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FAMILY LAW

ADVOCATE ELGEME HAARHOFF

CASEBOOK ON SOUTH AFRICAN FAMILY LAW

LAW OF PERSONS AND THE FAMILY BY BARRATT A -2 N D EDITION


(PEARSON TEXTBOOK)

WEEK 1 CONTENT

CHAPTER 1: FAMILY IN LAW THE 21 S T CENTURY.

The Constitutional Court in

Dawood and Another v Minister of Home Affairs and Others;

Shalabi and Another v Minister of Home Affairs and Others;

Thomas and Another v Minister of Home Affairs and Others 2000 (3) SA 936 (CC) at paras
30-31, pronounced as follows as regards the importance of the family unit in South African
society:

 ‘Marriage and the family are social institutions of vital importance.


 Such relationships are of profound significance to the individuals concerned.
 But such relationships have more than personal significance at least in part because
human beings are social beings whose humanity is expressed through their
relationships with others.
 Entering into a marriage, therefore, is to enter into a relationship that has public
significance as well.
 The institutions of marriage and the family are important social institutions that
provide for the security, support and companionship of members of our society and
bear an important role in the rearing of children.
 The celebration of a marriage gives rise to moral and legal obligations, particularly
the reciprocal duty of support placed upon spouses and their joint responsibility for
supporting and raising children born of the marriage.
 These legal obligations perform an important social function.
 This importance is symbolically acknowledged in part by the fact that marriage is
celebrated generally in a public ceremony, often before family and close friends.
 The importance of the family unit for society is recognised in the international human
rights instruments referred to above when they state that the family is the ‘natural’ and
‘fundamental’ unit of our society.
 However, families come in many shapes and sizes.
 The definition of the family also changes as social practices and traditions change. In
recognising the importance of the family, we must take care not to entrench particular
forms of the family at the expense of other forms.

WHAT IS A FAMILY AND ITS SOCIETAL FUNCTION

Wide sense–Includes all people who are blood relations or have become related through
marriage, a civil union or a marriage-like relationship

A child which consists solely of minors may conceivably also qualify as a ‘family’ in the wide
sense, even though the children in the house hold need not be related to each other

Narrow sense–The more archaic definition of family restricts the concept to spouses in a
valid marriage and their children (as well as, nowadays, the Parties to a civil union and their
children) ‘Immediate family’(spouse and children) vs. ‘extended family’(broader family)

IN TERMS OF SECTION 2 OF THE DEFINITION SECTION OF THE CHILDREN’S


ACT 38 OF 2005, THE OBJECTS OF THE ACT ARE ENUNCIATED AS FOLLOWS:

‘Objects of Act 2. The objects of this Act are:

† To promote the preservation and strengthening of families.


† To give effect to the following constitutional rights of children, namely:
 Family care or parental care or appropriate alternative care when removed from the
family environment.
 Social services.
 Protection from maltreatment, neglect, abuse or degradation; and
 That the best interest of a child is of paramount importance in every matter
concerning the child.
† To give effect to the Republic’s obligations concerning the well-being of children in
terms of international instruments binding the Republic.
† To make provision for structures, services and means for promoting and monitoring the
sound physical, psychological, intellectual, emotional and social development of children.
† To strengthen and develop community structures that can assist in providing care and
protection for children.
† To protect children from discrimination, exploitation and any other physical, emotional,
or moral harm or hazards.
† To provide care and protection to children who are in need of care and protection.
† To recognize the special needs that children with disabilities may have; and
† generally, to promote the protection, development and well-being of children.’

CHAPTER 2: PARENT AND CHILD

THE RIGHTS OF A CHILD:

 Section 28 of the constitution sets out the rights of children.


 In Government of South Africa v Grootboom, the Constitutional Court held that the primary
responsibilities for fulfilling the constitutional rights to food, shelter and care fall on the
child’s parent or other family.

THE CHILD’S BEST INTEREST [SECTION 28 (2)]

The Constitution of South Africa provides that the child’s best interests are of paramount importance
in every matter concerning the child.

 The Children’s Act has a similar standard provision stating. That ‘in all matters concerning
care the care, protection, and well-being of a child the standard that the child’s interest is of
paramount importance must be applied.
 These provisions echo the requirements of the Children’s Convention and the African Charter
on the Right and Welfare of the Child.
 Section 7 of the Children’s Act now provides a list of factors that should be considered when
applying the best interests of the child standard.

KEY LEGISLATION - CHILDREN'S ACT, SECTION 7


Best interests of child standard:

1. Whenever a provision of this Act requires the best interests of the child standard to be applied,
the following factors must be taken into consideration where relevant, namely,

a) The nature of the personal relationship between:

i) the child and the parents, or any specific parent; and


ii) the child and any other caregiver or person relevant in those circumstances.

b) The attitude of the parents, or any specific parent, towards:

i) the child; and


ii) the exercise of parental responsibilities and rights in respect of the child.
c) The capacity of the parents, or any specific parent, or of any other care-giver or person, to provide
for the needs of the child, including emotional and intellectual needs;

d) The likely effect on the child of any change in the child's circumstances, including the likely effect
on the child of any separation from:

i) both or either of the parents; or


ii) any brother or sister or other child, or any other caregiver or person, with whom the child has
been living.

e) The practical difficulty and expense of a child having contact with the parents, or any specific
parent, and whether that difficulty or expense will substantially affect the child's right to maintain
personal relations and direct contact with the parents, or any specific parent, on a regular basis;

F) The need for the child:

i) to remain in the care of his or her parent, family and extended family; and
ii) to maintain a connection with his or her family, extended family, culture or tradition.

g) The child's:

i.) age, maturity and stage of development;


ii.) gender;
iii.) background; and
iv.) any other relevant characteristics of the child;

h) The child's physical and emotional security and his or her intellectual, emotional, social and
cultural development any disability that a child may have;any chronic illness from which a child may
suffer.

k) The need for a child to be brought up within a stable family environment and, where this is not

|) Possible, in an environment resembling as closely as possible a caring family environment; the need
to protect the child from any physical or psychological harm that may be caused by:

i.) subjecting the child to maltreatment, abuse, neglect, exploitation, or degradation or


exposing
ii.) the child to violence or exploitation or other harmful behaviour; or exposing the child to
maltreatment, abuse, degradation, ill-treatment, violence or harmful behaviour towards
another person;

m) Any family violence involving the child or a family member of the child; and

n) Which action or decision would avoid or minimise further legal or administrative proceedings in
relation to the child.

THE OBJECTS OF THE CHILDREN’S ACT 38 OF 2005 INCLUDE GIVING EFFECT TO


THE CONSTITUTIONAL RIGHTS OF CHILDREN, E.G:
o “The right to family care or;
o The right to parental care or;
o The right to appropriate alternative care when removed from their family
environment.
o The right to social services.
o The right to be protected from neglect.
o The right to be protected from abuse.
o The right to be protected from degradation.
o That the best interest of the minor child is of paramount importance in every
matter concerning a child.”

WHAT DOES 'PARAMOUNT' MEAN?

Both the Constitution and the Children's Act provide that the child's best interests must be
paramount in every matter concerning the child.

The Constitutional Court has described the word 'paramount as 'emphatic, particularly when
coupled with the far-reaching phrase "in every matter concerning the child? The wording
might seem to suggest that the child's best interests must be supreme - that the child's
interests trump' the interests of anyone else involved in the matter.22

The courts have not adopted this approach. The child's best interests are not the only factor
requiring consideration, and in some circumstances other interests must be prioritised.

In S v M for example, a divorced mother of three children was found guilty of fraud and was
sentenced to a term of imprisonment. M argued that as the primary caregiver to three minor
children, they should be permitted to perform community service instead of serving a prison
term. This would be in the best interests of the children. In terms of section 28(1) of the
Constitution, children have the right to family or other care and, in terms of section
28(2) of the Constitution, the best interests of the children must be paramount.

The Constitutional Court examined the meaning of paramount. The court held that the fact
that the best interests of the child are paramount does not mean that they are absolute? or that
the direct or indirect impact of a measure or action on children must in all cases oust or
override all other considerations? The best interest’s injunction is capable of limitation in
terms of section 36 of the Constitution and must be balanced against the constitutional
rights of others.

The Constitutional Court warned that if the paramountcy principle were applied
unrealistically or spread too thin' it would risk being transformed from an effective
instrument of child protection into an empty rhetorical phrase of weak application, thereby
defeating rather than promoting the objective of section 28(2). Instead, the court should apply
the principle in a meaningful way 'without unduly obliterating other valuable and
constitutionally protected interests.

THE CHILD'S VIEWS

Many children's rights scholars regard children's autonomy rights as critically important. The
child's right to be heard is protected by article 12 of the Children's Convention and article
4(2) of the African Charter on the Rights and Welfare of the Child. The South African
Children's Act also provides all children with a 'voice. In terms of section 31 of the Act,
before a person holding parental responsibilities and rights (for example, a parent) takes any
major decision involving the child, that person 'must give due consideration to any views and
wishes expressed by the child, bearing in mind the child's age, maturity and stage of
development.
The Act provides the following list of 'major decisions' that would require consultation with
the child. These are any decisions:

i) in connection with consent to the child's marriage, adoption, departure and removal
from South Africa, application for a passport and the alienation or encumbrance of
immovable property.
ii) affecting contact between the child and a co-holder of parental responsibilities and
rights.
iii) regarding the assignment of guardianship and care in respect of the child to another
person in the event of the death of the parent; or
iv) which is likely to significantly change, or to have an adverse effect on, the child's
living conditions, education, health, personal relations with a parent or family member
or, generally, the child's well-being?"

OBITER: CHILDREN’S RIGHTS TO AUTONOMY AND THEIR RIGHTS TO AN OPEN FUTURE


Autonomy can be defined as the condition which allows everyone to determine his or her
goals or life plan. A key aspect of children’s rights concerns the rights of children to make
their own decisions about how they want to live their lives. Children’s autonomy interests
and rights must be respected.

But what happens if children want to do things that adult decision-makers do not think are
good for them? In such situations, there is potential conflict between safeguarding the best
interests of the child as objectively determined on the one hand and giving effect to the
child’s own wishes on the other hand.

Eekelaar argues that the restriction of a child's immediate autonomy interests may be justified
if these threaten that child's long-term autonomy. * Thus, the child's 'basic' and development
interests"* may need to be prioritised in order to 'bring the child to the threshold of adulthood
with the maximum opportunities to form and pursue life goals which reflect as closely as
possible an autonomous choice.

Children may not have the life-experience or psychological development required for a full
understanding of how they want to live their lives. Neither will they always have the
knowledge or cognitive ability to predict the behaviour of others and thus assess whether
their goals are achievable.

Feinberg has famously expressed this principle as 'the child's right to an open future. Feinberg
argues that children have anticipatory autonomy rights, and these are respected when
children's future options and choices are kept open, but violated when children are permitted
to take decisions or do things which will limit their future options.

But while the children's immediate wishes might need to yield to their anticipatory autonomy
interests, this does not imply that the parents or other decision-makers can simply ignore the
child's point of view. Not only should the decision-maker respect the developing autonomy of
the child, who should be afforded at least some opportunity to decide what is in their own
'best interests" but the nurturing of a potentially autonomous human being requires more than
the protection of interests, such as health and intellectual development. It also demands
'maximising opportunities for self-determination in establishing relationships and self-
identity. So thus, the decision-making process should allow children to contribute to the
outcome (although within safe boundaries that do not threaten their opportunities for making
choices once they are fully competent). Indeed, children's experience in contributing to such
decisions will enhance their ultimate autonomy by developing their capacity to formulate
goals.

The provisions in the Children's Act do not suggest that the wishes or views of children will
necessarily be decisive. They only require that when important decisions are taken that affect
the children concerned, the children are given an opportunity to express their views and their
views are given serious consideration. If children are to be treated with dignity and respect, as
demanded by the Constitution and the Children's Convention, children must be provided
opportunities to participate in the making of important decisions, bearing in mind their age,
maturity and stage of development.

2 PARENTAL RESPONSIBILITIES AND RIGHTS

A notable feature of the Children's Act is that it re-expresses the traditional concept of
parental power' as parental responsibilities and rights? Parents still have some kind of
authority over the children in their households, but the change in terminology, and the tone
and emphasis of the Act in general, makes it clear that parents have rights and powers in
order to fulfil their obligations towards the child. This shifts the focus to parental
responsibilities rather than parental power or parental rights.

In the next section we examine the four parental responsibilities and rights: guardianship,
care, contact and maintenance.

WHAT ARE PARENTAL RESPONSIBILITIES AND RIGHTS?

Chapter 3 of the Children's Act deals with parental responsibilities and rights.

Acquisition and loss of parental responsibilities and rights (ss 18-29)

18 Parental responsibilities and rights:

(1) A person may have either full or specific parental responsibilities and rights in respect of
a child.
(2) The parental responsibilities and rights that a person may have in respect of a child,
include the responsibility and the right-

1. to care for the child;

2. to maintain contact with the child;

3. to act as guardian of the child; and

4. to contribute to the maintenance of the child.

(3) Subject to subsections (4) and (5), a parent or other person who acts as guardian of a child
must-
1. administer and safeguard the child's property and property interests;

2. assist or represent the child in administrative, contractual and other legal matters; or

3. give or refuse any consent required by law in respect of the child, including-

4. consent to the child's marriage;

5. consent to the child's adoption;

6. consent to the child's departure or removal from the Republic;

7. consent to the child's application for a passport; and

8. consent to the alienation or encumbrance of any immovable

9. property of the child.

(4) Whenever more than one person has guardianship of a child, each one of them is
competent, subject to subsection (5), any other law or any order of a competent court to
the contrary, to exercise independently and without the consent of the other any right or
responsibility arising from such guardianship.

(5) Unless a competent court orders otherwise, the consent of all the persons that have
guardianship of a child is necessary in respect of matters set out in subsection (3)(c).

Section 18 lists the four parental responsibility and rights: guardianship." care," contact* and
maintenance. In order to understand the legal relationship between parent and child, it is
important to understand what is meant by these parental responsibilities and rights.

WHAT IS GUARDIANSHIP?

 Guardians deal with the administrative affairs of a child.


 The guardian must administer and safeguard the child’s property and property
interests; assist or represent the child in administrative, contractual and any other legal
matters: give or refuse consent in matters such as the child's marriage, adoption,
removal or departure from South Africa, application for a passport and the alienation
or encumbrance of any immovable property of the child.

In terms of the common law, married fathers were the sole guardians of their children.
Usually, mothers could only become guardians of their children if they were unmarried when
the baby was born, were widows, or had been awarded sole guardianship by a divorce court.
Rules like these were changed through the Guardianship Act in 1993, which provided for
joint-guardianship powers by mothers and fathers.

In terms of the Children's Act, many children will have two guardians (usually, their
biological parents are the guardians). We discuss the acquisition of guardianship in more
detail in the section of acquisition of parental responsibilities and rights below. If a child has
two or more guardians, they may act independently of each other, except for the activities
listed in section 18(3)(c). The child's biological parents are its 'natural guardians A legal
guardian is someone who has been appointed as the guardian of a child in a will or by a court.
A court takes the following factors into account when considering the assignment of
guardianship by order of court:

• the best interests of the child.

• the relationship between the applicant and the child, and any other relevant person and
the child; and

• any other factor that should, in the opinion of the court, be taken into account

WHAT DOES 'CARE' MEAN?

The Children's Act uses the word care' instead of the word custody traditionally used in
common law." The definition of 'care provided in the Act is much broader than the traditional
understanding of 'custody and more child centred.
CHILD CUSTODY IN THE COMMON LAW
The traditional common law concept of custody was defined by Lee and Honore as follows:

In terms of a parent's rights to custody of the child, a parent is, 'entitled to the physical
presence of the child and controls his daily life and education (both secular and religious);
decisions on medical care for the child, the necessary reasonable discipline and the persons
with whom the child may associate are also made by the custodian parent.

Custody was an aspect of the parental power that gave parents 'control over a minor child's
daily life, education (both religious and secular), health and association with others, as well
as the power of moderate punishment.

SECTION 1(1) OF THE CHILDREN'S ACT DEFINES 'CARE' IN RELATION TO A CHILD AS


FOLLOWS:
 Within available means, providing the child with:

i) a suitable place to live;


ii) living conditions that are conducive to the child's health, well-being and
development; and
iii) the necessary financial support;

 safeguarding and promoting the well-being of the child;

 protecting the child from maltreatment, abuse, neglect, degradation, discrimination,


exploitation and any other physical, emotional or moral harm or hazards.

 respecting, protecting, promoting and securing the fulfilment of, and guarding against
any infringement of the child's rights set out in the Bill of Rights and the principles set out
in Chapter 2 of this Act.
 guiding, directing and securing the child's education and upbringing, including religious
and cultural education and upbringing, in a manner appropriate to the child's age, maturity
and stage of development.

 guiding, advising and assisting the child in decisions to be taken by the child in a
manner appropriate to the child's age, maturity and stage of development.

 guiding the behaviour of the child in a humane manner;

 h) maintaining a sound relationship with the child; i) accommodating any special needs
the child may have; andgenerally, ensuring that the best interest of the child is the
paramount concern in all matters affecting the child.

Compare the definition of 'care in the Children's Act to the traditional common law definition
of ‘custody' provided by Lee and Honor (see the Obiter box above).

'Care' is a broader concept than 'custody.

What are the other differences between the two concepts?

What aspects of ‘custody' are missing in the definition of 'care' (if any)?

How do the two concepts differ in tone and emphasis?

Whose 'rights' or 'responsibilities' do the concepts protect?

Care has a much wider ambit than custody. It means not only providing for the child's daily
needs, such as a safe home, food, education, and love. It also includes promoting the well-
being of the child, maintaining a sound relationship with the child and, of paramount
importance, attending to the best interests of the child.

CAN PARENTS CONTROL CHILDREN'S SOCIAL INTERACTIONS?


The definitions of custody and 'parental power' refer expressly to the parents' power to decide
with whom their children may associate. The definition of care does not have a similarly
express provision. Does this mean that parents have lost their control over their children's
social life and choice of friends? Are parents now unable to forbid their children from
associating with people whom the parents believe will have a damaging impact on the child's
life?

HOW ARE THE RIGHTS OF CHILDREN TO BE SAFEGUARDED?


In Government of the Republic of South Africa and Others v Grootboom and Others 2001 (1)
SA 46 (CC) at 82 C-E, the Constitutional Court pronounced on the obligations of the State to
safeguard the rights of children (in accordance with section 28 of the Constitution, 1996) as
follows:
‘In the first place, the State must provide the legal and administrative infrastructure necessary
to ensure children are accorded the protection contemplated by section 28. This obligation
would normally be fulfilled by passing laws and creating enforcement mechanisms for the
protection against abuse, neglect or degradation, and the prevention of the other forms of
abuse mentioned in section 28’.

