of conclusion of marriage Dissolution Consequences of Dissolution Civil Law Engagement ❖ Definition An agreement between parties to enter into a marriage on a specific determinable date. May precede a Civil Marriage ❖ Engagement as Contract Special Contract (sui generis). ▪ It is not merely a social agreement. Parties must have the capacity to act. No Special formalities are needed. ❖ Importance of Validity Only becomes important when the engagement is broken off. Referred to as a breach of promise. South Africa regards a valid engagement as a binding agreement. ❖ Requirements for Valid Engagement (NB) Consensus Disclaimer: These notes are provided by Pass and Prosper for free and are drafted by Pass and Prosper tutors for their own studying benefit. These notes are not sold for profit and therefore, there may occasionally be minor mistakes. In such an event, please contact the tutor to effect the correction. Note we are in no way affiliated or a branch of the UP Law Faculty as we are an independent service.  12 Pass & Prosper Competency/ Capacity to marry Lawfulness Possibility of performance ❖ Lawful and Unlawful Termination of Engagement Lawful ▪ Conclusion of the marriage (marriage start so engagement ends) ▪ Death of either of the parties ▪ Mutual agreement to terminate ▪ Withdrawal of parental consent (minors) ▪ Unilateral lawful repudiation (justa causa) ▪ Cannot claim damages Unlawful ▪ Breach of promise ▪ Denying the engagement exists ▪ Unreasonable refusal of one of the parties to enter into the marriage ▪ Conclusion of an engagement with a third party ▪ Having an intimate or sexual relationship with a third party. ▪ Wrongful conduct ▪ Can claim damages ❖ Guggenheim v Rosenbaum 1961 4 SA 21 (W) Couple met in New York and agreed to marry in SA. She made the move and sold all her stuff. Upended her life. He then didn’t want to marry her. Claim for damages (Contract) ▪ Real Damages - Actual Expenses or Losses Incurred in expectation of marriage ▪ Prospective Losses ▪ Principle of positive interesse Place the wronged party in the same position they would have been had the contractual obligations been fulfilled. ▪ Remember Sui generis Cannot have a claim from the injured party for specific performance. Cannot order parties to get married. ▪ Real damages (actual expenses and losses) Claim for satisfaction (delict) ▪ Infringement of personality rights ▪ Actio iniruiarum – Requirements (NB) Disclaimer: These notes are provided by Pass and Prosper for free and are drafted by Pass and Prosper tutors for their own studying benefit. These notes are not sold for profit and therefore, there may occasionally be minor mistakes. In such an event, please contact the tutor to effect the correction. Note we are in no way affiliated or a branch of the UP Law Faculty as we are an independent service.  13 Pass & Prosper Claimant must be able to prove that the defendant committed a delict Claimant must prove that the defendant has the intention to injure ❖ Delictual Damages Discretion of the court Factors that the court will consider ▪ Manner and motive for the breach of promise ▪ Social status of the parties ▪ Life experience of the parties ❖ Van Jaarsveld v Bridges (SCA) Facts ▪ The respondent, Ms. Bridges put forward a claim for damages against Mr. Van Jaarsveld on the ground of a breach of promise to marry. ▪ Mr. Van Jaarsveld changed his mind about the marriage various times until finally calling it off. ▪ Ms. Bridges then sued for damages exceeding R1million. Obiter Remarks ▪ Is it constitutional to hold a personal contractually liable for extracting themselves from the intention to conclude a marriage. ▪ Illogical to attach more serious consequences to engagement than to marriage. ▪ Morals of society has begun to shift. ▪ Claims for future losses is to be reevaluated. ▪ Broken Engagement vs Divorce ❖ Cloete v Maritz Held that you can no longer claim for prospective losses. Western Cape Judgement so not yet binding. Consensus Overview ❖ Marriage Act & Civil Union Act Civil Union = Means the voluntary union of two persons who are both 18 years of age or older, which is solemnized and registered by either a marriage or a civil partnership in accordance with the procedures prescribed in this Act. Both are: ▪ Monogamous ▪ Same consequences ❖ Consensus What is consensus? Disclaimer: These notes are provided by Pass and Prosper for free and are drafted by Pass and Prosper tutors for their own studying benefit. These notes are not sold for profit and therefore, there may occasionally be minor mistakes. In such an event, please contact the tutor to effect the correction. Note we are in no way affiliated or a branch of the UP Law Faculty as we are an independent service.  