The below document was composed with precision & comprehension. It consists of concepts around engagement, domestic partnership & universal partnership. The relationship between the law & these concepts is broken up into understandable sub-sections. Also included in this document is the relevant le...
ENGAGEMENTS, UNIVERSAL PARTNERSHIPS &
DOMESTIC PARTNERSHIPS
ENGAGEMENTS
Def:
- A contractual agreement between 2 parties to get married within a reasonable
time.
- Should not do anything to prevent future marriage
- Legally binding contract
REQUIREMENTS FOR VALID ENGAGEMENT CONTRACT
o Parties should not be married to anyone
o Parties should be over the age of puberty (12/14)
o Parties should attain additional permission if under the age of 18
o Both parties should be willing to get married
o Both parties must not be within the prohibited degrees of relationship
TEMINATION OF ENGAGEMENT CONTRACT
The parties get married
One of the parties dies
Both parties agree to end the engagement
One of the parties end the engagement for no good reason
One of the parties end the engagement for a good reason
BREACH OF ENGAGEMENT CONTRACT
One of the parties marries someone else during the engagement period
One of the ill-treats the other
One of the parties has sex with someone else
Refusing to go through with marriage
Deliberately delaying the marriage
Breaking off engagement with iusta causa (factors that may render the
prospective marriage unsuccessful)
3 CATEGORIES OF REMEDIES FOR BREACHH OF PROMISE
1. Return of gifts
- Gifts can be classified into 3 groups:
a) Sponsalitiae largitos
* appliances for future marital house
* Innocent party retains what they received, guilty party has to return the same
b) Arrhae sponsalitiae
* Ring/Anything that symbolises an obligation of commitment
* Innocent party retains what they received, guilty party returns
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c) Small tokens of affection
* Jewellery, flowers, chocolates
* Non-returnable
2. Actio iniuriaum – Delictual action for harm to personality right
Personality rights - injured feelings and reputation
Court awards solatium ( an amount of money to console injured feelings and
reputation )
Claimant must prove that feelings/reputation have been damaged
Van Jaarsveld v Bridges
- Manner of ending engagement must be ‘objectively’ insulting
- Ending engagement via text message = not necessarily insulting and is
therefore iusta causa
- Falling out of love = not necessarily insulting and is therefore iusta causa
3. Contractual claim for wasted expenses (breach of contract)
Guggenheim v Rosenbaum
Contractual damages for monetary losses
Positive interesse – placed in same financial position had the marriage
continued. Claim for prospective losses
Negative interesse – Claims for actual losses. Compensating claimant for
expenses undertaken for preparing for the marriage
VAN JAARSVELD v BRIDGES 2010 SCA
- Deemed that claims for prospective losses should no longer be available :
It treats engagement as a commercial dealing
Claims are not available at divorce and should not be available at the end of
an engagement
UNIVERSAL PARTNERSHIPS
Domestic partnership where a couple lives together as husband and wife for many
years.
Can co-exist with domestic partnerships, but not always
Can co-exist with engagements, but not always
Found in some marriages, but not always
Can be concluded when people are not in an intimate relationship
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