OTHER AIMS OF THE CHILDREN’S ACT 38 OF 2005 CAN BE SUMMARISED AS


FOLLOWS:

- “To provide partial care of children.

- To provide for early childhood development.

- To make further provisions regarding the protection of children, such as child-headed


households and to abolish corporal punishment.

- To provide for prevention and early intervention services.

- To provide for children in alternative care.

- To provide for foster care.

- To provide for child and youth care centers and drop-in centers.

- To create certain new offences relating to children.

- To facilitate consensus on who constitutes children in need of care.

- To ensure access to child services for disabled children.

- To give effect to certain rights of children as contained in the Constitution, 1996.

- To set out principles relating to the care and protection of children.

- To define parental responsibilities and rights.

- To make further provision regarding children’s courts.

- To provide for the issuing of contribution orders.

- To make new provision for the adoption of children.

- To provide for inter-country adoption.

- To give effect to the Hague Convention on Inter-Country Adoption.

- To provide for surrogate motherhood; to create certain new offences relating to children;
and

- To provide for matters connected therewith.”


CHAPTER 2

PARENTAL POWER VS. PARENTAL RESPONSIBILITY:


With regards to the shift from the ideology of parental power to one of parental
responsibilities, the Cape High Court (as it then was), in V v V 1998 (4) SA 169 (C)
expounded as follows: Parental Power vs. Parental Responsibility:

“There is no doubt that over the last number of years the emphasis in thinking in regard to
questions of relationships between parents and their children has shifted from a concept of
parental power of the parents to one of parental responsibility and children’s rights.
Children’s rights are no longer confined to the common law, but also find expression in
section 28 of the Constitution of the Republic of South Africa Act 108 of 1996, not to
mention a wide range of international conventions.”

CAN PARENTS CONTROL CHILDREN’S SOCIAL INTERACTIONS?


In Gordon v Barnard 1977 (1) SA 887 (C) the Court held that parental authority is still extant
and extensive. Respondent’s (the boyfriend) relationship with Applicant’s (the father) minor
daughter (i.e., she was below the age of 21 in 1977), was a direct challenge to the father’s
parental authority, as was the attempted abduction/absconding by the young lovers. The
Court held that Respondent’s actions amounted to an injuria (injury/damage) and the
applicant was entitled to legal relief. Respondent was interdicted from having any contact
with the minor daughter until she had reached majority. Respondent was also made to pay the
cost of the suit.

In H v I 1985 (3) SA 237 (C) the Applicant (father) of a 17-year old daughter (minor) had
been granted an interim interdict restraining the Respondent (boyfriend) from communicating
in any manner with Applicant’s daughter (with whom the Respondent had been conducting a
romantic relationship). On the extended return date, the respondent opposed the application
contending, inter alia, that there was a conflict of opinion between the Applicant and his wife
(the girl’s mother) as regards the relationship between her daughter and the man, and that the
Applicant (the girl’s father) had no authority to prevent his daughter from making her own
decisions in this regard. Earlier, a child was conceived as between the minor and Respondent,
but an abortion was obtained. The Court held that the conflict of opinion between the parents
was irrelevant, as the father’s will must prevail in the event of such parental conflict of
opinion. There was no question of the Applicant having waived his rights by condoning his
wife’s alleged conduct or opinions, the test being whether the father still exercised parental
authority over the minor or not. The Court held that ‘where the marital home is intact,
although the parents share the parental authority, the father’s will prevails should there be a
difference of opinion. Applicant had established that his daughter was developmentally
immature and that further association with Respondent was averse to her interests. The father
had not waived his rights to dictate his daughter’s choice of associates, therefore the interim
rule nisi which operated as an interdict was confirmed (made final).
In L v H 1992 (2) SA 594 (E) the Applicant was the father of an 18-year-old woman/daughter
who was pregnant at the time of suit. Respondent (also 18 years old) was the father of the
unborn baby. The Respondent was interdicted and restrained from, in any manner
whatsoever, communicating with, and/or contacting the minor daughter save through her
father or his attorney/legal practitioner. Respondent was also interdicted from assaulting the
minor and/or abducting her or aiding and abetting her to abscond from her parental home
until such time as she obtained the age of majority (at the time, 21). Respondent was also
ordered to pay the cost of the application. The Court wrestled with the issue of ‘condemning
the child to permanent illegitimacy’ (i.e. the eventuality of the child being born ‘out of
wedlock’) and that in confirming the rule nisi, the court will, in effect, prevent the marriage
as between Respondent and the minor. The Court held that the impending birth of the child
was not a consideration that should inform its decision, as the envisaged marriage would, in
all likelihood, not be a successful/permanent one.

CHASTISEMENT AND DISCIPLINE:

In Du Preez v Conradie 1990 (4) SA 46 (B) the Court had to grapple with the issue of
chastisement and discipline: Applicant (biological father) and Second Respondent (biological
mother) were husband and wife, but then divorced. First Respondent (stepfather) and Second
Respondent then married. Applicant brought suit after children reported violent
chastisement/assaults to him via phone. The Court confirmed that it is the upper guardian of
all minors. It affirmed the erstwhile right at common law of parents to delegate their parental
right to chastisement to other persons in loco parentis (in the place of the parents) during a
temporary absence (e.g. teachers etc.). A custodian parent has the right to chastise minor
children, but such chastisement must be moderate and reasonable and includes the right to
impose moderate and reasonable corporal punishment. The Court held that both the mother
and stepfather could exercise rights of chastisement and discipline, the latter doing so by
virtue of delegation of the (biological) mother’s rights. The court noted that none of the
parents/stepparents shall molest the children or exceed the bounds of moderate and
reasonable chastisement in the disciplining and correction of children.

THE CONSTITUTIONAL DUTY TO SUPPORT CHILDREN:

In Mentz v Simpson 1990 (4) SA 455 (A) the Appellate Division (as it then was) varied the
order of the Court a quo (the first court hearing the matter) in respect of the maintenance
payable by the biological father. Proof of expenses is required in such cases and cannot
merely be estimated. Accordingly, the quantum of the maintenance payments was reduced by
the court.

In Lamb v Sack 1974 (2) SA 670 (T) the Court held that the general principle is that the duty
of supporting a child is a duty common to both parents, according to their respective means
and it makes no difference whether such child is born in, or out of, wedlock.
There is no valid reason why the ordinary rule that the burden of support resting on both
parents jointly (which is distributable inter se (between them) according to their respective
means and income), should not also apply in respect of the natural parents of illegitimate
children.

This approach is in accordance with the principles of our law on the subject, and it is also
consistent with the benevolent attitude of our modern society to the so-called ‘illegitimate
child’ (Cronje & Heaton, 2016).

CONSIDER THE FOLLOWING CONCEPTIONS AS REGARDS THE BEST


INTEREST OF THE CHILD STANDARD:
1. Article 3 of the United Nations Convention on the Rights of the Child (UNCRC)
provides as follows:

‘In all actions concerning children, whether undertaken by public or private social welfare
institutions, courts of law, administrative authorities or legislative bodies, the best interests of
the child shall be a primary consideration.’

2. Article 4 of the African Charter on the Rights and Welfare of the Child (ACRWC) is
worded as follows:

‘In all actions concerning the child undertaken by any person or authority the best interests of
the child shall be the primary consideration.’=

3. Section 28(2) of the Constitution of the Republic of South Africa, 1996 states the
following:

‘A child’s best interests are of paramount importance in every matter concerning the child.’

CASE-LAW

In Fraser v Naude 1999 (1) SA 1 (CC) the then prevailing adoption law was challenged.
Section 18(4)(d) of the Child Care Act 74 of 1983 did not require the unmarried father to
consent to the adoption of his child. The Constitutional Court held that this section was
invalid as it discriminated between fathers and mothers, and between married and unmarried
fathers (Skelton and Carnelley, 2011).

In Minister of Welfare and Population Development v Fitzpatrick 2000 (3) SA 422 (CC), the
Constitutional Court held that section 18(4)(f) of the Child Care Act 74 of 1983 was
unconstitutional because it did not allow foreigners to adopt, when the adoption was in the
best interest of the child.

In the matter of Du Toit v Minister for Welfare and Population Development 2003 SA 198
(CC), the Constitutional Court declared section 17 of the Child Care Act 74 of 1983
unconstitutional finding that it constituted unfair discrimination on the basis of marital status,
culture and religion, as well as the best interests of the child. In this case, a same-sex couple
wanted to adopt jointly. The law at that time only allowed one of them to adopt as a single
parent (Skelton and Carnelley, 2011).

Take note of the following:

ADOPTION, ARTIFICIAL FETILISATION AND SORROGATE


MOTHERHOOD

 Adoption is a regulated by Chapter 15 of the Children’s Act.


 A child is adopted if the child has been placed in the permanent care of the adopted parent in
terms of a court adoption order.
 The children’s act has a child centered approach to adoption.
 The purposes of adoption sit out in the act referred to the needs of children and not to the
needs of childless couples or single people who went to build a family.
 In terms of the act the purpose of adoption is:
a) To protect and nurture children by giving them a safe healthy environment with a
positive support and
b) To promote the goals of permanency by connecting the adopted child to other safe
and nurturing family relationships which are intended to last a lifetime.

Section 230 (3)(e) is widely worded and could over a range of circumstances for example the situation
where a young girl has a baby and is unable to take care of it because her social and economic
circumstances.

Section 230 (30 did not expressly cater for families where the spouse and partner or a biological
parent wished to adopt the child as a coparent for example if a widows new life partner wish to
become her children’s adoptive parents so that he can be their legal father. This was a deficiency in
the act.

In Center for Law v Minister of Social Development the High Court gave a declaratory order that
correct this deficiency by allowing stepparents and parent adoptions. The court held that a stepchild
could conceivably be regarded as abandoned and therefore adoptable where:

1. A non-custodian parent has consented to an adoption of his or her child.


2. Whether the child, for no apparent reason has had no contact with the parent guardian
caregiver for a period of at least three months. Section 230 (3) has now been amended by the
intersection of subsection (f), which expressly caters for adoption by a step-parent.

An adoption social worker must make an assessment to determine whether a child does adaptable in
terms of section 230 (3).

Any child who is adaptable in terms of section 230 (3) may be adopted if the adoption is in the best
interest of the child and the provisions of the childcare act are complied with.

WHEN MAY A CHILD BE ADOPTED?


In terms of section 230 of the Children’s Act 38 of 2005 a child may be adopted in the
following circumstances:

“A child may be adopted only if:

1. The adoption is in his or her best interests.


2. The party complies with Chapter 15 of the Act.

3. The child is adoptable.”

A social worker must make an assessment to determine whether a child is adoptable.

WHEN IS A CHILD ADOPTABLE?


In terms of section 230(3) of the Act a child is adoptable if:

(a) The child is an orphan and has no guardian or caregiver who is willing to adopt the child.

(b) The whereabouts of the child’s parent or guardian cannot be established.

(c) The child has been abandoned.

(d) The child’s parent or guardian has abused or deliberately neglected the child, or has
allowed the child to be abused or deliberately neglected; or

(e) The child is in need of a permanent alternative placement (where parents decide to
voluntarily give up their child for adoption).”

Remember: Stepparents may also adopt a child, provided that the child’s other parent has
consented to the adoption, or such consent is not required. Children in foster care (with
relatives or elsewhere) are not available for adoption (Skelton and Carnelley, 2011).
WHO MUST CONSENT TO THE ADOPTION
In terms of section 233 (1) a child may only be adopted if the following people give their consent:

a) Each parent of the child regardless of whether the parents are married or not provided that if
the parent is a child that parent is assisted by their guardian.
b) Any other person who holds guardianship and respect of the child
c) The child of the child is 10 years of age or older or under the age of 10 years but is of an age
maturity and state of development to understand the implications of consenting to their
adoption.

Any of these people may also withdraw their consent within 60 days of having signed the consent
once they do this their consent is final parents may experience internal conflict about whether to put
their child up for adoption. That is for this reason that the children’s act makes provisions for a social
worker to counsel the parents of the child on the decision to make the child available for adoption.
The social worker must also counsel the child where applicable.

GATHERING INFORMATION ABOUT THE REQUIRED CONSENT AND GIVING


NOTICE OF THE PROPOSED ADOPTION
In terms of section 237 once a child becomes available for adoption the clerk of the children’s court
must gather information for the proposed adoption. The clerk has to locate all persons whose consent
is required and must establish their names and addresses. The clerk of the court may call upon
assistance of the director general of home affairs to assist information contained in the registration of
the child and may gather information from the social worker involved in the adoption.

What’s all this information has been gathered the presiding officer of the children’s court must with a
delay caused the sheriff to serve notice on each person who consent is required. The notice must
inform the person who is consent sought of the proposed adoption of the child. The notice must also
request that the person to either give their consent or expressly withhold their consent. If the person
concerned is the biological father of the child who is not married to the mother, the notice must
request the biological father to consent or expressly with consent or apply to adopt the child
themselves. If a person fails to comply to the notice serve on them within 30 days that person must be
regarded as having consented to the adoption.

WHAT IS A FREEING ORDER?


In certain cases, a child protection organisation or a provincial Department of Social
Development can apply to the court for a so-called ‘freeing order’, i.e., an order freeing a
parent or person whose consent to the adoption would otherwise be required (Cronje and
Heaton, 2010).

Free orders divest or free biological parents or other guardians from parental responsibilities
and write in respect of the child pending adoption. This includes responsibilities of
guardianship such as given consent to medical treatment. Free orders also relief a parent or a
garden from the duty to contribute towards the maintenance of the child pending the adoption
unless the court orders otherwise. The free order must authorize a child protection
organisation or a person to exercise parental responsibilities and writes in respect to the child
painting the adoption free order lapses:

a) If the child has not been adopted within a period of 12 months and there is no
reasonable prospect that the child will be adopted.
b) If the order is terminated by the court because it is no longer in the best interest of a
child
c) If the child parent or person who consented to the adoption withdrawals, they are
consent.

WHO MAY ADOPT?


Section 231(1) of the Children’s Act 38 of 2005 notes the following in terms of categories of
persons who may adopt: e.g., single, divorced, or widowed people may adopt.

Married couples, or those living in permanent domestic life partnerships, whether opposite-
sex or same-sex may adopt. Even people who are not couples, but who share a common
household (permanent family unit), may adopt (e.g. siblings, friends living in the same
household on a permanent basis).

S 231(1) Children’s Act

 Jointly by husband and wife / domestic partners / persons sharing a household

 Widow / divorced / unmarried person

 Married person / person in a domestic relationship whose

spouse / partner is a parent to that child

 Biological father of a child born out of wedlock

 Foster parent
Criteria prospective parent must meet (s 231 (2)(a)):
• Fit and proper to be trusted with full PR&R
• Willing and able to undertake PR&R until the child is 18 years

• Properly assessed by the social worker (will look at finances and cultural differences
between the child and the “parent”)

WHAT CHARACTERISTICS MUST A PROSPECTIVE ADOPTIVE PARENT POSSESS

A PROSPECTIVE ADOPTIVE PARENT MUST, ACCORDING TO SECTION 231(2)


OF THE CHILDREN’S ACT 38 OF 2005 BE:
“(a) Fit and proper person to be entrusted with full parental responsibilities and rights in
respect of the child.

(b) Willing and able to undertake, exercise and maintain those responsibilities and rights.

(c) Over the age of 18 years; and

(d) Properly assessed by an adoption social worker for compliance with paragraphs (a) and
(b).”

ENGAGEMENTS

WHAT IS AN ENGAGEMENT?

Engagements in SA are governed by the COMMON LAW

 An engagement is NOT a prerequisite for marriage.

 An engagement is based on OFFER & ACCEPTANCE (CONTRACT).

 Contract for a man and a woman (common law) to get married on a certain date

 Are there any formalities attached to a contract of engagement?

Parties do not have to be in each other’s presence. Doesn’t have to be written.

REQUIREMENTS FOR AN ENGAGEMENT:


 Capacity:

o Both parties must have legal capacity to get engaged.


o Does a minor have the capacity to enter into a valid engagement?
o Can a mentally ill person enter into a valid engagement? No

 Consent:

o Both parties must of their own free will consent to the engagement.
 Lawfulness:
o Both parties must be unmarried- if not then it is a contra bones mores
o [incest]
 Possibility of performance:
o At the time of engagement parties must be able to get married.
o Can’t be related within the prohibited degrees of relationship.
o Must be above the age of puberty.
o Must be to get married on specific date / within reasonable time

THE FOLLOWING CONDITIONS MAY RENDER A CONSENSUAL


ENGAGEMENT VOIDABLE:
1. Mistake (A mistake as to the identity of the person you are getting engaged to can
render the engagement void)

2. Misrepresentation (E.g. failing to reveal or concealing certain personal qualities such


as impotence, sterility etc.)

3. Duress and undue influence (both are grounds for terminating an engagement)

4. Lawfulness (No one can become engaged to someone if they are already married to
someone else, see the crime of bigamy)

5. Termination of the engagement (may constitute breach of promise, the Supreme Court
of Appeal has given guidance in this regard, see below)
MATERIAL MISTAKE:
 What is a material mistake?

 What are the consequences of a material mistake? (voidable)

 Error in persona –the woman or man for instance thinks he or she is marry x while she is
actually marrying y. This means that there is a case of mistaken identity regarding the person
to whom a party becomes engaged to.

 Error in negotio–misunderstanding action or agreement –thinks it is a christening instead of


an engagement.

MISREPRESENTATION
 Misrepresentation renders a contract of engagement VOIDABLE at the discretion of the
innocent party.

 Material misrepresentation:

 What is material misrepresentation? X told A he was a multi billionaire and this lead her to
agree to marry him.

 Misrepresentation can also mean failure to remove a certain misconception X let A believe he
was rich.

RELATIONSHIPS PROHIBITED
 Consanguinity (blood relationship)
collateral line –your brothers ,sisters, nephews ,nieces & cousins

 Affinity

relationship that comes into place by marriage & blood relations of spouses (relationship by marriage)

 Ascendants

your grandparents, your parents

 Descendants

your children, your grandchildren

 Direct Line: relations by ascendance or decent i.e. grandparents-grandchildren

 Collateral line: opposite of direct line. Brother, sisters, cousins, aunts etc

WHEN CAN AN ENGAGEMENT BE TERMINATED?


1. By marriage
2. By the death of either party
3. By mutual agreement
4. By the withdrawal of parental consent when the party is a minor
5. Unilateral and justified termination based on sound reasons (iusta
causa)
6. Breach of promise

A just cause is a fact or occurrence which comes about after the engagement has been entered
into which will seriously jeopardise the chances of a happy and lasting marriage. A just cause
can range from unfaithfulness to an unwillingness or lack of desire to marry. When
terminating an engagement, one has to distinguish between claims for prospective losses and
those for actual losses (Cronje and Heaton, 2010).

BREACH OF PROMISE:
Two courses of action may follow:

1. The ‘innocent’ party may claim sentimental damages (delictual action). In this case, the
manner in which the engagement was terminated is of importance.

