Family Law Class Notes & Cases

Engagement An engagement is a contract between a man and a woman to marry each other on a specific or a determinable date. A valid engagement is not a prerequisite for the conclusion of a valid marriage. The E is concluded by means of an offer and acceptance. Will you marry me? λ Requirements for a valid Engagement 1. Consent Being a contract, the E is based on consent and thus the usual rules apply in connection with consent. a. Mistake: an absence of agreement on material aspects of the E. Mistaken identity (error in persona) Mistake with regard to the nature of the juristic act (error in negotio) b. Misrepresentation: when one of the parties to the contract makes a false representation to the other concerning certain facts which, had the other known the truth, would have resulted in either the contract not being concluded at all or else it being concluded on different terms. If misrepresentation is material, it will result in the cancellation of contract. It is not clear as to which type of misrepresentation is material. 

CASE: Schnaar v Jansen

Man cancelled E after finding out fiancé’s uncle murdered his wife and fiancé’s brother has served prison. Court did no justify termination of E. However, this judgement should not be followed. A party who, on reasonable grounds, foresees the eventual failure of the M b4 even entering it, should not feel obliged to enter into the M in order to avoid claim for breach of promise.

CASE: Smit v Jooste  A woman was permitted to call of her engagement after finding out that her fiancé had drunk excessively at a dance and had used foul language in the presence of women there.

Mistake in connection with significant personal qualities of one of the parties such as impotence, sterility, or serious physical or mental defects are material so that info concerning such characteristics should therefore be revealed. Mistake in regard to favtors such as the other party;s family, income, occupation, previous lifestyle or social standing is immaterial and could not jusitfu repudiation of the E unless it was 1

induced by fraud. 2. Capacity to Act Both parties must have the necessary capacity to act. A minor must obtain permission to become E from his/her parents. 3. Lawfulness Bother parties must not be unmarried. A promise made by a married person to marry after obtaining divorce or after the death of his spouse is void because it is contra bona mores.

CASE: Friedman v Harris



A married man undertook to marry the plaintiff is she paid him R 1600; in the event of the M not taking place, he undertook to refund the $$$. The woman duly paid over the $ but the man refused to marry her or refund the $ whereupon she sued him, but the action was unsuccessful. The court decided that the E was contra bona mores and therefore void. For a contract of engagement to be valid, both parties must have the capacity to marry each other at the time when the promise to marry is made. A person who is already married does not have the capacity to marry anybody else and therefore any engagement he purports to enter into will be invalid. He can only enter into a valid contract of E once his M had been dissolved.

4. Possibility of Performance At the time of entering into the agreement the parties must be in a position to marry each other. They may not be related within the prohibited degree of relationship, neither of them may be under the age of puberty, they must be of the opposite sex and so on.

λ

The Content and Consequences of Terminating an Engagement

Content: λ

λ

λ

The E is a mutual undertaking to marry each other, if a date for the marriage has been determined; there is a reciprocal duty to marry on that date. If one party, without just cause, refuse to marry on the date agreed upon, he/she commits a breach of contract (breach of promise). The E does not give either of the parties the right to claim physical intimacy or sexual intercourse from the other. This is set out so as to distinguish between E and M. In M you have tithe right to sleep with your spouse. As the E is an agreement to marry, it naturally requires the couple to be faithful to each other. If either of them enter into a relationship elsewhere/becoming engaged to a 3rd 2

party, this will constitute a breach of promise and the other party would be justified in withdrawing from the E and instituting an action to recover damages &/or satisfaction. Consequences: λ Marriage itself brings about the termination of an engagement. λ

The death of either of the engaged couple.

λ

Mutual agreement to terminate the E

λ

The withdrawal of parental consent where one of the parties is a minor.

λ

A unilateral and justified termination, base don sound reasons Justa causa is best expressed as a fact or an occurrence which comes about after the E has been entered into, and which according to human experience, will seriously jeopardize the chances of a happy and lasting M. OBJECTIVE TEST Just cause includes: - Party had become sterile - Where you are impotent - Where you have developed a seriously heritage disease - Committed a serious crime - Mentally ill - Where you cannot agree to the marital regime: in community/out of community. Why? Cos M will be governed by the regime you choose.

λ Breach of Promise: An innocent party is permitted to withdraw from the E when the other party commits a breach of contract. *The court cannot grant an order for specific performance of an E any longer However, the innocent party is entitled to claim: 1. Damages (patrimonial loss/ tangible loss, expenses incurred that were intended for the M. 2. Satisfaction: where breach will cause an infringement on the innocent party’s honour, dignity and reputation. The intention of injuring – animus iniuriandi

λ

Damages and/or Satisfaction

There are 2 Remedies for breach of contract: i. Patrimonial loss (based on the breach of contract) ii. Delictual damages (based on the delict of iniuria) 3

Damages: The general rule is that damages to be awarded for any proven patrimonial loss are calculated on the basis of positive interest. The innocent party is entitled to be awarded damages which will place him in the position he would have been in had the contract been performed.

