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FAMILY LAW: PVL203

ENGAGEMENT:

The engagement – contract between a man & woman to marry each other on a specific/determinable date. A valid engagement is not a prerequisite for a valid civil marriage. Can be conditional e.g. dependent on parents consent given - gets an increase in salary Impossible condition – engagement valid – condition held as pro non scripto Unlawful condition – engagement valid – condition held as pro non scripto e.g forced sex Condition contrary to marriage – void e.g. prostitute herself Can be concluded orally or in writing - effect when person making offer learns of acceptance if by post. If one of the parties is under the impression that’s it’s a joke no engagement comes into place. When a party to the engagement refuses to proceed with the marriage, the engagement ring that was given to this party must be returned. Requirements 1. Consensus 2. Capacity to act 3. Must be lawful 4. Must be judicially and factually possible Mistakes:- only grounds for making engagement void & thus no damages can be claimed 1. 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. 2. Error in negotia – misunderstanding action – thinks it is a christening. Misrepresentation: - Making engagement voidable occurs when one of the parties to the contract makes a false representation/omission or does not correct an impression to the other concerning facts which, had the other known the truth, would have resulted in the contract not being concluded at all or else concluded on different terms. Capacity to act – both parties to the engagement must have the capacity to act. Mentally ill person does not have the capacity to become engaged as long as the illness lasts – can in lucid interval. Prodigal can. Page 1 of 32

Lawfulness – parties must be unmarried. A promise by a married person to marry after obtaining a divorce is void – contra bonos mores – against good morals. Grounds for termination – 1. Couples marriage 2. The death of either of the parties 3. A mutual agreement to terminate the engagement 4. Withdrawal of parental consent where one person is a minor 5. A unilateral & justified termination based on sound reason – justa causa 6. Breach of promise – the innocent party is allowed to withdraw from the engagement if the other party commits to breach of promise. justa causa – Objective. Fact or an occurrence which comes about after the engagement has been entered into & which according to human experience seriously jeopardizes chances of a happy & lasting marriage e.g. 1. Becoming sterile, 2. Impotent, 3. Developing serious heredity disease, 4. Imprisonment for committing a serious crime, 5. Becoming mentally ill, 6. Becoming an alcoholic. Examples of circumstances that do not qualify as justa causa are – disagreements between parents & parties regarding wedding arrangements, one party no longer loves the other. Return of the Engagement Gifts: If parties mutually agree to terminate the engagement - or due to justa causa - all gifts made with the marriage in view (sponsalitia largitas), & engagement ring or other gifts showing seriousness of the promise (arrhae sponsalitiae) must be returned by both parties. Gifts already used up need not be. Gifts to which no specific meaning is attached & which have already been used up, alienated or lost, need not be returned. In Breach of promise – the innocent party is entitled to the sponsalitia & arrhae sponsalitiae (gifts made to show seriousness of the promise to marry – engagement ring). Small unconditional gifts may be

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retained by guilty party. If innocent party claims damages value of gifts retained offset against claim for damages. Breach Of Promise: Examples are: 1. One of parties terminates the engagement after he realizes he does not love the other. 2. One of parties continuously refuses to agree to a wedding date, 3. One of parties enters into a marriage with another. Damages for Breach Of Promise General rule - damages for patrimonial loss are calculated on positive interest - means innocent party is entitled to damages placing him in position he would have been in had the contract been fulfilled. Guggenheim V Rosenbaum – Allowing both positive and negative interest. Court held 1. Positive & negative interest claimable 2. Damages for iniuria must be separate Couple met in USA - defendant domiciled in S.A - defendant asked plaintiff to marry him agreed marriage be in S.A. The plaintiff gave up her flat/car/job, & some of her furniture (rest stored). When she arrived in Cape Town the defendant repeated his promise to marry her - parties went to Jhb where the defendant refused to marry the plaintiff. She sued him for damages for breach of promise. In reply he pleaded 2 special defenses: 1. Plaintiff’s divorce not valid in S.A since she & her husband were divorced in US state in which they were not domiciled. Thus his promise to marry the plaintiff was void - contra bonos more as she was still legally married. 2. Law of New York had to be applied - New York did not allow the plaintiff to recover damages for breach of promise & the plaintiff’s claim for damages should therefore be rejected. The defenses were rejected & the plaintiffs claim for damages was allowed. Plaintiffs claim for damages was decided as follows: 1. Negative Interest - Cost of packing/storing belongings 2. Positive Interest - Prospective loss – he was affluent and has superior life position she would have derived material benefits from their marriage – R2000 was approved. 3. Delictual damages – R500 awarded. Schnaar V Jansen –– onus on individual to investigate facts– justa causa.

