South African Family Law PDF

4 VOID, VOIDABLE AND PUTATIVE CIVIL MARRIAGES 4.1 Void civil marriages 4.1.1 The definition of a void marriage A void civil marriage is a civil marriage which has simply never come into existence....

4 VOID, VOIDABLE AND PUTATIVE CIVIL MARRIAGES 4.1 Void civil marriages 4.1.1 The definition of a void marriage A void civil marriage is a civil marriage which has simply never come into existence. The posi- tion is exactly as it would have been had the “marriage” never been concluded. 4.1.2 The grounds for nullity The court may declare a civil marriage null and void on the ground of non-compliance with the formal or material requirements for a civil marriage.1 As a general rule, non-compliance with the formal requirements for a civil marriage renders the marriage void.2 The Marriage Act 25 of 1961 expressly recognises an exception to this rule, namely a civil marriage in which an error, omission or oversight regarding the question, declaration or giving of the right hand which forms part of the marriage formula was committed in good faith or owing to a physical disability.3 In terms of the decision in Ex parte Dow,4 solemnisation of a civil marriage in a garden instead of a church or other building used for religious services or a public office or a private dwelling house with open doors5 also does not render the marriage void. The following are examples of non-compliance with formal requirements which do render 6 a civil marriage void: (1) The civil marriage is solemnised by someone who is not a competent marriage officer. (2) A girl below 15 years of age or a boy below 18 years of age enters into a civil marriage without having obtained the written consent of the Minister of Home Affairs. (3) No witnesses are present at the civil marriage. The following are examples of situations in which a civil marriage is void because the material 7 requirements are not met: (1) The parties are of the same sex. (2) One of the parties is already a party to another civil marriage, a customary marriage or a civil union with someone else. ________________________ 1 The formal and material requirements for a valid civil marriage are discussed in ch 3 above. 2 Lee and Honoré par 50 fn (n) submit that the courts ought to interpret the formal requirements in favorem matrimonii (ie, in favour of marriage) and ought only to find that a marriage is void when a “material” for- mal requirement has not been met. Material formalities concern the identification of the parties to the marriage, the existence of consensus, and the participation of the state and community in the establishment of the marriage, but not those provisions which only ensure that an orderly and dignified marriage cere- mony takes place. See also Ex parte Dow 1987 (3) SA 829 (D); Sinclair assisted by Heaton 356–358; Van der Vyver and Joubert 514; Visser and Potgieter 61; but see Wille’s Principles 307. 3 S 30(3) of the Marriage Act 25 of 1961. See further ch 3 above. 4 1987 (3) SA 829 (D), Heaton and Kruger Casebook on Family Law case. See further ch 3 above. 5 S 29(2) of the Marriage Act. 6 See further ch 3 above. 7 See further ch 3 above. 33 34 South African Family Law (3) The parties are related to each other within the prohibited degrees of relationship. (4) One of the parties is below the age of puberty. (5) One of the parties is mentally ill. 4.1.3 The consequences of a void marriage A civil marriage that is void ab initio (that is, from the outset) does not affect the status of the parties or confer any of the consequences of a civil marriage on the parties or their children. As a result, no matrimonial property system operates as between the parties; the reciprocal duty of support does not operate between them; they do not inherit intestate from one another; they are free to enter into another civil marriage, a civil union or a customary mar- riage; and so forth. As nullity of the marriage is absolute, either of the parties or an interested third party may raise it. The nullity may be raised even after the parties’ death.8 Although it is not essential to obtain a court order declaring the marriage void, it is better to do so for purposes of legal certainty. Therefore, a declaratory order is usually requested.9 It is important to stress that by making an order that a marriage has been void since its inception, the court is merely con- firming the existing position and therefore its ruling is merely declaratory. The court does not exercise any discretion whatsoever in this regard.10 Normally, a void juristic act