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LFL162 2024 01 SG V4 - Our Studyguide

Family Law (STADIO)

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Family Law
LFL162

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© STADIO
No part of this publication may be reproduced, stored in a retrieval system or
transmitted in any form or by any means – electronic, electrostatic, magnetic
tape, mechanical, photocopying, recording or otherwise.

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Note

It is important to note that this study guide must be read in conjunction with the
study material contained on the module course site accessed via your Learning
Management System (LMS), CANVAS@mySTADIO.

Please consult CANVAS@mySTADIO to confirm whether a prescribed textbook

must be purchased. Where necessary we will refer to specific pages or chapters.

There may also be reference to additional recommended reading material

available for free or at a cost. This will be optional reading intended to enhance
your understanding of the material.

The content of the STADIO study guides and teaching documents are not
intended to be sold or used for commercial purposes. Such content is, in essence,
part of tuition and constitutes an integral part of the learning experience,
regardless of the mode.

Links to websites and videos were active and functioning at the time of
publication. We apologise in advance if there are instances where the owners of
the sites or videos have terminated them. Please contact us in such cases.

A Glossary of terms may be provided at the end of this study guide.

Any reference to gender includes all genders. Similarly, singular may refer to
plural and vice versa.

It is your responsibility to regularly access CANVAS@mySTADIO to make sure

that you always refer to the latest and most updated material for this module.

We encourage students to make use of the available resources on the STADIO

Online Library available on CANVAS@mySTADIO.

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General Information

Our commitment to our students is to maintain friendly, fast and efficient

communication. Our office hours are from Monday to Friday, between 08:00 –
16:30.

Please refer to the contact details below in order to have your administrative
queries addressed as soon as possible:

SOUTH AFRICAN OFFICE:

KRUGERSDORP
Phone: +27 (0) 11 662 1444
Email: info@stadioDL.ac.za

NAMIBIAN OFFICE:
WINDHOEK
Phone: +264 (0) 83 331 0080
Email: naminfo@stadioDL.ac.za

Please refer to CANVAS at https://stadio.instructure.com/login/canvas for the

facilitator details and any academic inquiries.

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Lecturer Details

Lecturer Ms Michelle Smal

Consultation times Any time via email

Cell Please use the Inbox function on CANVAS

Email MichelleS@stadio.ac.za

You may contact your Lecturer should you have questions or experience
problems with the module.

The Discipline Leader is Dr Christo Swart (email: ChristoS@stadio.ac.za)

Textbook Availability

LOCATION CONTACT PERSON

STORE: Wize Books (STADIO’s official and preferred supplier)
Nationwide Delivery via Duan Hartzer
the STADIO BOOKS Tawanda Nkozi
portal (online) and Mathilda van Staden
Pretoria (store) Christie Nigrini
CONTACT NUMBER and EMAIL ELECTRONIC ORDERING OPTION
012 362 5885 Website:
enquiries@stadiobooks.co.za www.kd.stadiobooks.co.za

STORE: Academic Books

Pretoria Anne Buys
CONTACT NUMBER and EMAIL
084 598 9293
anne@academiks.co.za

STORE: Armstrong Books

Johannesburg Louisa Shulz
CONTACT NUMBER and EMAIL
011 836 0124 Website:
louisa@armstrongs.co.za www.armstrongs.co.za

STORE: Bargain Books

Krugersdorp
CONTACT NUMBER and EMAIL
011 273 0030 Website:
krugersdorp@bargainbooks.co.za www.bargainbooks.co.za

STORE: Discount Books

Johannesburg

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CONTACT NUMBER and EMAIL Website:

011 482 7000 www.discounttextbooks.co.za

STORE: Juta
Online

CONTACT NUMBER and EMAIL Website

021 659 2300 www.juta.co.za

STORE: Lexis Nexis (online)

Online

CONTACT NUMBER and EMAIL Website:

031 268 3007 www.store.lexisnexis.co.za

STORE: Protea Bookstores

Pretoria Bernice Strydom
Bernice Strydom

CONTACT NUMBER and EMAIL

012 362 5664 Website:
bstrydom@proteaboekwinkel.com www.proteaboekhuis.com

STORE: Van Schaik Bookstores – South African Students

Nationwide

CONTACT NUMBER and EMAIL

012 366 5400 Website:
vsorders@vanschaik.com www.vanschaik.com

STORE: Van Schaik Bookstores – Namibian Students

Windhoek
Theminkosi Ndlovu

CONTACT NUMBER and EMAIL

061 206 3364
vsunam@vanschaik.com Website:
www.vsnam.co.na
Oshakati

CONTACT NUMBER and EMAIL

064 230 171
oshakati@vanschaik.com

STORE: Secondhand Books

Online To search for used textbooks in good condition visit:
http://bit.ly/SBS_2nd_Hand_Books.

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Prescribed Reading

The prescribed textbook for LFL162 is:

South African Family Law, Heaton and Kruger (2015) 4th ed, LexisNexis Durban.
(ISBN: 978–0–409–12059–2).

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ASSIGNMENT
Semester 1 2024
Module name Family Law
Module code LFL162
Due date 22 April 2024
Total marks 50

This assignment is compulsory and must be submitted through CANVAS,

inside the corresponding Module Class Course on or before 22 April 2024 by
24:00.

STEP 1: COMPLETING YOUR ASSIGNMENT

Your assignment answer must include the following sections:

COVER PAGE
Please include the following information on the first page of the assignment:
Name, Surname, Student Number and Module Code.

BODY
1. The assignment answers must be typed in MS Word format and saved as a
PDF document (File > Save As > Save as Type: PDF).
2. Save your file (MS Word or PDF) with the following naming convention:
[STUDENTNUMBER] [MODULECODE] [SURNAME].pdf
E.g. 21111234 BCU101 Surname.pdf

LIST OF REFERENCES
Refer to the STADIO Referencing guide HERE for guidance.

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Once you have completed your assignment and saved it, you must log in to CANVAS
to submit your assignment by the due date.
IMPORTANT: Ensure that you submit your assignment answers on or before the due
date and time.

STEP 2: SUBMITTING YOUR ASSIGNMENT ON CANVAS

Once you have completed your assignment, log in to CANVAS as follows:

1. Log in to CANVAS using your MySTADIO details:

(Username: studentnumber@stadioDL.ac.za and Password: ID number)
2. A specific course inside of CANVAS for each of your modules has been created
for you to submit your Assignment to. Select the desired module from the
dashboard.
3. Submit your assignment before the end of the due date.

PLEASE ENSURE THAT THE ANSWER THAT YOU SUBMIT IS IN MS WORD OR

PDF FORMAT. NO SCANNED DOCUMENT WILL BE MARKED.

• The process detailed above is the same on a personal computer and mobile
device. You will, however, need to ensure that you have saved your completed
assignment on the mobile device and have downloaded the CANVAS Student
Application before attempting to submit.
• You do not require a CANVAS class ID and enrolment key to access your
registered module class, as you have been allocated to the class based on your
registration. If you do not see your module class appear, please contact the office
for assistance.
• If you experience any difficulties during the submission process – after reading
through the guide and attempting the prescribed steps – please do not hesitate to
contact the office for assistance.

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Question 1 (20 marks)

M and X are divorcing and have one minor child, J. M comes to you for legal information
and would like to know more about the aspects a court may regulate where the
maintenance of dependent children is concerned. She specifically wants you to
elaborate on the different legal positions and the orders a court may make in each
instance.

Comprehensively discuss the maintenance of children where divorce is concerned and

inform M on her aforementioned request.

Note: Each aspect must be addressed under a separate heading.

Question 2 (10 marks)

Mr P and Miss R have been in a relationship for 9 years and have been living together
for 5 years. They are undecided whether they want to get engaged and then married or
if they want to continue with the relationship as it is.

They are sure that they want their rights to be protected, regardless of the path they will
follow.

2.1 In the context of South African law, explain to Mr P how spouses can protect
their rights within their marriage, specifically focusing on concepts like assets,
liability, succession and spousal maintenance. (5)

2.2 In the context of South African law, explain to Miss R what their current
relationship may be classified as and how they can protect their rights in terms
of this relationship. (5)

Question 3 (20 marks)

Research the topic of Spousal Maintenance in the instance of the dissolution of marriage
by divorce. You are required to use the specific sources to compile a comprehensive
analysis of the different results you found using the various sources.

The sources should be the following:

1. Prescribed textbook

2. Chat GPT

3. Google Scholar

4. Elicit.org

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Use the following table to document your comprehensive analysis.

Prescribed ChatGPT Google Elicit.org

Textbook Scholar
Definition of
spousal
maintenance
after divorce
Factors the
court takes into
account
Types of
maintenance
orders
Accuracy of
research
results
Accuracy of
references and
legislation cited

Assignment Total: 50 Marks

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Table of contents

Heading Page number

MODULE PURPOSE AND OUTCOMES 1

TOPIC 1 THE ENGAGEMENT 2

1.1 Introduction 2
1.2 Requirements for a valid engagement 3
1.3 Termination of engagement 3
1.4 Consequences of termination 3
1.5 Satisfaction and Damages on the Ground of Seduction 4
Summary 5
Self-Assessment Questions 5

TOPIC 2 THE LEGAL REQUIREMENTS FOR CIVIL AND CUSTOMARY MARRIAGES

6
2.1 Introduction 6
2.2 Requirements for a valid marriage 7
2.3 Agreement 10
2.4 Lawfulness 10
2.5 Prescribed formalities 10
2.6 Customary marriages 11
2.7 Other mariiages 12
Self-Assessment Questions 12

TOPIC 3 LIFE PARTNERSHIPS 13

3.1 Introduction 13
3.2 Definition of a life partnership 13
3.3 Types of Contracts entered into by life partners 14
3.4 Remedies available to life partners 14
3.5 Constitutional considerations 14
Self-Assessment Questions 15

TOPIC 4 VOID, VOIDABLE AND PUTATIVE CIVIL MARRIAGES 16

4.1 Introduction 16
4.2 Definition and instances of a void marriage 16
4.3 Consequences of a void marriage 17

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4.4 Definition and instances of a voidable marriage 17