2. The engagement may be cancelled without financial consequences if there is a just cause
(justa causa) for the termination.

o A breach of promise is a withdrawal from the engagement without a iusta causa.

For example :

 Cheating-
 Mistreating-
 getting married to someone else-
 delaying the wedding,
 breaking of the engagement without a valid reason-
 If the person gets cold feet and decides that they do not love their partner anymore or
fall in love with someone else or just decide that they do not want to get married okay
don’t want to marry their fiancée or fiancé.

 What are the consequences of breach of promise? Breach of contract (voidable) /


delict (damages – actio iniuriarum or actio legis aquiliae) can’t claim specific
performance as they did under RD law.

 The innocent party is allowed to withdraw from the engagement if the other party
commits breach of promise. voidable

 general rule is that damages for patrimonial loss are calculated on the basis of positive
interest. This means that the innocent party is entitled to damages which would place
him or her in the position he or she would have been in had the contract been
fulfilled.

CONSIDER THE FOLLOWING:


Damages for breach of contract of engagement:

For many years, South African courts treated the damages claimed for breach of engagement
as some kind of ‘composite claim’ that had contractual and delictual components.
See Guggenheim v Rosenbaum 1961 (4) SA 21 (W). The Witwatersrand local division (of the
High Court) held that the contractual and delictual elements of the claim should be clearly
distinguished. This has been the practice of South African courts in recent years (Skelton and
Carnelley, 2011).

BREACH OF PROMISE TO MARRY GIVES RISE TO TWO DISTINCT CAUSES OF


ACTION:
1. A breach of contract

2. The actio iniuriarum


WHAT IS THE ACTIO INIURIARUM?
 A remedy used to claim compensation (satisfaction) for non-patrimonial loss (a loss
not involving money), caused by the intentional infringement of personality interests
(Cronje and Heaton, 2016).
 The purpose of the actio iniuriarium is to protect a plaintiff against wrongful and
intentional infringements of their personality interests, which include the right
to corpus (bodily integrity), dignitas (dignity) and fama (reputation). It protects
against injury (iniuria) to your person (sentimental damages).

In the case of Van Jaarsveld v Bridges (344/09) [2010] ZASCA 76 the court held that a party
cannot successfully institute a claim for prospective losses (future losses) on the basis of a
breach of promise to marry, because, according to the court, an engagement is not an ordinary
contract in the context of contractual damages and should thus be treated differently (Skelton
and Carnelley, 2011). An aggrieved party may therefore not institute a claim for damages
placing him/her in the position he/she would have been in had the marriage been concluded
(Skelton and Carnelley, 2011). Harms DP (deputy judge president of the SCA, as he then
was), was of the opinion that the traditional views on engagements are “outdated and do not
recognise the mores of our time’ and that ‘public policy considerations require the courts to
reassess the law relating to breach of promise” [at para 3].
CALCULATION OF DAMAGES
 The infringed party can claim for:

1.Expenses already incurred (position you would be in had there been no engagement) wedding venue
deposit, expenses relating to the sale of your house to move into the matrimonial home, etc

2.Future loss (Position you would have been in if marriage occurred) house, car, joint estate?

RETURN OF THE ENGAGEMENT GIFTS:


It is customary, though not legally necessary, that engaged parties exchange various types of
gifts at the commencement of and during the subsistence of the engagement (Cronje and
Heaton, 2010). These are traditionally grouped into three categories = Sponsalitiae largitas,
arrhae sponsalitiae (gifts that reflect the serious intention of the giver to marry the recipient)
and other inconsequential gifts or small tokens of affection.

If the causa (reason/cause) for the engagement gifts ceases to exist (i.e., if the engagement is
called off) = Common law provisions will settle the matter.

There is no legislation dealing with the proprietary aspects of engagements. If the


engagement is terminated by mutual agreement or justa causa/iusta causa, then all gifts
except small tokens of affection should be returned by both parties.

 If parties mutually agree to terminate engagement or due to iusta causa, all gifts
including rings must be returned by both parties. Gifts already used up need not be
(consumables).

 Breach of promise–the innocent party is entitled to the sponsalitiae and arrhae


sponsalitiae (gifts made to show seriousness of the promise to marry–engagement
ring)he or she gave to the guilty party.

 Small unconditional gifts may be retained by the guilty party.

 The innocent party may retain the arrhae sponsalitiae and the sponsalitiae largitas
(small gifts made with view of marriage i.e. appliances for the new house) he or she
received. If the innocent party claims damages the value of the gifts retained must be
set off against claim for damages.

SATISFACTION FOR PERSONALITY DAMAGES – NON-PATRIMONIAL DAMAGES

 Examples include: Injury to honour / dignity / reputation / good name (personality


rights).
 Requires: Iniuria AND animus iniurandi

 Action used to claim damages : Actio iniuriarum

 Amount: In the court’s discretion.

 Gugenheim v Rosenbaum – Guy denied engagement = iniuria

CASELAW

SCHNAAR V JANSEN
◊ Breach of promise to marry–iusta causa.

◊ The plaintiff was engaged to the defendant. After they got engaged the defendant discovered
that one of the plaintiff’s uncles had a black wife, that another had been hanged for his wife’s
murder and that her brother had been convicted of house breaking and theft.

◊ The defendant there upon repudiated the engagement. The plaintiff sued him for breach of
promise. The defendant admitted to breach of promise but averred that the abovementioned
circumstances rendered it impossible for him to comply with his promise to marry the
plaintiff and that repudiation was justified.

◊ The plaintiff accepted to the defendant’s plea and the exception was allowed as was the claim.

◊ The court held that these circumstances did not justify unilateral repudiation of the
engagement. Judge President Dove-Wilson said “if a man engages himself to a woman
without having satisfied himself as to her relatives he takes the risk of their being
unsatisfactory” Some authors accept this decision whilst some do not.

◊ This judgment should not be followed. A party who, on reasonable grounds, foresees the
eventual failure of the Marriage before even entering it, should not feel obliged to enter into
the Marriage in order to avoid claim for breach of promise.

WHAT ARE THE REQUIREMENTS FOR A VALID CIVIL MARRIAGE?

Capacity: The parties must have the legal capacity to marry each other. Note that some
persons have no capacity to act, while others have only a limited capacity to act (e.g.
minority, prodigality, mental illness etc.);

Consensus: The parties must consent to marry each other. There must be an agreement
between the parties to enter into a civil marriage with each other.

Formalities: The wedding must conform to the prescribed formalities (e.g., statutory or
common law provisions).

Lawfulness: The marriage must be lawful, i.e., it must be legal for the parties to marry (e.g.,
the absence of bigamy on the part of any party). Please note: A child cannot marry the person
who adopted them; People who are too closely related to each other cannot marry; A
guardian and his/her ward (a minor under guardianship) cannot marry unless the High Court
consents to such a marriage; The Mixed Marriages Act 55 of 1949 has now been repealed,
rendering interracial marriages legal.

Prohibitions – Who may not marry?

1. Blood relatives in the direct line (you can never marry your ascendants or
descendants)

2. Blood relatives in the collateral line may not marry if either of them is related to their
common ancestor within the first degree or generation (e.g. you cannot marry your brother,
sister, their children, their grandchildren because they all have a common ancestor)

3. Persons related to each other by affinity in the direct line may not marry (e.g., you
cannot marry an ex-spouse’s relatives in the direct line)

4. Persons related to each other by affinity in the collateral line are allowed to marry
(e.g., ex-spouse’s brother, sister, brother-in-law, sister-in-law, cousin, niece, nephew etc.)

What is the effect of prodigality, mental illness, placement under curatorship due to a
disability, chronic illness and minority on a person’s capacity to enter into a civil marriage?

Declared prodigals can enter into a civil marriage without the curator’s consent (Cronje and
Heaton, 2016). Mentally ill persons can only enter into a civil marriage during a lucid interval
(lucidum intervallum) (Skelton and Carnelley, 2011). Persons under curatorship due to a
disability or chronic illness can enter into a civil marriage without the curator’s consent
(Cronje and Heaton, 2010). Minors can only enter into a civil marriage with the consent of
their parents/legal guardians or the consent of a presiding officer of a children’s court.

CASE LAW

In the case of Ex Parte Dow 1987 (3) SA 829, the court held that prescribed formalities
should be complied with wherever possible, but that a marriage contracted in a garden is
valid. The applicant applied for an order declaring his marriage void because the wedding
had taken place in conflict with section 29(2) of the Marriage Act 25 of 1961, i.e. in the front
garden of a dwelling house and not inside the house. Section 29(2) provides that a marriage
should be solemnised in a church, or other building used for religious services, or in a public
place or private dwelling house with open doors and in the presence of the parties themselves
along with at least two competent witnesses. The purpose of this prescription is to avoid
clandestine marriages. This decision is to be welcomed since only a material defect ought to
render a marriage void ab initio (i.e. from the start/onset).

REQUIREMENTS FOR CIVIL MARRIAGES

CIVIL MARRIAGE?
A civil marriage is a marriage in terms of the Marriages Act or the Civil Union Act.

◊ Marriage was traditionally defined as the legally recognised voluntary union for life of one
man and one woman to the exclusion of all others.
◊ Civil marriages are now permitted between same six couples and that civil marriage must be
redefined as the legally recognised voluntary union for life of two people to the exclusion of
all others.
◊ This form of marriage is based on the traditional common law marriage discussed by the old
Roman authorities such as Grotuis and Voet.
◊ Many of the traditional rules of the common law marriage remain in the modern law of civil
marriage for example rules about spousal support and cohabitation.
◊ However several traditional rules of common law marriage have been abolished or have been
substantially changed.
◊ Modern civil marriages is so highly regulated by statutes for example the Matrimonial Act
and the Divorce Act that is more accurate to use the term civil marriage rather than common
law marriage to describe marriages of this type.
◊ The term ‘civil marriage’ is often used to distinguish this form of marriage from customer law
marriage or from religious marriage.

REQUIREMENTS FOR CIVIL MARRIAGE

CAPACITY:
 the parties must have the capacity to marry each other
 Both parties must have capacity to act in order to enter into a valid civil marriage.
 Absolute capacity capacity to get married
 Relative capacity capacity to marry each other
 There are various factors that either make a person total incapable of getting married or in
need of consent to do so:
 Mentally ill persons
 Minors (Age)
 Insolvents and Prodigals
 Persons placed under curatorship because they are incapable of managing their own affairs

MENTAL ILLNESS
† Absolute capacity - A mentally ill person has no capacity to act –same as an infant.

† Marriage will be void ab initio

† When is a person deemed mentally ill according to the law? They are unable to understand
the legal consequences of their actions or perform acts as a result of their illness (delusions)

† Exception  lucid intervals

† In Pienaar v Pienaar’s Curator 1930 OPD 171 it was found that a person who because of
some mental defect has been declared incapable of managing his or her own affairs may
marry if capable of understanding the nature of the marriage contract and the responsibilities
it creates.

† Alcohol? Can’t have a lawful marriage if you were too drunk at the time of marriage to
appreciate the nature and consequences of the marriage

MINORS
† Absolute capacity –
† For a minor to get married, he or she must have reached puberty (girls =12, boys =14)

† Minors have limited capacity to act.

† They need consent / permission.

† Who can / must give consent to the civil marriage of a minor? Minister of home Affairs &
Guardians (for girls under 15 and boys under 18)

† What is the effect of absence of necessary consent? VOIDABLE (parents can declare void
within 6 weeks of finding out about the marriage & before majority)

† Can obtain Minister consent afterwards (ratify)

† Minor may also apply to have the marriage annulled (until 3 months after their 18 th birthday)

† Effect of marriage on status??

INSOLVENT PERSONS AND PRODIGALS


† Absolute capacity

† Insolvent – what is it?

† A trustee is appointed over an insolvent estate.

† Prodigal – what is it?

† A curator is appointed over a prodigal’s estate.

† 1. Capacity to act –persons placed under curatorship because they are incapable of managing
their own affairs – not personal affairs

† Pienaar v Pienaar’s curator

“The mere fact that such a person has been declared insane or incapable of managing his affairs, and
that a curator is appointed to such person, does not deprive him of the right of administering his own
property and entering into contracts and other legal dispositions to the extent of which he may de
facto be capable, mentally and physically, of so doing. Such mental or physical capacity may vary
from day to day, but at all times it remains a question of fact. The object of appointing a curator is
merely to assist the person in question in performing legal acts to the extent of which such assistance
is from day to day, in varying degrees, necessary. Thus even a person who has been declared insane
and to whose estate a curator has been appointed can dispose of his property and enter into contract
whenever he is mentally capable of doing so.”

PIENAAR V PIENAAR’S CURATOR


† Authority: Pienaar v Pienaar’s Curator 1930 OPD 171.

† It is a question of fact whether the mentally ill person is experiencing a lucid interval.

† Acts of too personal a nature cannot be performed by a curator.

Curator cannot do the following on behalf of the mentally ill person:

† Exercise parental rights & responsibilities.

† Institute divorce proceedings


† Make a will

Appointment of a curator ad litem precedes the appointment of a curator bonis.

† Curator ad litem must represent the mentally ill person in legal proceedings.

CONSENSUS:
 the parties must consent to marry each other

 At the moment of concluding a civil marriage, both parties must have the intention to enter
into a civil marriage with each other. (informed consent)

 Problems in connection with agreement arise when both parties declare their agreement at the
wedding, but it subsequently transpires that genuine agreement was absent, or there was a
defect regarding the agreement:

 1.Mistake

 2.Misrepresentation

 3.Duress

 4.Undue influence

UNDUE INFLUENCE AND DURESS


o Can have the marriage annulled if the innocent party can prove (a) fear was sufficient to
invalidate consent (b) the fear was reasonable (c) the fear arose from circumstances that the
party was not in control of.

Smith v Smith:

o Bride coerced to such an extent by her father & prospective husband that she appeared dazed
& lacked the will of her own during the wedding.

o The court concluded that the duress rendered the marriage voidable & therefore set marriage
aside.

o Undue influence also renders a marriage voidable.

They cannot be voluntary consent to marriage if a party is forced into the marriage through
intimidation or duress. The intimidation or duress can take the form of physical violence or threat of
physical violence as well as other forms of intimidation. The coerced party can have the marriage
annulled if they can show that:

1. The fear was sufficiently serious to invalidate consent


2. The fear was reasonable
3. The fear arose from circumstances for which this party was not reasonable.

MATERIAL MISTAKE OR FRAUD


† Voidable

† Error in persona / error in negotio

† Mistakes relating to the person = hard to prove given that they both need to be at the wedding
† Mistakes relating to the person can only mean mistakes RE their identity and not their looks /
wealth / age /religion unless misrepresentation is present.

† Martens v Martens “sham” marriage was declared lawful because although their reasons were
immoral, they did intend for the legal consequences of a marriage

A marriage will be voidable if one or both spouses has made a material mistake. It is a requirement
for a valid marriage that the spouses give voluntary consent to marry and marry each other. Mistakes
on either of these issues are deemed material mistake.

FORMALITIES:
 the wedding must conform to the prescribed formalities

A MARRIAGE MUST BE UNDERTAKEN IN A PUBLIC AND FORMAL WAY


The Marriage Act sets out the prescribed formalities for a civil marriage:

1.MARRIAGE OFFICER
A marriage may only be solemnised by a registered officer.

 It is a crime to act as a marriage officer if you are not registered as one.

 All magistrates, special judges of peace and commissioners of oath can act as a marriage
officer.

 The Civil Union Act also states that certain religious officials (in any recognised religion)
may be appointed as marriage officials due to their position in the religion and their level of
responsibility

A marriage conduct by someone who is not a registered marriage officer is void

2.FORMALITIES PRECEDING CEREMONY


 Objections – made to the prescribed officer who will investigate if there are any lawful
restrictions on why the marriage can’t take place (one party is married already)

 Marriage can take place at any time between 8am and 4pm (outdated)

 Section 29(2) of Marriage Act: A marriage must take place in a church/ religious building/
public office/ private house, with open doors and two competent witnesses.

 A marriage will be void if it doesn’t comply with section 29(2).

 1. Marriage must be strictly solemnized by a marriage officer -if not marriage void

 2. Parties should provide ID or prescribed affidavits

 3. Parties must be present.

 4. Two competent witnesses must be present.

 5. No proxy

 Parties & officer & witnesses must sign the marriage register
3.FORMALITIES DURING CEREMONY
 The marriage must be solemnised by a duly appointed marriage officer.
 Each party must produce an identity document or an affidavit in the prescribed form.
 A minor must produce written consent of his or her parent(s) or guardian.
 A marriage must be conducted in the presence of at least two witnesses

4.REGISTRATION OF CIVIL MARRIAGE

CASELAW

EX PARTE DOW
 Applicant applied for an order declaring this marriage null & void because the wedding had
taken place, in conflict with section 29(2) of the Marriage Act -Formalities of the marriage
not complied with.

 Instead of marrying inside the house, they married outside in the garden.

Court dismissed application on the basis that it was not a material defect

CHAPTER 6: VOID, VOIDABLE AND PUTATIVE MARRIAGES

WHAT IS 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
(Cronje and Heaton, 2016).

 A voidable marriage is valid for all purposes unless the court grants a decree of nullity
on the grounds of a defect which already existed at the time of the marriage
ceremony.

 Marriage suffers from a defect (not critical).

 One / both parties can apply to court to have the marriage annulled.

WHAT ARE THE GROUNDS ON WHICH A VOIDABLE CIVIL MARRIAGE


CAN BE SET ASIDE?

Any 3 of the following:

• Duress
• Impotence
• Material mistake
• Stuprum (i.e. impregnated by another prior to the marriage)
• Concealing sterility, or other serious misrepresentation about a
personal characteristic, Undue Influence
• Minority
HOW DOES A VOID MARRIAGE DIFFER FROM A VOIDABLE MARRIAGE?

A void marriage is a civil marriage that never came into existence. The position is thus
exactly as it would have been before the marriage had been concluded.

A voidable marriage is defined as a marriage that can be set aside by the court on the basis of
grounds that are present before the wedding or after (Skelton and Carnelley, 2011).

A voidable marriage is not a marriage at all.

A marriage which is null and void ab initio is not a marriage at all, in principal none of
the legal consequences of marriage attach to it. [Willie’s Principals]

A void marriage is one which has never come into existence in the eyes of the law. It is as if
the parties had never entered into a marriage.

A void marriage is always void, regardless of the whether the courts makes a declaration to
this effect.

However, for the sake of legal certainty an application can be made for a declaration of
nullity is made to the courts.

The court merely confirms the existing state of home affairs by making a declaration order.

Th courts have no discretionary power to declare a marriage void. However the general rule
that a void marriage cannot be made valid is subject to certain statutory qualifications

EXAMPLE:
If a minor marries without the required consent of a parent or legal guardian and also the
minister of home affairs, the marriage is void.

However the terms of the Marriage Act, the Minister may grant the permission
retrospectively, with the effect that the marriage becomes valid.