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Court held not justa causa “if a man engages himself to a woman without having satisfied himself as to her relatives he takes the risk of their being unsatisfactory” After engagement defendant learnt plaintiff’s uncle had a black wife - another was hanged for murder & brother had been convicted of theft. Defendant repudiated engagement - plaintiff sued breach of promise. Defendant admitted but averred that the horrible relatives rendered it impossible for him to keep his promise of marriage and that his repudiation was a just causa. She not happy. She won. Van Heerden suggests decision incorrect as “an engagement to marry is a contract of utmost good faith & a party with a skeleton in his/her cupboard is obliged to disclose it” The court can no longer grant an order for specific performance of an engagement Davel v Swanepoel – the defendant kept the plaintiff on string & secretly married a third party without first terminating the engagement Smit v Jacobs – the defendant secretly entered into a marriage with third party without terminating the engagement first Legal Requirements For The Conclusion Of A Valid Civil Marriage: 1. Capacity to act 2. Consensus 3. Marriage must be lawful 4. Formalities must be complied with Definition - Marriage is traditionally defined as the legally recognized lifelong voluntary union between two parties to the exclusion of all others. Capacity to act – mentally ill persons can't unless during lucid interval. Infant (children below age of 7) do not have the capacity to act. Girls below 12 & boys under 15 cannot marry – puberty. Prodigals may marry without consent Lawfulness - A marriage is not valid unless it is lawful for the parties to marry Consensus – forms the basis of & is fundamental requirement for entering into a marriage. Both parties must have the will to marry each other. Error in persona & error in negotio are the only forms of material mistakes recognized in connection with marriage. Misrepresentation – if one party misleads another prior to marriage by making false statements or creating a false impression by concealing information which should have been divulged & thereby

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persuades the other to enter into marriage, marriage is voidable if misrepresentation was of a serious nature. Venter v Venter – fraudulent misrepresentation – marriage void One of the parties at the time of marriage fraudulently concealed that she was sterile. The wife knew that she was sterile due to an operation that she has undergone. She failed to reveal this to the husband. Husbands application to have marriage annulled was rejected on grounds he did not allege in his pleading that his wife had concealed such facts. The action rests not on the mere presence of sterility, but on the fraudulent concealment thereof. NB - Van Neikerk v Van Niekerk held that sterility renders the marriage regardless of whether there was concealment or not. (Venter’s case it more preferred as opposed to the Van Niekerk’s case). Smith v Smith – Duress makes marriage voidable Bride coerced to such an extent by her father & prospective husband that she appeared dazed & lacked the will of her own during the wedding. The court concluded that the duress rendered the marriage voidable & therefore set marriage aside. Undue influence also renders a marriage voidable; generally an unlawful marriage is void. Consanguinity Persons within the prohibited degrees of relationship – our law prohibits marriage between persons within certain degrees of relationship. Marriages entered into in conflict with this prohibition are void. Relationships Prohibited 

Consanguinity – relationship created by birth - irrelevant if legitimate or illegitimate (blood relationship) – direct line – your parents, your children.

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

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Affinity - relationship that comes into place by marriage & blood relations of spouses (relationship by marriage) – direct line – your parents in law, your step children

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Affinity (relationship by marriage) – collateral line – your sister in law , brother in law

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Ascendants – your grandparents, your parents

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Descendants – your children, your grandchildren

Blood Lines: 

Cousins may marry each other Page 5 of 32

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A man may marry his deceased’s brother wife

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A woman may not marry her deceased husbands father

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A man may not marry his sisters daughter Formalities of marriage ceremony – sec12 of the Marriage Act 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. Solemnization should take place in a church/public office/pvt dwelling house with open doors 5. Two competent witnesses must be present. 6. No proxy 7. Prescribed format:

Doesn't make marriage invalid 1. Marriage officer / parties thereto & 2 witnesses must sign marriage register afterwards Recognition of Customary Marriage Act. Act recognised all customary marriages irrespective of polygamy and when effected. Requirements for recognition before Act – marriage must have been in accordance with customary law of whatever race/tribe. Marriages had to be registered before Nov 2002 with Dept of Home Affairs but failure to register does not affect validity. Matrimonial system is governed by the customary law they were married under – with first wife being main wife and her household the senior one etc. Marriages effected before the Act may change their matrimonial property system with leave of court on application by all spouses – court will grant ig:1. Sound reasons given 2. No one else prejudiced by change 3. Notice to all creditors owed more than amount specified – currently R500 Wife is no longer subservient to husband in law and can act on her own – by the customary law may restrict her capacity Only grounds for divorce is "irretrievable breakdown of marriage" Court granting divorce has same powers on dissolution of property as in civil marriages – but difficulties are encountered due to customary law provisions especially with regards to complete separation of property etc. Page 6 of 32