4.5 Consequences of a voidable marriage 18
4.6 Putative marriages 18
Self-Assessment Questions 19

TOPIC 5 CONSEQUENCES OF A CIVIL MARRIAGE 20

5.1 Introduction 20
5.2 Examples of status changes 20
5.3 Consortium Omnis Vitae 21
5.4 Spousal maintenance 21
Summary 23
Self-Assessment Questions 23

TOPIC 6 MAINTENANCE 24
6.1 Introduction 24
6.2 The Maintenance Act 24
6.3 Maintenance claim process in court 25
6.4 Court orders 25
6.5 Appeals 26
6.6 Enforcement of maintenance orders 27
Summary 27

TOPIC 7 THE VARIABLE CONSEQUENCES OF A CIVIL MARRIAGE IN

COMMUNITY OF PROPERTY 28
7.1 Introduction 28
7.2 Definition of marriage in community of property 28
7.3 Cases in which community of property do not arise 28
7.4 The nature of in community of property 29
7.5 The content of a marriage in community of property 29
7.6 Liabilities 30
7.7 Administration of joint estates 30
Self-Assessment Questions 32

TOPIC 8 THE VARIABLE CONSEQUENCES OF A CIVIL MARRIAGE OUT OF

COMMUNITY OF PROPERTY 33
8.1 Introduction 33
8.2 Types of antenuptial contracts 33
8.3 Requirements for a valid antenuptial contract 34
8.4 Additional requirements for a minor’s valid antenuptial contract 34
8.5 Content of an antenuptial contract 34
8.6 Interpretation of an antenuptial contract 35
8.7 Cancellation and amendment of an antenuptial contract 35
8.8 Termination of an antenuptial contract 35
8.9 The accrual system 35

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8.10 Calculating accrual 36

8.11 Protecting a spouse’s right in terms of accrual 36
Self-Assessment Questions 37

TOPIC 9 DISSOLUTION OF MARRIAGE BY DEATH 38

9.1 Introduction 38
9.2 Marriages in community of property 38
9.3 Marriages out of community of property 39
9.4 Maintenance of Surviving Spouses Act 27 of 1990 39

TOPIC 10 THE GROUNDS FOR DIVORCE 40

10.1 Introduction 40
10.2 Grounds for divorce 40
10.3 Irretrievable breakdown of the marriage 41
10.4 Incurable mental illness or continuous unconsciousness 41
10.5 Court’s discretion to refuse a divorce order 41

TOPIC 11 PATRIMONIAL CONSEQUENCES OF DIVORCE 42

11.1 Introduction 42
11.2 Patrimony of spouses 42
11.3 Pension interests 43
11.4 The clean-break principle 43
11.5 Forfeiture of patrimonial benefits 43
11.6 Redistribution of assets 44

TOPIC 12 MAINTENANCE OF A SPOUSE AFTER DIVORCE 45

12.1 Introduction 45
12.2 Where parties agree on maintenance 45
12.3 In the absence of agreement 46
12.4 Types of maintenance orders 46
Self-Assessment Questions 46

TOPIC 13 THE INTERESTS OF CHILDREN OF DIVORCING PARENT 47

13.1 Introduction 47
13.2 Best interests of the child 47
13.3 The Mediation of Certain Divorce Matters Act 24 of 1987 48
13.4 The Divorce Act 70 of 1979 48
13.5 Aspects the court may regulate 48
13.6 Enforcement of guardianship, contact and care 50
Self-Assessment Questions 51

TOPIC 14 THE DUTY OF SUPPORT IN RESPECT OF A CHILD 52

14.1 Introduction 52
14.2 Factors taken into account when considering the duty to support 52
14.3 Persons obliged to support a child 53
14.4 Recovery of expenses relating to support 53

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14.5 Reciprocity of the duty of support 53

14.6 Termination of support 53
Self-Assessment Questions 54

TOPIC 15 THE DOMESTIC VIOLENCE ACT 116 OF 1998 55

15.1 Introduction 55
15.2 Purpose of the Domestic Violence Act 55
15.3 Persons who qualify for protection under the act 56
15.4 Protection orders 56
15.5 Jurisdiction of the court 56
15.6 Reporting abuse 56

REFERENCES 57

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Module purpose and outcomes

Dear Student,

Welcome to Family Law.

Family Law is a 10-credit module offered on NQF level 6.

This module provides you with insight into the basic concepts, terminology, and
principles of Family Law. You are familiarised with legal principles related to
engagements, civil marriages, consequences of marriage, the dissolution of
marriages and the principles related to life partnerships. The module also
provides you with knowledge on maintenance of a spouse or child upon divorce
and the best interests of the child during divorce proceedings. You are introduced
to the sources of Family Law to enable you to extract principles from these
sources and apply them to factual scenarios. The module also introduces you to
the influence and impact of the Constitution of the Republic of South Africa, 1996
on Family Law.

Upon successful completion of this module, you should be able to:

1. Demonstrate an in-depth understanding of the basic concepts and
principles of Family Law.
2. Analyse and solve well-defined problems related to the Family Law.
3. Identify, analyse and apply relevant legal principles to factual scenarios in
contexts involving Family Law.
4. Demonstrate an understanding and appreciation of the influence of
constitutional principles on Family Law.

Note: Any reference to masculine gender may also imply the feminine. Singular
may also refer to plural and vice versa.

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Topic 1
The Engagement

Prescribed reading

Case law:
1. Friedman v Harris 1928 CPD 43.
2. Thelemann v Von Geyso 1957 (3) SA 39 (W).
3. Van Jaarsvled v Bridges 2010 (4) SA 558 (SCA).
4. Krull v Sangerhaus 1980 4 SA 299 (E).

1.1 INTRODUCTION

In this topic, you will gain knowledge in the following areas:

• Explain the criteria applicable for a valid engagement.
• List the grounds for termination of a valid engagement.
• What the consequences of the termination of a valid engagement are.
• Define damages forthcoming from the termination of the agreement.
• Why a claim for damages on the ground of seduction should be declared
as unconstitutional.
• All the case law that is stipulated in this topic.

An engagement is a mutual contract between two people to marry each other at

a specific place on a specific date. It is important to note that a valid engagement
is not a requirement for the conclusion of a valid marriage. Usually, the next step
after an engagement is to get married.

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1.2 REQUIREMENTS FOR A VALID ENGAGEMENT

An engagement can only be valid if it meets the following requirements:

• Consensus: The parties must agree to become engaged to each other.

• Offer and acceptance: For an engagement to be valid, an offer must be
made by one party and accepted by the other party.
• Capacity to act: The parties must have the ability to exercise their legal
rights and obligations.
• Both parties must be unmarried.

1.3 TERMINATION OF ENGAGEMENT

An engagement comes to an end in the following instances:

• When the parties marry each other.

• If any of the parties is a minor without the necessary consent.
• At the death of one of the parties.
• By mutual agreement of the parties.

Unilateral termination of an engagement can either be lawful or unlawful. Lawful:

when there is a valid reason (justa causa) to terminate the engagement for
example when one of the parties becomes mentally ill). There is thus NO breach
of promise. Breach of promise takes place if one of the parties terminates the
engagement without a valid reason (justa causa).

1.4 CONSEQUENCES OF TERMINATION

There are several consequences when an engagement is terminated:

1. Delictual damages for personality infringement.

The action that the injured party may use is the actio iniuriarum – if the
termination of the engagement wounded the dignity of the injured party.
The injured party has a solatium claim which means that is a claim for
sentimental damages or satisfaction.

2. Contractual damages for breach of promise.

Some time ago, contractual damages was awarded to the “dumped” party
if the other party committed breach of promise. The “dumped” party was

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awarded with both the prospective loss of the benefits of the marriage as
well as the actual loss incurred or to be incurred due to the breach.
However, courts started to develop the common law and held that a claim
for contractual damages for prospective loss based on breach of promise
is no longer recognised since claims for prospective loss always involve a
lot of speculation.

3. Return of engagement gifts.

Regarding the returning of gifts, the following need to be highlighted:
• If both parties agree to terminate the engagement or if the engagement
is terminated due to a valid reason, all gifts made with the intention of
getting married one day, must be returned by both parties. This also
includes the engagement ring and any other gifts the parties gave to each
other in order to show the seriousness of the promise to get married.
• Small gifts with no specific meaning/used up gifts/alienated or lost gifts
need not to be returned by either party.
• If one of the parties committed breach of promise, the injured party may
reclaim the gifts as stipulated in bullet number 1 (above) and may keep
the gifts as stipulated in number 1 (above) that he/she received from the
“guilty” party.

1.5 SATISFACTION AND DAMAGES ON THE GROUND OF

SEDUCTION

An action for satisfaction and damages on the ground of seduction is recognised

in South African law. However, in order to be successful with such action, the
following needs to be proved by the woman:

• That she was a virgin or chaste woman prior to the seduction

• That she was seduced
• That sexual intercourse occurred as a result

There are two separate claims: the first claim concerns the reduced chance the
woman has to enter into a suitable and successful marriage; the second claim
concerns damages on the ground of the seduction that took place. It should
however be taken into account that there are several views that such claim
(damages on the ground of seduction) should be abolished as it is contrary to
section 9 of the Constitution.

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Summary

The law takes engagements more seriously than the parties to an engagement
agreement! After working through this topic, you will be able to give sound advice
to a client on the topic of an engagement and explain to a client what the
requirements are for a valid engagement, termination and consequences of
termination and the damages that may be claimed for termination.

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)

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)

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)

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Topic 2
The Legal Requirements for Civil and
Customary Marriages

Prescribed reading

Before commencing with this topic, the following should be read:

1. Chapter 3 of Heaton & Kruger.
2. Green Paper on Marriages in South Africa published in the Government Gazette
44529 of 4 May 2021.
3. Recognition of Customary Marriages Act 120 of 1998.
4. Civil Union Act 17 of 2006.
5. Mayelane v Ngwenyama and another (Womens’ Legal Centre Trust and others
as amici curiae) 2013 (8) BCLR 918 (CC).
6. Moola and Others v Aulsebrook NO and Others 1983 (1) SA 687 (N).
7. Women's Legal Centre Trust v President of the Republic of South Africa and
Others 2023 (1) BCLR 80 (CC).
8. Singh v Ramparsad 2007 (3) SA 445 (D)
9. P Bakker “Chaos in family law: A model for the recognition of intimate
relationships in South Africa” 2013 PELJ 116.
10. L Mwambene “Recent legal responses to child marriage in Southern Africa:
The case of Zimbabwe, South Africa and Malawi” 2018 AHRLJ 527.

