FAMILY LAW FLF162

STUDY NOTES TOPIC1

Topic 1
The Engagement
Engagement Overview
 Definition: An engagement is a mutual agreement between two people to marry each
other at a specific place and date.
 Note: A valid engagement is not required for a valid marriage.
Requirements for a Valid Engagement
 Consensus: Both parties must agree to be engaged.
 Offer and Acceptance: One party must make an offer, and the other must accept.
 Capacity to Act: Both parties must have the legal ability to enter into the
engagement.
 Unmarried Status: Both parties must be unmarried.
Termination of Engagement
 Natural Termination:
o Marriage of the parties.

o If one party is a minor without necessary, consent.

o Death of one of the parties.

o Mutual agreement to end the engagement.

 Unilateral Termination:
o Lawful Termination: Occurs with a valid reason (justa causa), e.g., mental
illness. No breach of promise.
o Unlawful Termination (Breach of Promise): Termination without a valid
reason.
Consequences of Termination
 Delictual Damages:
o Actio Iniuriarum: The injured party can claim for sentimental damages
(solatium) if their dignity is harmed.
 Contractual Damages:
 o Previously, damages were awarded for both prospective loss of marriage
benefits and actual loss.
o Courts no longer recognize claims for prospective loss due to the speculative
nature of such claims.
 Return of Engagement Gifts:
o Gifts must be returned if the engagement ends mutually or lawfully.

o Engagement ring and other significant gifts must be returned.

o Minor or consumed gifts do not need to be returned.

o If there’s a breach of promise, the injured party can reclaim and keep gifts.

Satisfaction and Damages on the Ground of Seduction

 Recognized Claims:
o The woman must prove she was a virgin or chaste, was seduced, and that
sexual intercourse occurred as a result.
o Two Claims:

1. Reduced chance of entering into a suitable marriage.

2. Damages due to the seduction.
 Controversy: There are views that this claim should be abolished as it contradicts
section 9 of the Constitution. Section 9 of the Constitution of the Republic of South
Africa1996, 9. (1) Everyone is equal before the law and has the right to equal
protection and benefit of the law. (2) Equality includes the full and equal enjoyment
of all rights and freedoms.
Self-Assessment Questions

Peter and Susan are married but their marriage is on the rocks due to persistent
quarrel. The couple lived together in Pretoria. Peter leaves Susan and moves to
Durban where he soon gets a job and settles down. He meets Zenobia and
decides that he would like to marry her and makes such an offer to her which
she accepts without a doubt.
Discuss the legal position in the following cases (whether a valid engagement is
established or not):
1. When Peter made the marriage proposal to Zenobia, she assumed in good
faith that Peter was an unmarried person competent to enter into a
marriage. (5)
1.1 Legal Position on the Validity of Peter's Engagement to Zenobia
Key Points:
1. Unmarried Status Requirement: For a valid engagement, both parties must be
unmarried.
2. Good Faith Assumption: Zenobia assumed in good faith that Peter was unmarried
and competent to marry.
Analysis:
1. Peter's Marital Status:
o Peter is still legally married to Susan. The law requires that both parties must
be unmarried for a valid engagement to be established. Since Peter is still
married, he does not meet this requirement.
2. Zenobia's Good Faith:
o Even though Zenobia accepted the proposal in good faith, believing that Peter
was unmarried, this belief does not change the fact that Peter is still legally
married. The law focuses on the actual marital status of the parties rather than
their beliefs or intentions.
3. Legal Conclusion:
o No Valid Engagement: Since Peter is still married, a valid engagement cannot
be established between Peter and Zenobia, regardless of Zenobia's good faith
assumption. The engagement is void due to the existing marriage between
Peter and Susan.
Conclusion:
 The engagement between Peter and Zenobia is not valid because Peter is already
married, which disqualifies him from entering into a valid engagement with another
person.

2.Peter makes his marriage proposal to Zenobia on the 2nd of December

and she accepts it on the same day. On the 15th of December, Peter learns
that his wife, Susan, had died in a shooting incident the previous day. (4)
Legal Position on the Validity of Peter's Engagement to Zenobia
Key Points:
1. Timing of the Engagement: The proposal and acceptance occurred on December
2nd.
2. Death of Susan: Peter learned of Susan's death on December 15th, but she had
actually died on December 14th.
Analysis:
1. Peter's Marital Status at the Time of Engagement:
o On December 2nd, when Peter proposed to Zenobia, he was still legally
married to Susan. This means that at the time of the engagement, Peter was not
unmarried, which is a requirement for a valid engagement.
2. Effect of Susan's Death:
o Susan's death on December 14th legally ended the marriage between Peter and
Susan. However, this occurred after the engagement with Zenobia had already
been established.
3. Legal Conclusion:
o No Valid Engagement on December 2nd: At the time of the engagement on
December 2nd, the requirement that both parties must be unmarried was not
met, as Peter was still married. Therefore, the engagement on that date was not
valid.
o Possible Re-Engagement: After Susan's death on December 14th, Peter
became legally unmarried. If Peter and Zenobia re-affirmed or renewed their
engagement after Peter became aware of Susan's death, it could potentially be
valid. However, the original engagement on December 2nd remains invalid.
Conclusion:
 The engagement between Peter and Zenobia on December 2nd is not valid because
Peter was still married at that time. Susan's subsequent death does not retroactively
validate the engagement.
3.Peter told Zenobia that he was still married to Susan. The parties then
agreed to get engaged on the condition that Peter divorces Susan within
6 weeks. Peter's legal team managed to finalize the divorce within 4
weeks. (4)
Legal Position on the Validity of Peter's Conditional Engagement to Zenobia
Key Points:
 1. Conditional Engagement: Peter and Zenobia agreed to get engaged on the condition
that Peter divorces Susan within 6 weeks.
2. Divorce Finalization: Peter's divorce was finalized within 4 weeks.
Analysis:
1. Condition Precedent:
o The engagement between Peter and Zenobia was conditional upon Peter
obtaining a divorce from Susan within 6 weeks. This means the validity of the
engagement was contingent on the fulfilment of this condition.
2. Fulfilment of the Condition:
o Peter's legal team finalized the divorce within 4 weeks, which is well within
the 6-week timeframe agreed upon by Peter and Zenobia. As the condition was
met, the engagement would become valid.
3. Legal Conclusion:
o Valid Engagement: Since the condition (divorce from Susan) was fulfilled
within the agreed-upon period, the engagement between Peter and Zenobia is
valid.
Conclusion:
 The engagement between Peter and Zenobia is valid because the condition of Peter's
divorce from Susan was met within the specified timeframe.