14 Pass & Prosper Which factors can influence consensus? How do these factors affect the validity of a union? What is consensus? ❖ It is the basis for a valid marriage. ❖ It is an agreement between parties. Identity of the parties. Nature of the agreement. Consequences flowing from the agreement. Which factors can influence consensus? ❖ Mistake Conclusion on the basis of something you think is true which turns out to be false. ❖ Misrepresentation One of the parties lies. ❖ Duress Parties reach consensus in an unacceptable way, such as infringing on the voluntariness of a party. The Effect of these factors affect the validity of a union? ❖ Mistake The role of law of contract is evident, as we must distinguish between the different types of mistakes, which each have different effects. Material Mistake (Marriage void → Consensus absent) ▪ Error in personam Mistake regarding the identity of the other party to the contract. E.g. You talk to a girl on WhatsApp but you got catfished. ▪ Error in negotio Mistake regarding the nature of the contract. E.g. You didn’t want to get married, and just wanted to date and thought this was an agreement to date. Other Mistakes ❖ Misrepresentation Material misrepresentation ▪ A party was misled. ▪ Renders the marriage voidable. ▪ Always determined on an ad-hoc (case by case) basis with reference to the facts of the case. ❖ Duress Disclaimer: These notes are provided by Pass and Prosper for free and are drafted by Pass and Prosper tutors for their own studying benefit. These notes are not sold for profit and therefore, there may occasionally be minor mistakes. In such an event, please contact the tutor to effect the correction. Note we are in no way affiliated or a branch of the UP Law Faculty as we are an independent service.  15 Pass & Prosper Marriage can be deemed voidable. Smith v Smith ▪ Facts Wife argued that she had been forced to get married. She was also under age (it is an old case, where the age of majority was 21). She had wanted to marry him initially, got engaged and then eventually fell in love with someone else. She didn’t want to tell her father as she was afraid of the consequences. When she finally did make it known, her parents and defendant (fiancé) forced her, including instances of assault. She looked dazed and distressed during the wedding ceremony. ▪ Held The court held that duress caused lack of consensus. This means that the marriage was not valid because one of the parties was forced or coerced into getting married, which resulted in a lack of genuine agreement or consent. The court did not declare the marriage null and void from the beginning. Void, Valid and Voidable ❖ Valid The requirements are met in full. The marriage is real. ❖ Void It will be void ab initio. It will be as if the marriage never existed. Has no force. ❖ Voidable Valid but defective. The innocent party may apply for annulment/dissolution. Parties have the choice to endorse the agreement or to apply to court to have the marriage annulled or set aside. ▪ If the marriage is annulled, the marriage will be deemed valid up to the point when it is annulled. Disclaimer: These notes are provided by Pass and Prosper for free and are drafted by Pass and Prosper tutors for their own studying benefit. These notes are not sold for profit and therefore, there may occasionally be minor mistakes. In such an event, please contact the tutor to effect the correction. Note we are in no way affiliated or a branch of the UP Law Faculty as we are an independent service.  16 Pass & Prosper The annulment (in most instances) then applies ▪ retrospectively as though the marriage had never been concluded. ▪ If neither party applies for annulment, the marriage will be presumed and continue to be valid. The parties will then need to apply for a divorce. ❖ Annulment vs Dissolution (Divorce) Annulment ▪ The order is granted on the basis of circumstances that were present at the time of the conclusion of the marriage. Duress or lack of parental consent. Dissolution (Divorce order) ▪ Granted on the circumstances that developed after the conclusion of the marriage that caused the marriage relationship to break down irretrievably. Marriage of Convenience ❖ Definition / Departure Point Parties conclude the marriage for a purpose other than leading an authentic marital life. ❖ Martens v Martens Mr. Martens married his friend’s Greek mistress who used the marriage for the sole purpose of acquiring permanent residence in South Africa. Mr. and Mrs. Martens never intended to have a real marital relationship and never lived together. The court refused to annul the marriage. ❖ Maseko v Maseko The parties reached agreement to get married to conceal property from creditors. The court refused to annul the marriage. ❖ Analysis of the above cases The decision in both cases was based on the fact that the parties had had the serious of intention of entering a valid marriage. The marriages in both these cases were therefore deemed valid even though they were concluded for an ulterior purpose. Marriages of convenience must be distinguished from bogus, fake or sham marriages that ARE considered void. Disclaimer: These notes are provided by Pass and Prosper for free and are drafted by Pass and Prosper tutors for their own studying benefit. These notes are not sold for profit and therefore, there may occasionally be minor mistakes. In such an event, please contact the tutor to effect the correction. Note we are in no way affiliated or a branch of the UP Law Faculty as we are an independent service.  