2.1 INTRODUCTION

After completing this topic, you should be able to:

• Explain the requirements for a valid marriage.
• Explain the prescribed formalities of a valid marriage.
• Define the requirements when a minor wants to get married.

“Marriage and the family are social institutions of vital importance. Entering into
and sustaining a marriage is a matter of intense private significance to the parties
to that marriage for they make a promise to one another to establish and
maintain an intimate relationship for the rest of their lives which they

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acknowledge obliges them to support one another, to live together and to be

faithful to one another.”

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] ZACC 8; 2000 (3) SA 936 (CC); 2000 (8) BCLR 837
(CC).

2.2 REQUIREMENTS FOR A VALID MARRIAGE

2.2.1 The following requirements are applicable to entering into a valid civil
marriage:
• Capacity to act
• Agreement
• Lawfulness

The following table is a short summary of different persons’ capacity to act:

FULL capacity to act LIMITED capacity to act NO capacity to

act
If a declared mentally ill According to Roman-Dutch Mentally ill
person concludes a writers, declared prodigals need persons, BUT the
marriage during a to obtain their curators’ consent. situation may
lucidum intervallum (a However, if a declared prodigal change when
clear moment) such enters into a marriage without such person
marriage is valid. Such the said consent, the marriage is reaches a clear
person must prove that out of community of property. moment – then
he or she is in fact Modern South African writers he/she has full
normal. are of the view that NO consent capacity to act.
from a prodigal’s curator is
needed and that such person is
allowed to enter into a marriage.
(Please note that at this stage,
the answer is still unclear on
whether declared prodigals have
full or limited capacity to act)
A person who is subject Minors Infants
to

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curatorship (not
mentally ill), can
conclude a marriage
without the consent of
his or her curator IF
such person has
capacity to act when
marrying.

With regard to the capacity to act and minors, the following is important to note:
Minors between the ages of seven and 18 years, have limited capacity to act.
This means that minors are unable to conclude valid juristic acts by means of
which they incur obligation, except if they obtained the necessary consent from
their parents or legal guardians. This includes the “entering into a valid
marriage”. When a minor has previously been lawfully married, he or she does
not require consent for any subsequent marriages.

The following illustration summarises the specific requirements (consent) that

need to be in place before a minor can enter into a valid marriage:

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2.3 AGREEMENT

Both parties must have the intention to enter into a marriage with one another
at the moment of concluding such a marriage. It is important that the marriage
officer explicitly asks each party if he/she accepts that the other party becomes
his/her husband or wife. Both parties must answer "yes" to this. If either party
answers "no" to this, the marriage cannot be concluded.

However, problems may arise with agreement if both parties declare their
agreement at the wedding, but that it later comes to light that there was no
genuine agreement, or that the agreement was defective. Such problems include
mistake, misrepresentation, duress and undue influence.

2.4 LAWFULNESS

There may be various reasons why a civil marriage or a civil marriage between
specific persons cannot be lawful. In general, an unlawful civil marriage is void.
The following marriages are unlawful (for the sake of completeness and for
further reasons and motivation(s) regarding these unlawful marriages, it is very
important that each paragraph must be studied in detail):
• An existing civil or customary marriage or civil union.
• Persons who are of the same sex.
• Persons who are within the prohibited degrees of relationship.
• Legal guardians and their wards.
• Persons who belong to different race groups.

2.5 PRESCRIBED FORMALITIES

1. Marriage officers – only a marriage officer can solemnise a civil marriage.

2. Formalities preceding the marriage ceremony – if any person has an
objection to the intended civil marriage, an objection must be lodge with
the marriage officer who is to solemnise the marriage. The marriage can
only be solemnised if the marriage officer is sure that there is no lawful
impediment to it.
3. Formalities during the marriage ceremony – both parties must be
personally present.
4. Registration of the civil marriage – the parties to the marriage as well as
two competent witnesses must sign the marriage register immediately
after the wedding. The marriage register is then sent to a regional or
district representative of the Department of Home Affairs. A copy of the

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entry in the marriage register is prima facie proof that a valid civil
marriage has been entered into.

2.6 CUSTOMARY MARRIAGES

The following requirements must be met for a valid customary marriage:

• The prospective spouses must be above 18 years.
• Both must consent to be married to each other under customary law; and
• The marriage must be negotiated and entered into or celebrated in
accordance with customary law.
• If either of the spouses is a minor his parents or if he legal guardian must
consent to the marriage. If there is no legal guardian, the RCMA provides
for substitute consent.
• The prospective spouses must not be prohibited to marry each other
because of relationship by blood or affinity.
• Additionally, a man in a customary marriage who wishes to enter into a
further customary marriage with a second woman after the
commencement of the RCMA, must comply with a further requirement set
out in section 7(6) of the RCMA. This includes an application to the Court
to approve a written contract regulating the future matrimonial property
system of his marriages. Non-compliance with this requirement does not
render the second marriage void, but it will be rendered a marriage out of
community of property.
• A spouse to a civil marriage cannot validly enter into a customary
marriage with another person while the civil marriage still exists.

Lobola is not a necessary act, but if it is paid then it may be seen as the
negotiation and celebration of entry into a customary marriage.

It is important to note that failure to register of a customary marriage before the

commencement of the RCMA does not invalidate the first marriage. However, if
a second marriage is entered into after the commencement of the Act it will
invalidate the initial marriage. If spouses are married after commencement of
the RCLA they have to register the marriage within three months of the date
thereof.

Customary marriages may also by polgynous (one man may enter into a
marriage with more than one woman). This differs from polygamy (one man or
woman enters into a marriage with more than one woman or man). Some of the
formalities are similar to a civil marriage, such as consent and age.

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2.7 OTHER MARIIAGES

Other types of marriages such as Muslim marriages and Buddhist marriages have
also been considered in South African law.

Muslim marriages are now considered as valid marriages under the South African
common law.

Self-Assessment Questions

1 Xavier is a person who is certified as mentally ill. He is being treated at the

REWE hospital for the mentally ill. Xavier escapes from REWE one late night and
meets an unmarried woman, Yolanda, ten days after his escape. Five weeks later,
the two marry before a magistrate. Nearly thirteen months later, REWE
establishes Xavier's address. The question being asked is whether Xavier and
Yolanda's marriage is valid? Explain. (5)

2 Carla has two children, Mia and John. Due to circumstances, John is later
adopted by Adele, who has a daughter of her own, Danielle. In the light of the
above facts, discuss whether the following persons can marry each other:
2.2.1 Adele and John.(2)
2.2.2 Carla and John.(3)
2.2.3 Mia and John. (2)
2.2.4 Danielle and John.(6)

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Topic 3
Life Partnerships

Prescribed reading

Before commencing with this topic, the following should be read:

1. Chapter 20 of Heaton & Kruger.
2. South African Law Reform Commission Project 144 2021.
3. Bwanya v Master of the High Court, Cape Town and Others 2022 (3) SA 250
(CC).
4. Gory v Kolver NO and Others (3) BCLR 249 (CC).
5. Volks NO v Robinson and Others 2005 (5) BCLR 446 (CC).
6. K Madzika “Dawn of a new era for permanent life partners: from Volks v
Robinson to Bwanya v Master of the High Court” 2020 De Jure 393.

3.1 INTRODUCTION

After completing this topic, you should be able to:

• Explain the term “life partnership”.
• Explain the types of contracts life partners can enter into to achieve a
measure of protection for their relationship.
• Define the Constitution’s view on life partnerships.
• Explain the influence of recent case law on life partnerships.

Couples decide to live together without entering into a legally recognised

marriage for many reasons. Life partners can also acquire a degree of protection
for their life partnership by making use of ordinary legal rules and remedies that
are available. You should able to advise partners on the legal remedies available
to them and be aware of the recent developments on this regard as well.

3.2 DEFINITION OF A LIFE PARTNERSHIP

A life partnership is defined as a “same-sex or heterosexual relationship which is

analogous to or has many of the characteristics of a marriage”. Thus, a life
partnership has the same commitments as civil marriages.

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Both heterosexual and homosexual life partnerships are recognised as life

partnerships.

3.3 TYPES OF CONTRACTS ENTERED INTO BY LIFE PARTNERS

Life partners can decide to enter into three types of contracts to achieve some
protection for their relationship:
• Universal partnership
• Life partnership
• Agency

Life partners can also include each other in their last will and testaments.

3.4 REMEDIES AVAILABLE TO LIFE PARTNERS

3.4.1 Estoppel
If any of the partners to a life partnership pretends to be "married" to third
parties, estoppel can be used to prevent one of them from alleging that he/she
is not liable for debts with regard to household necessaries.

3.4.2 Unjustified Enrichment

Enrichment claims can be used in life partnerships. The impoverished life partner
may institute an enrichment claim against the enriched life partner.

3.5 CONSTITUTIONAL CONSIDERATIONS

Life partnerships, sometimes referred to as domestic partnerships, can be

complex. Different factors should be taken into account, especially when
developing South African law to include life partnerships. This area of law is
currently developing and paramount to this development is the Bill of Rights.
Provisions such as the right to equality, freedom of choice and human dignity are
at the centre of these considerations and developments.

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Self-Assessment Questions

1. Name two types of universal partnerships that are recognised in South

Africa. (2)
2. What are the requirements for the formation of a universal partnership?
(3)
3. How should a life partnership contract be concluded? (2)

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Topic 4
Void, Voidable and Putative Civil Marriages

Prescribed reading

Before commencing with this topic, the following should be read:

1. Chapter 4 of Heaton & Kruger.

2. Ex parte Dow 1987 (3) SA 829 (D).
3. Venter v Venter 1949 (4) SA 123 (W).
4. Van Niekerk v Van Niekerk 1959 (4) SA 658 (GW).
5. Moola and Others v Aulsebrook NO and Others 1983 (1) SA 687 (N).
6. Zulu v Zulu and Others (17413/2005) [2008] ZAKZHC 10; 2008 (4) SA 12
(D).

4.1 INTRODUCTION

After completing this topic, you should be able to:

• Explain the grounds for nullity of a marriage.
• Explain the consequences of a void marriage.
• Explain voidable civil marriages as well the consequences of such
marriages.
• Define the outcomes of putative marriages.
• Explain the requirements for a putative marriage.
• Explain the consequences of a putative marriage.
• All the case law that is stipulated in this topic.