cannot be ratified. However, in respect of civil marriages this rule is subject to exceptions which are contained in the Marriage Act. Firstly, as is pointed out in chapter 3 above, a civil marriage which is solemnised by someone who is not a competent marriage officer is void, but the Minister of Home Affairs may ratify the marriage in terms of section 6 of the Act. Secondly, section 26(1) of the Act provides that a male minor and a girl below the age of 15 years may not enter into a civil marriage without the permission of the Minister of Home Affairs. A civil marriage which is concluded without the required minis- terial consent is void, but section 26(2) empowers the Minister to ratify the marriage, thereby validating it. The rule that a void marriage has none of the consequences of a valid civil marriage is also subject to the common-law exception relating to a putative civil marriage. In the case of a putative marriage, some of the consequences of a valid civil marriage attach to the marriage even though it is void. The putative civil marriage is discussed below in this chapter. Finally, it should be noted that the bona fide party to a void civil marriage may institute a delictual action for satisfaction against the other party to the void civil marriage.11 4.2 Voidable civil marriages 4.2.1 The definition of a voidable marriage A voidable marriage is a marriage in which grounds are present, either before or at the time of the wedding, on the basis of which the court can be requested to set the marriage aside. 4.2.2 The grounds for setting aside a voidable civil marriage A civil marriage is voidable if one or more of the following circumstances are present: (a) Minority In terms of section 24A(1) of the Marriage Act, the civil marriage of a minor who fails to obtain the necessary consent from his or her parent(s), legal guardian, or the presiding officer of the Children’s Court is voidable. This issue is discussed in chapter 3 above. ________________________ 8 See also Heaton in Church (ed) LAWSA Marriage par 41; Sinclair assisted by Heaton 397. 9 See also Heaton in Church (ed) LAWSA Marriage par 41; Lee and Honoré par 48(i); Van der Vyver and Joubert 515; Visser and Potgieter 64. 10 Ex parte Oxton 1948 (1) SA 1011 (C). 11 Snyman v Snyman 1984 (4) SA 262 (W); Arendse v Roode 1989 (1) SA 763 (C); Zulu v Zulu 2008 (4) SA 12 (D).  Chapter 4: Void, voidable and putative civil marriages 35 (b) Material mistake A mistake about the identity of the other party or the nature of the juristic act excludes agree- ment between the parties. The effect of a material mistake on the validity of a marriage is dis- cussed in chapter 3. There it is submitted that a material mistake should render the marriage voidable, not void. (c) Duress A marriage which was entered into under duress is voidable. This issue is also discussed in chapter 3. (d) Undue influence Although there is no direct authority for the premise that undue influence renders a civil marriage voidable, it is submitted in chapter 3 that this should be the position. (e) Stuprum Extra-marital sexual intercourse with a third party before the marriage (that is, stuprum) nor- mally does not affect the validity of a civil marriage.12 Even if one of the spouses has a child with another person before the marriage, the validity of the marriage is not affected.13 It is only if the wife is pregnant with another man’s child at the time of the wedding, without her husband being aware of this, that the husband may apply for annulment of the marriage.14 There obviously is a vast difference between one of the parties having a child with another person before a civil marriage and pregnancy at the time of the marriage, because in the lat- ter case the presumption pater est quem nuptiae demonstrant (that is, the marriage indicates who the father is) comes into operation, with the result that the husband can be held liable for maintenance of another man’s child.15 However, the pater est quem nuptiae demonstrant presump- tion does not afford an adequate explanation for the voidability of the marriage, for the hus- band can escape the duty of support towards his wife’s child via the much less drastic avenue of rebutting the presumption of paternity and obtaining a declaratory order that he is not the father of the child. It is submitted that the real foundation for the voidability of the marriage is the wife’s concealment of her stuprum, which constitutes misrepresentation.16 The fact that the husband himself had sexual intercourse with his wife before the marriage does not affect his right to have the civil marriage annulled, as long as he was unaware at the ________________________ 12 Gabergas v Gabergas 1921 EDL 279; Reyneke v Reyneke 1927 OPD 130. 