17 Pass & Prosper The European civil union provides guidance: ▪ Sometimes, marriages of convenience are labelled as bogus or sham but this is, strictly speaking, not correct. Unlike marriages of convenience, which are formally valid, bogus or sham marriages are invalid or entirely fictitious. Bogus marriages may involve forgery or misuse of documents relating to another person. Capacity to Act Overview ❖ What is the capacity to act? ❖ Which factors have an influence? ❖ Minimum marriageable age? ❖ Consent requirements for a minor? ❖ Effect on validity if there is no consent? What is the capacity to act? ❖ It is the capacity to enter a marriage in the family law context. ❖ It is a juristic act. ❖ We must appreciate both the legal nature and consequences of this juristic act. ❖ Factors that influence capacity to act: Mental illness Age Age and Capacity ❖ Relevant Acts Children’s Act Marriage Act ▪ No minimum age set ▪ Common law position: puberty Civil Union Act ▪ Both 18 or older. ❖ Consent Requirements for a minor Parents/guardians Minister of Home Affairs Presiding officer of the Children’s Court High Court ❖ Parental Consent (Minor Marriage) Children’s Act ▪ Every parent vested with guardianship ▪ Any other person to whom guardianship has been assigned Section 24A(1) of the Marriage Act Disclaimer: These notes are provided by Pass and Prosper for free and are drafted by Pass and Prosper tutors for their own studying benefit. These notes are not sold for profit and therefore, there may occasionally be minor mistakes. In such an event, please contact the tutor to effect the correction. Note we are in no way affiliated or a branch of the UP Law Faculty as we are an independent service.  18 Pass & Prosper ▪ The marriage shall be dissolved by a competent court, on application by the parent/guardian, before the minor reach majority and within 6 weeks of getting to know about the marriage, or by the minor. ▪ Voidable with time limits. ▪ Application by parents ▪ Application by minor Must be made within 3 months from the date on which they attain majority. Must be in Best Interests of the Child ❖ Minister of Home Affairs Consent (Minor Marriage) It is given in addition to parental consent. Marriage Act ▪ Girls between ages 12 – 14 (puberty is earlier for them) ▪ Boys between ages 14 – 18 (puberty is later for them). If Minister does not give his consent, marriage is void. Girls between 15 – 18 ONLY require parental consent. Ratification is possible. Position of the RCMA: ▪ Section 3 Parties must be 18 or older. However, if minors then parents must give consent as in Marriage Act. ❖ Presiding officer of the Children’s Court Consent (Minor Marriage) The Children’s Court Required in two instances: ▪ Child has no parents or guardian; or ▪ Good reasons exist why the consent of parents/guardians cannot be obtained. It is meant to replace the consent of parents/guardian ▪ The Minister of Home Affairs must also still approve. It is voidable without the children’s court’s consent. ❖ High Court Consent (Minor Marriage) Parents/guardian/presiding officer refuses to grant consent The court will only grant permission if: ▪ Refusal is without adequate reason ▪ Refusal is contrary to the child’s interests Section 28(2) of the Constitution ▪ Best interests of the child ❖ The Civil Union Act Minimum age = 18 Disclaimer: These notes are provided by Pass and Prosper for free and are drafted by Pass and Prosper tutors for their own studying benefit. These notes are not sold for profit and therefore, there may occasionally be minor mistakes. In such an event, please contact the tutor to effect the correction. Note we are in no way affiliated or a branch of the UP Law Faculty as we are an independent service.  19 Pass & Prosper Questions are raised as to whether this is unfair discrimination. ▪ Role of Constitution ▪ International law Convention on the Rights of the Child African Charter on the Rights and Welfare of the Child Joint General Comment on Ending Child Marriage (ACHPR and ACERWC) It seeks to end child marriage. ❖ Possible developments SALRC Project 138: The Practice of Ukuthwala Draft Prohibition of Forced Marriages and Child Marriages Bill Marriage Bill ▪ Age set at 18 years ▪ Offences and Penalties Section 17(1) of the Bill. Glossary of The Engagement Terms for this ❖ Engagement Section Agreement between parties to enter into marriage on a specific or determinable date. Usually precedes a civil marriage or civil union but is not a requirement. ❖ Contract sui generis A special kind of contract. Cannot be classified into a specific category. ❖ Breach of promise Unlawful termination of an engagement. ❖ Justa Causa A sound (valid) reason in terms of law. ❖ Contractual damages Monetary compensation that may be claimed in the event of a breach of contract. ❖ Delictual damages Monetary compensation that may be claimed in the event of a delict. ❖ Delict A wrongful act which causes damage (harm/loss) to a party. ❖ Satisfaction An award of damages (monetary compensation) in the event where a party’s personality rights have been infringed. Disclaimer: These notes are provided by Pass and Prosper for free and are drafted by Pass and Prosper tutors for their own studying benefit. These notes are not sold for profit and therefore, there may occasionally be minor mistakes. In such an event, please contact the tutor to effect the correction. Note we are in no way affiliated or a branch of the UP Law Faculty as we are an independent service.  