4.2 DEFINITION AND INSTANCES OF A VOID MARRIAGE

The word “void” means that the marriage has never come into existence. It is
null and void from the date it was entered into as if it never happened.

The following are the grounds for nullity:

• Marriage solemnised by a person who is not a marriage officer

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• A party to the marriage does not have the written consent of the Minister
where it is applicable
• No witnesses at the ceremony
• Parties of the same sex (only in terms of the Marriage Act)
• A party is still married to another person
• Parties are related to each other within the prohibited degree of
relationship
• A party is below the age of puberty
• A party is mentally ill

4.3 CONSEQUENCES OF A VOID MARRIAGE

Some consequences of a void marriage are as follows:

• The status of the parties is not affected, and such marriage does not
confer any consequences relating to a civil marriage on the parties or their
children.
• Usually, the ratification of a void juristic act is not possible, BUT there are
certain exceptions.
• A void marriage has none of the consequences of a valid civil marriage
EXCEPT in the case of a putative civil marriage.
• A delictual action may be instituted by the bona fide party to a void civil
marriage against the other party to the void civil marriage.

4.4 DEFINITION AND INSTANCES OF A VOIDABLE MARRIAGE

Voidable means that any one of the parties can approach the court for an order
declaring the marriage to be void. If they do not do the aforementioned, then
the marriage remains valid and enforceable.

The marriage can be set aside on any of the following grounds:

• Minority
• Material mistake
• Duress
• Undue influence
• Stuprum
• Impotence
• Sterility

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4.5 CONSEQUENCES OF A VOIDABLE MARRIAGE

The two most important consequences are the following:

• If a voidable marriage is not set aside, it remains in force.
• A voidable marriage affects the status of the parties (to such marriage)
as long as such marriage persists.

4.6 PUTATIVE MARRIAGES

1. The definition of a putative marriage

A putative marriage is where one or both of the parties believe in good faith that
a valid marriage was concluded while being unaware of any defects which render
the marriage void. For example: if the parties are unaware of the fact that they
are brother and sister. Once they discover their “mistake”, the marriage is void.

2. The requirements for a putative marriage

• One or both of the parties must have believed (in good faith) that the void
marriage was valid.
• The marriage should have been solemnised in accordance with the
formalities that would normally result in a valid marriage.

3. The consequences of a putative marriage

• Children born of a putative marriage:
Children who are born of a putative marriage are born of married persons.
In other words, these children are regarded as born in wedlock.
• Patrimonial consequences of a putative marriage:
If the parties married without an antenuptial contract, the patrimonial
consequences are treated as being in community of property. On the other
hand, if the parties registered an antenuptial contract, the patrimonial
consequences will be regulated by the antenuptial contract.

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Self-Assessment Questions

1. Match Column B with Column A. For example: 1 – A (5)

Column A Column B
1. Ex parte Dow 1987 (3) SA 829 (D). A. the wife fraudulently concealed that
she was sterile – the husband may
have the marriage annulled
2. Section 39 of the Children’s Act B. Putative marriages
3. Jack and Sophia enter into a civil C. A marriage that takes place in a
marriage without being aware that garden instead of a church is not
they are actually brother and sister. void.

4. Venter v Venter 1949(4) SA 123 D. Extra-marital sexual intercourse

(W) with a third party before the marriage.
5. Stuprum E. The interests of children born of a
voidable marriage are also protected.

2. Can a court declare a putative marriage valid? Explain your answer. (6)

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Topic 5
Consequences of a Civil Marriage

Prescribed reading

Before commencing with this topic, the following should be read:

1. Chapter 5 of Heaton & Kruger.

2. Wiese v Moolman 2009 (3) SA 122 (T).
3. DE v RH 2015 (5) SA 83 (CC).
4. Grobbelaar v Havenga 1964 (3) SA 522 (N).
5. Peter v Minister of Law and Order 1990 (4) SA 6 (E).
6. Reyneke v Reyneke 1990 (3) SA 927 (E) (As summarised in your
prescribed textbook).
7. Reloomel v Ramsay 1920 TPD 371 (You should focus on the two approaches
that the court used to determine whether a particular item is a household
necessary).

5.1 INTRODUCTION

After completing this topic, you should be able to:

• Explain the change of status of a person after marriage.
• Explain the obligations spouses have towards each other in a marriage.
• Define the term consortium omnis vitae between spouses.
• Explain what is meant with spousal maintenance.
• All the case law that is stipulated in this topic.

5.2 EXAMPLES OF STATUS CHANGES

The status of a spouse changes as a result of marriage. The following are some
of the most obvious changes:
• Neither of them may remarry before the annulment of this marriage.
• Prohibited degrees of relationship comes into existence.
• The parties have a right to intestate succession.

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• Children of the two parties born before the marriage become children born
of married parents.
• Their capacity to act independently is limited to the marriage regime, that
is, in community of property or out of community of property.
• A party who was a minor at the time of the marriage attains majority.

5.3 CONSORTIUM OMNIS VITAE

The marriage between a husband and wife and their respective rights to each
other’s support, cooperation, aid and companionship. Loss of consortium is an
actionable injury for which money damages may be awarded. Consortium is
services performed by a spouse.
The loss of the love, sexual relations and services of a spouse are tangible injuries
to an increasing extent. The action for loss of consortium is found upon the
inconvenience of having a spouse who has been injured.

5.4 SPOUSAL MAINTENANCE

1. The reciprocal duty of support between spouses

Spouses in a marriage have a reciprocal duty of support towards each other.

The reciprocal duty of support means that both parties have a right and obligation
to support the other party to the marriage and to be supported. This right and
obligation is limited to a party’s need for support and the other party’s ability to
provide the support.

Maintenance includes the provision of the following:

• Accommodation
• Clothing
• Food
• Medical services
• Other necessaries

Upon death, the surviving spouse may still have a need for support. This can be
claimed from the deceased spouse’s estate.

When the marriage is dissolved by a decree of divorce, the court may also make
an appropriate maintenance order.

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2. Household necessaries

It is sometimes difficult to distinguish between the duty to purchase household

necessaries and the duty of support. Although the duty of support usually
overlaps with the duty to contribute to household necessaries, these duties do
differ in some ways.

One should also remember that there a several requirements that need to be
met before a spouse can incur debts for household necessaries:
• There must be a valid civil marriage.
• There must be a joint household.
• The transaction must relate to household necessaries.

However, in some instances, a spouse’s capacity to purchase household

necessaries can be cancelled (revocation) or limited:
• Revocation by means of a court order.
• Revocation by the other spouse.
• A defence that the purchase was unnecessary since one spouse had made
sufficient funds available to the other spouse.

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Summary

Married partners have obligations towards each other. These obligations cannot
be neglected. When partners step “over the line” and neglect the mentioned
obligations, it can be a ground for divorce.

Self-Assessment Questions

Stipulate whether the following statements are TRUE or FALSE and provide a
REASON for each of your answers that is FALSE.
1. Spouses who are married in community of property are jointly and
separately liable for debt for household necessaries. (2)
2. If a spouse is a declared prodigal, he or she loses the capacity to purchase
household necessaries. (2)
3. In Reloomel v Ramsay 1920 TPD 371 the court concluded that the
husband who has made sufficient funds available to his wife so that she
does not need to purchase household items on credit is not liable for his
wife's credit purchases. (2)

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Topic 6
Maintenance

Prescribed reading

Before commencing with this topic, the following should be read:

1. Chapter 5 of Heaton & Kruger.

2. Bannatyne v Bannatyne and Another 2003 (2) SA 363 (CC).
3. National Coalition for Gay and Lesbian Equality and Others v Minister of Home
Affairs and Others 2000 (1) BCLR 39.
4. Satchwell v President of Republic of South Africa and Another 2002 (9) BCLR
986.
4. Maintenance Act 99 of 1998, as amended.

6.1 INTRODUCTION

After completing this topic, you should be able to:

• Explain the process to follow in the Maintenance Court.
• Explain the enforcement of maintenance orders.
• Define parental responsibility of maintenance towards their children.

6.2 THE MAINTENANCE ACT

The Maintenance Act applies to the party’s legal obligation of support in a

marriage during the marriage and especially to the party’s legal obligation of
support after a divorce. Maintenance for women and children are the most
common claims the courts deal with.

According to the Act, any person may claim maintenance from a family member,
for example a grandfather, if such a person is in need of maintenance and the
father or mother cannot afford maintenance.

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6.3 MAINTENANCE CLAIM PROCESS IN COURT

Where a complaint is lodged, the following process is applicable:

The Informal Enquiry

The Informal Enquiry is an attempt to resolve any disputes by mutual agreement

with the assistance of the Maintenance Officer and as a mediator, the
Maintenance Officer plays an active role in the process.

The Respondent has to provide information regarding their financial position,

information on the people affected by the application for maintenance as well as
any relevant supporting documentation such as bank statements, salary slips
and a list of monthly expenses.

This enquiry is essentially a settlement negotiation whereby the Maintenance

Officer mediates between the parties in an attempt to arrive at a settlement.
Should the matter settle, the parties will sign the necessary documents in
triplicate, and it would be made an order of court.

The Formal Enquiry

The Formal Enquiry takes place if no settlement is reached at the Informal

Enquiry.

It takes place in front of a magistrate in the Maintenance Court, which essentially

performs the functions of a civil court. At the Formal Enquiry, the Complainant
and the Respondent, along with the Maintenance Officer, will put all the relevant
information before the Magistrate, who will then decide how much money is
required to meet the child’s/children’s needs and a maintenance order will then
be issued, which will ensure that each party makes a fair contribution.

The Magistrate plays an active role during these proceedings and once it has
been established that the Respondent is obliged to pay maintenance, he or she
will be compelled to rebut or give evidence as to why they should not pay
maintenance.

6.4 COURT ORDERS

The court can make the following orders regarding maintenance:

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• If a maintenance order is not yet in operation, an order against the liable

person can be made for the payment of maintenance to the person who
is entitled to maintenance.
• If an existing order is varied by the Maintenance Court, the latter order is
replaced.
• If an existing maintenance order is replaced, the order may have
retroactive effect, on the condition that it is stipulated in the order.
• An order for the payment of maintenance by means of periodical amounts
or a lump-sum can also be made by the Maintenance Court.
• A Maintenance Court has the authority to order that two photographs of
the maintenance debtor must be taken in order to trace such person if
he/she omits to make the necessary payments as per order.
• The Maintenance Act also provides for orders to be made by default.
However, this can only be done if the maintenance officer requests it.