13 Stander v Stander 1929 AD 349, Heaton and Kruger Casebook on Family Law case. 14 Smith v Smith 1936 CPD 125. 15 Stander v Stander 1929 AD 349. On the pater est quem nuptiae demonstrant presumption and its rebuttal, see Heaton Persons 54–65. 16 See also Sinclair assisted by Heaton 395 who limits the voidability to fraud, ie intentional concealment. How- ever, negligent misrepresentation should also suffice. Other authors submit that the remedy is based, not on misrepresentation, but on mistake: Lee and Honoré par 55 fn (n); Wille’s Principles 308. See also Joubert in Clark (ed) Family Law Service par A40 and Van der Vyver and Joubert 496 who argue that contemporary social values and recognition of the risk of the marriage breaking down if the wife is pregnant with another man’s child at the time of the wedding are the real reasons why stuprum results in the voidability of the marriage. See further Thomas 2001 THRHR 423 who argues that stuprum as a ground for annulment is outdated and unconstitutional because it violates sex equality. He submits that the obvious solution is for the husband to rebut the presumption of paternity and to divorce his wife if he does not wish to remain mar- ried to her. It has to be borne in mind, though, that financial consequences, such as post-divorce mainte- nance and sharing of matrimonial property, result from divorce while they do not accompany annulment. It seems unfair to impose those consequences on a husband whose wife has concealed her stuprum. It is submitted that even under our present constitutional dispensation, the wife’s misrepresentation justifies annulment of the marriage. On the differences between divorce and annulment, see further below under this heading. 36 South African Family Law time of the wedding that his wife was pregnant by another man.17 If the husband accepts and condones his wife’s pregnancy, he loses his remedy.18 If the husband cannot discharge the onus of proving prenuptial stuprum, or if his action may possibly be defeated by knowledge or acquiescence, he can, instead of suing for annul- ment, sue for divorce on the ground of the irretrievable breakdown of the civil marriage.19 It may be easier to prove irretrievable breakdown and to obtain a divorce, but then the financial consequences of divorce come into play – and they are very different from the consequences of annulment. Thus, a husband who obtains a divorce rather than an annulment inter alia has to contend with the possibility of a maintenance award being made against him. As irretriev able breakdown is a no-fault ground of divorce, our courts are loath to use guilt as a reason to deny a spouse maintenance to which he or she would otherwise be entitled.20 Thus, in itself, a wife’s stuprum may be an insufficient reason to deny her post-divorce maintenance. Further- more, if the husband divorces his wife rather than having the marriage annulled, the spouses usually have to share at least some of the matrimonial property.21 (f) Impotence Impotence is the inability to have sexual intercourse. A civil marriage is voidable if one spouse proves that the other spouse was impotent before the wedding and remains impotent, and that the plaintiff was unaware of the impotence at the time of the wedding.22 The plaintiff can- not succeed if he or she knew of the impotence or condoned it,23 or if the impotence is tem- porary or probably curable.24 The impotent spouse may apply for the annulment of the civil marriage on the basis of his or her own impotence if he or she was unaware of the impotence at the time of entering into the marriage.25 (g) Sterility Sterility must be distinguished from impotence. Sterility refers to infertility (that is, being able to have sexual intercourse but not being able to procreate). In Venter v Venter 26 it was held that if one of the parties at the time of the civil marriage fraudulently concealed that he or she was sterile, the other party may have the marriage annulled. In this particular case, the wife knew that she was sterile as a result an operation she had undergone, but concealed this fact from her husband. The court rejected her husband’s action to have the marriage set aside because he did not allege that his wife had fraudulently concealed her sterility. In other words, the court held that the action rests not on the mere presence of sterility, but on the fraudulent concealment thereof. In Van Niekerk v Van Niekerk,27 in contrast, it was held that the mere fact of sterility renders the civil marriage void able, regardless of whether or not it was fraudulently concealed. This rule at least applies 28 when the procreation of children was an express or implicit aim of the marriage. ________________________ 17 Reyneke v Reyneke 1927 CPD 130; Smith v Smith 1936 CPD 125. 