IURI173

• Under what law falls Family law

  • Falls under private law
• What sections of Constitutional does Family Law work with?

  • Section 1: Values, equality and human rights
  • Section 2: Supremacy of the constitution
  • Section 9: (Equality)- Unfair discrimination- 16 listed grounds
  • Section 10: Human dignity
  • Section 28: Children's rights
• Unions recognised in law

  • Marriages in terms of the marriages act
  • Civil unions in terms of the Civil unions act
  • Customary marriages- Recognition of Customary marriages act
  • Life/ domestic partnerships
• Sources of family law

  • Constitution: Most important
  • Statute: Eg: Marriages act
  • Case law: Hassam v Jacobs, Daniels v Campbell
  • Common law: Roman -Dutch Law
  • Customary law: African custom
  • International laws: Eg: International convention on the rights of a child
  • Religious laws: Tents of Islam/ Jewish law
• Definition Engagement

  An agreement between one man and one woman to marry each other on a specific determinable date

  Or an agreement between two persons of the same sex to conclude a civil partnership
• Engagements - reception theory


  • No special formalities, but there are requirements

  Engagement is complete if acceptance was received (Reception theory)

  Engagement may be ended if there is a just cause for it
• Nature of engagements


  • Can be oral or in writing

  Must be an announcement to the public

  Tacitly

  No formal time period required

  No formalities required

  Period can be short or long
• Legal nature of engagements


  Contract sui generis: Contract that is one of its kind

  Rules of contract to be applied to determine the legal requirements of the contract

  An engagement is based on a reciprocal undertaking by the parties to enter into a marriage with one another
• Requirements for a valid engagementCapacity to act

  Lawfulness

  Possibility of performance
• Consensus


  Test: If the person had known the truth, he/ she would not have entered the agreement or would have entered into the engagement on different terms

  Error in persona: Identity of person wrong

  Error in negotio: Misrepresentation

  Misrepresentation: Both error in persona and error in negotio amounts to misrepresentation

  Material mistake- contract is voidable

  Mental illness, addiction, impotence can affect consensus

  Duress or undue influence can affect consensus
• Capacity to act


  Mental illness

  Minors- additional consent required
• Lawfulness


  What if a person is already married (Polygamous)

  Unlawful condition: Steal money- condition is void, but not the engagement

  Condition in direct conflict of nature of marriage: Women must prostitute herself - Engagement is void
• Possibility of performance


  Impossible condition: Marrying a person on Mars would be impossible and for that reason the agreement is void

  Illegal conditions also included
• Voidable


  Valid contract until the innocent sets it aside (rescinds) or accepts it
• Date of the wedding

  If the date has been set: There is a reciprocal duty to marry on that date

  If there is no set date: Parties must later on agree on a date for the wedding, tacit understanding that the marriage will take place within a reasonable amount of time, continuous postponement can possibly be a breach of contract
• How to claim for damages

  • Patrimonial loss: Physical "monetary" value lost

  Non-patrimonial loss: Action for satisfaction (actio iniurarium)
• Legal status of engagement gifts

  • Arrhae sponsalita: Gifts to show the seriousness of the promise to marry (Wedding ring)

  Sponsalita largitas: Gifts made in the anticipation of marriage (Car, house, life insurance policy, medical aid etc.)

  Small gifts exchanged as a token of affection: Retained by parties
• Termination of engagement

  • Lawful: Conclusion of the marriage, Death of either party, Mutual agreement, Withdrawal of parental consent (If the fiancée is a minor), Unilateral lawful repudiation

  Unlawful: Conclusion of engagement with a third party, Sexual relationship with someone else, Denial of existence of agreement
• Customary/ religious engagements

  • Islamic- Khitba

  Jewish- Kiddushin

  Hindu- Sagai

  African Customary law
• Van Jaarsveld v Bridges: Innocent party can not claim for sentimental damages, could claim with breach of contract, only the factual cost can be claimed, damages awarded for the renovation of the house, wedding costs
• Nhlapo v Zimu 2017: Cause of action was damages from the out of pocket costs from wasted expenses for the wedding, unjustified enrichment was claimed for a bed she bought, claimed for future damages (Medical aid/ pension fund): No longer part of our law- can not be adopted as a part of our law
• Marriage


  Traditionally, a marriage is defined as: A legally recognised, voluntary, life-long union between one man and one woman to the exclusion of all others
• Requirements for a valid marriage

  • Lawfulness and capacity to marry

  Consensus

  Formalities
• Absolute incapacity to marry

  • Already married

  Mentally incapable

  Below the legal marriageable age
• Relative incapacity to marry

  Gender

  Age
• Prohibited degrees of relationship

  • Consanguinity: Direct line, Collateral line

  Affinity: Direct, Collateral

  Adoption
• Guardian and ward


  Can only marry with consent of the High Court, as the ward can not give consent to the marriage him/ herself
• Persons under curatorship


  Allowed to marry without the consent of their curator
• Consensus for marriage


  Must be declared in the presence of 2 witnesses and the marriage officer

  Parties must declare their willingness to marry one another

  Material mistakes that render the marriage void: Error in negotio, Error in persona

  Material misrepresentation: Intentional concealment of sterility or impotence, Existence of a child born outside of marriage
• May marry stepsister/ brother
• Persons under curatorship


  Pienaar v Pienaars Curator: Persons under curatorship is allowed to marry without the consent of their curator
• The second requirement: Consensus

  1. Must be declared in the presence of 2 witnesses and the marriage officer

  2. Parties must declare their willingness to marry one another
• Material mistakes that render the marriage void

  • Error in negotio: For example, if the person thinks the procedure before the marriage officer is preliminary
  • Error in persona: Wrong person
  • Non-material characteristics does not lead to a void marriage: Eg: Financial status, names or religion of the other person
• Undue influence/ duress


  Smith v Smith: Marriage concluded by fear induced by threats made. Marriage was annulled
• Impotence, sterility and stuprum

  1. Impotence: Spouse was impotent at the time of the marriage, continued to be so after the marriage, and the plaintiff was unaware of the impotence at the time of the marriage

  2. Sterility: Venter v Venter: Only fraudulent concealment of sterility can lead to annulment of marriage

  3. Stuprum: Bride is pregnant at the conclusion of the marriage with the child of another man
• Who may solemnise the marriage?

  • Any magistrate, justice of peace or person authorised by the minister of home affairs
  • Ministers of religion
• Prerequisites of a marriage

  • The parties are not related to each other within the prohibited degrees of relationship
  • No impediment exists with regard to the proposed marriage
  • If applicable, the parties have obtained the necessary consent for the marriage
• Any person with an objection against the marriage must lodge the objection in writing with the marriage officer
• No person may conclude a marriage through any person acting as their representative
• Voidable


  Legal marriage, but can be declared void