20 Pass & Prosper Compensates a victim for non-patrimonial (non-financial) loss suffered as a result of a delict. Aim is to soothe the victim’s wounded feeling or physical and mental pain and suffering. ❖ Actio iniuriarum Delictual action which is instituted to claim satisfaction. Consensus ❖ Consensus Reaching agreement on essential aspects of the contract. Meeting of the minds. ❖ Mistake A party is mistaken about essential or non-essential aspects of the agreement. Agreement was reached based on a false assumption. May have an effect on the validity of the marriage. ❖ Duress There was consensus at the time of conclusion of the marriage, but the consensus was not obtained voluntarily. May have an effect on the validity of the marriage. ❖ Valid Marriage A marriage that complies with all of the validity requirements for that marriage. ❖ Void Marriage A marriage where one or more of the validity requirements have not been complied with. Marriage never comes into existence. Marriage is void ab initio. ❖ Voidable Marriage A valid marriage that can be annulled or set aside on application by either of the spouses because of some or other deficiency at the conclusion of the marriage. ❖ Annulment An order of court which sets the marriage aside. An annulled marriage is erased with retrospective effect. ❖ Marriage of Convenience Marriage concluded for a purpose other than leading an authentic marital life, such as a marriage ❖ Sham Marriage A marriage that is void because it was never validly concluded. Disclaimer: These notes are provided by Pass and Prosper for free and are drafted by Pass and Prosper tutors for their own studying benefit. These notes are not sold for profit and therefore, there may occasionally be minor mistakes. In such an event, please contact the tutor to effect the correction. Note we are in no way affiliated or a branch of the UP Law Faculty as we are an independent service.  21 Pass & Prosper Also called a bogus or fake marriage. Lawfulness Overview ❖ Lawfulness Two questions must be answered: ▪ Are the parties in general competent to conclude a marriage? Age (must be of the right age) Pre-existing marriage (cannot have one) ▪ Are the parties competent to conclude a marriage with each other. Sex (some Acts only provide for heterosexual couples) Relationship The More In Depth View ❖ Age Marriage Act ▪ Absolute incapacity to marry below the minimum age Civil Union Act Marriage Bill ❖ Pre-existing marriage Marriage Act and Civil Union Act ▪ Monogamous Customary marriage General rule ▪ The existence of a legally recognized marriage is an impediment to the conclusion of another marriage. Exceptions to the general rule? ▪ Existing customary marriage ▪ Polygynous customary marriage ❖ Sex Relevant if the statute does not recognize same-sex marriages Civil Union Act Marriage Act and the Recognition of Customary Marriages Act Alteration of Sex Description and Sex Status Act 49 of 2003 Kos v Minister of Home Affairs ▪ Heterosexual couples. ▪ One member changes their sex. ▪ They were married in terms of the Marriage Act. Disclaimer: These notes are provided by Pass and Prosper for free and are drafted by Pass and Prosper tutors for their own studying benefit. These notes are not sold for profit and therefore, there may occasionally be minor mistakes. In such an event, please contact the tutor to effect the correction. Note we are in no way affiliated or a branch of the UP Law Faculty as we are an independent service.  22 Pass & Prosper ▪Court needed to determine what the effect of that would be on the marriage. ▪ Department refused to change their sex descriptions because the Marriage Act only allows heterosexual couples. ▪ These parties should be allowed to change their ID’s and Passports. ▪ Court rejected the arguments made by Home Affairs. ▪ Couple was permitted to stay married under the Marriage Act. ❖ Relationship How closely related are the parties? ▪ Blood relationship ▪ Affinity ▪ Adoption Intermarriage between those within the prohibited degrees of relationship is prohibited. ▪ Marriage = Void ▪ The prohibited degrees (NB) Parties must both be 2 or more degrees away from the common ancestor. Blood Relationship ▪ Consanguinity ▪ Blood related = share a common ancestor ▪ Role of the common law ▪ Direct line vs collateral line Direct Line  Ascendants and descendants  Absolutely and forever prohibited Examples of Direct Line  Father and daughter  Grandfather and granddaughter Collateral Line  Same family line but not direct line  Must both be at least 2 generations away from the common ancestor Example of Collateral Line  Cousins Affinity ▪ Relationship through the conclusion of a marriage Your wife’s sister is your sister in law. ▪ Section 28 of the Marriage Act Disclaimer: These notes are provided by Pass and Prosper for free and are drafted by Pass and Prosper tutors for their own studying benefit. These notes are not sold for profit and therefore, there may occasionally be minor mistakes. In such an event, please contact the tutor to effect the correction. Note we are in no way affiliated or a branch of the UP Law Faculty as we are an independent service.  