SOUTH AFRICAN
FAMILY LAW
FOURTH EDITION
SOUTH AFRICAN
FAMILY LAW
JACQUELINE HEATON
BLC LLB (Pret) LLM (Unisa)
Professor of Private Law, University of South Africa
HANNERETHA KRUGER
BIur LLB (UOFS) LLD (Unisa)
Professor of Private Law, University of South Africa
FOURTH EDITION
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© 2015
ISBN 978 0 409 12059 2
E-BOOK ISBN 978 0 409 12060 8
First Edition 1999
Second Edition 2004
Reprinted 2005, 2006, 2007
Third Edition 2010
Copyright subsists in this work. No part of this work may be reproduced in any form or by any means without
the publisher’s written permission. Any unauthorised reproduction of this work will constitute a copyright
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Editor:Lisa Sandford
Technical Editor: Liz Bisschoff
Printed in South Africa by Interpak Books Pietermaritzburg
TABLE OF CONTENTS
PREFACE .................................................................................................................................
PART 1: CIVIL MARRIAGES
1 INTRODUCTION .............................................................................................................
1.1 The definition of the family ....................................................................................
1.2 The scope of this book .............................................................................................
2 THE ENGAGEMENT ........................................................................................................
2.1 Introduction .............................................................................................................
2.2 The requirements for a valid engagement .............................................................
2.3 The content and consequences of the engagement ..............................................
2.4 Termination of the engagement .............................................................................
2.4.1 General .........................................................................................................
2.4.2 The consequences of termination of the engagement .............................
(a) Delictual damages for personality infringement ...............................
(b) Contractual damages for breach of promise .....................................
(c) Return of the engagement gifts ..........................................................
2.5 Satisfaction and damages on the ground of seduction..........................................
3 THE LEGAL REQUIREMENTS FOR A CIVIL MARRIAGE ..........................................
3.1 Introduction .............................................................................................................
3.2 Capacity to act ..........................................................................................................
3.2.1 General .........................................................................................................
3.2.2 Declared prodigals ......................................................................................
3.2.3 Mentally ill persons......................................................................................
3.2.4 Persons who have been placed under curatorship because they are
incapable of managing their own affairs ....................................................
3.2.5 Minors ..........................................................................................................
(a) General .................................................................................................
(b) Consent which is required for the civil marriage of a minor ...........
(c) Instances in which a minor requires no consent to enter into a
civil marriage .......................................................................................
(d) The effect of absence of the necessary consent .................................
3.3 Agreement ................................................................................................................
3.3.1 General .........................................................................................................
3.3.2 Mistake .........................................................................................................
3.3.3 Misrepresentation ........................................................................................
3.3.4 Duress ...........................................................................................................
3.3.5 Undue influence..........................................................................................
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Lawfulness.................................................................................................................
3.4.1 General .........................................................................................................
3.4.2 An existing civil or customary marriage or civil union .............................
3.4.3 Persons who are of the same sex ................................................................
3.4.4 Adoptive parents and their adopted children ...........................................
3.4.5 Persons who are within the prohibited degrees of relationship...............
(a) General .................................................................................................
(b) Blood relations in the direct line .......................................................
(c) Collateral blood relations ...................................................................
(d) Relations by affinity in the direct line ................................................
(e) Relations by affinity in the collateral line ..........................................
3.4.6 Legal guardians and their wards.................................................................
3.4.7 Persons who belong to different race groups ............................................
3.5 The prescribed formalities ......................................................................................
3.5.1 Marriage officers ..........................................................................................
3.5.2 Formalities preceding the marriage ceremony .........................................
3.5.3 Formalities during the marriage ceremony ...............................................
3.5.4 Registration of the civil marriage ...............................................................
4 VOID, VOIDABLE AND PUTATIVE CIVIL MARRIAGES .............................................
4.1 Void civil marriages ..................................................................................................
4.1.1 The definition of a void marriage ..............................................................
4.1.2 The grounds for nullity ...............................................................................
4.1.3 The consequences of a void marriage ........................................................
4.2 Voidable civil marriages ...........................................................................................
4.2.1 The definition of a voidable marriage .......................................................
4.2.2 The grounds for setting aside a voidable civil marriage ...........................
(a) Minority ................................................................................................
(b) Material mistake ..................................................................................
(c) Duress ...................................................................................................
(d) Undue influence..................................................................................
(e) Stuprum .................................................................................................
(f) Impotence ............................................................................................
(g) Sterility .................................................................................................