LEGAL CONSEQUENCES OF A VOID MARRIAGE


A void marriage has no existence it is as if the ‘couple’ had never married . As a result none
of the usual legal consequences of civil marriage will arise.

Each of the parties retain their legal status as an unmarried person.

However the general rule that void marriages have none of the consequences of civil
marriages must be qualified by the common law rules concerning putative marriages

 No legal consequences, because marriage never came into existence.

 Courts have no discretionary power to declare marriage void.

 Court may give declaratory order for clarity.

GROUNDS TO NULLITY OF MARRIAGE


The grounds in which a marriage is deemed void are based on the requirements of a civil
marriage.
A marriage is declared void if the parties to the marriage do not have the capacity to marry
[ absolute capacity to marry] or do not have the capacity to marry each other [ relative
capacity to marry]

EXAMPLE:
One of the parties to the marriage:

a. Is below the age of puberty


b. Was mentally ill or mentally disabled at the time of the wedding
c. Is already married [ either in terms of a civil marriage or customary marriage ]
or is in a civil partnership in terms of the civil union act.
d. The parties are related to each other within the prohibited degrees of
relationship.

A marriage will also be considered void if it does not comply with important formal
requirements for the conclusion of a civil marriage as set out in the Marriages Act or Civil
Union Act.

EXAMPLES OF NON- COMPLIANCE WITH REQUIREMENTS THAT RENDERED A


MARRIAGE VOID ARE:
a. The marriage was not solemnised by someone who is not a competent marriage
officer.
b. The marriage was not solemnised in the presence of two competent witnesses.

EXAMPLE:
Lee and Honoré have suggested that a marriage should be void on the grounds of non-
compliance with formalities wear some material formality has not been complied with here
they give example the personal presence of both the parties to the marriage at the wedding
ceremony and the participation of the state and the community (for example a competent
marriage officer and the presence of two witnesses). They suggest that other formalities in the
marriage act (and now also in the civil union act) are less important and are merely aimed to
ensuring a suitable ceremonious atmosphere for example the place of solemnisation the
giving of the right hand should be regarded as immaterial.

This is some of the formal requirements are so important that non-compliance will render the
marriage void for example if there are no witnesses to the marriage ceremony however some
of the formal requirements are less critical and do not affect the validity of the marriage for
example the garden wedding in Ex parted Dow.

VOIDABLE MARRIAGES

A voidable marriage is a marriage unlike a void marriage

A voidable marriage is valid for all purposes unless and until the court grants a decree of
nullity on the grounds of a defect which already existed at the time of the marriage ceremony.
A void marriage on one hand suffers from a critical defect that is so serious that the marriage
does not come into existence whereas on the other hand a voidable marriage suffered from
some less important defect that at the time it was entered into; the defect is not critical
enough to render the marriage void however because of the defect one or both parties can
apply to the court to have the marriage annulled [set aside].

Until the marriage is annulled, a voidable marriage continues as a valid marriage and has all
the usual consequences of a valid civil marriage of the marriage is not set aside it continues
as a valid marriage with all the unusual legal consequences of civil marriages.

CONSEQUENCES OF A VOIDABLE MARRIAGE


 A voidable marriage is a valid marriage in all respects until it is set aside by the court.
 If neither of the parties apply to the court for an annulment the marriage will remain
in force and will have all the legal consequences of a civil marriage.
 For example if one of the spouses does instate the other spouse will be able to inherit
instate.
 If the parties do not have an anti-natural contract the marriage is deemed to be in
community of property.
 If and when the “issues a decree of an element the marriage is cancelled.
 The decree of annulment is retroactive.
 As far as the parties are concerned the legal position is as if the marriage has never
taken place.
 The parties are put back in the same position as they would have been if the marriage
had not existed [for example even if the voidable marriage was treated as in
community of property marriage during the existence these economic consequences
of marriage avoided and the parties are returned to the same financial position that
they would have been in if they had never married.
 There is no sharing of material property.
 However the rights of third parties who entered into legal transactions with the parties
to a voidable marriage are protected.
As put by Hahlo where a transaction has been completed before the annulment of the
marriage in bona fide reliance on its validity either by the spouse themselves or buy a
spouse and eight third-party the code will not really upset it.
 The statice of children born to a voidable marriage is not out it if the marriage is
annulled, as the law recognises them as the children of married parents.
 An action for the announcement of avoidable marriage can only be instituted by
specific people. The person who is entitled to have the marriage set aside can also
renounce their right to do so either expressly or tacitly. In this case the marriage
becomes unassailable, which means that it is no longer voidable.

GRANT FOR VOIDABILITY


A marriage maybe voidable on the following grounds:

a. Minority: Section 24 A (1) of the marriage act provides that the civil marriage of a
minor who did not obtain the necessary consent from their guardians is voidable.
b. Material mistake: Mistake as to the identity of the other party (error in personam) or
mistake as to the nature of the juristic act (error in negotio) renders the marriage
voidable.
c. Duress: a marriage entered under duress is voidable.
d. Concealed existing pregnancy: A husband is in titled to apply for the annulment of
the marriage of his wife was pregnant with another man’s Child at the time of the
wedding and concealed this fact from her husband.
[Hahlo argues that the reason that the marriage is avoidable under the circumstances
lies in the wives concealment of her pregnancy and her attempt to foist of another
man’s child on an unsuspecting husband.]
[Willie argues that the basis of an element on this ground is error rather than fraud
with the result that the wife should also be permitted to have the marriage annulled
provided that the wife did not realise that she was pregnant when she married.] Where
is the husband except and condones his wife’s pregnancy by another man the husband
loses his right to apply for an annulment of the marriage.
e. Impotence: Impotence is defined as the inability to have sexual intercourse. A
marriage will be voidable on the grant of the incurable impotence of either of the
spouses at the time of the marriage. .Either party including the imputed and spouse
can apply for an annulment of the marriage provided that the spouse was unaware of
the importunes at the time of the marriage. A plaintive cannot apply for the annulment
on the grant of impotence if they have condoned the impotence or if the impotence is
curable or temporary.
f. Sterility: in other words the person is infertile. Most legal scholars argue that sterility
its self should not render in marriage voidable; however if one of the spouses knew
that they were sterile before entering into the marriage and concealed this information
from their spouse the marriage should be voidable at the instance of the party who
was deceived. Thus it is not the sterility that renders the marriage voidable but rather
the fraudulent concealment of the sterility.

PUTATIVE MARRIAGES

 A putative marriage is a void marriage.


 It’s suffers from one of the critical defects that we identify in the section on void
marriages.
 The marriage cannot be saved into a valid marriage.
 The marriage may be deemed a putative marriage if one or both of the parties was
unaware of the critical defect rendering the marriage void at the time of the wedding
 If the parties to a void marriage went through the appearance of a marriage ceremony
and one or both of them did so in the bona fide [good faith] Believe that they were
entering into a valid marriage their relationship between them is a punitive
A putative marriage is a void marriage which suffers from a critical defect.
 The marriage cannot be saved or declared valid by a court.
 HOWEVER, the marriage may be deemed putative, if one or both of the parties to the
marriages was unaware of the critical defect rendering the marriage void at the time
of the wedding.
REQUIREMENTS OF A PUTATIVE MARRIAGE
 Avoid marriage will only be treated as a putative marriage if one or both parties
believed in good faith that there were entering into a valid civil marriage (bona
fide).
 That is one or both parties must be aware of the defect which rendered the marriage
void.
 It appears that in terms of the common law it was also necessary for the marriage to
have complied strictly with the prescribed formalities for civil marriages.
 In modern law it appears that the court adopt a more relaxed approach marriage can
still be deemed a putative marriage even if the formal requirements are not strictly
complied with however the marriage must have been contracted openly and in When
one/both parties unaware of defect, Which renders the marriage void, Party(s) must in good
faith believe they are entering into a valid civil marriage
 (e.g.-parties did not know that they were related within the prohibited degrees of
relationship).
 accordance with the rituals and ceremonies not inconsistent with our law.

CONSEQUENCES OF A PUTATIVE MARRIAGE:


A putative marriage is void, but has some of the same legal consequences of a valid marriage.
Note that a court cannot declare a putative marriage valid. Children born of a putative
marriage are regarded as children born of married parents. When considering the patrimonial
consequences of a putative marriage it is important to distinguish between cases where
parties are bona fide and cases where only one party is acting in good faith (Cronje and
Heaton, 2016).

Is void ab initio, it has some of the legal consequences of a valid marriage for as long as at
least one of the parties is bona fide, one of the parties on reasonable grounds was unaware of
defect that renders the marriage void. Court will make declaratory order that children were
“legitimate” and born of a marriage

CHILDREN
Children born of a putative marriage are regarded as children born with in marriage when the
court declares a marriage to be putative it will simultaneously make a declaration order that
the children of the marriage must be regarded as children of married parents.

PROPERTY RIGHTS OF THE PARTIES


The most important differences between an ordinary void marriage and a void marriage that
is deemed to be a putative marriage is the effect on the spouses material property. This will
depend on which of the spouses were in good faith and whether or not the spouses concluded
an anti-natural contract. The basic rules are as follows:

WE ARE BOTH PARTIES ACTED IN GOOD FAITH:


o If the spices did not conclude an antenuptial contract the marriage is deemed to have
been in community of property and the putative joint is state will be divided equally
between them.
o Is the spouses concluded an antenuptial contract either of the spouses may enforce
any obligations due under the contract.

IF ONE OF THE SPOUSES ACTED IN GOOD FAITH (FOR EXAMPLE


JEANETTE WELLS IN THE CASE WELLS V DEAN-WILLCOCKS)

o If the spices did not conclude an antenuptial contract the marriage will be deemed in
community of property if this favours the innocent party.
o If the spouse did conclude an antenuptial contract the innocent party can choose to
enforce the terms of the contract.

TAKE NOTE OF THE FOLLOWING:


CONCEALMENT OF PERSONAL CHARACTERISTICS:
In Venter v Venter 1949 (4) SA 123 (W), the court held that if one of the parties fraudulently
concealed his or her sterility, the other party can have the marriage annulled (i.e. it is
voidable ). Common law authors do not clearly distinguish between sterility and impotence.
Roman-Dutch law regarded sterility, accompanied by impotence, as insufficient for an
annulment of the marriage.

In Van Niekerk v Van Niekerk 1959 (4) SA 658 (GW), the court held that the mere fact of
sterility renders the marriage voidable regardless of whether or not it was fraudulently
concealed, provided that the procreation of children was an express or implied object of the
particular marriage. The approach taken in Venter is to be preferred. It is not the mere fact of
sterility, but its fraudulent concealment that founds the action for annulment (i.e. renders the
marriage voidable) (See National Coalition for Gay and Lesbian Equality and Others v
Minister of Home Affairs and Others 2000 (2) SA 1 (CC), where the Constitutional Court
confirmed this view).

ACCRUAL CALCULATION

THEORY

Accrual theory has been discussed yesterday (see examples in the practice questions on
myLMS)

The spouses share the accrual at the dissolution of marriage.

Comes into operation ex lege to all marriage out of COP after 1st November 1984 (that’s why
if you wanted to exclude it, you had to specifically say so in your ANC)

‘Accrual’ means ‘growth’ or ‘increase’.


Section 3(1) of Matrimonial Property Act provides that at the end of the marriage, the spouse
whose estate has grown more than the other spouse’s estate must share half of his or her
comparative gains with the other spouse.

CPI WILL NOT BE ADDED INTO THE ACCRUAL CALCULATION QUESTIONS (possible
theory Q)

AN EXPLANATION OF THE CALCULATION

1. Calculate how much each spouse’s estates has grown during the marriage (if a spouse’s estate
has decreased in value there is no growth, thus the accrual value is zero). Net estate of a
spouse at the END of the marriage [dissolution] MINUS Net estate of a spouse at
COMMENCEMENT of the marriage(start of marriage).

2. If one spouse’s estate has grown more that the other spouse's estate, work out how much more
one spouse’s estate has grown that the other.

3. The spouse whose estate has grown less is entitled to half of the amount calculated in (2)
above. In other words, this spouse is entitled to half the amount by which the growth of the
other spouse’s estate exceeds hers.

EXCLUSIONS FROM THE ACCRUAL (NB NB NB)

1. Non-patrimonial delictual damages (what does non patrimonial mean??)

2. Assets excluded in antenuptial contract

3. Inheritance / legacy / donation that a spouse receives during marriage (also replacement value
thereof)

4. Donations between spouses

5. Costs in the matrimonial action

6. Jocalia: Engagement gifts.

EXAMPLE: 1
Jacob and Tina got married in 2008. The matrimonial property system they chose was out of
community of property, they did not mention the accrual system.

At the time of getting married Jacob had R100 000 in his bank account, which he received
from his employer as a bonus for work well done. Tina did not even have a bank account and
had a R50 000 student loan with Standard Bank to pay back.

During their marriage Tina stayed home and took care of the house and the children. Jacob
continued working and took care of the family financially. After receiving a big promotion,
he bought a Ferrari worth R 900 000. A few years after they got married Tina’s parents died
in a freak accident at McDonalds. In their joint will her parents left her their house worth R3
million, and specified that the house must be excluded from Tina and Jacob’s accrual. Tina
immediately sold the house for R 3 million. She invested R2 million in shares, and gave Jacob
R 1 million as a gift to show him how much she loved him. Tina has now fallen in love with
Jacob’s boss, and they are getting a divorce.
Calculate Jacob and Tina’s accrual. At the time of getting the divorce, Jacob’s net estate is R5
million and Tina’s is R3 million. [15]

(PLEASE NOTE: Write out your calculation as well as explanations of your calculations. Your
calculation should at the very least include 1) starting values, 2) end values, 3) possible exclusions
and 4) the final accrual calculation as well as (2) marks for theory about the accrual system))

Since were married out of community of property and community of property and loss after 1
November 1984 their marriage is automatically subject to the accrual system.(1)

If the spouses do not want the accrual system to apply they have to exclude it expressly.(1)

WHAT HAPPENED ON THIS DATE?


Jacob

Start value: R 100 000.00 (1)

End value: R 5 000 000.00 (1)

Total: ( 5 000 000 – 100 000) R 4 900 000.00 (1)

Exclusions: R 1 00 000.00 (1) donation between spouses (1)

Total accrual: 4 900 000 – 1 000 000 = 3 900 000 (2)

Tina

Start value: R 0 (1) she had a negative balance (1)

End value: R 3 000 000.00 (1)

Total: ( 3 000 000 – 0) R3 000 000.00 (1)

Exclusions: R 2 000 000.00 (1) inheritance (1)

Total accrual: 3 000 000 – 2 000 000.00 = 1 000 000 (2)

3 900 000 – 1 000 000 = 2 900 000

2 900 000 / 2 = R 1 450 000.00

Tina gets R 1 450 000.00 from Jacob’s estate (1)

EXAMPLE 2:
Susan and Jarrod got married in 2018 out of community of property (no mention of the accrual).

At the start of the marriage, Jarrod had a loan of R50 000.00. Susan on the other hand was very
wealthy, she came into the marriage with R 2 000 000.00.

During the marriage, Susan didn’t work but made money off of her various investments, she bought a
second hand car for R 160 000.00. Jarrod worked hard (earned R 48 000.00 per month).

Jarrod gave Susan a lot of gifts, most notably, he gave her a diamond tennis bracelet for her 30 th
birthday (worth R 100 000.00).

When Susan’s sister passed away and left Susan with an inheritance of R 50 000.00, Susan returned
the favour and gave Jarrod a R 25 000.00 watch.
Susan also bought a collectable 6 ft batman figure for herself with the remaining R 25 000.00 of her
inheritance.

Susan had an estate of R 3 000 000.00 upon divorce. Jarrod’s estate was R 4 000 000.00 at divorce.

a. Does the accrual apply here

b. If so do the calculation

EXAMPLE 3:
Susan and Jarrod got married in 2018 out of community of property (no mention of the accrual).

At the start of the marriage, Jarrod had a loan of R50 000.00. Susan on the other hand was very
wealthy, she came into the marriage with R 2 000 000.00.

On his way to work one morning Jarrod was hit by a bus. He was paralised and could no longer work.
He received R 1 000 000 in damages for the medical expenses. And R 5 000 000.00 for loss of future
income and pain and suffering.

Jarrod gave Susan a lot of gifts, most notably, he gave her a diamond tennis bracelet for her 30 th
birthday (worth R 100 000.00).

When Susan’s sister passed away and left Susan with an inheritance of R 50 000.00, Susan returned
the favour and gave Jarrod a R 25 000.00 watch.

Susan also bought a collectable 6 ft batman figure for herself with the remaining R 25 000.00 of her
inheritance.

Susan had an estate of R 3 000 000.00 upon divorce. Jarrod’s estate was R 7 000 000.00 at divorce.

a. Does the accrual apply here

b. If so do the calculation

CHAPTER 7: PERSONAL CONSEQUENCES OF A CIVIL MARRIAGE

MARITAL PROPERTY AND THE DISSOULTION OF CIVIL MARRIAGE

THE NATURE OF MARRIAGE AND THE CONCEPT OF CONSORTIUM OMNIS VITAE:

In Dawood v Minister of Home Affairs 2000 (3) SA 936 (CC), the Constitutional Court per
O’Regan J held that: ‘In terms of common law, marriage creates a physical, moral and
spiritual community of life. This community of life includes reciprocal obligations of
cohabitation, fidelity and sexual intercourse’

ACTION BY NON-ADULTEROUS SPOUSE AGAINST A THIRD PARTY:

Under Roman law, adulterers could be killed by the head of the family (paterfamilias), or by
a husband who found his wife and her lover in the act (Carnelley, 2013). Women could,
however, not act against an adulterous husband. Because women were considered the
property of men under Roman law, the husband had a damages claim (delictual claim)
against the third party. Previously, our law also recognised a right of action in terms of the
law of delict, i.e. brought by a non-adulterous spouse against a third party for adulterous
behaviour that allegedly caused injury or insult (contumelia) and the loss of the consortium
omnis vitae (Carnelley, 2013).

In the case of DE v RH [2015] ZACC 18, the Constitutional Court found that wrongfulness
was not present in a claim against a third party for an adulterous act (wrongfulness
(culpability) is required in terms of the law of delict). The court found that the legal
convictions of society (boni mores) dictated that South African society’s view toward
adultery ought to change. The court held that it is up to parties to ensure the health and
survival of their marriage, and not the duty of the State to see to this. The court noted that
adultery is a very common occurrence in South Africa and that it is no longer considered a
crime. The crime of adultery was abolished by the Appellate Division (now the Supreme
Court of Appeal), in 1914 in the case of Green v Fitzgerald 1914 AD 88.

It should further be noted that the Divorce Act 70 of 1979 introduced a ‘no-fault’ divorce
system and that adultery is no longer a ground for divorce per se, but can merely serve as a
ground to prove that a marriage has broken down irretrievably (Cronje and Heaton, 2010).
The presence of adultery, as such, may still be relevant to issues of forfeiture of patrimonial
benefits or the awarding of spousal maintenance etcetera.