Children of divorcing customary law parents are still subject to family advocate investigating and all other features of civil divorce. Maintenance on divorce – Act allows courts to consider such aspects as the lobola paid etc when deciding maintenance and father as lobola holder can join proceedings. Except in KZN, death of spouse does not end customary marriage in so far as property is concerned – house does not cease when death occurs – man in tribe usually takes over etc. Customary marriages after Act Requirements 1. Both spouses over 18 2. Both consent 3. Ngotiated/entered into in terms of customary law If minors wish to marry – same routine as civil marriage requirements. Kids marrying without consent – same happens as in civil marriages Marriage must be registered within 3 months – if registration satisfied marriage did occur he will register marriage – give certificate stating date, identities, lobola. If parties do not register marriage anyone with interest can – but non-registration does not make marriage invalid. In monogamous customary marriage – same rules as civil marriage apply regarding property system – no anc – married in CoP – if the parties wish to change same process as civil marriages. If customary law husband has wife already and wishes to take another – must apply to court for approval of contract governing property system to apply to subsequent marriages – Act quiet on what happens if he doesn't. Wife's status is same as if marriage was before Act as is dissolution of marriage. If spouse is party and wants to marry other person under civil law – can't. Civil Union Marriages Act – operation in 30 November 2006 Applies to same sex & heterosexual couples. Requirements for a civil union are:1. Both parties must be older than 18 years of age – no consent from anyone is poss if under 18 2. Neither party may be partner in more than one marriage or civil partnership at any given time 3. Must be monogamous, 4. Neither party may be a spouse in a civil or customary marriage, 5. Apart from they may be of same sex – must be no other legal prohibition Page 7 of 32

Allows same sex & heterosexual couples to enter into a "marriage" in terms of the act or a "civil partnership" in terms of the act. Partners can call it marriage or civil union Irrespective of name, the marriage/union has the same consequences as a marriage in terms of the Marriage Act. Gory v Kolver Concourt confirmed an order by HC declaring sec 1(1) of the Intestate Succession Act unconstitutional insofar as it does not provide for a permanent same sex life partnership to inherit automatically as a spouse would, when the other partner dies without a will. Court upheld HC reading in of the words “or partner in a permanent same sex life partnership in which the partners have undertaken reciprocal duties of support” after the word “spouse”, wherever it appears in the section. Concourt held that the order of constitutional invalidity should, in the main, operate retrospectively – but imposed limitations aimed at reducing the risk of disruption in the administration of deceased estates & protecting the position of bona fida third parties. Void Marriages A void marriage is one which has simply never come into existence. The position is thus exactly as it would have been had the “marriage” never been concluded Void marriage on following – 1. Marriage is solemnized by someone who is not a competent marriage officer 2. No witnesses present at marriage 3. One party is already married 4. The parties are related to each other within the prohibited degrees of relationship 5. One of the parties is below age of puberty 6. One of the parties is mentally ill Consequence Of A Void Marriage – marriage is void ab initio – from the outset – does not have legal consequences of a valid marriage. Voidable Marriage Marriage in which grounds are present either before or at time of the wedding, on the basis of which the court can be requested to set the marriage aside. Grounds for setting aside: 1. Minority 2. Stuprum – woman is pregnant by another man at time of marriage Page 8 of 32

3. Material mistake 4. Impotence 5. Sterility Consequences of A Voidable Marriage: A voidable marriage remains in force & has all the normal legal consequences of a valid marriage until it is set aside by a court order. Children born & conceived during the voidable marriage are legitimate. In the event the application of an annulment is successful retroactive effect in that parties will be placed in the position they were in before the conclusion of the marriage. Putative Marriage When one/both parties unaware of defect which renders the marriage void/voidable. 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). Consequences of A Putative Marriage: - 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. Putative marriage bona fide at time of entering into marriage – if married without anc marriage is considered CoP & loss Children of a putative marriage are legitimate. As the court confirms the legitimacy of the children, it means that the children fall under the authority of the father as natural guardian, unless the court as upper guardian issues an order to the contrary. NB - Putative marriages ought to come into existence even if all the formalities were not complied with at the solemnization of the marriage. A court cannot declare a putative marriage valid. The children born from a putative marriage are legitimate. Moola V Aulsebrook: - Court had to decide whether or not a putative marriage can come into existence if the marriage was not duly solemnized. The applicant & deceased husband had an Islamic marriage ceremony - priest was not a duly appointed marriage officer but they didn't know that & didn't know they had to be married by a duly appointed marriage officer. The spouses lived monogamously from wedding until his death. When he died it was discovered that his will was invalid so estate had to devolve intestate but his kids couldn't inherit due to

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illegitimacy (at that time). Application to court was based on argument marriage was a putative marriage even though the statutory requirements for solemnization of a marriage had not been complied with. Solomons V Abrams: due solemnization as a requirement for a putative marriage. Parties entered into a Muslim marriage - no evidence they attempted/intended to comply with the requirements of the Marriage Act - nor did they make any attempt to establish what those requirements were. They did not think that they had entered into a civil marriage. The priest did not hold himself out as being authorized to solemnize a civil marriage. Applicant sought an order declaring that the union between the parties was putative civil marriage & that the children born thereof were legitimate. The application was dismissed. 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. Marriage of Minors Consent needed:- None if child married previously Otherwise 1. Both parents if alive (even if divorced) 2. One parent alive – that parent 3. One parent is guardian – that parent 4. Only guardian – the guardian 5. If both parents mental, absent no guardian etc – Commissioner for Child Welfare 6. If any of above refuses consent – High Court 7. Buy under 18 and girl under 15 - Parents & Minister of Home Affairs Where a minor entered into a marriage without the necessary consent – marriage is not void but parents/guardian can app...