4.2.3 The consequences of a voidable civil marriage .........................................
4.3 Putative marriages ....................................................................................................
4.3.1 The definition of a putative marriage ........................................................
4.3.2 The requirements for a putative marriage.................................................
4.3.3 The consequences of a putative marriage .................................................
(a) General .................................................................................................
(b) Children born of a putative marriage ................................................
(c) The patrimonial consequences of a putative marriage .....................
5 THE INVARIABLE CONSEQUENCES OF A CIVIL MARRIAGE .................................
5.1 Introduction .............................................................................................................
5.2 The status of the spouses .........................................................................................
5.3 Consortium omnis vitae ...............................................................................................
5.3.1 The content and protection of consortium omnis vitae ...............................
5.3.2 The relationship between consortium omnis vitae, the right to family life
and the right to dignity ...............................................................................
5.4 Spousal maintenance ...............................................................................................
5.4.1 The reciprocal duty of support between spouses ......................................
(a) General .................................................................................................
(b) Liability as against third parties ..........................................................
(c) Termination of the duty of support ...................................................
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5.4.2
Household necessaries ................................................................................
(a) General .................................................................................................
(b) The requirements for the capacity to incur debts for household
necessaries ............................................................................................
(c) Revocation or limitation of a spouse’s capacity to purchase
household necessaries .........................................................................
5.4.3 The Maintenance Act 99 of 1998................................................................
(a) General .................................................................................................
(b) The maintenance complaint and maintenance enquiry ..................
(c) The orders the court may make .........................................................
(d) Appeals .................................................................................................
(e) Enforcement of a maintenance order................................................
5.5 The matrimonial home............................................................................................
5.6 Donations between spouses .....................................................................................
5.7 The family name.......................................................................................................
5.8 Headship of the family .............................................................................................
6 THE VARIABLE CONSEQUENCES OF A CIVIL MARRIAGE –
MARRIAGE IN COMMUNITY OF PROPERTY ..............................................................
6.1 Introduction .............................................................................................................
6.2 Cases in which community of property does not arise ..........................................
6.3 The nature of universal community of property ....................................................
6.4 The content of universal community of property ..................................................
6.4.1 Assets ............................................................................................................
(a) General .................................................................................................
(b) Separate assets .....................................................................................
(c) Attachment of separate assets .............................................................
6.4.2 Liabilities ......................................................................................................
(a) General .................................................................................................
(b) Antenuptial debts ................................................................................
(c) Debts incurred during the subsistence of the marriage ...................
(d) Debts which are outstanding at the dissolution of the
joint estate ............................................................................................
6.5 Administration of the joint estate ...........................................................................
6.5.1 Abolition of the marital power ...................................................................
6.5.2 The principle of equal administration of the joint estate .........................
6.5.3 Acts for which the consent of both spouses is required ............................
(a) General .................................................................................................
(b) Prior written consent, attested by two competent witnesses,
in respect of each transaction separately ...........................................
(c) Written consent, attested by two competent witnesses,
in respect of each transaction separately ...........................................
(d) Written consent without any further requirements ..........................
(e) Oral or tacit consent............................................................................
6.5.4 Acts for which the other spouse’s consent is unnecessary ........................
6.5.5 Protective measures in respect of the administration of the
joint estate ....................................................................................................
(a) Protection of third parties ..................................................................
(b) Protection of the spouses as between themselves ..............................
6.5.6 Capacity to litigate .......................................................................................
(a) General .................................................................................................
(b) Insolvency.............................................................................................
(c) Suing for joint debts ............................................................................
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7 THE VARIABLE CONSEQUENCES OF A CIVIL MARRIAGE –
MARRIAGE OUT OF COMMUNITY OF PROPERTY....................................................
7.1 The antenuptial contract .........................................................................................
7.1.1 The purpose of an antenuptial contract ....................................................
7.1.2 The formalities for the creation of a valid antenuptial contract ..............
(a) General .................................................................................................
(b) Postnuptial execution and registration of an antenuptial
contract ................................................................................................
7.1.3 Additional requirements which apply to the antenuptial contract of
a minor .........................................................................................................
7.1.4 The contents of an antenuptial contract ...................................................
(a) General .................................................................................................
(b) The matrimonial property system ......................................................
(c) A right of recourse in respect of household necessaries ..................
(d) Succession ............................................................................................
(e) Marriage settlements ...........................................................................