As a result, a little more than a century after the abolition of adultery as a crime, the claim for
damages (in delict) and the loss of consortium as against a third party has now been removed
from our law.

WHAT IS THE MANDAMENT VAN SPOLIE (SPOLIATION ORDER/REMEDY)?


Very basically, there are (generally speaking) two requirements that a dispossessed person (a
person who has been unlawfully deprived of the possession of a thing (res)) needs to prove in
order to succeed in court: 1. Showing that there was actual dispossession (factually speaking),
and 2. That dispossession was unlawful (without legal basis/justification/rationale).

In Van Rhyn and Others NNO v Fleurbaix Farm (Pty) Ltd 2013 (5) SA 521 (WCC) the court
described the mandament van spolie as follows: ‘The mandament van spolie is directed at
restoring possession to a party which has been unlawfully dispossessed. It is a robust (quick)
remedy directed at restoring the status quo ante, irrespective of the merits of any underlying
contest concerning entitlement to possession of the object or the right in issue; peaceful and
undisturbed possession of the thing concerned and the unlawful despoilment (deprivation of
possession) thereof are all that an applicant for a mandament van spolie has to show…’

It is important to note that at a spoliation hearing, the court does not enquire into the merits of
ownership as existent between the parties, but merely makes a determination as to the issue(s)
pertaining to possession. The mandament van spolie can find application in a variety of
different situations in the context of Family Law.

THE DEPENDANTS’ ACTION (FOLLOWING THE LOSS OF SPOUSAL


SUPPORT):
The dependants' action is a unique (sui generis) action in terms of the law of delict. In Paixão
and Another v Road Accident Fund (640/2011) [2012] ZASCA 130, the Supreme Court of
Appeal extended the common law dependants’ action to permanent hetero-sexual life
partners who have established a contractual reciprocal duty of support. The court held that
there are many forms of family relationships in South Africa. The court noted that the boni
mores of society (as previously articulated in Minister van Polisie v Ewels 1975 (3) SA 590
(A)) requires the court to make a policy decision based on the recognition that social change
must be accompanied by changes in the law.

THE COURT FURTHER NOTED THAT OVER THE YEARS THE DEPENDENTS’
ACTION WAS GRADUALLY EXTENDED TO INCLUDE NEW CATEGORIES OF
PERSONS:
1. In Abbot v Bergman 1922 AD 53, a husband’s claim for the loss of his injured wife’s
support was recognised (Skelton and Carnelley, 2011).

2. A claim of a divorcee who had been receiving maintenance payments from her ex-
husband pursuant to a court order at the time of his death (Santam Bpk v Henery 1999 (3) SA
421 (SCA)).

3. In Zimnat Insurance Co Ltd v Chawanda 1991 (2) SA 825 (ZSC), a widow’s claim
arising from marriage under African customary.

4. In Amod v Multilateral Motor Vehicle Accidents Fund 1999 (4) SA 1319 (SCA), a
claim of a Muslim widow whose marriage under Islamic law had not been registered as a
civil marriage under the Marriage Act 25 of 1961.

5. In Du Plessis v Road Accident Fund 2004 (1) SA 359 (SCA) a claim by a partner of a
same-sex permanent life relationship who had tacitly undertaken reciprocal duties of support
with the deceased.
CONSIDER THE FOLLOWING:
In Grobbelaar v Havenga 1964 (3) SA 522 (N) the court describes the concept of consortium
omnis vitae as ‘an abstraction comprising the totality of a number of rights, duties and
advantages accruing to the spouses of a marriage’ [at 525]. This concept is also described
in Peter v Minister of Law and Order 1990 (4) SA 6 (E).

THE BASICS OF THE MARITAL PROPERTY REGIMES:

The Matrimonial Property Act 88 of 1984 took effect on 1 November 1988, and since then
spouses can elect between the following matrimonial property systems:

1. In community of property;

2. Out of community of property excluding community of profit and loss;

3. Out of community of property with the accrual system.

The patrimonial consequences of a marriage in community of property operate ex lege


(automatically, by operation of law), whereas those pertaining to marriage out of community
of property originate from the provisions contained in the antenuptial contract as concluded
between the spouses (Skelton and Carnelley, 2011).
MARRIAGE IN COMMUNITY OF PROPERTY:

This regime is by far the most popular and cheapest due to the fact that it is the default
regime and no antenuptial contract (a notarial contract concluded prior to marriage) is
required (Heaton and Kruger, 2016). Should one marry without an antenuptial contract, the
marriage will automatically be in community of property. This regime is considered the
default legal position in terms of marriages. There are legal costs associated with the
concluding of an antenuptial contract, and some couples wish to avoid such costs, thus
rendering their union in community of property. Being married in community of property
results in, for example, a joint estate in terms whereof one is responsible for any debt incurred
by one’s spouse, including debts incurred prior to marriage (Skelton and Carnelley, 2011).
Debt incurred prior to marriage may include, for example, contractual debt, maintenance
payable to an ex-spouse from a previous marriage or maintenance payable to children born of
a previous marriage or extramarital children). Each spouse has an undivided or indivisible
half-share of the joint or communal estate and each spouse has equal management of the joint
estate, and the consent of the other spouse is required for certain transactions. All assets
belonging to the spouses prior to the marriage and all assets accumulated during the marriage
fall into the joint/communal estate (with certain exceptions). Each spouse has the capacity to
bind the joint estate through their actions (Cronje and Heaton, 2016). Should insolvency
result, both spouses will be declared insolvent. Upon divorce, the assets of the joint estate, at
the date of dissolution, will be divided equally among the parties to the marriage.

MARRIAGE OUT OF COMMUNITY OF PROPERTY EXCLUDING COMMUNITY


OF PROFIT AND LOSS (WITHOUT ACCRUAL):
In terms of this marital property system, prospective spouses will need to enter into an
antenuptial contract drafted by a notary public (a specialist legal practitioner) wherein they
excluded the accrual system from operating in respect of their marriage. Such a notarial
contract also needs to be registered with the Registrar of Deeds in order to be valid as against
third parties. In terms of such a contract, community of property and profit and loss are
excluded (i.e. the accrual system is expressly excluded from operating). This means that there
is no joint estate and each spouse keeps his or her estate separately (there is no joining and no
accrual). In this case, the patrimonial position of the spouses after the conclusion of the
marriage will be similar to that which prevailed prior to the marriage (Skelton and Carnelley,
2011). Both spouses retain their own separate estates consisting of all the assets and liabilities
they obtained before entering into marriage (Skelton and Carnelley, 2011). Spouses are not
liable for each other’s debts, with the exception of household necessaries. Where the accrual
system is excluded, one spouse cannot share in the accumulation of the other spouse’s estate.

Please note: The consequences of a marriage out of community of property, with or without
the accrual system, remain identical during the marriage, the effects of the accrual system
only manifest themselves at the dissolution (by death or divorce) of the marriage (Skelton and
Carnelley, 2011).

OUT OF COMMUNITY OF PROPERTY WITH THE ACCRUAL SYSTEM:

 In terms of this regime, an antenuptial contract notarised by a notary public, will also
be required.
 Spouses retain control over their separate estates, which are administered
independently. All marriages out of community of property are automatically deemed
to be contracted with the accrual system operating unless its operation has been
expressly excluded in the antenuptial contract (Cronje and Heaton, 2010). With the
accrual system, the spouse whose estate has shown the smaller accrual can share in
the growth/accumulation shown by the other spouse’s estate (Skelton and Carnelley,
2011). The Matrimonial Property Act 88 of 1984 prescribes a formula that needs to be
followed when calculating the accrual. This marital property system is believed to be
more just and equitable as compared to a total separation of property that excluded the
accrual system (Skelton and Carnelley, 2011).

CHANGE OF MARITAL PROPERTY REGIME:

 Couples are able to, in terms of section 21(1) of the Matrimonial Property Act 88 of
1984, to apply for the amendment of their marital regime.
 However, there are a number of requirements that have to be adhered to in order for
such an amendment to be effected.
 For example, there must exist sound reasons for the proposed change, notice of the
intention to amend must be provided to the Registrar of Deeds, the same which must
be published in the Government Gazette as well as two local newspapers.
 A draft notarial contract must also be submitted along with the application to court, as
well as written confirmation that no other persons (e.g. creditors) will be prejudiced
by the proposed regime change.

THE HUSBAND’S MARITAL POWER:


 Under Roman-Dutch common law, marriages were usually in community of property
and the husband was vested with the so-called ‘martial power’.
 This state of affairs empowered the husband to deal with all the assets of the joint
estate to the exclusion and without the consent of the wife (Skelton and Carnelley,
2011).
 Section 11 of the Matrimonial Property Act 88 of 1984 repealed the sexist and
discriminatory common law rule by which a husband obtained the marital power over
the person and property of his wife.
 The effect of the amendments now allows spouses married in community of property,
to have equal standing in terms of the disposal of the assets of the joint estate, the
contracting of debts, and the management of the joint estate (Heaton and Kruger,
2016).
WHAT IS CESSION?
 The cession of incorporeal rights is a legal principle on which significant amounts of
money are transacted.
 Cession is a bilateral juristic act whereby the cedent transfers its rights to the
cessionary.
 The cessionary can be constructed as an out-and-out cession or as a cession in
security.
 A cession in securitatem debiti (also sometimes referred to as a security cession), is
where a debtor cedes (transfers) to a creditor certain incorporeal personal rights to
secure the repayment of a debt (the ‘principal debt’) (Mostert and Pope, 2010).
Examples of these ceded personal rights are – book debts, insurance policies, shares
etc.
 In a cession in security, the cedent transfers its rights of action to a debt owed to it,
known as the ‘principal debt’, to the cessionary as security for the debt owed by the
cedent to the cessionary, known as the secured debt (Mostert and Pope, 2010).

WHAT IS A SURETY?
- A surety agreement generally is concluded in addition to the principal credit
agreement where one person takes responsibility for the debt in the event that the
debtor can no longer meet the obligations of the credit agreement (Mostert and Pope,
2010).
- For example, it is common to find banks requesting a director to sign as surety for
finance advanced to the company by a bank. Surety agreements usually involve three
parties namely the creditor, the principal debtor and the surety.
- In these agreements, the surety undertakes to the creditor that should the principal
debtor fail in its obligations that he will indemnify the creditor (Mostert and Pope,
2010). This practically means that the surety will assume the financial obligations of
the principal debtor.
- When a surety signs an agreement that binds him/her as not only surety, but as co-
principal debtor it has the effect that the surety’s obligations are equal to that of the
principal debtor.
- In other words, the creditor is now in the position to take action against the surety as
co-principal debtor without having to first claim from the principal debtor (Mostert
and Pope, 2010).
CONSIDER THE FOLLOWING:
In Van der Merwe v Road Accident Fund 2006 (4) SA 230 (CC), the facts were as follows:

The wife (Applicant) instituted an action against the Road Accident Fund (RAF), an insurer
which is a statutory body liable to compensate her for bodily injuries caused by the driving of
a motor vehicle. The RAF, however, would only be liable if Applicant could institute a lawful
claim against the driver of the motor vehicle that caused her injuries. In casu, the parties were
married in community of property. Applicant sustained injuries when a motor vehicle driven
by her husband collided with her. It was common cause between the parties that Applicant’s
husband had intentionally knocked her over. In fact, he went on to reverse over her while she
was lying on the ground. The parties have since divorced. The RAF raised a special plea to
the claim in which it admitted that Applicant was entitled to claim non-patrimonial damages,
but denied liability to compensate Applicant for any patrimonial damages by reason of the
provisions of section 18(a) and (b) read with section 19(a) of the Matrimonial Property Act
88 of 1984, which in effect prohibited claims for patrimonial damages between spouses
married in community of property. Applicant replied that section 18 unfairly discriminated on
the ground of marital status against spouses married in community of property as opposed to
spouses married out of community of property. The court agreed with Applicant and ordered
amendments to section 18(b) of the Act.

DISSOLUTION OF MARRIAGE:

The dissolution of a marriage has both personal and patrimonial consequences for spouses. In
terms of South African law there are three ways in which a marriage may be dissolved
(Cronje and Heaton, 2010):

1. By the court setting aside a voidable marriage

2. By the death of one or both spouses (the personal consequences of the marriage
automatically terminate. The patrimonial consequences will be determined by the prevailing
matrimonial property system)

3. Through a divorce order

† Death of one or both spouses.

† Annulment of a voidable marriage

† Divorce

MAINTENANCE OF SURVIVING SPOUSES:

The Maintenance of Surviving Spouses Act 27 of 1990 allows spouses to claim against the
estate of the deceased spouse. Such claims will be for the provision of reasonable
maintenance needs until the surviving spouse’s death or remarriage, should they be unable to
provide for their needs on the strength of their own means and earnings (Skelton and
Carnelley, 2011).

In terms of section 3 of the Act, courts will take the following factors into account when
determining the reasonable maintenance of the surviving spouse:

1. The amount in the estate of the deceased spouse available for distribution to heirs and
legatees

2. The existing and expected means, earning capacity, financial needs and obligations of
the survivor
3. The standard of living of the survivor during the subsistence of the marriage and his
or her age at the death of the deceased spouse

The claim for maintenance of the survivor has the same order of preference as a claim for
maintenance of a dependent child and should these claims compete with one another, the
court will reduce the claims proportionally (Skelton and Carnelley, 2011).

WHAT ARE PACTA SUCCESSORIA?

In their antenuptial contract the spouses may agree on the devolution of their estates after
their respective deaths (Cronje and Heaton, 2016). These types of stipulations are contractual
in nature and have the same scope and purpose as a last will and testament and may only be
amended by a joint will. If there is a joint will, the surviving spouse has a choice of inheriting
either in terms of the pactum successorium, or the will. E.g., the surviving spouse will be the
first-dying spouse’s sole heir or that upon the death of the first-dying spouse the estates of
both spouses will devolve on their children etc. As a general rule, pacta successoria are not
legally recognised, unless it is contained in an antenuptial contract (Cronje and Heaton,
2016).

WHAT IS THE MASTER OF THE HIGH COURT?

This is an organ of State that provides services in respect of the following: Deceased estates,
liquidations (insolvent estates), registration of trusts, tutors and curators and the
administration of the Guardian’s Fund (a fund for minors and mentally challenged persons).

WHAT IS INTESTATE SUCCESSION?

Should an individual pass away without leaving a valid last will and testament or should
he/she leave a valid will which is only applicable to certain of his/her assets, the estate of the
individual will be dealt with in accordance with the rules of the Intestate Succession Act 81
of 1987, provided that the estate is solvent. This situation is also referred to as a division
upon intestacy and the surviving spouse and children of the deceased will always benefit first
(Jamneck and Rautenbach, 2012). Should there be no surviving spouse or no descendants,
then the extended family of the deceased such as parents, siblings, nieces, nephews, aunts and
uncles will qualify to inherit from the deceased’s estate. Intestate succession is limited to
blood relations, with the only two exceptions being the surviving spouse and adopted
children. When ascendants (i.e., parents, grandparents etc.) do come into consideration, a
50/50 split is always done between the parents of the deceased before any further division is
done. Moveable property (i.e., household furniture, vehicles, shares etc.) devolves according
to the law of intestate succession of the country where the deceased was domiciled at the time
of his/her death and immovable property (i.e., fixed property) devolves according to the
intestate succession law of the country where it is situated (Jamneck and Rautenbach, 2012).

Take note of the following:

In Feldman v Oshry NO and Another 2009 (6) SA 454 (KZD) the court held, inter alia, that
the lump-sum payments in terms of the Maintenance of Surviving Spouses Act 27 of 1990,
was not permissible. It was also held that the quantum of maintenance must be reasonable
and not extravagant, even in the case of the wealthy. On appeal, in Oshry v Feldman 2010 (6)
19 (SCA), the deceased estate was not large enough to accommodate the surviving spouse’s
claim and the court held that Mrs. Feldman did not have to rely on the financial generosity of
her sons and that she was still in need of additional maintenance. The court accordingly
awarded her additional maintenance.

PERSONAL CONSEQUENCES OF THE DISSOLUTION OF A MARRIAGE

• Most of the personal consequences of a marriage will be terminated when the marriage
ends. E.g. Consortium omnis vitae will end

• However, some personal consequences will still exist even after termination of the marriage:

• Retention of majority status if the marriage ends before spouse(s) turn 18.

• Relationships of affinity created by marriage are not dissolved when marriage ends 
still cant marry your dead husband’s much more attractive father.

• People are free to remarry at any time after the dissolution of a marriage

DIVISION OF THE MARITAL PROPERTY WHEN THE MARRIAGE IS


DISSOLVED BY DEATH

Marriages in community of property

Spouses are equal co-owners of the marital estate.

When the marriage terminates, each party will receive half of the joint estate.

Executor has control of the joint estate during the winding-up process (super inconvenient and
another negative for marriages in COP) surviving spouse needs permission of the MHC before
they can spend monies on non essentials (need permission to spend your own money)

Might need to liquidate some assets to pay the debts owed to the deceased’s creditors (might
have to sell the matrimonial home)

Might also need to sell assets if not enough liquid assets to provide in terms of the will. I.e. husband
dies, leaves whole of his estate (half) to his son, not enough liquid assets, therefore have to sell house.

Marriages out of community of property without accrual

Each spouse has a separate estate.

ANC’s can function as joint wills

The estate of the spouse who dies is the deceased estate.

Marriages out of community of property with accrual

Accrual is calculated and paid at the end of the marriage.

When one of the spouses dies, the accrual of both spouses must be calculated and the appropriate sum
transferred the spouse whose estate shows less accrual.
Surviving spouse lodges a claim with the Executor for their share in the accrual & the executor will
claim the amount due from the surviving spouse (i.e. Husband dies, Wife had bigger accrual, wife
pays into the deceased estate the difference, that sum goes to the beneficiaries of the husband)

CLAIMS OF THE SURVIVING SPOUSE

Claims based on inheritance

Very often, spouses leave their entire estate to their surviving partner.

If the deceased spouse dies intestate, the estate will devolve in terms of intestate succession according
to the Intestate Succession Act.

• If a person dies intestate and is survived by a spouse but not by a descendant, the surviving
spouse inherits the entire estate.

• If a person dies intestate and is survived by a spouse as well as descendants, the surviving
spouse inherits the greater amount of a ‘child’s share’ of the intestate estate or a
predetermined amount fixed by the Minster of Justice.