23 Pass & Prosper Application to the Civil Union Act ▪ It is the relationship between spouse and their spouse’s ▪ blood relations ▪ Only takes effect once the marriage has been dissolved ▪ Ascending and descending line ▪ Affinity in the Direct line Prohibited from concluding a marriage ▪ Affinity in the collateral line Not prohibited Adoption ▪ Children’s Act ▪ Adoptive parent and adopted child only. A legal fiction is created. Adopted children cannot marry their adoptive parents. ▪ The above does not apply to other blood relatives. ▪ Void marriage ❖ Incest Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 Glossary of Capacity to Act Terms for ❖ Capacity to Act Capacity to Act The capacity to perform juristic acts. and Lawfulness Generally linked to age, but can also be affected by factors such as mental illness, intoxication, etc. ❖ Consent Permission. Not to be confused with consensus. ❖ Minimum marriageable age The lowest age at which a marriage may be concluded (with the necessary consent). ❖ Guardian A person with the responsibility to assist a minor with juristic acts. ❖ Ratification Consent after the fact. Lawfulness ❖ Impediment Means an obstacle/hindrance/barrier/prohibition. ❖ Consanguinity Blood relationship. Disclaimer: These notes are provided by Pass and Prosper for free and are drafted by Pass and Prosper tutors for their own studying benefit. These notes are not sold for profit and therefore, there may occasionally be minor mistakes. In such an event, please contact the tutor to effect the correction. Note we are in no way affiliated or a branch of the UP Law Faculty as we are an independent service.  24 Pass & Prosper ❖ Affinity Relationship through marriage. Relationship with in-laws. ❖ Relationship in Direct Line Relationship in a vertical line from one generation to the next, where one person is a descendant of the other such as son, father, grandfather, etc. ❖ Relationship in the Collateral Line Relationship in a horizontal line where one person is not a descendant of the other, such as brother or sister or cousins. ❖ Sex Either of the two main categories (male and female) into which humans and most other living things are divided on the basis of their reproductive functions. ❖ Gender Gender is defined as the socially constructed roles and behaviors that a society typically associates with males and females. Alternative Definition: Gender refers to characteristics of women, men, girls and boys that are socially constructed. This includes norms, behaviors and roles associated with being a woman, man, girl or boy, as well as relationships with each other. ❖ Gender Identity One’s innermost concept of self as a male, female, a blend of both or neither – how individuals perceive themselves and what they call themselves. One’s gender identity can be the same or different from their sex at birth. ❖ Sexual Orientation An inherent or immutable enduring emotional, romantic of sexual attraction to other people. Note: an individuals sexual orientation is independent of their gender identity. Validity Overview Requirements ❖ Outline of the Concepts Covered Marriage officers Ceremony Registration Requirements ❖ Validity Requirements Prescribed formalities Valid, void and voidable marriages Putative marriages Disclaimer: These notes are provided by Pass and Prosper for free and are drafted by Pass and Prosper tutors for their own studying benefit. These notes are not sold for profit and therefore, there may occasionally be minor mistakes. In such an event, please contact the tutor to effect the correction. Note we are in no way affiliated or a branch of the UP Law Faculty as we are an independent service.  25 Pass & Prosper Marriage Officers ❖ Marriage Officers Must be solemnized by a competent officer (authorized officer). There are two types: ▪ Ex Officio officers Due to the virtue of their office or its capacity they will be automatically regarded as a competent officer. A magistrate is an example. ▪ Designated Officers Further Distinction ▪ Secular marriage officers Civil Union Amendment Act Not exempted from solemnizing same-sex civil marriage conscience, religion or belief. ▪ Religious marriage officers May refuse to solemnize union if the marriage does not conform to tenets of officer’s denomination. ❖ Potential Effects on Validity of the Marriage (incompetent marriage officer) Marriage will be void if not solemnized by a competent official. Section 6 of the Marriage Act Exceptions: ▪ Parties bona fide believed that the