7.1.5 Interpretation of an antenuptial contract .................................................
7.1.6 Cancellation and amendment of an antenuptial contract .......................
7.1.7 Termination of an antenuptial contract ....................................................
7.2 Marriage out of community of property and community of profit and loss
without the accrual system .......................................................................................
7.3 Marriage out of community of property with retention of community of
profit and loss ...........................................................................................................
7.4 The accrual system ...................................................................................................
7.4.1 Introduction.................................................................................................
7.4.2 Marriages to which the accrual system applies ..........................................
7.4.3 When and how accrual sharing takes place ...............................................
(a) General .................................................................................................
(b) The accrual claim ................................................................................
(c) The difference between the accrual claim and the right to
accrual sharing.....................................................................................
(d) The difference between accrual sharing and sharing of assets ........
7.4.4 Calculating the accrual................................................................................
(a) General .................................................................................................
(b) The commencement value (or the initial value) ..............................
(c) Assets which do not form part of the accrual ....................................
(d) The date on which the value of a spouse’s estate is to be
calculated for purposes of accrual sharing ........................................
(e) An example of the accrual calculation...............................................
7.4.5 Protection of a spouse’s right to share in the accrual ...............................
7.4.6 Satisfaction of the accrual claim .................................................................
7.4.7 Renouncing the accrual claim ....................................................................
7.5 Advantages and disadvantages of the main matrimonial property systems..........
7.5.1 General .........................................................................................................
7.5.2 Marriage in community of property ...........................................................
7.5.3 Complete separation of property ...............................................................
7.5.4 The accrual system ......................................................................................
8 ALTERATION OF THE MATRIMONIAL PROPERTY SYSTEM...................................
8.1 The principle of immutability in matrimonial property law .................................
8.2 Court-sanctioned alteration of the matrimonial property system in terms of
section 21(1) of the Matrimonial Property Act 88 of 1984 ...................................
8.2.1 General .........................................................................................................
8.2.2 Statutory requirements................................................................................
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8.2.3
Procedural requirements ............................................................................
(a) Notice ...................................................................................................
(b) The financial position of the spouses.................................................
(c) Sound reasons ......................................................................................
(d) Absence of prejudice ...........................................................................
(e) Domicile and residence ......................................................................
8.2.4 Retroactive alteration ..................................................................................
8.2.5 The effect that changing from community of property to separation
of property has on jointly owned property ................................................
8.3 Extra-judicial alteration of the matrimonial property system ...............................
9 DISSOLUTION OF A CIVIL MARRIAGE – GENERAL .................................................
9.1 The ways in which a marriage is dissolved ..............................................................
9.2 Judicial separation ....................................................................................................
9.3 Extra-judicial separation ..........................................................................................
10 DISSOLUTION OF A CIVIL MARRIAGE BY DEATH ...................................................
10.1 Marriage in community of property .......................................................................
10.2 Marriage out of community of property .................................................................
10.3 Maintenance of Surviving Spouses Act 27 of 1990 .................................................
10.3.1 General .........................................................................................................
10.3.2 Reasonable maintenance needs .................................................................
10.3.3 Disposal of the maintenance claim ............................................................
10.3.4 The order of preference .............................................................................
11 THE GROUNDS FOR DIVORCE ....................................................................................
11.1 Introduction .............................................................................................................
11.2 Irretrievable breakdown of the marriage ...............................................................
11.2.1 The test for irretrievable breakdown..........................................................
11.2.2 The guidelines in section 4(2)....................................................................
(a) General .................................................................................................
(b) Section 4(2)(a): The parties have not lived together as husband
and wife for a continuous period of at least one year immediately
prior to the date of the institution of the divorce action ..................
(c) Section 4(2)(b): The defendant has committed adultery and
the plaintiff finds it irreconcilable with a continued marriage
relationship ..........................................................................................
(d) Section 4(2)(c): A court has declared the defendant a
habitual criminal and the defendant is undergoing
imprisonment as a result of the declaration ......................................
11.3 Incurable mental illness or continuous unconsciousness .....................................
11.3.1 General .........................................................................................................
11.3.2 The criteria contained in section 5 ............................................................
11.3.3 Divorcing a mentally ill or unconscious spouse in terms of section 4
instead of section 5 ......................................................................................
11.3.4 Special rules in respect of divorce on the ground of incurable
mental illness and continuous unconsciousness .......................................
(a) Section 5(3) .........................................................................................
(b) Section 5(4) .........................................................................................
(c) Section 9(2) .........................................................................................
(d) Maintenance ........................................................................................
