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Summary Private law 171- Family Law
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STUDY UNIT 1: THE ENGAGEMENTAn agreement, regardless of sex, to marry one another or to conclude a civil
partnership within a reasonable amount of time or on a determined date.
Reciprocal duty flows from the engagement to marry. Contracted orally or in
writing announcement and wring prove consensus between parties. No formal
requirements as to how the party must get engaged.
Legal nature of the engagement contract:
Basis for personal rights. right of the one party to cliaim the other party enter
into the marriage with them. Unique nature of the contract: entails more than
mere delivery of a performance in terms of the doctrine of subjective rights.
CANNOT BE ENFORCED WITH SPECIFIC PERFORMANCE.
Engagement is a contract sui generis. Once date has been decided there is a
reciprocal duty to enter into the marriage on that date. One acts without
agreement of the other= breach of promise. Date setting is not a requirement
but continues refusal and delaying can also constitute a breach of promise.
Engagement presupposes high level of loyalty therefore it is said to be a contract
uberrimae fides.
Requirements of concluding an engagement:
consensus forms the basis of the engagement contract. Parties must be
competent to marry one another and conditions must be met.
Legal requirements:
The prohibited degrees of affinity:
May not be within the prohibited degrees.
Parties must be unmarried:
VOID: if it convenes a statutory prohibition or that it is contra bonos mores this
means that legally this contract/marriage has no force and effect. Treated as non-
existent and can’t be ratified.
VOIDABLE: valid for all purposes unless until a decree of nullity is obtained. Can
elect to stand by the contract/marriage or to claim rescission.
Both parties must be unmarried. Promise by a married person to get married is
VOID. S8 of Civil Union Act 17 of 2006. In civil union may not enter intp a
marriage under Marriages Act either. Married person states a promise to marry
on condition that he/she gets a divorce= VOID. Unaware of the status of the
other party= VOID. Gifts given to secure divorce of married person= par
delictum (defendant/possessor is in a stronger position where both parties
hands are dirty) against public policy & void.
,If the parties do get divorced the 3rd party and the divorcee are not in an
engagement and breach of promise can not be claimed. However such a party
can claim action iniuriarum.
Consensus:
Based on two corresponding declarations of intent, which are aimed at
concluding the engagement contract. Existence of the engagement may be
deduced from the conduct of the parties. 4 aspects of the law of contract that
apply:
1. contracting party may have erred when he/she concluded the contract.
2. contract may have been concluded in terms of duress
3. misrepresentation
4. undue influence
Mistake (error): identity of the parties involved. If either of the parties errs
with regard to any of the elements, the mistake can be seen as material and is
void ab initio. “Error” party under a mistaken impression in regards to a
MATERIAL aspect of the contract.
Various forms of error: error in persona A thinks concluding with B but it is
actually C. Error in negotio B thought A was joking when he asked and
agreed jokingly. When A thinks her and B have agreed in terms of a valid
marriage and B thinks it is a Hindu one (material mistake in terms of the
nature of the act and has not come into existence).
ENGAGEMENT CONTRACT WILL ONLY BE VOID IT THE MISTAKE IS
MATERIAL.
error in qualitatus party errs in regard to the personal qualities of the other
person. Mistake with regards to sterility, impotence, serious physical or
psychological deficiencies- the mistake is material. (can be representation)
Misrepresentation: person creates a wrong impression with regards to
certain aspects in the mind of the other, with the AIM of inducing him/her to
conclude a contract. IF the misrepresentation did not occur then there would
not have been a contract. omission to disclose certain facts in certain
situation where there is an obligation to speak is also misrepresentation.
Misprepresentation is iusta causa (just cause) for the REPUDIATION of a
contract.
iusta causa: fact or occurrence which comes about AFTER enagement has
been entered into which jeopardizes the prospects of a successful and
harmonious marriage to the fact that it would cause a ordinary, decent and
prudent person to break of an engagement
“less serious characteristics”- use of foul language, abuse of liquor, personal
characteristics of family members. more difficult to determine prospects of a
happy marriage. Chastity of engaged parties- Common Law states that if one
, is discovered not to be a virgin, this may constitute iusta causa. Do not
disclose the fact then it is material misrepresentation.
Duress: forcing another into an engagement contract through making
unlawful threats. consensus HAS been reached. the INNOCENT party can
apply for it to be set aside and to withdraw from the contract.
Undue influence: one secures an influence over the other that WEAKENS he
ability of the other party to resist. He then ABUSES this influence in an
unconscionable way to persuade the other party to enter into the enagement.
This would not have happened if there was no influence.
Capacity to act:
Engagement is self-evident that the parties must have the necessary capacity to
enter into the contract of engagement.
Termination of the engagement:
Lawful termination: NO CLAIM FOR DAMAGES OR SATISFACTION. examples:
Conclusion of the mariage
Death of either of the parties
Mutual agreement to terminate the agreement/contract (this agreement
must adhere to all the requirements for consensus)
Withdrawal of parental consent (either of the parties is a minor, consent
effects the capacity of the minor)
Unilateral lawful repudiation (iusta causa for repudiation must exist)
Wrongful termination: There has been a breach of promise. conduct of one of
the parties jeopardizes the prospects of a happy marriage is wrongful and
permits the innocent party to withdraw from the agreement. Must be of such
serious matter that one cannot REASONABLY continue into the marriage. (Denial
of existence, nreasonable refusal to enter into a marriage on agreed upon basis,
cheating.