18 Kilian v Kilian 1908 EDC 377. 19 Despite the fact that her pregnancy was the cause of the breakdown of the marriage, the wife can also institute an action for divorce on the ground of irretrievable breakdown. See ch 11 below on irretrievable breakdown. 20 See ch 13 below on post-divorce maintenance for a spouse. 21 See ch 12 below on the patrimonial consequences of divorce. 22 Wells v Dean-Willcocks 1924 CPD 89; Joshua v Joshua 1961 (1) SA 455 (GW); Smith v Smith 1961 (3) SA 359 (SR); B v B 1964 (1) SA 717 (T); D v D 1964 (3) SA 598 (E). 23 Wells v Dean-Willcocks 1924 CPD 89; Smith v Smith 1961 (3) SA 359 (SR). 24 See also Barratt (ed) Persons and the Family 251; Heaton in Church (ed) LAWSA Marriage par 49; Sinclair assisted by Heaton 390; Skelton and Carnelley (eds) Family Law 47; Van der Vyver and Joubert 494; Visser and Potgieter 56; Wille’s Principles 308. 25 W v W 1959 (4) SA 183 (C), Heaton and Kruger Casebook on Family Law case. 26 1949 (4) SA 123 (W), Heaton and Kruger Casebook on Family Law case. 27 1959 (4) SA 658 (GW), Heaton and Kruger Casebook on Family Law case. 28 Van Niekerk v Van Niekerk 1959 (4) SA 658 (GW).  Chapter 4: Void, voidable and putative civil marriages 37 The approach in Venter is preferred to that in Van Niekerk:29 it is not the mere fact of sterility, but the fraudulent concealment thereof which should found the action.30 That this is the correct approach is supported by the Constitutional Court’s decision in National Coalition for Gay and Lesbian Equality v Minister of Home Affairs 31 in which it was held that “[f]rom a legal and constitutional point of view procreative potential is not a defining characteristic of conju- gal relationships” and that insisting on procreative potential would be deeply demeaning to couples (whether married or not) who, for whatever reason are incapable of procreating when they commence such relationship or become so at any time there- after. It is likewise demeaning to couples who commence such a relationship at an age when they no longer have the desire for sexual relations... [and to] a couple who voluntarily decide not to have children or sexual relations with one another; this being a decision entirely within their protected sphere of freedom and privacy. 4.2.3 The consequences of a voidable civil marriage A voidable civil marriage remains in force and has all the normal legal consequences of a valid civil marriage until it is set aside by a court order.32 If a voidable marriage is not set aside, it remains in force. Therefore the court order setting the marriage aside is essential, and not merely declaratory. Because the parties to a voidable marriage are indeed legally the parties to a civil marriage, the marriage affects their status during its subsistence. For example, the parties have equal capacity to administer the joint estate if they are married in community of property, and chil- dren born or conceived during the subsistence of the marriage are born of married parents. ________________________ 29 Although our common-law writers did not distinguish clearly between impotence and sterility, Venter accords with the position at common law: Van der Walt 1960 THRHR 220; Scholtens 1961 SALJ 159. Lee and Honoré par 54 fn 2 submit that Van Niekerk should be rejected on policy grounds and because it is not based on authority. See also Heaton in Church (ed) LAWSA Marriage par 50; Joubert in Clark (ed) Family Law Service par A39. Forere and Lotz 2012 Journal for Juridical Science state that some authors (notably Hea- ton, and Skelton and Carnelley) have “overlooked the details of the decision in Van Niekerk” (99) and have failed to notice that “[f]ar from being antagonistic, the two decisions [Van Niekerk and Venter] are similar to the extent that they agree that fraudulent concealment of premarital sterility is a ground for setting aside the marriage”: 100. However, Forere and Lotz seem to have conflated the two grounds on which the deci- sion in Van Niekerk was based. The primary ratio in Van Niekerk relates to sterility per se. Wessels J (with whom De Vos Hugo J agreed) held that Roman-Dutch law