2. Consortium Omnis Vitae PDF

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LAW OF PERSONS AND TH FAMILY

SECTION 2: THE CORE OF MARRIAGE – CONSORTIUM OMNIS VITAE BARRATT PP. 254-259 DAWOOD, GROBELAAR, WIESE AND WASSENAAR 1. The Consortium Omnis Vitae1 In Grobelaar v Havenga, the Court held that the Consortium is an ‘abstraction [of] rights, duties and advantages accruing to spouses’.2 The consortium is a legal relationship with binding rights and duties. 1. Protection of the consortium Protection against outside interference: The law protects the consortium against (a) unjustified state interference. In Dawood v Minister, the Constitutional Court held that co-habitation is an important part of the consortium and struck down legislation which undermined the cohabitation of certain couples. The Court essentially included the ‘right to perform marital obligations’ as an aspect of the right to human dignity and it can thus receive the same protection. The law also protects the consortium against the influence of (b) private parties, particularly in the case of adultery. Despite questions as to its relevance in the modern world, the delictual action against the third party in case of adultery has remained in our law and was confirmed as an actionable delict in post-constitutional South Africa in Wiese v Moolman. In Wiese v Moolman, the court extended the view propounded in Dawood (that any interference with the consortium constitutes a dignity violation) to include interference by private parties. The Court found that the action against adultery passed constitutional muster primarily due to the fact that parties to the marriage contract have voluntarily limited their own rights as well as created infringeable personality rights.

Loss of Support: The reciprocal duty of support between spouses is an important aspect of the consortium and when the negligent or intentional act of another, results in a loss of that spousal support, the surviving spouse has recourse to lex Acquilla. If the spouse whose support is lost worked only within the home, the Court may value their services and provide compensation. Enforcing the consortium between spouses: The courts can do very little to enforce the consortium between couples, for instance the court cannot interdict one party to talk to or have sex with the other. The only recourse when spouses fail to fulfil the interpersonal aspects of consortium is to sue for divorce on the grounds of ‘irretrievable breakdown’ of the marriage. Spouses are also unable to sue one another for adultery (and thus cannot interdict their spouse from committing adultery) for reasons of public policy. It may, under exceptional circumstances, be possible to interdict a third party from committing adultery with one’s spouse, although this has yet to be granted.

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Literally ‘partnership in all of life’, the consortium is the most important invariable consequence of marriage. Including; ‘companionship, love, affection, comfort, mutual services, sexual intercourse.’

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