Consequences of the unlawful termination of the engagement:
Damages: Awarded as actual compensation for ACTUAL loss suffered. matter is
comprehensive. May include pecuniary (monetary) and non-monetary loss.
(Injury to personality).
Satisfaction: form of non-monetary loss. Awarded as a solace of wounded
feelings, mental pain or suffering. Harmful impairment of the legally protected
personality rights of a person, which does not effect his/her economic position.
The claim for damages:
positiewe interesse- wronged party must be placed in the same patrimonial
position that he/she would have been in if the wronged party had fulfilled
his/her contractual obligations properly.
,Sui generis: suggested that in the case of breach of promise the principle above
should not be applied in an unqualified way. Therefore ther eare factors that
needs to be taken into consideration:
1. That the proposed marriage would have been to the advantage of the
wronged party
2. Woman may in the future get engaged to a wealthy man
Court should take all factors into consideration and should NOT apply postiewe
interesse situ. UNCONDITIONALLY.
GUGGENHEIM V ROSENBAUM. SPHERI V SCANLAN (107).
can’t repair breach of promise by declaring that you will now get married to the
party. Action for breach of promise also prescribes after 3 years.
Satisfaction for infringement of personality rights:
Claimed through action iniuriarum. plaintiffs dignity or reputation has been
infringed. can claim satisfaction as solatium (monetary consolation) from the
defendant. can only succeed if can prove that an iniuria has been committed.
elements of inuria:
animus iniuriandi: the INTENTION to infringe the plaintiff’s personality
rights.
modern interpretation is that the conduct of defendant does not infringe the
dignity or reputation of the other party. court excersises discretion to the
quantum that is awarded. factors that effect this amount is the MANNER in which
the breach took place, social status of the parties and their previous experience.
action iniuriarum: reiterates the common law exposition “the innocent
party is entitled to sentimental damages if the reputation was
contumelious. manner in which the engagement was brough to an end is
of vital importance.
Claim for damages and satisfaction in one composite action:
Courts treat the action as a composite one and award one total for damages
The return of gifts:
Three types of gifts can be distinguished:
1. Arrhae sponsalitiae: reflect the serious intention of the donor to enter
into a marriage with the other party with the intention that they will be
forfeited to the receiver should the donor breach such promise. Ring may
be retained by the receiver. Only claimed back if the breach was not the
fault of the donor.
2. Gifts made in anticipation of the marriage: intention of these gifts is the
lasting benefit during the marriage that the receiver will gain from them.
house, jewelry etc. PRESUMPTION thatvaluable gifts of a permanent
nature given during the existence of the engagement were given in
anticipation of the marriage.
3. small gifts: flowers ect.
,General rule is that all gifts as tokens of affection have to be returned if the
engagement is terminated by mutual consent or there is no fault of either of the
parties. WRONGFULLT TERMINATED: defaulter may retain all gifts given to
him/her setting off the value of the value of their value against his/her damages.
Damages and satisfaction for seduction:
Institution of this action does not depend on the existence of the engagement.
Seduction- extra-marital sexual intercourse with a virgin with her consent. In
order to claim- woman must prove that she indeed was a virgin beforehand. This
is a REBUTTABLE presumption. It affects the prospect of the woman concluding
a good marriage in the future. Calculation of quantum falls under the court’s
discretion. Became pregnant through the seduction: then can claim damages
from the defendant. Woman not entitles to claim maintenance for herself, except
for a reasonable amount of time before the birth of the child.
, Study Unit 3: The legal requirements for entering into a civil marriage
Introduction:
Marriage is an important internationally recognized social institution that gives
rise to moral and legal obligations. Serves to regulate establishing of families and
the relationship of family members inter se (between themselves). This
institution of marriage must be protected and regulated by the state and law
provides measures that protect the loyalty of spouses towards each other and
protect the marriage consortium.
Is a marriage a contract?
A marriage needs consensus but this does not mean that it is simply just a
contract. Our courts have made it abundantly clear. For example:
Carter v Carter: “marriage is not like an ordinary contract that can be
terminated through mere consent if the parties” his is because there is
interest of the state that the marriage tie should not be lightly dissolved.
Differences:
Mere consent is not sufficient to create a marriage- adherence to the
requirements of the applicable legislation is required. Marriage Act
requires a marriage to be solemnized by a competent marriage officer.
Can’t be terminated through consensus between parties. Can only be
terminated through death or with the assistance of the state (divorce
order through a competent court).
A contract is entered into with the view of creating obligations for each
party; this is not the sole objective of a marriage. Marriage hold far more
than just obligations.
Obligations are enforced differently in marriage contract. Specific
performance of spouses (with regard to non-financial obligations) cannot
be claimed. Only the obligation to pay maintenance may be enforced by a
court order for specific performance.
Marriage should rather be seen as a juristic act sui generis (of its own
nature).
The legal requirements for entering into a valid civil marriage:
Marriage in community of property: all the assets and liabilities of
the spouses are merged into a joint estate of which both spouses,
irrespective of the value of their financial contributions, are tied co-
owners in undivided and indivisible half shares
Marriage out of community of property: normally regulated by an
antenuptial contact, which excludes community of property and
profit and loss. Under this dispensation, the general capacity and
property rights of the spouses remain unaffected by the marriage.
They retain their separate estates and are, as a rule, not reliable for
each other’s debts.
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