did not dinstinguish between impotence (impotentia coeundi) and sterility (impotentia procreandi): 671. He concluded that in Roman-Dutch law impotence (in the sense of sterility and the narrower concept of impotence as we know it today) “was a ground for setting aside a marriage if the defect existed at the time of the marriage, and... this is still our law today. Notwith- standing the references in some of the older authorities to fraud, it appears from the cases cited above in which marriages were set aside on the ground of impotence that fraud is not an essential element. There seems to be no reason based on public policy why this rule should not be recognised by our Courts at the present time”: 671; emphasis added. De Vos Hugo J supported this view: 674. In this primary part of the judgment fraud was found to be irrelevant. Consequently, the decision in Van Niekerk is indeed “antagonistic” to the decision in Venter – fraud is central to the decision in Venter while in Van Niekerk fraud is relevant only in so far as it is considered as a second, alternative ground for claiming nullity. De Vos Hugo J makes this clear by stating that “[t]he second ground on which applicant seeks leave to claim annulment is fraud, that is, fraud consisting in concealment by the defective [ie sterile] spouse of his or her inability from the able spouse”: 675. The statements in Van Niekerk about fraud are therefore secondary to the ratio concerning sterility per se, and were added as a pre- caution in the event that the court’s finding on the first ground (sterility per se) were wrong: see 674, where De Vos Hugo J indicates that his statements about fraud apply if he is wrong in his conclusion about impo- tentia coeundi and impotentia procreandi. Therefore the decisions are by no means “similar as far as fraud is concerned” as Forere and Lotz contend: 99. 30 However, there are valid objections to accepting fraudulent concealment of sterility as a ground for the annul- ment of a marriage. Hunt 1963 SALJ 109 puts it succinctly: “Why should fraud turn the scales? It is true that this concealment seems particularly dishonest, but is it any more dishonest or shocking than fraudulent concealment of cancer, insanity or previous prostitution?” See also Lee and Honoré par 54 fn 2. 31 2000 (1) BCLR 39 (CC), 2000 (2) SA 1 (CC) par 51. 32 See also Barratt (ed) Persons and the Family 249; Heaton in Church (ed) LAWSA Marriage par 42; Joubert in Clark (ed) Family Law Service par A52; Lee and Honoré par 48(iii); Sinclair assisted by Heaton 401; Skelton and Carnelley (eds) Family Law 52; Van der Vyver and Joubert 517; Visser and Potgieter 67. 38 South African Family Law However, if the marriage is set aside, the effect of the decree of annulment is retroactive. This means that all the consequences of the marriage are extinguished as from the date on which the marriage was solemnised.33 The status of the parties changes and they are in the same position as if the marriage never took place. However, the interests of third parties are pro- tected because the validity of transactions with third parties that were concluded prior to the annulment is not affected by the decree. The interests of children of the marriage are also protected, for, in terms of section 39 of the Children’s Act 38 of 2005, children who are con- ceived or born of a voidable marriage which is annulled are treated like children whose parents’ valid marriage is terminated by divorce. It is important to distinguish the annulment of a voidable marriage from the granting of a divorce. As already indicated, a marriage is voidable on the ground of circumstances which were present before or at the time of the wedding. A divorce, in contrast, is usually granted on the ground of circumstances that arose during the marriage. As the Divorce Act 70 of 1979 does not apply to the annulment of a voidable marriage (except in so far as children of the marriage are concerned), the court cannot make an order for maintenance of one of the parties or for forfeiture of patrimonial benefits or redistribution of assets when it sets a void able marriage aside.34 4.3 Putative marriages 4.3.1 The definition of a putative marriage35 A putative marriage exists when one of the parties (or both of them) enters into a civil marriage while being unaware that there is a defect which renders the marriage void. At the time of entering into the marriage, the particular party therefore believes in good faith that he or she is entering into a valid civil marriage. For example, a couple enters into a civil marriage with- out being aware that they are brother and sister and consequently related within the prohib- ited degrees of blood relationship. 