• The spouse must however, receive AT LEAST the amount set by the minister (currently R
250 000)

Claims based on the Maintenance of Surviving Spouses Act

Even if a surviving spouse does not inherit from their deceased spouse, it is still possible for the
surviving spouse to lodge a claim for maintenance from the deceased spouse’s estate in terms of the
Maintenance of Surviving Spouses Act:

o For his or her reasonable maintenance needs,

o until death or remarriage,

o to extend that they are unable to provide for themselves,

o taking into account:

• the standard of living of surviving spouse during marriage,

• age of surviving spouse at time of death of deceased spouse,

• amount in deceased estate available for distribution,

• existing and expected means, earning capacity and financial needs and
obligations of surviving spouse,

claims will be curtailed by the amount available in the deceased estate; and the claim of the surviving
spouse will be reduced / denied if he or she has other means of support

PRACTICAL QUESTIONS

Candice and Leroy were married out of community of property, with the accrual system. Leroy died
suddenly of a heart attack on Thursday night. Candice is a fifty year old housewife who has never
worked and has no skills. When the will is read, it becomes apparent that Leroy had a mistress named
Angel. Leroy leaves everything he owns to Angel in his will. Discuss whether Candice will be able to
claim maintenance from Leroy’s estate. Use the IRAC method to answer the question.

ANSWER:
Identify the problem:

Can Candice claim maintenance from Leroy’s deceased estate?

Recite the law:

In terms of the Maintenance of Surviving Spouses Act a spouse in a marriage that is dissolved by
death after 1 July 1990 can claim his / her reasonable maintenance needs until death or remarriage.
The claim arises regardless of the couple’s matrimonial property system. The claim only arises if the
surviving spouse cannot provide for his / her own maintenance needs from his / her own means. Own
means can include inheritances / half of the joint estate / accrual, but not voluntary contributions by
children.

Apply the law:

Candice has never worked and probably cannot provide for her own maintenance needs.

Conclusion:

Candice can claim maintenance from Leroy’s estate.

CHAPTER: GROUNDS FOR DIVORCE AND THE ECONOMIC


CONSEQUENCES OF A DIVORCE

WHEN MAY A DECREE OF DIVORCE BE GRANTED?

Section 4(1) of the Divorce Act 70 of 1979 dictates that a court may grant a divorce order based on
the irretrievable breakdown of a marriage if it is satisfied that the marriage relationship between the
parties to the marriage has reached such a state of disintegration that there is no reasonable prospect of
the restoration of a normal marriage relationship between them. Alternatively, if there is the presence
of mental illness or the continuous unconsciousness of a party to the marriage (as contemplated in
section 5 of the Act).

In terms of section 4(2) of the Act, the court may accept evidence of the irretrievable breakdown of a
marriage on the following basis:

“(a) That the parties have not lived together as husband and wife for a continuous period of at least
one year immediately prior to the date of the institution of the divorce action;

(b) That the defendant has committed adultery and that the plaintiff finds it irreconcilable with a
continued marriage relationship; or

(c) That the defendant has in terms of a sentence of a court been declared a habitual criminal and is
undergoing imprisonment as a result of such sentence.”

In terms of section 4(3) of the Act, the court is at liberty to postpone the divorce proceedings if it is of
the view that reconciliation via marriage counselling, treatment or reflection etcetera, is reasonably
possible in the circumstance. The proceedings may, in such cases, be postponed until such time as
parties attempt a reconciliation.
In Schwartz v Schwartz 1984 (4) SA 467 (A) the Appellate Division (now the Supreme Court of
Appeal), held that the process which section 4(1) requires consists of two components. Firstly, there
must be a subjective enquiry into the breakdown of the marriage, and secondly, an objective enquiry
into the question as to whether the breakdown is irretrievable. The court in Schwartz pronounced
itself as follows in this regard:

“In determining whether a marriage has reached such a state of disintegration that there is no
reasonable prospect of the restoration of a normal marriage relationship between the parties it is
important to have regard to what has happened in the past, i.e., the history of the relationship up to the
date of the trial, and also to the present attitude of the parties to the marriage relationship as revealed
by the evidence at the trial.”

It is also important to remember that a ‘normal marriage relationship’ (as used in section 4(1) of the
Act), must be considered in light of the consortium omnis vitae common-law concept. Should it be
that one or both of the marriage partners act in a manner that detracts from this standard, the marriage
would no longer be regarded as normal. For example, a party committing the act of adultery,
maliciously deserting the common household, or acting in an abusive manner (either verbally or
physically).

CONSIDER THE FOLLOWING:

MENTAL ILLNESS:

Section 5(1) of the Divorce Act 70 of 1979, allows the plaintiff in a divorce action to obtain a decree
of divorce if he or she can prove that: The other spouse has been admitted as a patient to an institution
in terms of a reception order in accordance with the Mental Health Act 17 of 2002, or is being
detained as a mentally ill convicted prisoner at an institution; and, the other spouse has not been
unconditionally discharged from the institution or place of detention for a continuous period of two
years immediately prior to the institution of the divorce proceedings; and, the other spouse is mentally
ill and there is no reasonable prospect of a recovery.

CONTINUOUS UNCONSCIOUSNESS:

In terms of section 5(2) of the Act, the plaintiff in a divorce action may obtain an order of divorce if
he or she can prove that: The other spouse is in a continuous unconsciousness on account of a
physical disorder; and the unconscious condition of the other spouse has lasted for at least six months
immediately prior to the institution of the divorce proceedings; and there is no reasonable prospect
that the other spouse will regain consciousness.

HOW ARE MENTALLY ILL OR UNCONSCIOUS SPOUSES PROTECTED?

The Divorce Act 70 of 1979 provides for the protection of the mentally ill or those spouses suffering
continuous unconsciousness in divorce proceedings. The legislature was of the view that the
behaviour of an incapacitated spouse should not influence the patrimonial (matters relating to a
person’s estate) consequences of divorce and that such vulnerable party should enjoy statutory
protection in such circumstances (Skelton and Carnelley, 2011).

THE FOLLOWING SPECIFIC MEASURES WERE INTRODUCED BY THE


LEGISLATURE:

The court may appoint a legal practitioner to represent the defendant at the divorce proceedings and
the court can also order the plaintiff to bear the cost of appointing such practitioner (in appropriate
circumstances) (Skelton and Carnelley, 2011). The court can also order the plaintiff to provide
security for any patrimonial benefits that he or she might receive from the divorce proceedings.
Should a court order a decree of divorce on the basis of mental illness or continuous unconsciousness
of the defendant (the other spouse being sued for divorce), the court may not make a forfeiture of
benefits order against such a defendant (Skelton and Carnelley, 2011). In the case of Ott v
Raubenheimer NO 1985 (2) SA 851 (O), the High Court held that the parties’ marriage had long ago
broken down, far preceding the plaintiff’s wife being admitted to a mental institution and later being
certified as mentally ill. Accordingly, the plaintiff was entitled to rely on this earlier breakdown as
founding his cause of action and did not have to rely on his wife’s later mental illness in terms of
section 5 of the Act.

PRESUMPTION OF DEATH:

Should a spouse, whose husband or wife have disappeared, want the marriage dissolved, such a
spouse will have to prove the death of the other spouse. The court may issue a common-law
presumption of death order, but this alone will not terminate the marriage. To remedy this situation, a
spouse can bring a separate application in terms of the Dissolution of Marriages on Presumption of
Death Act 23 of 1979 in order to have the marriage dissolved. Such a court order is final, even if it
later transpires that the spouse, who was presumed dead, is in fact alive. Even in such a case, the
marriage will remain terminated. A divorce action may furthermore also be instituted in terms of the
Divorce Act 70 of 1979, based on the wide definition of ‘irretrievable breakdown of the marriage’ as
contained in section 4 of the Act (Skelton and Carnelley, 2011).

DIVISION OF THE JOINT ESTATE:

In Corporate Liquidators (Pty) Ltd v Wiggill 2007 (2) SA 520 (T) the court held that where parties
have entered into a settlement agreement which was made an order of court, the settlement agreement
will regulate how the joint estate is to be divided. Such a settlement agreement will then be binding on
both parties. The effect of such an order is that a spouse immediately becomes the owner of an asset
he or she is entitled to, even if such an asset is still in the possession of the other spouse, making
formal delivery unnecessary (Skelton and Carnelley, 2011).

WHAT IS MEANT BY A PENSION BENEFIT?

Section 1 of the Divorce Act 70 of 1979 defines pension fund benefits as follows: “In respect of
someone who is a member of a pension fund, pension fund benefits are the benefits to which he or she
would be entitled if membership has terminated on the date of divorce. For a member of a retirement
annuity fund (and which is a pension fund), it is the total of all contributions paid up to date of
divorce, plus calculated interest.”

In Sempapalele v Sempapalele 2001 (2) SA 306 (O), the court held that a spouse who claims a share
in the pension interest of the other spouse must apply for and obtain an appropriate court order during
the divorce proceedings, not thereafter (Skelton and Carnelley, 2011).

WHAT IS MEANT BY THE ‘CLEAN-BREAK PRINCIPLE’?


This concept is related to a right/entitlement of the non-member spouse (not being a member of the
pension fund) who is married in community of property to receive payment or transfer of the portion
of the other spouse’s pension interest, as allocated at divorce.

FORFEITURE OF PATRIMONIAL BENEFITS OF MARRIAGE:


In terms of section 9(1) of the Divorce Act 70 of 1979, the court may order the forfeiture of the
patrimonial benefits of marriage.

Section 9(1) reads as follows: “When a decree of divorce is granted on the ground of the irretrievable
breakdown of a marriage the court may make an order that the patrimonial benefits of the marriage be
forfeited by one party in favour of the other, either wholly or in part, if the court, having regard to the
duration of the marriage, the circumstances which gave rise to the breakdown thereof and any
substantial misconduct on the part of either of the parties, is satisfied that, if the order for forfeiture is
not made, the one party will in relation to the other be unduly benefitted.”

Section 9(2) of the Act provides: “In the case of a decree of divorce granted on the ground of the
mental illness or continuous unconsciousness of the defendant, no order for the forfeiture of any
patrimonial benefits of the marriage shall be made against the defendant.”

Please note: Section 9 of the Divorce Act 70 of 1979 is also applicable to the forfeiture of patrimonial
benefits in terms of marriages out of community of property. The benefits which a party to a marriage
out of community of property can forfeit include: An accrual claim, the right to claim a donation
agreed upon in an antenuptial contract, rights flowing from a contract of lease, or the right to share in
the pension benefits of the other spouse (Skelton and Carnelley, 2011). Forfeiture may be claimed by
either party in the divorce proceedings and a court may make an order that the patrimonial benefits of
the marriage be forfeited by one party in favour of the other party, either wholly (completely), or only
in part. Only patrimonial benefits may be forfeited, personal assets are exempt from forfeiture.

The court may also order the forfeiture of a patrimonial benefit in a marriage subject to the accrual
system. In such a case, the right to share in the accrual of a spouse may be declared forfeited by the
court (either wholly, or in part), in terms of section 9 of the Matrimonial Property Act 88 of 1984.

In terms of section 9(1) of the Divorce Act 70 of 1979, the following factors will be considered by the
court when deciding on the forfeiture of patrimonial benefits of marriage:

1. The duration of the marriage: It is more probable that a court will grant a forfeiture order if
the marriage was of short duration.

2. The reasons/circumstances which gave rise to the irretrievable breakdown of the marriage.
The court must make a determination as to which of the parties was more culpable in terms of the
breakdown of the marriage relationship.

3. Any substantial misconduct on the part of either spouse. Only serious misconduct ought to be
considered by the court.

4. Whether the one spouse will be unduly benefited if the order is not made. This is a value
judgment made in terms of the aforementioned three factors.

In the seminal case of Wijker v Wijker 1993 (4) SA 720 (A), the then Appellate Division clarified
many uncertainties related to the above criteria. The court held that factors one to three must be taken
into account (at the very least, considered) by the court. However, these factors are not cumulative
(they do not have to add up), and section 9 of the Divorce Act 70 of 1979 does not require that all
three factors be present. The court further held that fairness, should not be the overriding factor when
a court has to come to a decision. The court, therefore, does not have an unfettered discretion to award
a forfeiture order purely on the basis that it would be the fairest outcome; other factors must be
considered as well. The court also emphasised that it will only order the forfeiture of benefits if it is
clear that one party will unduly benefit from the divorce at the expense of the other party (Skelton and
Carnelley, 2011).

In a recent judgment, KT v MR 2017(1) SA 97 (GP), the parties were married in community of


property for 20 months whereafter they no longer lived together as husband and wife. The breakdown
of the marriage was due to both parties working late hours and to there being no intimacy between
them. There was no real evidence of substantial misconduct and the court found that the only way that
forfeiture could be fairly ordered was to look at the duration of the marriage. Taking into account the
short duration of the marriage, the court granted partial forfeiture of benefits and stated that: “While
not cast in stone, it must therefore follow that in the determination of whether a benefit is undue, a
court is more likely to make such a determination where the marriage is of short duration as opposed
to circumstances where the marriage was of long duration. Simply put, the longer the marriage, the
more likely it is that the benefit will be due and proportionate and conversely, the shorter the marriage
the more likely the benefit will be undue and disproportionate.”

HOW CAN AN UNDUE BENEFIT BE PROVEN IN COURT?

Examples include: not contributing to household expenses, the continual undermining of the other
spouse, abuse of any kind, disposing of assets forming part of the joint estate without the necessary
permission, or committing adultery.

CONSIDER THE FOLLOWING:

WHAT IS MEANT BY THE REDISTRIBUTION OF ASSETS UPON DIVORCE?

Sections 7(3) to (6) of the Divorce Act 70 of 1979 were inserted by parliament in order to assist
spouses who were married subject to a complete separation of property prior to the commencement of
the Matrimonial Property Act 88 of 1984 (Cronje and Heaton, 2010). These sections empower the
court, in limited circumstances, to order that the assets, or part thereof, of one spouse be transferred to
the other spouse if this is considered in the interest of justice. In Beaumont v Beaumont 1987 (1) SA
967 (A) the court at 987H-I had the following to say in respect of the purpose of a redistribution
order, i.e. to remedy the inequity: “…which could flow from the failure of the law to recognise a right
of a spouse upon divorce to claim an adjustment of a disparity between the respective assets of the
spouses which are incommensurate with their respective contributions during the subsistence of the
marriage to the maintenance or increase of the estate of the one or the other” (cited in Cronje and
Heaton, 2010).

WHAT ARE THE REQUIREMENTS FOR A REDISTRIBUTION ORDER?

The following requirements in terms of section 7(4) of the Divorce Act 70 of 1979 have to be met
before a court may exercise its discretion whether or not to grant a redistribution order:

1. The spouse who seeks redistribution must have contributed directly or indirectly to the
maintenance or increase of the other spouse’s estate during the subsistence of the marriage.

2. The court must be satisfied that, by reason of such contribution, it is equitable and just to
make a redistribution order (Cronje and Heaton, 2016).
In Badenhorst v Badenhorst 2005 (2) SA 253 (C), the court ruled that even if a party made a
contribution during the subsistence of the marriage, a court will not grant an order for redistribution
unless it is satisfied that it is equitable and just to do so (Skelton and Carnelley, 2011).

In Beira v Beira 1990 (3) SA 802 (W), the court held that section 7(4): “Was enacted to redress a
deficiency, namely to enable both spouses to enjoy their rightful shares in the accumulated wealth
residing in the one which their joint endeavours during the subsistence of the marriage had brought
them. There is a clear indication to this effect in my opinion in the fact that only when the wife has
proved that she has made a contribution of the kind recognised in subsection (4), does she become
entitled to a redistribution order” (as cited in Skelton and Carnelley, 2011).

READ THE FOLLOWING:

SPOUSAL MAINTENANCE:

Section 7(2) of the Divorce Act 70 of 1979 lists certain factors which the court must consider when
deciding whether a party must pay maintenance, as well as the amount of maintenance to be paid:

1. The existing or prospective means of the parties

2. The respective earning capacities of the parties

3. The financial needs and obligations of the parties

4. The age of each party

5. The duration of the marriage

6. The standard of living of the parties prior to the divorce

7. The conduct of each party in so far as it may be relevant to the breakdown of the marriage

8. Any order in terms of Section 7(3) (i.e. a redistribution order)

9. Any other factor which in the court’s opinion should be taken into account

WHAT TYPES OF SPOUSAL MAINTENANCE EXIST?

Rehabilitative maintenance: Usually awarded to younger or middle-aged women who have been full-
time housewives, i.e. caring for the household and children on a full-time basis (Skelton and
Carnelley, 2011).

Permanent maintenance: Usually awarded to older women, especially the elderly who are too old to
earn their own living (Skelton and Carnelley, 2011).

Token maintenance: Most often awarded for a minimal amount if the court is of the view that there
exists no reason to award maintenance (at the time of the divorce), but there may be grounds to award
maintenance in future. The court may then increase such maintenance award(s), in future, in terms of
section 8(1) of the Divorce Act 70 of 1989 (Skelton and Carnelley, 2011).

In Kroon v Kroon 1986 (4) SA 616 (EC) the court held that conduct is irrelevant in terms of the
granting of a divorce order, but can be relevant when deciding on the issue of maintenance. In this
regard, the court stated that the primary consideration should always be what is just and equitable in
the circumstances (Skelton and Carnelley, 2011). Such an approach was also followed in the cases
of Swart v Swart 1980 (4) SA 364 (O), as well as in Grasso v Grasso 1987 (1) SA 48 (C). In Buttner
v Buttner [2006] 1 All SA 429 (SCA) the court held that the respondent, at the age of 48, was unlikely
to have viable career prospects and therefore needed reasonable maintenance (Skelton and Carnelley,
2011). In the Grasso case, the court was of the view that spouses who were party to a marriage of long
duration were entitled to more maintenance as compared to those party to marriages of limited
duration (Skelton and Carnelley, 2011). In Kooverjee v Kooverjee [2006] 4 All SA 369 (C), the court
noted that the duration of a marriage may limit the earning capacity of a spouse, especially one who
has been engaged in duties pertaining to the raising of children or the running of the household, i.e. on
a full-time basis (Skelton and Carnelley, 2011).

CHILDREN AFTER DIVORCE AND CUSTOMARY MARRIAGE

The following case law is pertinent to the best interest of the child standard:

• Soller v R 2003 (5) 430 (W)

• Ex parte Van Niekerk 2005 JOL 14218 (T)

• Legal Aid v R 2009 (2) 262 PLD

The following sections of the Children’s Act 38 of 2005 are pertinent to the best interest of the child
standard:

• Section 2

• Section 6

• Section 6(5)

• Section 9

• Section 10

• Section 12

• Section 22(4)

• Section 22(5)

• Section 23(2)

• Section 23(3)

• Section 24(2)

• Section 28 (4)

• Section 29(3)

Section 28 of the Constitution of the Republic of South Africa, 1996 is also of importance in this
regard.
FACTORS WHICH THE COURT WILL CONSIDER WHEN DECIDING ON
CUSTODY OF CHILDREN:

In McCall v McCall 1994 (3) SA 201 (C) the court held that “in determining what is in the best
interests of the child, the court must decide which of the parents is better able to promote and ensure
his physical, moral, emotional and spiritual welfare”.

