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- University Of South Africa (Unisa)
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1SECTION 1- MARRIAGE LAW
ENGAGEMENT
Q&A Define the concept engagement?
Is a contract between a man and a woman who agree to marry each other on a specific or determinable date
- Is a contract but not a normal contract
• Engagement is not a prerequisite to carry out a valid marriage
May an engagement be concluded subject to conditions?
C an be subject to conditions. Impossible or unlawful conditions do not void it.
List the requirements for valid engagement
Legal req for valid engagement: Acronym- CCLP (consent,capacity,lawful,possible)
Parties must agree (must be consensus) about the marriage
parties must have capacity to act (minor needs permission or mentally ill is incapable)
engagement must be lawful (parties are unmarried and able to marry)
engagement must be judicially and factually possible
• material mistake and material misrepresentation excludes consensus
- material mistake = engagement is void
- material misrepresentation = engagement is voidable by party who was misled
- Does not matter if mistake was deliberate or made innocently
- Misrepresentation occurs when there is a false representation of the truth or failing to correct a misconception or
omitting to disclose certain facts where there is a duty to speak
Distinguish between error in persona and error in negotio?
A married person promises to marry another person after obtaining a divorce from current spouse. Is the promise
valid?
Q&A- What is the effect of a material mistake and of a material misrepresentation respectively?
The consequence of a material mistake is that the engagement is void whereas the consequence of a material
misrepresentation is that the engagement is voidable by party who was misled
CASE- Schnaar v Jansen (concept of the duty to speak)
Consensus was the legal requirement in issue in this case.
Facts of case: Man terminated engagement after finding out things about the womans family. She sued him for breach of
contract.
Legal question: Court had to decide if those circumstances (non disclosure of certain facts) justified the mans termination
of the engagement.
Van den Heever thinks decision is wrong because a party is obliged to disclose things of this nature in good faith as an
engagement is a contract to marry
Note- age of majority is 18 not 21
When a minor wants to conclude contract
of an engagement- following consent is needed
, 2
• Impossible or unlawful conditions do not render the engagement void, but are merely held to be pro non scripto (not
to have been written). Such conditions are not taken into account at all.
Q&A- When can an engagement be terminated. List the different ways?
Marriage
Death of either person
Mutual agreement
Withdrawal of parental consent when the party is a minor
Unilateral and justified termination based on sound reasons (justa causa)
Justa causa is a fact or occurrence which comes about after the engagement has been entered into
which will seriously jeopardise the chances of a happy and lasting marriage. The realisation by one
party that s/he is no longer in love is not justa causa as it will not seriously jeopardise the chances of a
happy marriage. A termination of engagement for this reason will constitute breach of promise. Rule
can b criticised because not loving the other party should be the most valid reason for terminating an
engagement. Possibility of having a happy marriage is jeopardised if a party is not in love with the
other.
Breach of promise (is the unlawful termination of the engagement) (innocent party can claim damages
for breach of contract or satisfaction for personality infringement based on the delict iniuria
CASE- Guggenheim v Rosenbaum- Authority: Courts calculate damages on the basis of positive and negative interest
Decided that a clear distinction must be drawn between an action for damages and an action for satisfaction which
may be brought in the same action.
- Damages awarded for breach of contract of engagement are sui generis (of its own kind). They are awarded differently
to other contracts. When ordinary contracts are breached, damages are worked out on the basis of positive interest.
With breach of engagement, damages calculated on the basis of positive and negative interest.
Positive interest (innocent party entitled to damages that will place them in the financial position they would have
been in had the contract been performed)
In Guggenheim, both prospective loss and actual loss was awarded. This also allows for expenses incurred to be
awarded as and the person will be placed in the same financial position if the contract had not been entered into
(negative interest)
- For action for satisfaction based on iniuria (infringement of personality), plaintiff must prove infringement as well as
the intention to infringe to succeed with claim.
Q&A- name 3 examples where courts granted satisfaction for personality infringement based on breach of promise.
, 3
• Return of engagement gifts- different rules apply according to the reasons for termination (whether parties agree to
terminate engagement or if its terminated for a justa causa or if a party has committed a breach of promise)
Q&A- List rules which apply in respect of the return of engagement gifts where a party has committed breach of
promise
- Innocent party can claim sponsalitia largitas (gifts made with a view to the marriage) and the arrhae sponsalitiae (gifts
to show the seriousness of promise to marry) which he or she gave (small or unconditional gifts not included here)
- Innocent party may retain arrhae sponsalitiae and sponsalitia largitas they received
- If innocent party claims damages, the value of the gifts retained must be taken into account. (unsure if same applies
when satisfaction is claimed)
• Satisfaction and damages on the grounds of seduction.
- This includes 2 separate claims : one for seduction and one for defloration and the concomitant minimising of womans
chances of making a suitable and successful marriage) and the claim for damages
Define seduction – induced into sexual activity outside marriage
LEGAL REQUIRMENTS FOR THE CONCLUSION OF A VALID CIVILMARRIAGE
Note- minor children are children between 7-18 not 7-21
Q&A- define marriage?
Marriage is traditionally defined as the legally recognised life long voluntary union between one man and one woman
to the exclusion of all other persons.
• It is not a contract
• Requirements for a valid marriage: (Acronym- CCLF, capacity, consensus, lawful, formalities)
Capacity to act
Consensus
Must be lawful
Prescribed formalities must be complied with
• If the requirements are not met, the marriage is not valid
CAPACITY TO ACT
• infants (children under 7) and mentally ill have no capacity to act. They cannot understand the nature and
consequences of their actions. Minors (7-18) or prodigal (prodigal is incapable of managing his own affairs or
squanders her assets) are people who need consent to marry.
CONSENSUS
Q&A- What are the factors affecting consensus? (possible essay question)
Mistake- only material mistake excludes consensus. Mistake concerning identity of other person (error in personam)
and mistake concerning nature of the juristic act (error in negotio) are the only forms of material mistake in
respect of marriage. Error in negotio is the only form that occurs in practice. Unsure if the mistake renders it
void or voidable. Heaton suggests should be void because consent is absent but in the interests of society it
should be voidable at request of party who was mistaken.
Simulated marriages (marriages of convenience) are valid as the parties had intention to validly marry.
Mistake in not material where a party is mistaken about facts concerning marriage or personal attributes of
other party unless the misunderstanding was caused by misrepresentation. A non-material mistake is
irrelevant to the marriage and is therefore not a ground for its dissolution.
Misrepresentation- Only serious misrepresentation will affect the validity of marriage. eg. where woman is already
Pregnant by another man at time of entering marriage and fraudulently conceals this. Husband can have
marriage set aside.
Duress- Duress (force) renders a marriage voidable. Eg. Spouse is forced to consent to marry.eg Smith v Smith where
bride was threatened by father and groom that she went ahead in a daze. Court set aside upon her request.
Undue influence- Undue influence should affect validity. There is no express authority on this. It should be a ground
for setting aside a marriage.
Q&A- Distinguish between error in negotio and error in personam?
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