Ability to claim: In community of pty Half of existing estate Half of the net profit Maintenance

Out of community of pty All gifts that were promised Maintenance

Requirements for prospective loss (what Court’s take into consideration) 1. The length of the M. How long the M could of lasted? 2. The age of the plaintiff (get less if he/she is older) 3. At the possibility of the plaintiff marrying someone else. Satisfaction: Innocent party must prove the intention to injure “animus iniuriandi”. Where there is no intention, the action for satisfaction will not succeed. The amount that will be awarded to the innocent party as satisfaction is up to the discretion of the court. In order to arrive at a decision, the court takes into account: 1. The way in which the breach occurred 2. The motive behind the course of action 3. The social status of the parties 4. The person’s previous life experience 

CASE: Guggenheim v Rosenbaum

Breach of promise to marry. Plaintiff sold everything she had and gave up her employment in NY and moved to SA. After moving to JHB, defendant refused to marry her. The court was of the opinion that the two actions caused confusion if combined, it may lead to a consequential injustice. The court held that the prospective loss of the benefit of the M and the actual monetary loss/expenditure incurred or to be incurred can be rewarded. TROLLIP J therefore placed the plaintiff partially in the position she would have been in if the M had taken place and partially in the position she would have been in if the contract of engagement had never been entered into.

4

Delictual damages: breach of contract of E is not sufficient to justify a claim for damages. Must not only prove that the breach was wrongful but also that it was injurious or contumelious. In this case, the plaintiff was allowed compensation.

Satisfaction and damages on the ground of seduction. Seduction is an extra-marital sexual intercourse with a virgin with her consent. In order to be successful, she must prove that she was a virgin prior to seduction, that she had been seduced and that sexual relations had occurred as a consequence thereof. An action for seduction comprises of 2 separate claims: 1. Satisfaction for defloration and thereby for minimizing the girl’s chances of making a suitable and successful M. 2. The 2nd claim is instituted for damages on the ground of the seduction, where the woman becomes pregnant. Expenses can be claimed from the seducer.

 CASE: Davel v Swanepoel The defendant had the plaintiff dangling like a puppet on a string, and had secretly married a 3 rd party without terminating the engagement. This fact will not have the effect of decreasing the amount awarded as satisfaction.

CASE: Bull v Taylor  Agreement to marry, they lived together and built up joint assets. Towards the date set for their M, the respondent repudiated the engagement. Appellant sued for damages on grounds of breach of promise to marry and seduction.

λ

The Return of Engagement Gifts

If the parties mutually agree to terminate the E, all gifts made with the M in view (sponsalitia largitas), as well as the E ring or other gifts presented to show the seriousness of the promise (arrhae sponsalitiae), must be returned by both parties. Gifts to which no specific meaning is attached and which have already been used up, alienated or lose, need not be returned.

5

Legal Requirements for the Conclusion of a Valid Marriage Marriage is defined as the legally recognized life-long voluntary union between one man and one woman to the exclusion of all other persons.

λCapacity to Act Persons who have no capacity to act are totally incapable of etering into a valid M. If there is such a M, it would be void abnitio. λDeclared prodigals A measure of uncertainty exists as to whether the M of a declared prodigal is completely invalid or whether it is valid but always out of community of pty. 

CASE: Pienaar v Pienaar’s Curator

An analogy is sought between the M of a person who has been placed under curatorship due to mental illness, and that declared prodigal. Prodigals could contract a M without their curator;s consent if, at the time of entering into M, they actually had the capacity to act. Problem is that this does not provide us with a clear answer on whether M by a prodigal will be invalid

CASE: Mitchell v Mitchell  In SA and Nam law, writers are uncertain whether a prodigal can marry without the consent of his curator, or whether it will be in community of pty or out of community of pty. The act of M itself might be to get rid of his estate. If prodigal gains more by M, in community of pty will be recommended. The advantage to which would accrue to the prodigal will determine whether M will be in community of pty or in community of pty

λ Metal Capacity

6

If a mentally ill person enters into a M, that M is void because of incapacity to act. Lack of capacity to understand their juristic act. 

CASE: Lange v Lange

In this case, a M was dissolved on the basis that the husband suffered from a certain disease causing him to expertience hallucinations.