According to the court, this can be assessed in terms of the following criteria (not in order of
importance):

“(a) The love, affection and other emotional ties which exist between parent and child and the parent’s
compatibility with the child;

(b) The capabilities, character and temperament of the parent and the impact thereof on the child’s
needs and desires;

(c) The ability of the parent to communicate with the child and the parent’s insight into, understanding
of and sensitivity to the child’s feelings;

(d) The capacity and disposition of the parent to give the child the guidance which he requires;

(e) The ability of the parent to provide for the basic physical needs of the child, the so-called ‘creature
comforts’, such as food, clothing, housing and the other material needs – generally speaking, the
provision of economic security;

(f) The ability of the parent to provide for the educational well-being and security of the child, both
religious and secular;

(g) The ability of the parent to provide for the child’s emotional, psychological, cultural and
environmental development;

(h) The mental and physical health and moral fitness of the parent;

(i) The stability or otherwise of the child’s existing environment, having regard to the desirability of
maintaining the status quo;

(j) The desirability or otherwise of keeping siblings together;

(k) The child’s preference, if the Court is satisfied that in the particular circumstances the child’s
preferences should be taken into consideration;

(l) The desirability or otherwise of applying the doctrine of same-sex matching, particularly whether a
boy should be placed in the custody of his father; and

(m) Any other factor which is relevant to the particular case with which the court is concerned.”

(It should be noted that the language, in which the above criteria are couched, reflects the societal
sexism of the time).

The best interest of the child standard in terms of section 7 of the Children’s Act 38 of 2005:

In terms of the Act, the following factors must be taken into account when considering what is in the
best interest of the child:

“(a) The nature of the personal relationship between -

(i) The child and the parents, or any specific parent; and
(ii) The child and any other care-giver or person relevant in those circumstances

(b) The attitude of the parents, towards -

(i) The child; and

(ii) The exercise of parental responsibilities and rights in respect of the child;

(c) The capacity of the parents, or any specific parent, or of any other care-giver or person, to provide
for the needs of the child, including emotional and intellectual needs;

(d) The likely effect on the child of any change in the child’s circumstances, including the likely
effect on the child of any separation from -

(i) Both or either of the parents; or

(ii) Any brother or sister or other child, or any other care-giver or person, with whom the child has
been living;

(e) The practical difficulty and expense of a child having contact with the parents, or any specific
parent, and whether that difficulty or expense will substantially affect the child’s right to maintain
personal relations and direct contact with the parents, or any specific parent, on a regular basis;

(f) The need for the child -

(i) To remain in the care of his or her parent, family and extended family; and

(ii) To maintain a connection with his or her family, extended family, culture or tradition;

(g) The child’s -

(i) Age, maturity and stage of development;

(ii) Gender;

(iii) Background; and

(iv) Any other relevant characteristics of the child;

(h) The child’s physical and emotional security and his or her intellectual, emotional, social and
cultural development;

(i) Any disability that a child may have;

(j) Any chronic illness from which a child may suffer;

(k) The need for a child to be brought up within a stable family environment and, where this is not
possible, in an environment resembling as closely as possible a caring family environment;

(l) The need to protect the child from any physical or psychological harm that may be caused by -

(i) The need to protect the child from any physical or psychological harm that may be caused by -

(i) Subjecting the child to maltreatment, abuse, neglect, exploitation or degradation or exposing the
child to violence or exploitation or other harmful behaviour; or

(ii) Exposing the child to maltreatment, abuse, degradation, ill-treatment, violence or harmful
behaviour towards another person;
(m) Any family violence involving the child or a family member of the child; and

(n) Which action or decision would avoid or minimise further legal or administrative proceedings in
relation to the child.

(2) In this section ‘parent’ includes any person who has parental responsibilities and rights in respect
of a child.”

TAKE NOTE OF THE FOLLOWING:

WHAT IS THE OFFICE OF THE FAMILY ADVOCATE?

In terms of the Mediation in Certain Divorce Matters Act 24 of 1987, the Minister of Justice and
Constitutional Development is authorised to appoint Family Advocates at each division of the High
Court. Such a Family Advocate must be an admitted advocate and must be skilled and experienced in
the adjudication and settlement of family law matters (Skelton and Carnelley, 2011). It is the duty of
the Family Advocate to institute an enquiry into the best interests and welfare of children involved in
divorce proceedings (Skelton and Carnelley, 2011). In that regard, the powers of a court in terms of
section 6 of the Divorce Act 70 of 1989 must be viewed in conjunction with those extended to the
court by the Mediation in Certain Divorce Matters Act. In Whitehead v Whitehead 1993 (3) SA 72
(SEC), the court noted that the Family Advocate should: “…be of assistance to a Court by placing
facts and considerations before the Court. The Family Advocate should make a balanced
recommendation and should not take sides against one party in favour of the other.” In Soller NO v
G 2003 (5) SA 430 (W), the court held that the role of the Family Advocate is not to be a
representative of any of the parties to the dispute, but is required to be neutral in his/her approach so
that he/she can examine and determine the wishes and desires of disputing parties closely in order to
determine the true facts and circumstances (Skelton and Carnelley, 2011).

FORM 38 AND THE ROLE OF SOCIAL WORKERS WITHIN THE OFFICE OF THE
FAMILY ADVOCATE:

Registered social workers assist the Office of the Family Advocate during its investigations and
recommendations to court. Should the Family Advocate believe that it is in the best interest of the
child, such Advocate may be present at the trial of any divorce proceedings, or at the hearing of any
application ancillary thereto. The report and recommendations of the Family Advocate are usually of
great assistance to the court. It should, however, be noted that the court is not bound to follow the
recommendations of the Office of the Family Advocate and therefore the court retains its own
discretion at all times (Skelton and Carnelley, 2011).

Form 38 (issued in terms of Regulation 55 of the Social Development Regulations to the Children’s
Act 38 of 2005), is a form to be completed by a designated social worker during an enquiry of the
type noted above. This report is, thereafter, presented to court to assist it in making a determination.
The report should contain the following minimum information: 1. It must indicate the registration and
demographic particulars of the registered social worker, 2. It should introduce the purpose and nature
of the report (i.e. its objects/goals etc.). 3. The child/children’s demographic details, 4. Details relating
to the relevant family composition (as well as other persons cohabiting with the family etc.), 5.
Provide details pertaining to the profile of the family (e.g. family background, structure, familial
relationships, physical factors etc.), 6. May set out further details germane to the legal or other type/s
of status(es) of the child/ren, 7. Indicate any special circumstances for consideration by the court, 8.
Must note any view(s) as expressed by the child/children regarding matters relevant to the
investigation, 9. Record factors necessitating the investigation, 10. Outline possible measures aimed at
assisting the family, 11. Contain the evaluation as compiled by the registered social worker, 12.
Provide details relating to a possible permanency plan (if applicable), 13. A conclusion/summation
and recommendations to the court.

CIVIL UNION AND DOMESTIC VIOLENCE

WHAT IS A CIVIL UNION?

 The Civil Union Act 17 of 2006 provides for the legal recognition of civil marriages and civil
partnerships (collectively called civil unions).
 In terms of the definition section of the aforementioned Act, a “‘civil union’ means the
voluntary union of two persons who are both 18 years of age or older, which is solemnised
and registered by way of either a marriage or a civil partnership, in accordance with the
procedures prescribed by the Act, to the exclusion, while it lasts, of all others.”

Please note: The Civil Union Act 17 of 2006 extends legal rights to both different-sex and same-sex
couples since it is defined as a voluntary union between persons regardless of their sexual orientation
or gender identity.

In Minister of Home Affairs and Another v Fourie and Another 2006 (1) SA 524 (CC), the
Constitutional Court found the common law definition of marriage as a monogamous union limited to
heterosexual persons to be unconstitutional for the reason that it did not allow same-sex couples to
enjoy the status, benefits and responsibilities that marriage accorded heterosexual couples (Skelton
and Carnelley, 2011). The court also found the marriage formula contained in section 30(1) of the
Marriage Act 25 of 1961 to be unconstitutional.

Section 1 of the Civil Union Act

† A civil union means the voluntary union of two persons who are both 18 years of age or
older, which is solemnized and registered by way of either a marriage or civil partnership, to
the exclusion, while it lasts, of all others.

† Civil marriages and civil partnerships = collectively called civil unions

† Same sex and opposite sex couples

Who can enter into the union Any person who is 18 or older and not in an existing
marriage. Different to the marriages act (minors could get married with consent but not under the civil
union act) this might constitute discrimination i.e. a homosexual 17 year old cant marry her
partner but heterosexual 17 year old can.

 Legal consequences  Consequences are exactly the same as the consequences which flow
from a marriage in terms of the Marriage Act.

 A marriage officer (ito the marriages act) can solemnise a civil union & any responsible
religious person may apply to the Minister to be allowed to solemnise a civil union.

 Ministers of religion who are registered marriage officers may refuse to solemnise the civil
union if it is against their religious beliefs. A magistrate or public official who is a marriage
officer may not refuse to solemnise a marriage that meets the prev mention requirements.
(section 6 of the Civil Union Act)
Objecting to a civil union  s 9(1) CUA states that one must lodge their objection with the marriage
officer who is going to solemnise the marriage. The marriage officer must investigate the grounds of
the objection and decide whether or not to solemnise the marriage. If he choses not to, he must give
written reasons for his decision

• The civil union / marriage is registered by: both parties stating their voluntary wish to enter
the union, signed in front of 2 witnesses who must also sign the doc. The marriage officer
must also sign this proclamation.

• The marriage officer must provide the couple with a registered certificate

• The certificate is prima facie proof of the marriage / union

WHO CAN SOLEMNISE A CIVIL MARRIAGE OR CIVIL PARTNERSHIP IN TERMS OF


THE CIVIL UNION ACT?
 Any marriage officer recognised in section 2 of the Marriages Act may solemnise a union.
 Any minister of religion or a person holding a responsible designed religious organisation or
institution may apply to the Minister in writing to be designed as a marriage officer in the
terms of the Civil Union Act.
 The Minister must from time to time publish the names of the religious institution that have
been granted rights to the solemnisation of Civil Unions in the government gazette.

WHEN CAN A MARRIAGE OFFICER REFUSE TO SOLEMNISE A CIVIL MARRIAGE


OR CIVIL PARTNERSHIP IN TERMS OF THE SO-CALLED ‘CONSCIENCE CLAUSE’?
In terms of section 6 of the Civil Union Act 17 of 2006: “A marriage officer, other than a marriage
officer referred to in section 5, may in writing inform the Minister that he or she objects on the ground
of conscience, religion and belief to solemnising a civil union between persons of the same sex,
whereupon that marriage officer shall not be compelled to solemnise such civil union.”

(The cabinet minister referred to above is the office of the Minister of Home Affairs).

 In terms of the Marriages Act, minsters of religion may refuse to solemnise a marriage if it
does not conform to their religious beliefs.
 Section 6 of the Civil Union Act originally provided that ‘A Marriage officer, other than a
marriage officer [who is a minister of religion or any person attached to religious or any
other person attached to a religious denomination or organisation, may in writing inform the
minister that they object on the grounds of conscience, religion and belief to solemnising a
civil union between persons of the same sex, whereupon that marriage officer shall not be
compelled to solemnise such a union.

Section 6 of the Civil Union Act therefore originally provided that ex-officio marriage officers [such
as a magistrate] could inform the minister that they objected to solemnising civil unions between
persons of the same sex, on the ground of conscience, religion and belief. Marriage officers who have
done this would not be compelled to solemnise such civil unions.

Pierre de Vos argued that the section 6 provisions made it more difficult for less wealthy and less
educated same-sex couples from rural areas to get married:

o Such a couple would typically go to the local magistrate court where the local magistrate
would act as the states designed marriage officer. When such a magistrate then refuses to
marry a couple, they might not pursue the matter out of ignorance or a lack of resources. Due
to the nature of discrimination of section 6 of the Civil Union Act on the lived realities of
same-sex couples’ lives, section 6 in its entirety has been repealed by the Civil Union
Amendment Act 8 of 2020. The Civil Union Amendment Act provides that the state-
appointed marriage officer can no longer refuse to solemnise a union between a same- sex
couple.

WHO IS ALLOWED TO GET MARRIED OR CIVIL PARTNERED IN TERMS


OF THE CIVIL UNION ACT?

1. Any person who is above the age of 18 years is permitted to enter a civil partnership.
2. A marriage officer may not solemnise a civil union unless each of the parties produce their
identity documents or give a prescribed affidavit to the officer.
3. Any party to the civil union who has been married previously under the Marriages Act,
Customary Marriages Act or Civil Unions Act must present a certificate of divorce order or
death certificate of former spouse or partner to the marriage officer as proof that the previous
union has been terminated
4. Any person who is already married or is in a civil partnership may not enter into a second
civil union.
5. Any person who is currently married under the marriages Act or Recognition of Customary
Marriage Act may not register a civil union.

CAN A PERSON OBJECT TO A PROPOSED CIVIL UNION?

In terms of section 9 of the Civil Union Act 17 of 2006: “(1) Any person desiring to raise any
objection to any proposed civil union must lodge such objection in writing with the marriage officer
who is to solemnise such civil union. (2) Upon receipt of any such objection the marriage officer
concerned must inquire into the grounds of the objection and if he or she is satisfied that there is no
lawful impediment to the proposed civil union, he or she may solemnise the civil union. (3) If he or
she is not so satisfied, he or she must refuse to solemnise the civil union and record the reasons for
such refusal in writing.”

WHAT IS THE CIVIL UNION SOLEMNISATION FORMULA?

In terms of section 11(2) of the Civil Union Act 17 of 2006: “(2) In solemnising any civil union, the
marriage officer must put the following questions to each of the parties separately, and each of the
parties must reply thereto in the affirmative:

 “Do you, A.B., declare that as far as you know there is no lawful impediment to your
proposed marriage/civil partnership with C.D. here present
 and that you call all here present to witness that you take C.D. as your lawful
spouse/civil partner?”
 and thereupon the parties must give each other the right hand
 and the marriage officer concerned must declare the marriage or civil partnership, as
the case may be, solemnised in the following words:

“I declare that A.B. and C.D. here present have been lawfully joined in a marriage/civil
partnership.”

WHAT ARE THE LEGAL CONSEQUENCES OF A CIVIL UNION?


Civil marriage or civil partnership in terms of the Civil Union Act 17 of 2006, attract the same legal
consequences as that which flows from the Marriage Act 25 of 1961.

In terms of section 13 of the Civil Union Act 17 of 2006 the legal consequences of a civil union are
detailed as follows:

 “(1) The legal consequences of a marriage contemplated in the Marriage Act apply, with such
changes as may be required by the context, to a civil union.
 (2) With the exception of the Marriage Act and Customary Marriages Act, any references to –
- 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.

This in essences means that all existing legislation and the law common law in which references are
made to marriage, spouse, wife and husband will include those couples who have entered into civil
partnership in terms of the Civil Union Act.

CONSIDER THE FOLLOWING:

ARE CIVIL UNIONS TRULY ON AN EQUAL FOOTING WITH


CONVENTIONAL MARRIAGES?

In Minister of Home Affairs v Fourie 2006 (1) SA 524 (CC), the Constitutional Court articulated the
following [at 150]: “The second guiding consideration is that Parliament be sensitive to the need to
avoid a remedy that on the face of it would provide equal protection, but would do so in a manner that
in its context and application would be calculated to reproduce new forms of marginalisation.
Historically the concept of ‘separate but equal’ served as a threadbare cloak covering distaste for or
repudiation by those in power of the group subjected to segregation. The very notion that integration
would lead to miscegenation, mongrelisation or contamination, was offensive in concept and
wounding in practice. Yet, just as is frequently the case when proposals are made for recognising
same-sex unions in desiccated and marginalised forms, proponents of segregation would vehemently
deny any intention to cause insult. On the contrary, they would justify the apartness as being a
reflection of a natural or divinely ordained state of affairs.”

DOMESTIC VIOLENCE:

The premier legal weapon against domestic violence is the Domestic Violence Act 116 of 1998. The
criminal law may also find application in the context of domestic violence.

The main purpose of the Act is described as follows in the preamble: “It is the purpose of this Act to
afford the victims of domestic violence the maximum protection from domestic abuse that the law can
provide; and to introduce measures which seek to ensure that the relevant organs of state give full
effect to the provisions of this Act, and thereby to convey that the State is committed to the
elimination of domestic violence”.

In S v Baloyi (Minister of Justice) 2000 (2) SA 425 (CC), the Constitutional Court noted the need to
deal decisively with domestic violence and pronounced as follows:

“…what distinguishes domestic violence is its hidden, repetitive character and its immeasurable ripple
effects on our society and, in particular, on family life. It cuts across class, race, culture and
geography and is all the more pernicious because it is so often concealed and so frequently goes
unpunished.”
SECTION 1 OF THE DOMESTIC VIOLENCE ACT 116 OF 1998 DEFINES A ‘DOMESTIC
RELATIONSHIP’ AS SUCH:

“‘Domestic relationship’ means a relationship between the complainant and the respondent:

(a) They are or were married to each other, including marriage according to any law, custom or
religion;

(b) They (whether they are of the same or of the opposite sex) live or lived together in a relationship
in the nature of marriage (although not married);

(c) They are the parents of a child or are persons who have or had parental responsibility for that child
(whether or not at the same time);

(d) They are family members related by consanguinity, affinity or adoption:

(e) They are or were in an engagement, dating or customary relationship, including an actual or
perceived romantic, intimate or sexual relationship of any duration; or

(f) They share or recently shared the same residence.”

In terms of Section 1 of the Act, domestic violence includes the following: Physical abuse, sexual
abuse, emotion, verbal and psychological abuse, economic abuse (e.g. the deprivation of financial
resources), intimidation, harassment, stalking, damage to property, entry into the complainant’s
residence without consent or any other controlling or abusive behaviour towards the complainant.

The Act allows for summary arrest (without a warrant for arrest) or arrests in terms of a warrant of
arrest appended to a protection order (whether interim or final).

INTERIM PROTECTION ORDER:

Section 5(1)-(4) of the Domestic Violence Act 116 of 1998 provides as follows:

“(1) The court must as soon as is reasonably possible consider an application submitted to it in terms
of section 4(7) and may, for that purpose, consider such additional evidence as it deems fit, including
oral evidence or evidence by affidavit, which shall form part of the record of the proceedings.

(2) If the court is satisfied that there is prima facie evidence that -

(a) The respondent is committing, or has committed an act of domestic violence; and

(b) Undue hardship may be suffered by the complainant as a result of such domestic violence if a
protection order is not issued immediately, the court must, notwithstanding the fact that the
respondent has not been given notice of the proceedings contemplated in subsection (1), issue an
interim protection order against the respondent, in the prescribed manner.

(3) (a) An interim protection order must be served on the respondent in the prescribed manner and
must call upon the respondent to show cause on the return date specified in the order why a protection
order should not be issued.