person who solemnized their marriage was authorized. ▪ Officer bona fides believed that they were authorized. ❖ A Customary Marriage A customary marriage is concluded with the ceremonial handing over of the bride to the husband’s family, accompanied by some symbolic ritual. The conclusion of a customary marriage consequently does not involve or require the services of a marriage officer. ❖ Marriage Bill Focus Areas include: ▪ Ex officio marriage officers ▪ Designation of other persons as marriage officers ▪ Deemed marriage officers ▪ Revocation and suspension of designation as marriage officer Ceremony ❖ Ceremony: Preliminary Steps Disclaimer: These notes are provided by Pass and Prosper for free and are drafted by Pass and Prosper tutors for their own studying benefit. These notes are not sold for profit and therefore, there may occasionally be minor mistakes. In such an event, please contact the tutor to effect the correction. Note we are in no way affiliated or a branch of the UP Law Faculty as we are an independent service.  26 Pass & Prosper Identity Document Written Consent when required (minors) No impediments exist Divorce Order Objections Civil Union: Marriage or civil partnership ❖ Duties and Responsibilities of Marriage Officers Obtain the necessary proof of identity of the parties to the marriage before solemnization. Make sure the prescribed marriage register is signed immediately after solemnization by the parties to the marriage and the two witnesses in each other’s presence. Keep record of all marriages conducted by him or her. ❖ The Ceremony – Section 29 of the Marriage Act Time (same for Civil Union Act) ▪ Any day of the week ▪ A marriage officer is not obliged to solemnize outside the hours of 8am to 4pm, but they may choose to do so. Place (Differences based on Civil Union vs Marriage Act) ▪ Marriage Act (Place) Church Public Office Private Dwelling Open Doors ▪ Civil Union Act (Place) Public office Private dwelling-house Premises used for such purposes Open doors Marriage by Proxy ▪ Where someone stands in for you during the marriage because you can’t make it. ▪ This is not permitted in South Africa. Ex parte Dow ▪ Facts Interpretation of Section 29 of the Marriage Act. Questions as to the aim of the provision. The applicant applied for an order declaring his marriage null and void because it had taken place in the front garden of his house instead of inside the dwelling itself. ▪ Ruling Disclaimer: These notes are provided by Pass and Prosper for free and are drafted by Pass and Prosper tutors for their own studying benefit. These notes are not sold for profit and therefore, there may occasionally be minor mistakes. In such an event, please contact the tutor to effect the correction. Note we are in no way affiliated or a branch of the UP Law Faculty as we are an independent service.  27 Pass & Prosper Considered interpretation of the word “in” both in the strict and the wide sense. The purpose of the provision was to ensure that marriages were concluded with the knowledge of the public. Thus, they ruled that non-compliance with the word “in” would not be visited with nullity as the effects would be so far reaching that the legislature could not have intended it. ❖ Marriage Formula Section 30 of the Marriage Act ▪ State that there are no impediments ▪ State that you take your partner as your lawful wife/husband Section 11 of the Civil Union Act ▪ State that there are no impediments ▪ State that you take your partner as your lawful spouse/ civil partner ❖ The Marriage Bill Section 11 ▪ A marriage officer may solemnize a marriage at any place within the Republic at any time in accordance with any mode of solemnization or in accordance with any religious, secular or customary practice. Registration Requirements ❖ Registration Requirements Marriage register must be signed by: ▪ Marriage officer (on which the onus to register rests) ▪ Parties ▪ Witnesses Department of Home Affairs Prima facie proof Not a validity requirement ❖ Consequences A certificate of registration will constitute prima facie proof of existence of the relationship between the parties. Failure to register will not lead to the invalidity of the relationship. (current position) Under the proposed Bills the failure to register the marriage will constitute an offence. ❖ Customary marriages Disclaimer: These notes are provided by Pass and Prosper for free and are drafted by Pass and Prosper tutors for their own studying benefit. These notes are not sold for profit and therefore, there may occasionally be minor mistakes. In such an event, please contact the tutor to effect the correction. Note we are in no way affiliated or a branch of the UP Law Faculty as we are an independent service.  