*Certification proving that the person is in control of his acts when he concluded the M will render the M valid. λ Minors Marriage Act 25 of 1961, Section 24(1) states that: “No M officer shall solemnize a M between parties of whom one or both are minors unless the consent to the party or parties which is legally required for the purpose of contracting the M has been granted and furnished to him in writing.” Consent necessary for the marriage of a minor: 1. The parents of the minor Legitimate children Illegitimate children Sole guardianship 2. The Guardian A minor should attain the permission of their guardian in order to marry A guardian cannot marry their adopted child 3. The Minister of Home Affairs Minister able to give consent if it is in his opinion that such M is desirable. 4. The Commissioner of Child Welfare Where either one, or both parents are absent, or insane, or in any other way not cpetent to consent to the M of their minor child, consent to M between such a minor and some specified person may be granted by the commissioner. 5. The High Court Under Sec 25(4) of the Marriage Act 25 of 1961, the High Court may give permission to marry if the parent/guardian of the minor refuses consent, provided that their refusal was without adequate reason and contrary to the interests of the minor. Instances in which a minor requires no consent to marry 7

1. Minors who have already been married 2. Persons under 21 years of age who have been declared majors 3. Where the minor has been emancipated. How does failure to obtain consent affect the M - the M is not void on lack of consent only, however the Court may dissolve such a M on ground of want of consent. - Have to approach High Court to dissolve the M, and such application is brought by a parent or guardian b4 minors obtain majority, within 6weeks of the parent/guardian knowing of the M. It is a two tear approach. - The minor can also approach the COURT to dissolve the M before he/she attains majority and three months after attaining majority. - M is voidable at the instance of the minor or his parent/guardians if not made within the time limit the m becomes unassailable and continuous to exist until dissolved by death or divorce. The court may not dissolve a m unless it is of the opinion that the M is to the benefit or the best interest of the minor.

CASE: B v B



Court consenting to the M of a minor where the parents refused Refusal must be contrary to the interests of the minor. The court will not lightly exercise its power to override the refusal of a parent/guardian to consent to the marriage of their minor child.

λConsensus and Vitiating Factors There must be consensus in order for marriage to be concluded, it is a fundamental requirement. Both parties must have the will to marry each other. λ

Mistake Error in personan Error in negotio Marriage is void from the beginning But some authors (Hahlo) are of the opinion that the M is not void, but voidable. 

CASE: Martens v Martens 8

Husband married the wife at the request of a friend, so that the wife can attain SA citizenship. After conclusion of marriage, the husband tried to have the M annulled. The court rejected his claim and held that the M was valid: that they both had the intention of entering into it.

λ

Misrepresentation When one fot he parties mislead the other prior to the M by making untruthful, or gives false impression to the other party by concealing info which should have been made know. Voidable grounds: Prenuptial stupram (pregnancy from previous marriage Impotent/Sterile λ

Duress A marriage is voidable in cases where one of the spouses had been forced to consent to the marriage.

CASE: Smith v Smith



The young woman was coerced to such an extent by her father and prospective husband, that she appreared completely dazed and lacked any will of her own during the M ceremony. The M was consequently set aside.

λ

Undue Influence Voidable

λThe Marriage must be lawful A specific marriage, or a marriage between specific persons may, for a variety of reasons, be unlawful (prohibited). It can generally be accepted that an unlawful marriage is void. λPersons already married Any person who is already validly married is incompetent to contract a further valid civil marriage. The definition of marriage specifically states “one man and one woman” Consequences: 2nd marriage is void, and the person is guilty of the offence of bigamy. Putative Marriages: where the party, in good faith, believed that he/she was divorced and remarries λPersons of the same sex In Namibia, it is prohibited The position of transsexuals: You retain the gender you originally had at birth. 9



CASE: W v W

The plaintiff had undergone sexual reassignment prior to the conclusion of the marriage. The surgery was classified as a success. The court concluded that the marriage is null and void, cannot file for a divorce, can only go for an annulment.

CASE: Simms v Simms  A husband sought to have his M to be annulled on the grounds that his wife, who had undergone sexual reassignment surgery prior to their M, was all-times make. The court ruling was that the wife was a man, she had male chromosomes, the M was declared null and void. CASE: Fourie v Minister of Home Affairs  In this case, the Supreme Court of Appeal held that the common law definition of marriage was unconstitutional to the extent that it restricted the marriage to persons of the opposite sex/ the court developed the definition to include marriage to persons of the same sex.

λAdoptive Parents Adoptive parents may not marry adoptive child. Adoption does not render a marriage invalid if it would otherwise have been valid. Where 2 adopted children are not related. λPersons who are in the prohibited degrees of relationship Consanguinity: The relationship that exists between persons who have an ancestor in common. Consanguinity may exist in the direct line or in the collateral line Affinity: This is the relationship that comes into being between a married person and the blood relations of his or her spouse, as a result of the marriage. a. Blood relatives in the direct line Ａ ancestor ↓ Ｂ child ↓ Ｃ grandchild 　 ↓ Ｄ great-grand child

ABCD are thus blood relations of one another in the direct line, none may marry each other.

b. Collateral Blood Relatives 10

A B C

common ancestor

E

children

F

D

grandchildren

G

great-grandchildren

B is related to E in the 2nd degree, to F in the 3rd degree and to G in the 4th degree. B may not marry either E, F or G however, cos he is related to the common ancestor A, in the 1st degree. C is related to A in the 2nd degree, also F. It is thus permissible for C and F to marry each other, and this also applies to C and G, D and F and D and G.