4.3.2 The requirements for a putative marriage By definition, the first requirement for the existence of a putative marriage is that one of the parties or both of them must be unaware of the defect which renders their civil marriage void. At common law, it was further required that all the formalities for the solemnisation of a civil marriage had to have been complied with. It is not clear whether the requirement of due solemnisation still forms part of our law. In Bam v Bhabha 36 the Appellate Division (now the Supreme Court of Appeal) discussed, but did not decide, the matter. Some of our reported cases require due solemnisation,37 while others hold that defects in form do not preclude a marriage from being putative.38 It is submitted that the latter view should prevail.39 ________________________ 33 Barratt (ed) Persons and the Family 250; Lee and Honoré par 48(iii); Sinclair assisted by Heaton 402; Skelton and Carnelley (eds) Family Law 53; Van der Vyver and Joubert 518; Visser and Potgieter 67; Wille’s Principles 308. But see Joubert in Clark (ed) Family Law Service par A52 who states that it is not entirely clear whether the annulment has retroactive effect, but indicates that the weight of opinion favours retroactivity. 34 On the consequences of divorce, see chs 12–15 below. 35 It is doubted whether a customary marriage can be a putative marriage: see ch 17 below. 36 1947 (4) SA 798 (A). 37 See eg Ngubane v Ngubane 1983 (2) SA 770 (T), Heaton and Kruger Casebook on Family Law case ; Solomons v Abrams 1991 (4) SA 437 (W), Heaton and Kruger Casebook on Family Law case. 38 See eg Ramayee v Vandiyar 1977 (3) SA 77 (D); Moola v Aulsebrook 1983 (1) SA 687 (N), Heaton and Kruger Casebook on Family Law case. 39 See also Heaton in Church (ed) LAWSA Marriage par 43; Lee and Honoré par 49; Sinclair assisted by Heaton 406; Van der Vyver and Joubert 520; Visser and Potgieter 69; Wille’s Principles 310; Labuschagne 1989 TSAR 377–378.  Chapter 4: Void, voidable and putative civil marriages 39 4.3.3 The consequences of a putative marriage (a) General Although a putative marriage is void ab initio, it has some of the legal consequences of a valid civil marriage for as long as at least one of the parties is bona fide. In other words, for as long as one of the parties is, on reasonable grounds, unaware of the defect which renders the marriage void, the marriage has some of the legal consequences of a valid civil marriage. As soon as both parties become aware of the defect, the relationship automatically ceases to be a putative marriage. The court cannot declare a putative marriage valid, because the marriage is void. The court simply declares that the relationship was a putative marriage with the result that certain con- sequences can be attached to it from the date of the wedding until the date on which both parties became aware of the invalidity of the marriage. (b) Children born of a putative marriage According to our common-law writers, children who are born of a putative marriage are born of married parents.40 In Bam v Bhabha 41 the Appellate Division left open the question of whether this is an automatic consequence of the marriage of the children’s parents having been putative or whether it is the court order that turns the children into children born of married parents. Current practice is that when the court is approached to declare a marriage to have been putative an application is simultaneously made for a declaration that the chil- dren were born of married parents, the assumption being that the order is merely declar atory.42 As the court simply confirms that the children were born of married parents, it means that both parents have full parental responsibilities and rights in respect of the children. Even if a court were to find that the order is not merely declaratory and that children born of a putative marriage are in truth not born of married parents, this finding is likely to be of little practical consequence. As the children’s parents would, most probably, have been living together as if married to each other at the time of the children’s birth, the parents would qualify as partners in a life partnership. Furthermore, the “husband” would probably have been identified as the child’s father and he is likely to have contributed to the children’s upbringing and maintenance for a reasonable period. Therefore, both parents would