28 Pass & Prosper There is a 5th validity requirement for customary marriages only. This requirement is that the marriage must be: negotiate and entered into or celebrated in accordance with customary law. This would include the following considerations: ▪ Consent of the bride to be married. ▪ Consent of the bride’s father or guardian. ▪ Payment of lobolo ▪ Handing over the bride ▪ Consent of existing wife or wives. ❖ Foreign Marriages A civil marriage which has been concluded abroad will be recognized in South Africa if the marriage meets the following two requirements: ▪ The marriage mut be valid in terms of the law and formalities of the place where the marriage was concluded; and ▪ Recognizing the marriage must not offend public policy. Valid, Void and Voidable Marriages ❖ Valid Marriage Children are deemed to be children of married parents There is a reciprocal duty of maintenance. Parties can inherit intestate from each other Spouses cannot conclude another marriage The status of the parties shall change. Matrimonial property system (financial consequences) ❖ Void Marriage Marriage does not come into existence It is Void ab initio (from the beginning – as if it had never existed) Declaratory order → The parties can apply to court to have the court confirm that it is void. This is done for legal certainty. Validity Requirements → If any of the requirements are not complied with then it could lead to a void marriage. Consequences ▪ Status of parties Unmarried / Single ▪ Status of children Disclaimer: These notes are provided by Pass and Prosper for free and are drafted by Pass and Prosper tutors for their own studying benefit. These notes are not sold for profit and therefore, there may occasionally be minor mistakes. In such an event, please contact the tutor to effect the correction. Note we are in no way affiliated or a branch of the UP Law Faculty as we are an independent service.  29 Pass & Prosper They are still the children of both parents but are considered children of unmarried parents. ▪ Reciprocal duty of support None. ▪ Intestate succession Children may inherit intestate but the parties to the void marriage have no such rights. ▪ Matrimonial property system None comes into existence. ▪ Conclude another marriage They may conclude another marriage because they are technically unmarried. ❖ Voidable Marriage It is a valid marriage with legal consequences. It can be set aside by a court by an order of annulment. It has retrospective effect. Validity requirements: Consensus and capacity to act. Consequences ▪ Status of parties Married until set aside ▪ Status of children Children of married parents until set aside. ▪ Reciprocal duty of support It exists unless the marriage is set aside. ▪ Intestate succession Can inherit unless set aside. ▪ Matrimonial property system Depends on the system agreed to at the time of marriage, and that system will persist unless the marriage is set aside. ▪ Conclude another marriage Unless set aside they cannot conclude another marriage. Exceptions ▪ If annulled, then there are no consequences and it has retrospective effect. ▪ Interests of third parties are protected and the annulment will not affect agreements with third parties on the basis of the marriage which is later annulled. ▪ The children born from the marriage are considered as being born to married parents. Disclaimer: These notes are provided by Pass and Prosper for free and are drafted by Pass and Prosper tutors for their own studying benefit. These notes are not sold for profit and therefore, there may occasionally be minor mistakes. In such an event, please contact the tutor to effect the correction. Note we are in no way affiliated or a branch of the UP Law Faculty as we are an independent service.  30 Pass & Prosper Annulment vs Divorce ❖ Annulment Circumstances present at time of the conclusion of the marriage are relevant. Annulment order has retrospective effect. Common law procedure. ❖ Divorce Circumstances develop after conclusion of the marriage. Divorce order applies from date of divorce. Divorce Act applies. Putative Marriages ❖ Definition One or both of the parties are unaware there is a defect which renders the marriage void. Bona fide unaware that the marriage is void. Validity requirements – at common law they had to comply with ALL of these requirements. ▪ This was known as due solemnization. ▪ Courts no longer apply it or, when they apply it they do not do so strictly. ❖ The Test The marriage must be void (not voidable); and One or both of the parties in good faith is/are unaware that the marriage is void. ❖ Case law Moola v Aulsebrook ▪ Marriage officer not authorized. ▪ Court had to decide if this was a Putative Marriage. ▪ The parties were married in terms of Islamic rights. ▪ It only became clear that the priest was not qualified after the death of the husband. ▪ Both parties were unaware. ▪ Parties had 7 children and had been married for a long time. ▪ The only missing formality was the proper appointment of the priest. ▪ The court ruled that this defect was not sufficient to remove it from the scope of a putative marriage. MM v MN ▪ Could a void customary marriage be considered a putative marriage. ▪ Husband had two wives. Disclaimer: These notes are provided by Pass and Prosper for free and are drafted by Pass and Prosper tutors for their own studying benefit. These notes are not sold for profit and therefore, there may occasionally be minor mistakes. In such an event, please contact the tutor to effect the correction. Note we are in no way affiliated or a branch of the UP Law Faculty as we are an independent service.  