(b) A copy of the application referred to in section 4(1) and the record of any evidence noted in terms
of subsection (1) must be served on the respondent together with the interim protection order.
(4) If the court does not issue an interim protection order in terms of subsection (2), the court must
direct the clerk of the court to cause certified copies of the application concerned and any supporting
affidavits to be served on the respondent in the prescribed manner, together with a prescribed notice
calling on the respondent to show cause on the return date specified in the notice why a protection
order should not be issued.”

SECTION 7 OF THE ACT EMPOWERS THE COURT AS FOLLOWS:

“7(1) The court may, by means of a protection order referred to in section 5 or 6, prohibit the
respondent from -

(a) Committing any act of domestic violence;

(b) Enlisting the help of another person to commit any such act;

(c) Entering a residence shared by the complainant and the respondent: Provided that the court may
impose this prohibition only if it appears to be in the best interest of the complainant;

(d) Entering a specified part of such a shared residence;

(e) Entering the complainant’s residence;

(f) Entering the complainant’s place of employment;

(g) Preventing the complainant who ordinarily lives or lived in a shared residence as contemplated in
subparagraph (c) from entering or remaining in the shared residence or a specified part of the shared
residence; or

(h) Committing any other act as specified in the protection order.”

CONSIDER THE FOLLOWING:

DOMESTIC VIOLENCE UNDER ‘LOCKDOWN’:


In terms of the regulations promulgated under the Disaster Management Act 57 of 2002, commonly
referred to as ‘lockdown’, many people were confined to their homes for extended periods of time
(depending on the ‘level of lockdown’). This situation has led to many people being in close contact
with intimate partners for periods far exceeding what is usual. As a result, domestic violence rates in
the country have surged according to many sources. Divorce rates, incidentally, have also shown an
uptick not just in South Africa, but also internationally due to the impact of the ‘lockdown’ measures
in response to the COVD-19 Coronavirus pandemic (Saferspaces.org.za).

DOMESTIC VIOLENCE OCCURS IN A DOMESTIC RELATIONSHIP

◊ Section 1 of the Domestic Violence Act states that a ‘domestic relationship’ means a
relationship between a complainant and respondent in any of the following ways:

1. They are or were married to each other, including marriage according to any law, custom or
religion.
2. They live or lived together in a relationship in the nature of a marriage, although they are
not.

3. They are the parents of a child or are parents who have or had parental responsibility for that
child.

4. They are family members related by consanguinity, affinity or adoption.

5. They are or were in an engagement, dating or customary relationship, including an actual


or perceived romantic, intimate or sexual relationship of any duration.

6. They share or recently shared the same residence.

 Daffy v Daffy – court said blood relationship not sufficient (brothers) need to share a
common residence /. Have another factor

FORMS OF DOMESTIC VIOLENCE

1. Physical abuse

2. Sexual abuse

3. Emotional, verbal and psychological abuse

4. Economic abuse

5. Intimidation

6. Harassment

7. Stalking

8. Damage to property

9. Entry into the complainant’s residence without consent, where the parties do not share the
same residence.

10. Any other controlling or abusive behaviour towards the complainant.

PROTECTION ORDERS

HOW TO STOP THE ABUSE? PROTECTION ORDERS

• The legal remedy to stop abuse taking place is to apply for a protection order.

• Apply at nearest MC if no legal rep, proceedings must be explained to the complainant

• Who can apply: anyone who has suffered the DV (the victim) or the police, social workers
and teachers obo the victim (s4(3) may be brought obo complainant)(need consent of the
complainant unless they are not able to give consent – in a coma, too young).

• Person who applies = complainant

• Person who committed the DV = respondent


Act allows for emergency applications (outside of the ordinary court hours)

Procedure:

1. Fill out the application forms.

2. Complainant to make an affidavit with reasons for the protection order, the affidavit must
contain:

 A history of abuse

 Description of the most recent incident

 Evidence of medical help that the complainant received.

 Criminal records of the respondent

 Any orders against the complainant for family violence / maintenance and protection orders

3. Supporting affidavits by people with a knowledge on the matter

4. All lodged with the clerk of the court.

 Many women are illiterate in SA, therefore the police and clerks are obliged to help them with
the above process

 The court must consider the matter ASAP and where there is a child involved, the court may
appoint the family advocate to perform an investigation.

INTERIM PROTECTION ORDER

 Court will issue if prima facie evidence that the respondent is committing / committed an act
of domestic violence and undue hardship will be suffered by the complainant as a result of the
domestic violence if a protection order isn’t immediately issued.

 Interim order must be served on the respondent with (1) the claims of the complainant, (2)
evidence submitted and (3) warrant of arrest and threat of detention if he fails to abide by the
order.

 Oder has no effect until served on the respondent.

 Return of service means the clerk gives the complainant a certified copy of the interim order

 Both the complainant and the respondent will be required to appear in court on a certain date
to give reasons and evidence on why the order should or shouldn’t be made final

 If the interim order isn’t granted, the clerk will still have the application and affidavits served
on the respondent.

FINAL PROTECTION ORDER


◊ Respondent doesn’t appear on court date – order will be granted.

◊ If he does show – court must consider all evidence including an examination of the witnesses

◊ Not an “open court” only the relevant personal to the case may be there (in camera)

◊ Case is not published unless in a bona fide law report where no names are mentioned.

◊ If anyone discloses what happened in court / identity of the witnesses, they may be liable for a
fine or imprisonment up to 2 years.

◊ Court assesses the case on a balance of probabilities.

◊ The court may impose any additional conditions on the respondent as it sees fit (i.e. seize any
guns owned by the respondent) (order respondent not to return to shared residence however
he may still be liable for rent or mortgage repayments)

◊ If so ordered, a copy is served on the respondent and the complainant along with the warrant
of arrest – court will also send copies to the relevant police stations.

SETTING THE ORDER ASIDE

 The complainant & respondent may apply to vary or set aside the order with written notice to
the other party and the court.

 court can vary / set aside if good cause has been shown.

 Only if application is made voluntarily and freely.

 Clerk will forward notice or the variation / setting aside to all parties.

THE ROLE OF THE POLICE

1. Domestic violence act has specified the police role.

2. Must determine if the complainant is in danger and take the necessary steps to prevent the
complainant from harm.

3. Give reasonable assistance to the complainant (e.g., finding shelter and medical treatment)

4. The police must give and explain a notice to the complainant in the language of their
choosing that stipulates, inter alia, that they may press criminal charges or pursue a protection
order

5. Police must ensure the terms of the protection order are adhered to.

6. Respond if the complainant states that the respondent is not abiding by the terms of the order.

7. Ito s 8(5) of the DV act the police must take the following into account when determining that
the complainant is in danger:

1. Risk to the safety, health or well-being.

2. Seriousness of conduct of the breach of the order

3. Length of time since the breach


8. If there aren’t enough grounds to arrest the respondent, the police must notify him to appear
in court and what he is charged with

ECONOMIC CONSEQUENCES OF DIVORCE

† Women (especially mothers) tend to suffer greater economic disadvantage following divorce
than mend do.

† Stay home moms

† Kids living with them = more costs and harder to find a high paying job (need to fetch from
school and be their sole caregiver)

† “motherhood penalty”

† 2 households more $$ than one

† Purpose of our divorce law = ensuring a fair distribution of the wealth and trying to prevent
the above

WRITTEN AGREEMENTS –SECTION 7(1)

 In terms of section 7(1) of the DA, a court granting a decree of divorce may make an order for
the division of the marital assets or for payment of spousal maintenance in accordance with a
written agreement between parties. Settlement agreements

 Consent paper / deed of settlement.

 Because it is very time-consuming and expensive to contest a divorce in court, spouses might
with to save time and money by reaching a private settlement and avoiding court litigation.

 “shadow of the law” – decided on inter parties

 Legally enforceable agreement  prescribed format

DIVIDING THE PROPERTY ACCORDING TO THE MATRIMONIAL


PROPERTY SYSTEM

u Matrimonial property must be divided according to the rules of the chosen matrimonial
property system.

u Sometimes the court will make an order departing from the ordinary rules for dividing the
property.

u Section 9 (forfeiture of benefits)

u Section 7(3) (transfer orders)

u In real life, many couples have so little money left at the end of the marriage that there is
nothing to divide or distribute.

FORFEITURE OF PATRIMONIAL BENEFITS OF THE MARRIAGE –SECTION


9(1)
When a decree of divorce is granted on the ground of the irretrievable breakdown of a marriage, the
court may make an order that the patrimonial benefits of the marriage be forfeited by one party in
favour of the other, either wholly or in part, if the court, having regard to the duration of the
marriage, the circumstances which gave rise to the breakdown thereof and any substantial
misconduct on the part of either of the parties, is satisfied that, if the order for forfeiture is not made,
the one party will in relation to the other be unduly benefited’.

† How does forfeiture work? In COP, out COP

† What do you understand under ‘patrimonial benefits’?

† Spouse can only forfeit benefits that he received according to the matrimonial property
system, NOT is own contributions.

† Forfeiture orders cannot be made against a spouse who contributed more that half of the joint
estate in marriages in community of property.

† A court may order forfeiture of accrual.

◊ When will the court order forfeiture of benefits?

◊ The court will order forfeiture of benefits if it is satisfied that one spouse will be unduly
benefitted if the order is not made.

Pete is a very successful musician. He meets a pretty young girl, Helen, and fell in love with her. The
couple got married in community of property. Helen does not love Pete and only married him for his
money. During the marriage she has a number of affairs. Pete and Helen get divorced after two
years. By the time they divorce, the joint estate is worth R800 million. Pete contributed all of this
money, since Helen never bothered to work during their marriage and contributed nothing to the joint
estate.

 Discuss how their estate will divide according to the normal rules of marriages in community
of property.

 Discuss how their estate will divide if the court grants a forfeiture order against Helen.

◊ How does the court decide if a spouse will be unduly benefitted?


◊ The court may consider the following factors:

1.duration of the marriage,

2.circumstances that led to breakdown of marriage,

3.any substantial misconduct by either spouse.

◊ Botha case – said you can only look at these 3 requirements (closed list)

WIJKER V WIJKER [ SHOULD ALL REQUIREMENTS BE MET ? NO]

o Parties married in COP 35 years. During marriage wife started & ran successful estate
agency. Initially she held ½ the shares & husband other ½

o Husband transferred his shares to her for her tax benefit -agreed he could have them back -
when he asked for the shares she refused

o He sued for divorce. She counterclaimed a forfeiture order against him in respect of his
shares.

o In court a quo - divorce order granted against the wife & forfeiture order against husband.

o Husband appealed on ground that forfeiture should not have been decreed because no finding
of substantial misconduct on his part -also alleged trial court misdirected itself in blaming
him for the breakdown of the marriage in considering it unfair that he should share in his
wife’s business.

o SCA held forfeiture order should not have been made.

TRANSFER OF ASSETS –SECTION 7(3)

PREREQUISITES:

1. Married BEFORE 1 November 1984 Mat Prop Act

2. Married BEFORE 2 December 1988 in terms of the Black Administration Act.

But spouses married into customary law? Race issue. Appears gender neutral at least.
Respecting the freedom to contract

REQUIREMENTS: (Section 7(4))

1. Spouse contributed directly / indirectly to maintenance / increase of other spouse’s estate.

2. Because of such contribution the order is equitable and just.

The nature of the contribution: s 7(4)

1. Rendering services;

2. Saving expenses that would otherwise be incurred.

3. In any other manner.


KATZ V KATZ

◊ Section 7(4) covers the performance of the “ordinary duties” of a wife in respect of looking
after the home and caring for the family, for in performing these duties the wife renders
services and saves expenses which necessarily contribute to the maintenance or increase of
her husband’s estate.

◊ A monetary value need not be placed on the contribution.

BEZUIDENHOUT V BEZUIDENHOUT:

◊ “there is no place for discrimination between husband and wife in their respective roles”.
Reference was made to the equality and interpretation clauses in the Constitution and the
Promotion of Equality and Prevention of Unfair Discrimination Act.

◊ Household duties are NB but that doesn’t mean we ignore monetary duties

BEAUMONT V BEAUMONT [ calculation of redistribution]

 Spouses married in 1964 -before marriage entered into ANC excluding CoP& profit & loss.

 At marriage neither spouse had assets. 20 years later husband sued for divorce when he had
estate of R450k & hers was R10K.

 During the marriage wife kept house for him & kids & helped in his business without being
paid. She instituted a counterclaim for redistribution of assets in terms of section 7(3) of the
Divorce Act. Court granted her claim & awarded her R150K -he unsuccessfully appealed
against this order.

 The court a quo referred to the one third rule or guidelines of English law. SCA held should
When the court considers a redistribution order the

1. Courts must not be restricted by the 1/3rd rule or any other starting points (equal division).

2. Court has to make an assessment of what is just, having regard to the factors specifically
mentioned in the act & whatever else the court deems relevant

KRITZINGER V KRITZINGER

o Spouses married out of COP in 1967. Wife was MD of Clicks & husband was a legal adviser
to Mobil Oil in Cape Town.

o At some point during marriage husband offered a transfer to New York -declined because
move would have been detrimental to wife’s career. She earned twice as much as he did &
contributed twice as much to the acquisition/maintenance of the matrimonial home. Both
parties shared joint living expenses. In 1985 wife sued for divorce -her estate worth R690K &
husbands R275K.

o She claimed transfer of R109K being ½ net value of matrimonial home registered in his
name. She based claim on section 7 (3) of the Divorce Act & alleged amount represented her
contribution towards the acquisition & maintenance of the matrimonial home + her
contributions towards bond instalments.

o Husband denied it would be just/equitable to transfer any of his assets to his wife -
countersued for divorce & alleged irretrievable breakdown of the marriage due to his wife’s
adultery.
o He further claimed transfer of R200K of wife’s assets -alleged he was entitled as he'd
contributed indirectly to the increase of her estate by not settling overseas & had forfeited a
promotion so her estate could increase.

o Court a quo dismissed the wife’s claim for transfer of assets & allowed husbands
counterclaim for R200K. Wife successfully appealed.

COURT HELD/ MADE FOLLOWING POINTS:-


1. 2 claims should be considered separately to ensure that each claim gets the attention it
deserves.

2. Emphasized that although marriage is a partnership doesn't have same consequences of a


partnership in the legal sense.

3. Spouse who avers partnership in the legal sense was between the spouses must prove this &
the mere fact that both spouses contributed to the common household will not constitute
sufficient proof.

4. Accepted that fault could be considered in deciding whether a redistribution order


should be granted.

HOW MUCH WILL COURTS TRANSFER?


† S7(5) factors

 Existing means and obligations

 Any donations between the parties

 Any forfeiture orders

 Any other factor

† Beaumont v Beaumont – “any other factor” means the misconduct of a spouse (reason for
breakdown of the marriage) might be considered

† Court has a wide discretion and can make any J&E order

† The ‘clean break’ model

† Objective of s 7(3) redistribution orders

† Lifelong support v clean break.

SPOUSAL MAINTENANCE AFTER DIVORCE

 What is spousal maintenance? Reciprocal pro rata duties. Super rarely awarded.

 The law does recognise that, in most cases, the husband is the primary breadwinner and the
wife the primary caregiver.

 This situation is to the disadvantage of a wife, especially if the marriage is out of community
of property.

 Ongoing spousal maintenance is based on the needs of the claimant spouse.


 The court might grand an order for spousal maintenance for the spouse who needs it.

 Although spousal maintenance is seen as help to the wife, the law will also award it to a
husband where relevant.

REASONS TO AWARD SPOUSAL MAINTENANCE


 It is in the best interest of the children to have a stay-at-home mother.

 The ex-wife cannot find work at the moment.

 The ex-wife will never find work.

 It is a form of compensation for the years invested in the marriage.

 Section 7(2) of the Divorce Act provides for ongoing spousal maintenance after divorce.

 The parties can decide on this in their written settlement agreement (as discussed above in
section 7(1), or the court can order periodic payment spousal maintenance until death or
remarriage of claimant spouse.

Factors to be considered:

1. means of each party,

2. their financial needs and obligations,

3. their respective earing capacities,

4. their age,

5. the duration of the marriage,

6. the standard of living during the marriage,

7. the parties’ conduct,

8. any order under section 7(3),

9. any other factor deemed relevant.

 Koverjeev Koverjee  achieve substantive equality (don’t need to treat men and women
equally to achieve equality) Our courts have applied the ‘clean break’ principle after divorce
for many years. The aim of this principle is to ensure that the parties, after divorce, become
economically independent of each other as soon as possible. This principle, however, has to
be applied with due consideration of the particular circumstances of each case.

Changing a spousal maintenance order

 Spousal maintenance is awarded until the recipient spouse dies or remarries.

 Spouses can approach the court at a later time and request that the amount of maintenance be
increased / decreased / terminated.

TYPES OF MAINTENANCE

REHABILITATIVE MAINTENANCE
 An award for rehabilitative maintenance is usually given when the court finds that a
marriage has detrimentally affected the ability of a spouse to support themselves. This
is usually because he or she has stayed at home to look after children, although her
prospects of re-educating herself and finding employment are fair and reasonable.

 Botha case: the purpose is to enable a spouse to be restored to previous economic


position or to be reintroduced to the ability to participate in normal economic life. In
this case the wife received no maintenance order because she worked.

 How long? The court may make any order that is just and equitable

Kooverjee: 6 –12 months not always reasonable. The court made a tapered award which took into
account the wife’s decreasing need to look after children as they grow older

LUMP-SUM MAINTENANCE

• A huge amount payable once

TOKEN OR NOMINAL MAINTENANCE

 Token maintenance is an order for a minimal amount.

 The court will make such an order if there is no reason to grant maintenance at the time of the
divorce, but foresees that the spouse may in future need maintenance.

 The court would then be able to increase the amount in future should the need arise

 Easier to increase an amount than to fight for maintenance at all

RESCISSION, SUSPENSION AND VARIATION OF A MAINTENANCE


ORDER

 Section 8 of the Divorce Act provides inter alia that a maintenance order may at any time be
rescinded or varied on receipt of sufficient reasons

SUFFICIENT REASON:

 Whether a sufficient reason exists is a question of fact and the court will look at
circumstances of each case.

 sufficient if

1. If circumstances that necessitated maintenance have drastically change, a variation


can be justified.

2. If the party is not happy with award, it may be varied.

3. Fraudulent non-disclosure of information which if disclosed would lessen the amount


claimed.

 insufficient if

1. Remarried.

2. Lives with another party unless a dum casta clause is included [ provides that when
spouse is in an unchaste relationship the maintenance terminates.
PENSION INTERESTS

 Read NB in textbook

 PENSION INTEREST AND A PENSION BENEFIT:

 “Interest” = Has not yet accrued at time of divorce.

 “Benefit” = Has already accrued and falls inside estate.

 Pension sharing only deals with pension interests.

 Section 7(8) allows the payment of pension interest to be paid to non-member as soon as it
accrues to member.

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