λPrescribed Formalities for Civil Marriage λ

Marriage Officer Marriage must be strictly solemnized by a marriage officer. If not, then the M is void. a. Magistrates b. Special Judges c. Commissioners or ex-officio d. Priests This applied only as far as it pertains to the district in which they hold an office λ

Formalities preceding the marriage ceremony Parties should provide identity documents a. to identify the parties b. To ascertain whether parties are qualified λ

Formalities during the marriage At the solemnization, the parties must be present. A marriage officer may solemnize a marriage at any time and on any day of the week between 08:00 ~ 16:00. Solemnization should take place in a church / public office / pvt dwelling house with open doors and in the presence of the parties themselves, and at least two competent witnesses. Prescribed format: Any objections to the marriage being concluded Take person to be lawful wedded husband Pronouncement of husband and wife Kissing the bride 11

CASE: Ex Parte Dow



Formalities of the marriage not complied with. Instead of marrying inside the house, they married outside, subsequently, h and w applied for annulment of M. Court dismissed application on the basis that it was not a material defect.

λ

Registration of Marriage A marriage officer who solemnized the M must make certain that the parties concerned, and at least two competent witnesses, sign a marriage register and two duplicate copies in the prescribed form prior to leaving the premises at which the M took place

Void, Voidable and Putative Marriages

λ

Consequences of a void marriage

For legal certainty, you are required to get a declaratory order from the Court to declare the M void. Any of the party to the M or a 3rd party who has an interest can bring the application. The application can be brought even if one of the parties dies. A marriage that is void ab initio does not have the legal consequences of a valid M and does not affect the status of the parties

λ

Grounds for the nullity of a marriage

Non-compliance with the formal requirements for a valid marriage: a. The parties did not submit their identity documents or the prescribed affidavit to the M officer. b. The M was solemnized by a person who was not a competent M officer c. A minor girl under 15 yrs of age or boy under 18 yrs of age married without consent d. No witnesses were present at the M Non-compliance with the material requirements for a valid marriage 12

a. b. c. d. e.

λ

Both parties are of the same sex One of the parties is already married to someone else The parties are related to each other within the prohibited degrees of blood relationship One of the parties had not yet reached the age of puberty One of the parties was insane (has no capacity to act) at the time of contracting the M.

Voidable Marriage

A voidable M is a valid M although grounds are present either before, or at the time of contracting the M, on the basis of which the court can be requested to dissolve the M. a voidable M does affect the status of the parties

λ

Grounds for setting aside a voidable marriage λ λ

λ λ

λ



Minority: a M of a minor without the consent is not void but voidable at the request of the parent/guardian of the minor or the minor herself Stuprum: (sexual intercourse before M) Extra-marital intercourse with a 3rd party before the marriage normally does not affect the validity of the marriage. Eg: Husband should be unaware of the fact that his W was carrying someone else’s child at the time of M. Husband can apply for an annulment. Where the H knew of the pregnancy and accepts, he loses the remedy of declaring the M as voidable. Material Mistake Impotence: inability to have sexual intercourse. M voidable when one spouse proves that the other was already impotent before contracting the M, and still is, and that he/she was unaware of the impotence at the time of entering into the M. Sterility: When a person is able to have intercourse but unable to procreate children.

CASE: Venter v Venter

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 H. The H’s application to have the M rescinded was rejected because 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.

CASE: Van Neikerk v Van Niekerk  The court held that the mere fact of sterility renders the M voidable, irregardless of whether there was concealment or not. Venter’s case it more preferred as opposed to the Van Niekerk’s case. 13

λ

Consequences of a voidable marriage

Children born and conceived during the voidable M would be legitimate. In the event the application of an annulment is successful, it will have a retroactive effect  consequences derive from such a M would extinguish. The status of the parties will change, they will be placed in the position they were in before the conclusion of the M.

λ

Putative Marriage

A putative M exists when one or both parties are unaware at the time of contracting the M of the defect which renders their M void, and believed in good faith that they are lawfully married. In CL is was further required that all the formalities had to have been complied with at the solemnization of the void M.

λ

Consequences of the putative marriage

Children of a putative M is 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.

λ

Difference

Annulment

Decree of divorce

Extinguishes/erases all consequences derived Brings to an end the marital relationship from from the annulled marriage from the date it the date the divorce commences. was solemnized

14