31 Pass & Prosper When he passed the wives fought over the fact that only ▪ one of their marriages was valid. ▪ Question was whether you could apply a common law principle like putative marriages to customary marriages. ▪ The court said it could be done. ▪ This was heavily criticized and later the remark was made that customary law should rather be developed to recognize putative marriages. ❖ Consequences Children ▪ Children are deemed to be born from a legally recognized marriage ▪ Children born of married parents Patrimonial consequences ▪ Both parties are bona fide If an antenuptial contract exists, the court will try to give effect to that. No contract = In community of property ▪ One party is bona fide In community of property if to their advantage. Zulu v Zulu  The above rule is not applicable if there is already a previous valid marriage in community of property.  Man was married a second time without her knowledge.  Second wife was only entitled to damages, but not to a joint estate. MS v Executor, Estate Late NS  The precedent set in Zulu was not followed in this more recent judgement.  The court in this case held that the property of the joint estate that was amassed during the subsistence of the putative marriage between the deceased and his second “wife” must be divided as though the putative marriage had been concluded in community of property, despite the fact that the deceased was also married in community of property to is first (legal) wife.  The court criticized the approach followed in Zulu. Disclaimer: These notes are provided by Pass and Prosper for free and are drafted by Pass and Prosper tutors for their own studying benefit. These notes are not sold for profit and therefore, there may occasionally be minor mistakes. In such an event, please contact the tutor to effect the correction. Note we are in no way affiliated or a branch of the UP Law Faculty as we are an independent service.  32 Pass & Prosper  The court considered that its approach was consistent with the values and the norms written into the Constitution. Invariable Overview consequences ❖ Invariable Consequences of a civil Personal Consequences marriage ❖ Variable Consequences Patrimonial Consequences Invariable (Personal) Consequences (NB) ❖ Status of the spouses changes ❖ Consortium omnis vitae is created between the spouses ❖ Reciprocal duty of support arises between them (maintenance) ❖ Purchase of household necessaries ❖ Right to reside in matrimonial home arises for both parties Status of the spouses(NB) ❖ Once married you cannot (generally) conclude another marriage. This does not apply to customary marriages as they may be polygynous. ❖ Impediments based on affinity take effect (can’t marry your wife’s mom/dad) ❖ Spouses can inherit intestate from each other ❖ Children are regarded as children born from a marriage (of married parents) ❖ Spouses’ capacity to act and capacity to litigate are affected ❖ The wife may take the surname of the husband but doesn’t have to. However, if a husband wishes to take his wife’s surname, then he must ask permission from the Department of Home Affairs. ❖ Minors who conclude a marriage become majors upon the conclusion of the marriage, even where they have not reached the age of majority. Consortium Omnis Vitae (NB) ❖ It essentially means “communion for all of life.” ❖ It consists of: Tangible Elements (financial, duty of support and maintenance) Intangible Elements (Love, loyalty, sexual intercourse) ❖ Dawood v Minister of Home Affairs Disclaimer: These notes are provided by Pass and Prosper for free and are drafted by Pass and Prosper tutors for their own studying benefit. These notes are not sold for profit and therefore, there may occasionally be minor mistakes. In such an event, please contact the tutor to effect the correction. Note we are in no way affiliated or a branch of the UP Law Faculty as we are an independent service.  33 Pass & Prosper In terms of common law, marriage creates a physical, moral and spiritual community of life. This community includes reciprocal obligations of cohabitation, fidelity and sexual intercourse, though these obligations are for the most not enforceable between spouses. Importantly, the community of life establishes a reciprocal and enforceable duty of financial support between the spouses and a joint responsibility for the guardianship and custody of children born of the marriage. An obligation of support flows from marriage under African customary law as well. In terms of Muslim, personal law, the husband bears an enforceable duty of support of the wife during the subsistence of the marriage. ❖ Osman v Osman To what extent can a spouse enforce their intangible rights? The court did not grant an interdict against the wife’s husband to prohibit him from having sexual relations with another woman. ▪ This would have been an infringement of the husband’s