6.5 APPEALS

If party is aggrieved by an order that was made by a magistrate in the a

Maintenance Court, he or she can appeal the decision to the High Court in the
province where the order was made.

A notice of intention to appeal must be given to the Clerk of the Maintenance

Court and delivered to the other party within twenty days of the order being
made. The Magistrate who made the order then has fourteen days in which to
give a statement to the Clerk of the Court setting out his or her reasons for
making the order.

If the Applicant cannot afford legal representation, they must inform the Clerk of
the Court and the Director of Public Prosecutions will be approached with a copy
of the relevant documentation. The Director of Public Prosecutions will then
decide whether or not to assist with the appeal.

It is very important to note that any appeal in terms of the Maintenance Act does
not suspend the payment of maintenance in accordance with the current
maintenance order; unless the appeal is made against the finding, the Applicant
is legally liable to pay maintenance. If the court changes the original order at
appeal, it will stipulate that the revised maintenance, if any, only be paid from
the date of the order of the appeal.

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6.6 ENFORCEMENT OF MAINTENANCE ORDERS

Failure to comply with a maintenance order may result in civil and criminal
sanctions.

Summary

The payment of maintenance to a child or a divorced spouse cannot be neglected

by a party. Parties use non-payment of maintenance to try to spite the other.
Therefore, the law on maintenance has been promulgated to help the parties
which are in a difficult situation owing to the non-payment of maintenance.

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Topic 7
The Variable Consequences of a Civil Marriage
in Community of Property

Prescribed reading
Before commencing with this topic, the following should be read:

1. Chapter 6 of Heaton & Kruger.

2. Du Plessis v Pienaar 2003 (1) SA 671 (SCA).
3. Nedbank Ltd. v Van Zyl [1990] 4 All SA 637 (AD).
3. Matrimonial Property Act 88 of 1984.

7.1 INTRODUCTION

After completing this topic, you should be able to:

• Explain the consequences of a marriage in community of property.
• Explain the consequences of sequestration where parties are married in
community of property.
• Explain to a client when his or her spouse’s consent is needed.
All the case law that is stipulated in this topic.

7.2 DEFINITION OF MARRIAGE IN COMMUNITY OF PROPERTY

In a marriage in community of property, the spouses are co-owners of all the

assets as well as the liabilities in the joint estate. You must advise clients to think
carefully about this type of marriage for there is one estate on which debtors can
put their hands in case of unpaid debt of one of the spouses.

7.3 CASES IN WHICH COMMUNITY OF PROPERTY DO NOT ARISE

• If the spouses have entered into a (valid) prenuptial agreement prior to

marriage in which community of property is excluded.
• The existence of a valid postnuptial notarial contract in which community
of property is excluded.

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• The husband’s lex domicilii at the time of the marriage provides that
community of property does not apply, and that the marriage is out of
community of property.
• If the marriage is a civil marriage between African persons that was
concluded before December 2, 1988 and the spouses did not make
another arrangement before the marriage regarding their property
dispensation. (Please read paragraph 6.2(4) for a full discussion).

7.4 THE NATURE OF IN COMMUNITY OF PROPERTY

At the conclusion of a marriage in community of property, the separate estates

of the husband and wife are automatically merged into one joint estate for the
duration of the marriage.

7.5 THE CONTENT OF A MARRIAGE IN COMMUNITY OF PROPERTY

Assets

The general rule is that all assets of spouses become part of the joint estate.
There are, however, exceptions to this rule and the following assets can/may be
excluded from the joint estate:
• Assets excluded in an antenuptial contract.
• Assets excluded by will or deed of donation.
• Assets subject to a fideicommissum or usufruct.
• Engagement gifts
• Benefits under the Friendly Societies Act 25 of 1956.
• Non-patrimonial damages.
• Damages as a result of personal injury inflicted by the other spouse.
• Costs in a matrimonial action.
• Proceeds excluded by the court in terms of the Prevention of Organised
Crime Act 121 of 1998.

With regard to the attachment of separate assets, it is important to note the

following: Creditors of spouses who are married in community of property can
look into the joint estate of the spouses as well as the separate estates of both
spouses for the recovery of a joint debt. Moreover, in the case of insolvency, the
“excluded asset(s) from the joint estate” falls into the insolvent estate if the
spouses are sequestrated.

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7.6 LIABILITIES

For a marriage in community of property, a joint estate is created as well as joint

liabilities – liabilities incurred while the parties are married. They include:
• Debts incurred before the marriage.
• Debts incurred during the marriage.
• Debts outstanding at the dissolution of marriage.

7.7 ADMINISTRATION OF JOINT ESTATES

Take note of the following important paragraphs in your textbook:

7.7.1 The Abolition of the Marital Power

See pages 70 and 71.

7.7.2 The Principle of Equal Administration of the Joint Estate

See page 71.

7.7.3 Acts for Which the Consent of Both Spouses Is Required

Consent for the following acts is a prerequisite for validity of the transaction:

Prior written consent

Alienation and/burdening of immovable property
Any suretyship

Written consent
Entering into a contract for the alienation and/or burdening of immovable
property
Receiving credit under a credit agreement
Acquiring immovable property in terms of the Alienation of Land Act –
purchasing property in instalments

Written consent with no further requirements:

Alienating, ceding or pledging shares, stocks, debentures, etc.
Alienating or pledging any items for investment
Withdrawing money to the credit of the other spouse in a bank account
Instituting or defending legal proceedings

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Oral or tacit agreement:

Alienating or pledging effects of the common household
Receiving money due to the other spouse for:
• remuneration
• income from separate property
• interest and dividends
• inheritance, donation, bursary or prize
Donating joint assets to a third party

7.7.4 Acts for Which the Other Spouse’s Consent Is Not Necessary
No consent is necessary for juristic acts which are not mentioned in the
Matrimonial Property Act.

7.7.5 Protective Measures Regarding the Administration of the Joint Estate

There are some protective measures in place when it comes to the administration
of spouses’ joint estate:
1. The protection of third parties as stipulated in section 15(9) of the
Matrimonial Property Act.
2. The protection of the spouses as between themselves. Statutory as well
as

Common-law remedies are available. Statutory remedies:

• Statutory right to adjustment upon dissolution of the joint estate.
• Dispensing with the other spouse’s consent.
• Suspension of a spouse’s powers relating to the joint estate.
• Immediate division of the joint estate. Common-law remedies:
• An interdict.
• Actio Pauliana utilis.
• Common-law right of recourse upon dissolution of the
marriage/joint estate.
• Declaring the other spouse as a prodigal.

7.7.6 Capacity to Litigate

1. In general
Section 17(1) of the Matrimonial Property Act stipulates that one spouse cannot
institute or defend legal proceedings without the written consent of the other
spouse, except in the following instances:

• Proceedings relating to the spouse’s separate property.

• Non-patrimonial damages that are recovered for a delict committed
against the spouse.

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• The profession, trade or business of the spouse.

2. Insolvency
In terms of section 17(4) of the Matrimonial Property Act, an application for the
sequestration of a joint estate must be made against both spouses. The
application will not be dismissed if it is brought against one spouse only if the
applicant satisfies the court that despite reasonable steps, he or she was unable
to establish whether the debtor was married in community of property or the
name and address of the spouse.

3. Suing for joint debts

Section 17(5) of the Matrimonial Property Act indicates which spouse should be
sued when a debt is recoverable from the spouses’ joint estate. The general rule
with regard to joint debts is that the suit can be brought either against both
spouses jointly, or against the spouse who incurred the debt.

Self-Assessment Questions

Mr and Mrs Smith are married within community of property. Indicate whether
each of the following assets forms part of the spouses' joint estate or of Mr Smith
or Mrs Smith's separate estate:
1. A Kawasaki motorbike that Mrs Smith had purchased before their
marriage. (2)
2. A usufruct in Mr Evans' will in favour of Mr Smith. (2)
3. Costs incurred in a lawsuit between Mr Smith and Mr Zaggi that was
awarded to Mr Smith. (2)
4. A game farm that Mrs Smith bought with inheritance money. The money
was excluded from the joint estate under her father's will. (2)

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Topic 8
The Variable Consequences of a Civil Marriage
out of Community of Property

Prescribed reading

Before commencing with this topic, the following should be read:

1. Chapter 7 of Heaton & Kruger.

2. ST v CT 2018 (5) SA 479 (SCA).
3. Barkhuizen v Napier 2007 (7) BCLR 691 (CC).
4. E Bonthuys “Public policy in family contracts, part II: antenuptial contracts”
2021 Stellenbosch Law Review 3.

8.1 INTRODUCTION

After completing this topic, you should be able to:

• Explain the consequences of a marriage out of community of property.
• Define the two types of antenuptial agreements.
• Explain the formalities for a valid antenuptial agreement.
• Advise a client on the content of an antenuptial agreement.
• Explain to a client the calculation of the accrual system when the marriage
dissolves.

8.2 TYPES OF ANTENUPTIAL CONTRACTS

If you choose not to draw up an antenuptial agreement in South Africa, then you
will automatically be married “in community of property”.

By concluding an antenuptial agreement, you can exclude all or some of the

common-law and statutory consequences of a marriage, in particular those
relating to the matrimonial property system.

An antenuptial contract, also called an ANC, means that you are married out of
community of property. The law recognises the parties and their assets as two
separate entities.

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There are two types of ANC contracts:

• Antenuptial contract without accrual.
• Antenuptial contract with accrual.

8.3 REQUIREMENTS FOR A VALID ANTENUPTIAL CONTRACT

The Deed Registries Act prescribes certain formalities which must be complied
with in order to have an antenuptial agreement registered. Compliance with
these formalities must take place before the marriage.

There is, however, an exception to this rule. It will be permissible for spouses
who had definitely agreed to conclude an antenuptial agreement prior to the
marriage to have it executed and registered only after the marriage have already
been concluded. This is only permissible with permission of the High Court.

