Chapter 4- 17 of family law. Topics include: Engagements, legal requirements for civil marriages, Civil Union Act, void, voidable, and putative marriages, dissolution of marriages by divorce and death etc.
The document includes all topics that I had to study for my finals.
Chapter 9 Dissolution of Marriage
1. Personal consequences of dissolution of marriage
3 ways in which marriage is dissolved:
1. Death of one or both of the spouses
2. Annulment of a voidable marriage
3. Divorce
The following personal consequences are terminated when the marriage
ends:
1. Consortium omnis vitae
2. Duty of support (exceptions: can claim maintenance ito Divorce Act or
Maintenance of Surviving Spouses Act)
The following personal consequences are NOT terminated when the
marriage ends:
1. Majority status is retained
2. Relationships by affinity in a direct line are not dissolved
2. Division of the marital property when the marriage is
dissolved by death
Marriages in Community of property:
● When one or both spouses die, both the marriage and the community of
property between the spouses end.
● Each of the spouses receives half of the joint estate.
● Death of one of the spouses gives rise to inconvenient administrative
challenges.
● Administration of Estates Act 66 of 1965: control of the joint estate is
transferred to the executor for winding up before the surviving spouse
receives her half.
● Remainder is given to the heirs.
This regime has disadvantages that are evident upon the death of one of the
spouses:
● Executor can/must liquidate some/all of the joint estate’s assets to
meet creditors’ claims
● Executor can/must liquidate some/all of the joint estate’s assets to
pay heirs in order to give effect to a will.
● Control of the joint estate is removed from the surviving spouse
,Marriages out of Community of property:
● ANC is not terminated by death of one or both of the spouses.
● Only terminated once the last of the obligations has been fulfilled, eg:
pactum successorium
● Executor only deals with the estate of the deceased spouse.
● If the surviving spouse has any claim against the deceased estate,
he/she must lodge a claim with the executor.
Includes a claim for household necessaries if the spouses were:
Married before 1984; or
Married after 1984 but agreed to the right of recourse in their ANC.
Marriage out of Community of property with the accrual
● Accrual is calculated and paid at the end of the marriage.
● If the accrual applies and the surviving spouse’s accrual is smaller than
that of the deceased’s, the surviving spouse must lodge his/her claim
with the executor.
● If the surviving spouse’s accrual is more than that of the deceased, then
the executor must claim a share from the surviving spouse.
3. Claims of the surviving spouse
Claims based on inheritance
● The terms of a valid will must be carried out and the estate will be
distributed in accordance with the testator’s wishes.
● Testators are free to leave their estate to whomever they please and is
free to disinherit his spouse if they so choose.
● A will requesting that the entire estate of the deceased to charity &
leaves a spouse with nothing is legal.
● If the deceased dies intestate the estate will devolve ito the rules of
intestate succession as set out in the Intestate Succession Act.
The Intestate Succession Act provides:
● If a person dies intestate and is survived by a spouse but not a
descendant, the surviving spouse inherits the entire estate.
● If the person dies intestate and is survived by a spouse and
descendants, the surviving spouse inherits the greater amount of a
child’s share of the intestate estate or a predetermined amount fixed
by the Minister of Justice (MoJ) - s1(1)(c)(i).
Claims based on the Maintenance of Surviving Spouses Act (MSSA) 27
of 1990
● Regulated by section 2(1) of the MSSA.
● If a testator has disinherited the surviving spouse, the latter can lodge a
claim for maintenance against the deceased spouse’s estate ito MSSA.
● A successful claim has the result that the amounts available to
beneficiaries in a will must be reduced.
, ● Surviving spouses have a claim for his/her reasonable maintenance
needs until his/her death or remarriage to the extent that she cannot
provide for these needs from her own means and earnings.
When determining reasonable means, following factors are taken into account:
● Amount available in deceased estate for distribution to heirs;
● Surviving spouse’s existing and expected means;
● Earning capacity, financial needs and obligations;
● Duration of the marriage;
● Surviving spouse’s standard of living during the marriage;
● Surviving spouse’s age at the time of the deceased’s death; and
● Any other relevant factor.
❖ The MSSA ensures the surviving spouse is provided for from the
deceased estate if funds allow.
❖ However, the claim depends on the available means and the claimant's
needs.
❖ It may be reduced or denied if the spouse has other support.
❖ Children of the deceased also have a claim for reasonable maintenance.
❖ Both the spouse's and children's claims hold the same priority, and if
resources are insufficient, they are reduced proportionally.
Executor can enter into an agreement with the surviving spouse and heirs to
settle the claim by:
1. creating a trust,
2. transferring assets to the surviving spouse, or
3. imposing an obligation on the heirs
Customary and Muslim spouses
● Customary marriages are now recognised by the Recognition of
Customary Marriages Act 120 of 1998
● Therefore, a surviving customary spouse qualifies as a “survivor” in
terms of the Maintenance of Surviving Spouses Act includes
monogamous and polygynous marriages.
● Therefore, all the wives in a polygynous marriage may lodge a
maintenance claim.
➔ In Daniels v Campbell NO (2004) it was held that “survivor” includes
spouses in a monogamous Muslim marriage.
➔ In Hassam v Jacobs NO (2008) the definition of “survivor” was extended
to include widows of polygynous Muslim marriages on the basis of
equality and dignity.
Life partners
, ➔ In Robinson v Volks (2005) the court a quo held that “survivor” included
the surviving partner of a life partnership because their exclusion
from the definition was unconstitutional on the grounds of equality
and dignity.
The executor appealed to the CC who overturned the decision of the
court a quo.
CC held that an invariable consequence of marriage is that spouses
are legally liable to maintain each other during their marriage.
No such duty is imposed by the law on unmarried persons. Because no
such duty exists during life, it cannot be extended after death.
The Volks precedent was overturned by the Constitutional Court in the 2021
case Bwanya v the Master of the High Court.
● Ms Bwanya was the survivor of a domestic partnership.
● She brought a claim under the Intestate Succession Act and a claim
under the Maintenance of Surviving Spouses Act.
● The claim under the Intestate Succession Act was based on the ruling in
Laubscher v Duplan.
In the Laubscher case, the court allowed a claim under the Intestate Succession Act
by an unmarried same-sex domestic partner, defining the word spouse to include
‘partner in a permanent same-sex partnership in which the partners have
undertaken reciprocal duties of support.’
The partners in the Laubscher case had chosen not to marry even though they could
have married under the Civil Union Act.
Ms Bwanya argued that she was in the same position and that permitting a
claim for unmarried same-sex domestic partners while denying a claim by
unmarried heterosexual domestic partners was unfair discrimination on the
grounds of sexual orientation.
The court held that the definition of ‘spouse’ in the Intestate Succession Act
should be changed so that it included the words ‘or partner in a permanent
life partnership in which the partners have undertaken reciprocal duties of
support.
Chapter 10 Grounds for Divorce
1. Purpose of Divorce Law
● Promote social stability
● Protect the economic interests of the spouses
● Protect the best interests of the children
● Provide procedures that are efficient & inexpensive
● Provide divorce procedures that do not escalate hostility & bitterness
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