11.4 Defences against an action for divorce ...................................................................
11.5 The court’s discretion to refuse a decree of divorce .............................................
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12 THE PATRIMONIAL CONSEQUENCES OF DIVORCE ...............................................
12.1 Introduction .............................................................................................................
12.2 Settlement agreements ............................................................................................
12.3 The patrimony of the spouses .................................................................................
12.3.1 General .........................................................................................................
12.3.2 Pension interests ..........................................................................................
(a) General .................................................................................................
(b) Meaning and calculation of “pension interest” .................................
(c) The difference between a pension interest and a
pension benefit ....................................................................................
(d) Payment or transfer of the non-member spouse’s portion of the
pension interest ...................................................................................
(e) Excluded marriages .............................................................................
12.4 Forfeiture of patrimonial benefits...........................................................................
12.4.1 The requirements for a forfeiture order....................................................
12.4.2 Benefits which can be forfeited ..................................................................
12.5 Redistribution of assets ............................................................................................
12.5.1 The introduction of redistribution as a reformative and
remedial measure ........................................................................................
12.5.2 The prerequisites for a redistribution order .............................................
(a) General .................................................................................................
(b) Marriages that are subject to complete separation of property
by operation of the law ........................................................................
(c) The constitutionality of the prerequisites in section 7(3) ................
12.5.3 The requirements for a redistribution order ............................................
(a) General .................................................................................................
(b) The nature of the contribution to the maintenance or increase
of the other spouse’s estate .................................................................
12.5.4 Other considerations the court takes into account ...................................
(a) General .................................................................................................
(b) Misconduct...........................................................................................
(c) The interrelationship between section 7(2) and 7(3) of the
Divorce Act 70 of 1979, and the clean-break principle .....................
(d) Various other factors the courts have taken into account ................
12.5.5 Assets which can be considered for purposes of a
redistribution order.....................................................................................
12.5.6 The date on which the value of the spouse’s estate
is to be calculated ........................................................................................
12.5.7 The criterion for establishing the extent of the redistribution ................
12.5.8 The form a redistribution order may take .................................................
12.5.9 Consideration of a claim and a counter-claim for redistribution ............
12.5.10 The nature of the discretion the court exercises ......................................
13 MAINTENANCE OF A SPOUSE AFTER DIVORCE ......................................................
13.1 General .....................................................................................................................
13.2 Maintenance orders in terms of section 7(2) of the Divorce Act 70 of 1979 .......
13.2.1 General .........................................................................................................
13.2.2 Factors the court must take into account ..................................................
13.2.3 The movement towards rehabilitative maintenance or
no maintenance at all ..................................................................................
13.2.4 Lump-sum maintenance .............................................................................
13.2.5 Token or nominal maintenance.................................................................
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13.3 Rescission, suspension and variation of a maintenance order ..............................
13.3.1 General .........................................................................................................
13.3.2 The meaning of “sufficient reason” for purposes of section 8(1) of
the Divorce Act 70 of 1979 ..........................................................................
13.3.3 Waiver of the right to claim rescission, suspension or variation of a
maintenance order ......................................................................................
13.4 Termination of a maintenance order .....................................................................
13.4.1 General .........................................................................................................
13.4.2 An order in terms of section 7(1) of the Divorce Act 70 of 1979 .............
13.4.3 An order in terms of section 7(2) of the Divorce Act 70 of 1979 .............
14 THE INTERESTS OF THE CHILDREN OF DIVORCING PARENTS ..........................
14.1 Introduction .............................................................................................................
14.2 The best interests of the child .................................................................................
14.3 The Mediation in Certain Divorce Matters Act 24 of 1987 ...................................
14.4 The Divorce Act 70 of 1979 .....................................................................................
14.5 Aspects the court may regulate ...............................................................................
14.5.1 General .........................................................................................................
14.5.2 Guardianship ...............................................................................................
(a) The meaning of “guardianship” .........................................................
(b) The order the court may make in respect of guardianship ..............
14.5.3 Care ..............................................................................................................
(a) The meaning of “care” ........................................................................
(b) The order the court may make in respect of care .............................
14.5.4 Contact .........................................................................................................
(a) The meaning of “contact” ...................................................................
(b) The order the court may make in respect of contact........................
14.5.5 Maintenance ................................................................................................
(a) The meaning of “maintenance” .........................................................
(b) The order the court may make in respect of maintenance ..............