In the latter instance there are certain requirements that must be met before the
High Court will grant permission. These requirements are the following:
• The spouses must have already agreed on the terms of the antenuptial
agreement before the marriage.
• The Applicants must provide the court with good reasons why they did not
properly execute and register the antenuptial agreement beforehand.

8.4 ADDITIONAL REQUIREMENTS FOR A MINOR’S VALID

ANTENUPTIAL CONTRACT

When a minor enters into an antenuptial contract, he/she must personally sign
the contract. Of course, such minor must have the necessary consent of his/her
guardian to enter into an antenuptial contract. Remember, if a minor has the
required consent to marry but does not have the necessary consent to enter into
an antenuptial contract, such contract is void and cannot be ratified or registered
after the marriage has been concluded.

8.5 CONTENT OF AN ANTENUPTIAL CONTRACT

The terms and conditions in the antenuptial contract cannot be immoral or illegal.
An antenuptial contract not only influences what will happen to your assets and
liabilities during your marriage, but also if you divorce or when you die.

The following are usually included in an antenuptial contract:

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• The matrimonial property system.

• A right of recourse regarding household necessaries.
• Succession.
• Marriage settlements.

Remember that donations between spouses must expressly be accepted by the

party to whom it was donated and may include:
• immoveable property
• wedding gifts
• moveable property

8.6 INTERPRETATION OF AN ANTENUPTIAL CONTRACT

Just as any other contract is interpreted, so is an ANC interpreted – no specific

wording or phrases are required to draft an ANC. What is important is that the
parties' intentions are reflected correctly.

8.7 CANCELLATION AND AMENDMENT OF AN ANTENUPTIAL

CONTRACT

Take note of the fact that any amendment to an antenuptial contract after the
date of registration can take place by means of an application to court.

8.8 TERMINATION OF AN ANTENUPTIAL CONTRACT

An antenuptial contract is only terminated when all the contractual obligations

contained in such contract have been fulfilled.

8.9 THE ACCRUAL SYSTEM

After 1988, anyone entering into an ANC which excludes community of property
and community of profit and loss, is automatically married under the accrual
system. Spouses may, however, exclude the accrual system in their ANC. If they
do not do so expressly, the accrual system applies.

The main purpose of the accrual system is to remedy injustice which may result
where spouses are married out of community of property without the accrual
system.

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When spouses are married in community of property, they generally share their
assets equally. When spouses are married out of community of property without
the accrual system, they generally have completely separate estates. This means
that if one spouse, for example the wife, does not earn as much as her husband
does, she is left with much less than the husband at the end of their marriage,
even though she may have made valuable contributions to the marriage by
keeping house and looking after the children.

The accrual system recognises this kind of inequality. It provides that, at the end
of the marriage, spouses share equally in their gains (accrual) during the
marriage. In most cases the accrual system is perhaps the fairest marriage
system for couples.

When a couple marry according to the accrual system, the spouses do not share
their property during the marriage, but when the marriage ends by death or
divorce, each spouse acquires a certain right to the other’s property.

The “accrual” is the extent to which the husband and wife have become richer
by the end of the marriage, in other words, the amount by which the spouses’
joint wealth has increased over the period of the marriage. The spouse with the
smaller accrual has a claim against the one with the greater accrual for half of
the difference between the two amounts.

8.10 CALCULATING ACCRUAL

Read this paragraph (7.4.4) and take note of the method of calculating the
accrual in order to advise your clients in future.

8.11 PROTECTING A SPOUSE’S RIGHT IN TERMS OF ACCRUAL

Where a spouse by his or her conduct prejudices the other spouse’s right to share
in the accrual at the dissolution of the estate, the spouse who is prejudiced may
approach the court for protection. The court may order an immediate division of
the estate on terms and conditions deemed fit by the court.

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Self-Assessment Questions

1. M and A enter into a antenuptial contract in which they stipulate, among

other things, that the surviving spouse will be the first dying spouse’s sole
heir.
1.1.1 What is the above clause called? (2)
1.1.2 Is such a clause valid? (1)
1.1.3 What is the legal nature of such a clause? (1)

2. Does an antenuptial contract lapse on the dissolution of the spouses’

marriage? Explain. (3)
3. Fill in the missing words:
1. The primary purpose of an antenuptial contract is to regulate the
spouses’ ____________________. (2)
2. Liability for household necessaries in marriages out of community
of property is governed by ____________________. (2)
3. The accrual system is described as a type of
postponed____________________. (2)

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Topic 9
Dissolution of Marriage by Death

Prescribed reading

Before commencing with this topic, the following should be read:

1. Chapter 10 of Heaton & Kruger.

2. Bwanya v Master of the High Court, Cape Town and Others 2022 (3) SA 250
(CC).
3. Daniels v Campbell and Others 2004 (7) BCLR 735 (CC).
4. Hassam v Jacobs NO and Others 2009 (5) SA 572 (CC).

9.1 INTRODUCTION

After completing this topic, you should be able to:

• Explain the consequences of death for a marriage concluded in community
of property.
• Explain the consequences of death for a marriage concluded out of
community of property.
• Explain to a client the maintenance claim that a spouse has against an
estate.

Death may be part of married life. We are going to study the implications of
death for the different types of marriage.

9.2 MARRIAGES IN COMMUNITY OF PROPERTY

Death terminates both the marriage and the community of property.

Upon the death of a spouse, an executor is appointed to dissolve the joint estate.
Bear in mind that the spouses are joint owners of the joint estate and the
surviving spouse is entitled to an undivided half share of the joint estate by virtue
of the marriage in community of property.

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The deceased’s undivided half share will be divided by the executor in terms of
his or her last will or testament. The latter may appoint the surviving spouse as
the only heir in which event the surviving spouse will then be entitled to 100%
of the joint estate.

9.3 MARRIAGES OUT OF COMMUNITY OF PROPERTY

Remember that each of the spouses is the owners of their own estates subject
to the terms and conditions of the antenuptial contract. Each spouse will have
their own testament dealing with their respective proprietary issues.

9.4 MAINTENANCE OF SURVIVING SPOUSES ACT 27 OF 1990

1. In general
The surviving spouse in a marriage which is dissolved by death, has a claim for
maintenance against the estate of the deceased spouse in respect of reasonable
maintenance needs. He or she must be able to proof that he or she is unable to
provide for his or her reasonable maintenance needs from his or her own means
and earnings.

2. Reasonable maintenance needs

It is important to remember that if one of the spouses dies, the surviving spouse's
maintenance claim is limited to the amount which is needed to meet his or her
reasonable maintenance needs.

3. Disposal of the maintenance claim

The Administration of Estates Act stipulates that a claim for maintenance by the
surviving spouse must be proved and disposed. In other words, the claim needs
to be lodged with the executor of the deceased estate.

4. The order of preference

The surviving spouse's maintenance claim against the deceased estate does not
take precedence over the maintenance claim of a dependent child against the
deceased estate. Both these claims will have the same order of preference
against the deceased estate.

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Topic 10
The Grounds for Divorce

Prescribed reading

Before commencing with this topic, the following should be read:

1. Chapter 11 of Heaton & Kruger.

2. Divorce Act 70 of 1979.
3. Women's Legal Centre Trust v President of the Republic of South Africa and
Others 2023 (1) BCLR 80 (CC).
4. M Abduroaf “An analysis of s 5A of the Divorce Act 70 of 1979 and its
application to marriages concluded in terms of Islamic law” 2023 De Jure Law
Journal 1.

10.1 INTRODUCTION

After completing this topic, you should be able to:

• Explain the grounds for a divorce.
• Explain whether the courts have the right to refuse to grant a decree of
divorce.
• Define the phrase “the irretrievable breakdown of a marriage”.
• Explain incurable mental illness or continuous unconsciousness.
• Explain the court’s discretion to refuse a divorce order.

10.2 GROUNDS FOR DIVORCE

The Divorce Act provides for three non-fault grounds of divorce. The applicant
must convince the court on at least one of the grounds for a divorce to succeed.

The following are the “no-fault” grounds for divorce in terms of the Divorce Act:
• Irretrievable breakdown of the marriage
• Mental illness
• Continuous unconsciousness

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10.3 IRRETRIEVABLE BREAKDOWN OF THE MARRIAGE

Section 4(1) of the Divorce Act, No 70 of 79, as amended, provides the following
two requirements to proof the irretrievable breakdown of a marriage:
• There is not a normal marriage relationship between the spouses.
• There is no prospect of the restoration of a normal marriage relationship
between the spouses.

Section 4(2) of the Act provides the following guidelines in this regard:
• The parties have not lived together as man and wife for a continuous
period of at least one year prior to the date of the institution of the divorce
action.
• The defendant has committed adultery, which is irreconcilable for the
plaintiff.
• A court has declared the defendant a habitual criminal and the defendant
is undergoing imprisonment as a result.

10.4 INCURABLE MENTAL ILLNESS OR CONTINUOUS

UNCONSCIOUSNESS

Take note of the fact that the court will grant a decree of divorce if it is satisfied
that:
• the defendant has been unconscious owing to mental illness or by reason
of a physical disorder for a continuous period of at least six months
immediately prior to the institution of the divorce action; and
• there is no reasonable prospect that the defendant will regain
consciousness.

Special provisions apply in respect of divorce on the grounds of mental illness

and continuous unconsciousness in order to protect the interests of the defendant
in such cases.

If a decree of divorce is granted in the above regard, the court will usually not
make an order for the forfeiture of any patrimonial benefits of the marriage
against the defendant.

10.5 COURT’S DISCRETION TO REFUSE A DIVORCE ORDER

Take note of the fact that the court has discretion in terms of section 4 of the Act
to refuse to grant a divorce order.

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Topic 11
Patrimonial Consequences of Divorce

Prescribed reading

Before commencing with this topic, the following should be read:

1. Chapter 12 of Heaton & Kruger.

2. KT v MR 2017 (1) SA 97 (GP).

11.1 INTRODUCTION

After completing this topic, you should be able to:

• Explain the term “patrimony of spouses”.

• Explain the articulation of pension interest and the consequences forthcoming
from the wrong articulation.
• Define and explain an order for the redistribution of assets.

To avoid potential future litigation, the parties to a divorce generally decide to

incorporate a settlement agreement into the decree of divorce. Matters such as
the division of their assets, payment of maintenance, parental responsibilities
and rights, and liability for the costs of the divorce proceedings are usually
regulated in a settlement agreement.