auto- 43 matically have acquired full parental responsibilities and rights in respect of the children. Since a couple whose marriage has been declared putative will usually no longer be living together at the time of the declaration, the High Court which declares the marriage to be putative may, as upper guardian of all minors, make any order as to parental responsibilities and rights that is in the children’s best interests.44 (c) The patrimonial consequences of a putative marriage If both parties were bona fide at the time of entering into the putative marriage and the mar- riage was concluded without an antenuptial contract, the parties are treated as having estab- lished a joint estate by virtue of having been married in community of property or, more correctly, by virtue of having concluded a universal partnership (societas universorum bonorum ________________________ 40 Brouwer 2.5.32; Van der Keessel Praelectiones 1.5.2. 41 1947 (4) SA 798 (A). 42 Prinsloo v Prinsloo 1958 (3) SA 759 (T); M v M 1962 (2) SA 114 (GW); Vather v Seedat 1974 (3) SA 389 (N); Ngubane v Ngubane 1983 (2) SA 770 (T); see also W v S 1988 (1) SA 475 (N) 484; Barratt (ed) Persons and the Family 252; Heaton in Church (ed) LAWSA Marriage par 44; Joubert in Clark (ed) Family Law Service par A65; Skelton and Carnelley (eds) Family Law 55; Van der Vyver and Joubert 520; Visser and Potgieter 69; Wille’s Principles 311. West and Bekker 2012 Obiter 355 imply that obtaining the declaratory order is in- dispensable. 43 Ss 19(1), 21(1), 21(4) of the Children’s Act; FS v JJ 2011 (3) SA 126 (SCA). See further ch 23 below. 44 Engar and Engar v Desai 1966 (1) SA 621 (T); Potgieter v Bellingan 1940 EDL 264. On parental responsibilities and rights and the court’s powers as upper guardian, see ch 23 below. 40 South African Family Law or societas omnium bonorum).45 If only one party was bona fide, the marriage is treated as having been in community of property (or having been a universal partnership) if this is to the advantage of the bona fide party.46 However, in terms of the decision in Zulu v Zulu,47 these rules do not apply if the putative marriage was concluded while either of the parties was a 48 spouse in an existing, valid civil marriage in community of property. The court held that, in such event, the pre-existence of the valid civil marriage in community of property renders the creation of a joint estate between the parties to the putative marriage impossible, because all the assets of the party who is the spouse in the valid civil marriage fall into the joint estate which exists between spouses in the pre-existing valid civil marriage. If the parties to the putative marriage entered into an antenuptial contract in which com- munity of property was excluded, the marriage is treated as having been out of community of property if this is in the interests of the bona fide party or if both parties were bona fide. The bona fide party may also enforce any benefit due to him or her in terms of the antenuptial con- tract, but the mala fide party must return all benefits he or she received in terms of the ante- nuptial contract.49 ________________________ 45 Strictly, no matrimonial property system can operate in the marriage because the parties were never legally married. See also Heaton in Church (ed) LAWSA Marriage par 44; Van der Vyver and Joubert 521; Visser and Potgieter 70; Wille’s Principles 311. In Zulu v Zulu 2008 (4) SA 12 (D) the applicant seemed to have re- garded universal partnership to be an alternative to her claim regarding community of property. On uni- versal partnerships, see further chs 8 and 20 below. 46 See also Barratt (ed) Persons and the Family 252; Heaton in Church (ed) LAWSA Marriage par 44; Skelton and Carnelley (eds) Family Law 55; Van der Vyver and Joubert 521; Visser and Potgieter 70; Wille’s Principles 311; Smith 2010 International Journal of Law, Policy and the Family 270, 279. 47 2008 (4) SA 12 (D), Heaton and Kruger Casebook on Family Law case. 48 For a suggestion on how the common law could be developed to come to the aid of the bona fide spouse without ignoring the fact that the pre-existing, valid civil marriage resulted in a joint estate, see Smith 2010 International Journal of Law, Policy and the Family 267. See further Smith 2011 SALJ 567–570. 49 See also Heaton in Church (ed) LAWSA Marriage par 44; Skelton and Carnelley (eds) Family Law 55; Van der Vyver and Joubert 521; Visser and Potgieter 70; Wille’s Principles 311; Smith 2010 International Journal of Law, Policy and the Family 270.