11.2 PATRIMONY OF SPOUSES

Spouses have full contractual freedom to apply the matrimonial property regime
applicable to their marriage (antenuptial contract or community of property) or
to draw up a settlement agreement that they find better suited to their specific
circumstances.

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11.3 PENSION INTERESTS

Pension fund administrators frequently reject settlement agreements on the

basis that the clauses dealing with the pension interest entitlement to a non-
member spouse are incorrect.

Therefore, the clauses dealing with pension interest must be articulated properly.
If not, a further application, at additional and unnecessary expenses, will have
to be made to the court to amend the court order and settlement agreement.

11.4 THE CLEAN-BREAK PRINCIPLE

The Pension Funds Amendment Act, 2007, introduced the so-called clean-break
principle for the treatment of retirement fund benefits upon the granting of a
divorce decree.

The Act allows retirement funds to deduct an amount or percentage upon divorce
from a member’s benefit and pay it to the non-member spouse or to a retirement
fund of his or her choice.

The clean-break principle allows a non-member former spouse to access an

agreed or court-ordered share of the member spouse’s retirement savings on
divorce.

11.5 FORFEITURE OF PATRIMONIAL BENEFITS

In certain situations, a party to a divorce can request that the other party forfeits
the benefits from the estate or estates involved in terms of section 9 of the
Divorce Act. The court will not give such an order without good proof. There are
certain requirements for a forfeiture order, and the following factors needs to be
taken into account before such order can be granted by the court:
• The duration of the marriage.
• The circumstances which led to the (irretrievable) breakdown of the
marriage.
• Any substantial misconduct from any of the spouses.

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11.6 REDISTRIBUTION OF ASSETS

Section 7(3) of the Divorce Act provides for relief where parties were married out
of community of property prior to 1984 and the accrual system was not made
applicable to the parties’ marriage.

The purpose of the redistribution order is to remedy the inequity that could flow
from the failure of the law to recognise a right of a spouse, upon divorce, to claim
redistribution when there is a disparity between the respective assets which is
incommensurate with their contributions during the subsistence of the marriage.
The court will make an inquiry in terms of section 7(5) to determine:
• which assets are to be transferred to the party applying for the order,
and/or
• which percentage of the other party’s estate is to be transferred to the
party applying for the order.

The court can take note of the following factors:

• Financial contribution by the plaintiff to the defendant’s estate and the
household
• Services rendered by the plaintiff to the defendant
• Savings brought about by the plaintiff for the defendant or the household
• Donations made by the defendant to the plaintiff
• Any misconduct on the part of either of the parties
• The parties’ income-generating potential at the time of entering into the
marriage
• The parties’ assets, liabilities and income-generating capacities at the time
of divorce
• The possible interaction between an order made in terms of section 7(2)
(for the payment of maintenance) and section 7(3)
• The provisions of the parties’ antenuptial contract
• The grounds which led to the irretrievable breakdown of the marriage
between the parties

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Topic 12
Maintenance of a Spouse after Divorce

Prescribed reading

Before commencing with this topic, the following should be read:

1. Chapter 13 of Heaton & Kruger.

2. Divorce Act 70 of 1979
3. Gumede v President of RSA and Others 2009 (3) SA 152 (CC).

12.1 INTRODUCTION

After completing this topic, you should be able to:

• Explain the factors the court takes into account when determining
maintenance where there is no agreement between the parties.
• List and explain the four types of maintenance.
• Define the term “lump-sum maintenance”.

There are two options regarding spousal maintenance:

• Where there is an agreement between the parties
• Where there is no agreement but where the court makes an order for
spousal maintenance

12.2 WHERE PARTIES AGREE ON MAINTENANCE

Parties in a divorce may enter into a settlement agreement regarding the

maintenance that one spouse will pay to the other.

Where the parties reach a formal agreement and it is part of the settlement
agreement, which becomes an order of court, the agreement remains
enforceable.

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12.3 IN THE ABSENCE OF AGREEMENT

In terms of section 7(2) of the Divorce Act, a court may make a maintenance
order in the absence of a written agreement between the parties.

Such an order can also apply until death or remarriage. The basic principle that
will apply is that the party who applies for maintenance must show a need for it
and the party against whom the order is made must be able to provide for it.
The court will consider a wide range of factors when it decides on giving one
party maintenance and in section 7(2) of the Divorce Act various factors are
taken into account. These are:
• the existing and prospective means of the parties
• the respective earning capacities of the parties
• the financial needs and obligations of the parties
• the age of each party
• the duration of the marriage
• the standard of living of the parties prior to the divorce
• the conduct of each of the parties in relation to the breakdown of the
marriage
• any order in terms of section 7(3) of the Divorce Act (a redistribution
order)
• any other factor that the court may take into consideration

12.4 TYPES OF MAINTENANCE ORDERS

There are four types of maintenance orders:

• Rehabilitative maintenance
• Permanent maintenance
• Token maintenance
• Lump-sum maintenance

Self-Assessment Questions

1. Explain the meaning of the following concepts:

1.1 Rehabilitative maintenance. (4)
1.2 Nominal maintenance. (4)

2. When can a maintenance order be terminated? (1)

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Topic 13
The Interests of Children of Divorcing Parent

Prescribed reading

Before commencing with this topic, the following should be read:

1. Chapter 14 of Heaton & Kruger.

2. Section 28 of the Constitution.
3. Van Vuuren v Van Vuuren 1993 (1) SA 163 (T).
4. Van der Linde v Van der Linde 1996 (3) SA 509 (O).
5. Van Rooyen v Van Rooyen 1994 (2) SA 325 (W).
6. J and Another v Director General, Department of Home Affairs and Others
2003 (5) SA 621 (CC).

13.1 INTRODUCTION

After completing this topic, you should be able to:

• Explain the phrase “the best interests of a child”.
• Explain the role of the Family Advocate in divorce proceedings.
• Define the phrase “care of a child”.
• Define contact to the child.
• All the case law that is stipulated in this topic.

13.2 BEST INTERESTS OF THE CHILD

Section 28(2) of the Constitution of the Republic of South Africa, 1996 can be
regarded as the most important section pertaining to children’s rights. This
section stipulates that a child’s best interests are of paramount importance in
every matter concerning the child. It is also important to highlight sections 6, 7
and 9 of the Children’s Act 38 of 2005 where children’s rights and the importance
and protection of their rights are emphasised. There are various other Acts and
International Instruments that are also relevant when it comes to children’s
rights, but for purposes of this topic, the discussion will be limited.

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Section 28(2) of the Constitution stipulates 14 factors that must be taken into
consideration when you have to decide whether the situation at hand will be in
the best interests of the child. (You must be able to recall these factors and
explain them in a short).

Remember that the question of what is in the best interests of a child is an issue
which is determined by the facts and context of each case.

13.3 THE MEDIATION OF CERTAIN DIVORCE MATTERS ACT 24 OF

1987

A Family Advocate may be requested (by the court or a party to the proceedings)
to institute an enquiry in terms of the Mediation in Certain Divorce Matters Act
24 of 1987 in the following instances:
• After the institution of a divorce action.
• Application for the variation, rescission or suspension of an order relating
to guardianship, care or contact.

The reason behind such enquiry is to enable the Family Advocate to provide the
court with a comprehensive report and recommendations on any matter that has
relevance to a minor’s or dependent child’s welfare.

Where parents come to a settlement agreement, it is compulsory that the Family

Advocate look at the agreement and give the go ahead if it is believed that the
agreement is in the best interests of the child or children involved.

13.4 THE DIVORCE ACT 70 OF 1979

The position of minor or dependent children born of the couple who is getting
divorced, is regulated in terms of section 6 of the Divorce Act. It should however
be noted that section 6 does not apply to any stepchildren.

13.5 ASPECTS THE COURT MAY REGULATE

In general
Section 6(3) of the Divorce Act stipulates that the court that granted a divorce
order is also empowered to make any order regarding the maintenance of a
dependent child of the divorced couple as well as any order relating to the
custody or guardianship of; or access to, a minor child of the divorced couple.

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The following table is a SHORT summary of the concepts guardianship, care,

contact and maintenance. It is therefore important to refer you to your prescribed
textbook in order to study these terms in full detail.

Common-law Children’s Act Order the court

meaning meaning may make
Guardianship Narrow meaning: the Guardianship is Concurrent
capacity to administer limited to the guardianship (joint
a minor’s estate on narrow sense of guardianship).
his/her behalf and the common law OR
assistance relating to meaning. Single
legal proceedings and guardianship OR
the performance of Sole guardianship.
juristic acts. Wide
meaning: Care is
included.
Care The capacity of a Then important Joint care is
person to physically elements (see increasingly being
have the child with prescribed awarded.
him/her and to control textbook). “Joint care” is used
and supervise the for joint legal care
daily life of the child. and there is also
then “joint physical
care/joint
residency”.
Joint legal care
therefore refers to
joint care that is
limited to joint
decision- making
regarding
important issues
such as operations
on the child, etc.
Joint physical
care/joint
residency refers to
substantial
amounts of time
that the child
spends with each

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parent. For
example: each
week or alternate
weeks, etc.
Contact Right of access. Maintaining a Divorced parties
personal may agree on
relationship with structured or
the child and to defined contact.
communicate OR
with the child on The court may
a regular basis if order structured or
the child lives defined contact.
with someone OR
else. An order in general
terms can be made
by the court.
Maintenance Include items such as Not defined in Maintenance
food, clothing, terms of the should be claimed
accommodation, Children’s Act: from both parties
medical care and therefore, the in accordance with
suitable education. common-law their respective
meaning means.
prevails.

13.6 ENFORCEMENT OF GUARDIANSHIP, CONTACT AND CARE

Guardianship, care and contact can be enforced in the following ways:

• Interdict.
• An order directing compliance.
• Reasonable force.
• Criminal sanctions.

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Self-Assessment Questions

1. It is true that in the past, care was normally awarded to one of the parents
– usually the mother since it was assumed that a mother is “the better
care-giving parent.”
1.1 Which case concluded that “mothering” does not necessarily have
to be undertaken by the child’s mother since “mothering” also
forms part of a father’s being? (2)
1.2 If the "mothering" assumption had not been rejected, such an
assumption would have infringed on two cardinal clauses of the
constitution. Name these clauses. (4)

2. Until when must a parent pay maintenance to a child (after divorce) if the
maintenance order does not specify a specific age? (2)

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Topic 14
The Duty of Support in Respect of a Child

Prescribed reading

Before commencing with this topic, the following should be read:

1. Chapter 23 of Heaton & Kruger.

2. McCall v McCall 1994 (3) SA 201 (C).

14.1 INTRODUCTION

After completing this topic, you should be able to:

• List the persons who are obliged to support a child.
• Explain the scope of the duty of support.
• Explain under which circumstances support is terminated.
• Define the phrase “the reciprocity of duty of support”.

14.2 FACTORS TAKEN INTO ACCOUNT WHEN CONSIDERING THE

DUTY TO SUPPORT

In order to determine the exact scope of the duty of support, the following factors
(amongst others) are taken into account: The child’s:
• needs
• age
• state of health As well as the:
• means
• income
• social status of the person who is liable for maintenance.

It must be remembered that the duty of support depends on the circumstances

of each individual case.

Firstly, the child’s needs must be established, secondly the amount of the liable
person’s maintenance contribution must be calculated with due consideration of

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such person’s means. If more than one person is responsible for a child's support,
the duty to provide maintenance should be shared between them in accordance
with their respective means.

14.3 PERSONS OBLIGED TO SUPPORT A CHILD

The following persons are responsible to support a child:

• The state.
• The parents of the child.
• The grandparents of the child.
• The siblings of the child.
• A person who is not the child’s parent, grandparent or sibling but has care
of the child.
• The child’s stepparent.

14.4 RECOVERY OF EXPENSES RELATING TO SUPPORT

If a person provided maintenance to a child, such person does not have a right
of recourse against the child for any money spent. However, there is an
exception: if the child was in the position to support himself/herself (at the time
when the said maintenance was provided) and the person who provided the
maintenance had the intention to recover the amounts that was spent on the
child, from the child.

In the case of parents, one parent can claim from the other parent, any amount
that he/she spent in excess of his or her pro rata share of the child’s
maintenance.

14.5 RECIPROCITY OF THE DUTY OF SUPPORT

Children have a duty on them to support their parents, grandparents and siblings
if there is an extreme need for support on their side. Please consult your
prescribed textbook for a full discussion on the reciprocity of the duty of support.

14.6 TERMINATION OF SUPPORT

The duty of support is terminated in the following instances:

• When the child dies.
• When the child is adopted.

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• When the child becomes self-supporting.

• When the child enters into a marriage or civil union.
• When the liable person becomes insolvent.

Self-Assessment Questions

1. Fill-in the missing words:

1.1 A parent’s duty of support arises ____________________ upon the
child’s birth. (2)
1.2 From the time of adoption, the child may claim maintenance from
his or her ____________________. (2)
2. Does the sequestration of the estate of a person who is obliged to maintain
another terminate the person’s duty of support? Explain. (3)

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Topic 15
The Domestic Violence Act 116 of 1998

Prescribed reading

Before commencing with this topic, the following should be read:

1. Chapter 21 of Heaton & Kruger.

2. South African Law Reform Commission Issue Paper 42 2021.
3. R Maphosa “Tackling the “shadow pandemic”: the development of a positive
duty on adults to report domestic violence” (2022) De Jure 87.

15.1 INTRODUCTION

After completing this topic, you should be able to:

• Explain which persons qualify for protection under the Act.
• Explain the conduct which qualifies as acts of domestic violence.
• Define the protection order a court can grant.
• Define which court has jurisdiction to grant such an order.

15.2 PURPOSE OF THE DOMESTIC VIOLENCE ACT

Domestic violence is, sadly, an all too common occurrence in South Africa
(Heaton & Kruger, 2015: 271). The purpose of this Act is to try to prevent
domestic violence, for any person has the right to freedom and security, which
includes the right to be free from all forms of violence in terms of section 12(1)
of the Constitution of the Republic of South Africa.

Any person in a domestic relationship can apply for a protection order under the
Domestic Violence Act. It should be kept in mind that the application for a
protection order is made through a civil procedure, and that the protection order
is a civil remedy.

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15.3 PERSONS WHO QUALIFY FOR PROTECTION UNDER THE ACT

The complainant and the respondent must be in a domestic relationship in certain

circumstances. (Consult your prescribed textbook for the full list of
circumstances).

15.4 PROTECTION ORDERS

1. The interim protection order

The court is compelled to make an interim protection order before a final
protection order can be made. However, the court must be satisfied that there is
prima facie evidence that an act of violence is committed or has been committed
by the respondent. The court must also be convinced that the complainant may
suffer undue hardship due to an act of domestic violence if an interim protection
order is not made as soon as possible. BUT the court may also refuse to make
an interim protection order if there are other legal remedies available to the
complainant.

2. The protection order

If the interim order is properly done and the respondent fails to appear in court
on a particular date and time, the court may make the interim order a final
protection order. It should be remembered that the final protection order is valid
and enforceable as soon as it is issued.

3. Varying and setting aside a protection order

If good cause has been shown, a protection order can be varied or set aside.
However, the application by the complainant for variation or rescission, must
have been made out of free will.

15.5 JURISDICTION OF THE COURT

The Magistrate’s Court or Family Court has the jurisdiction to make a protection
order .

15.6 REPORTING ABUSE

It should be noted that there is no obligation to report domestic violence BUT if

the victim is a child or an aged person, domestic violence MUST be reported.

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References

Books
1. Heaton J & Kruger H, South African Family Law (2015) 4th ed. Durban:
Lexis Nexis
2. Humby T et al., Introduction to Law and Legal Skills in South Africa (2013)
Cape Town: Oxford University Press

Case law
1. Bannatyne v Bannatyne and Another 2003 (2) SA 363 (CC)
2. Barkhuizen v Napier 2007 (7) BCLR 691 (CC)
3. Bwanya v Master of the High Court, Cape Town and Others 2022 (3) SA
250 (CC)
4. Daniels v Campbell and Others 2004 (7) BCLR 735 (CC)
5. DE v RH 2015 (5) SA 83 (CC).
6. Du Plessis v Pienaar 2003 (1) SA 671 (SCA)
7. Ex parte Dow 1987 (3) SA 829 (D)
8. Friedman v Harris 1928 CPD 43
9. Gory v Kolver NO and Others (3) BCLR 249 (CC)
10. Grobbelaar v Havenga 1964 (3) SA 522 (N)
11. Gumede v President of RSA and Others 2009 (3) SA 152 (CC)
12. Hassam v Jacobs NO and Others 2009 (5) SA 572 (CC)
13. J and Another v Director General, Department of Home Affairs and Others
2003 (5) SA 621 (CC)
14. Krull v Sangerhaus 1980 4 SA 299 (E)
15. KT v MR 2017 (1) SA 97 (GP)
16. Mayelane v Ngwenyama and another (Womens’ Legal Centre Trust and
others as amici curiae) 2013 (8) BCLR 918 (CC)
17. McCall v McCall 1994 (3) SA 201 (C)
18. Moola and Others v Aulsebrook NO and Others 1983 (1) SA 687 (N)
19. National Coalition for Gay and Lesbian Equality and Others v Minister of
Home Affairs and Others 2000 (1) BCLR 39
20. Nedbank Ltd. v Van Zyl [1990] 4 All SA 637 (AD)
21. Peter v Minister of Law and Order 1990 (4) SA 6 (E)
22. Reloomel v Ramsay 1920 TPD 371
23. Reyneke v Reyneke 1990 (3) SA 927 (E)
24. Satchwell v President of Republic of South Africa and Another 2002 (9)
BCLR 986.
25. Singh v Ramparsad 2007 (3) SA 445 (D)

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26. ST v CT 2018 (5) SA 479 (SCA)

27. Thelemann v Von Geyso 1957 (3) SA 39 (W)
28. Van der Linde v Van der Linde 1996 (3) SA 509 (O)
29. Van Jaarsvled v Bridges 2010 (4) SA 558 (SCA)
30. Van Niekerk v Van Niekerk 1959 (4) SA 658 (GW)
31. Van Rooyen v Van Rooyen 1994 (2) SA 325 (W)
32. Van Vuuren v Van Vuuren 1993 (1) SA 163 (T)
33. Venter v Venter 1949 (4) SA 123 (W)
34. Volks NO v Robinson and Others 2005 (5) BCLR 446 (CC)
35. Wiese v Moolman 2009 (3) SA 122 (T)
36. Women's Legal Centre Trust v President of the Republic of South Africa
and Others 2023 (1) BCLR 80 (CC)
37. Zulu v Zulu and Others (17413/2005) [2008] ZAKZHC 10; 2008 (4) SA
12 (D)

Journal articles
1. E Bonthuys “Public policy in family contracts, part II: antenuptial
contracts” 2021 Stellenbosch Law Review 3
2. K Madzika “Dawn of a new era for permanent life partners: from Volks v
Robinson to Bwanya v Master of the High Court” 2020 De Jure 393
3. L Mwambene “Recent legal responses to child marriage in Southern Africa:
The case of Zimbabwe, South Africa and Malawi” 2018 AHRLJ 527
4. M Abduroaf “An analysis of s 5A of the Divorce Act 70 of 1979 and its
application to marriages concluded in terms of Islamic law” 2023 De Jure
Law Journal 1
5. P Bakker “Chaos in family law: A model for the recognition of intimate
relationships in South Africa” 2013 PELJ 116
6. R Maphosa “Tackling the “shadow pandemic”: the development of a
positive duty on adults to report domestic violence” (2022) De Jure 87

Legislation, Papers and Reports

1. Civil Union Act 17 of 2006
2. Divorce Act 70 of 1979
3. Domestic Violence Act 116 of 1998
4. Green Paper on Marriages in South Africa published in the Government
Gazette 44529 of 4 May 2021
5. Maintenance Act 99 of 1998
6. Maintenance of Surviving Spouses Act 27 of 1990
7. Matrimonial Property Act 88 of 1984
8. Pension Funds Act 24 of 1956
9. Recognition of Customary Marriages Act 120 of 1998
10. South African Law Reform Commission Issue Paper 42 2021

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11. South African Law Reform Commission Project 144 2021

12. The Constitution of the Republic of South Africa, 1996

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