14.6 Enforcement of guardianship, care and contact ...................................................
14.6.1 Introduction.................................................................................................
14.6.2 Interdict .......................................................................................................
14.6.3 An order directing compliance ..................................................................
14.6.4 Reasonable force .........................................................................................
14.6.5 Criminal sanctions .......................................................................................
14.7 Rescission, suspension and variation of an order made upon divorce .................
15 MISCELLANEOUS MATTERS REGARDING DIVORCE ..............................................
15.1 Personal consequences of divorce ..........................................................................
15.1.1 General .........................................................................................................
15.1.2 The effect of divorce on a will ....................................................................
15.2 Divorce proceedings ................................................................................................
15.2.1 The meaning of the concept “divorce action”...........................................
15.2.2 Jurisdiction in a divorce action ...................................................................
15.2.3 Instituting a divorce.....................................................................................
15.2.4 Procedure in divorce and other family-law matters ..................................
15.3 Relief pendente lite......................................................................................................
15.3.1 General .........................................................................................................
15.3.2 Maintenance pendente lite and a contribution towards costs .....................
15.4 A final order for costs ..............................................................................................
15.5 Limitation on the publication of particulars of a divorce .....................................
15.6 The abolition of orders for judicial separation ......................................................
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PART 2: CIVIL UNIONS
16 CIVIL UNIONS .................................................................................................................
16.1 Introduction .............................................................................................................
16.2 The legal requirements for a civil union ................................................................
16.2.1 General .........................................................................................................
(a) Capacity to act ......................................................................................
(b) Agreement ...........................................................................................
(c) Lawfulness ............................................................................................
16.2.2 Prescribed formalities..................................................................................
(a) Marriage officers ..................................................................................
(b) Formalities preceding the civil union ceremony ...............................
(c) Formalities during the civil union ceremony ....................................
(d) Registration of the civil union ............................................................
16.3 Consequences of a civil union .................................................................................
16.3.1 General .........................................................................................................
16.3.2 Invariable consequences .............................................................................
16.4 The dissolution of a civil union ...............................................................................
16.5 The constitutionality of the Civil Union Act ..........................................................
PART 3: CUSTOMARY MARRIAGES
17 CUSTOMARY MARRIAGES .............................................................................................
17.1 Introduction .............................................................................................................
17.2 The legal requirements for a customary marriage.................................................
17.2.1 Marriages entered into before the coming into operation of the Act .....
17.2.2 Marriages entered into after the coming into operation of the Act ........
(a) General requirements .........................................................................
(b) Additional requirements in respect of a minor’s customary
marriage ...............................................................................................
17.3 Registration of the marriage....................................................................................
17.4 The patrimonial consequences of the marriage and control of the
matrimonial property...............................................................................................
17.4.1 Introduction.................................................................................................
17.4.2 Monogamous customary marriages ............................................................
17.4.3 Polygynous customary marriages ................................................................
(a) Polygynous marriages entered into before the coming into
operation of the Act ............................................................................
(b) Polygynous marriages entered into after the coming into
operation of the Act ............................................................................
17.4.4 Alteration of the matrimonial property system .........................................
(a) Marriages entered into before the coming into operation of
the Act ..................................................................................................
(b) Marriages entered into after the coming into operation of
the Act ..................................................................................................
17.4.5 A customary marriage a minor entered into without the requisite
consent .........................................................................................................
(a) The patrimonial consequences if the marriage is set aside ..............
(b) The patrimonial consequences if the marriage is not set aside .......
17.5 The wife’s status........................................................................................................
17.6 Termination of the marriage by divorce ................................................................
17.6.1 Ground for divorce......................................................................................
17.6.2 The consequences of divorce .....................................................................
(a) The patrimonial consequences of divorce .........................................
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(b) The interests of the children of divorcing parents............................
(c) Maintenance ........................................................................................
17.6.3 Joinder ..........................................................................................................
17.6.4 Jurisdiction ...................................................................................................
17.6.5 Procedure .....................................................................................................
17.6.6 Interim relief ................................................................................................
17.7 Termination of the marriage by death ...................................................................
17.7.1 Death as a ground for termination ............................................................
17.7.2 Maintenance of the surviving spouse(s) ....................................................
17.8 The co-existence of a customary marriage and a civil marriage or civil union ....
17.8.1 A subsequent customary marriage by a party to a civil marriage or
civil union ....................................................................................................
17.8.2 A subsequent civil marriage or civil union by a party to a customary
marriage .......................................................................................................
(a) Capacity to enter into a subsequent civil marriage or civil union ....
(b) The consequences of a subsequent civil marriage ............................
xiii
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232
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233
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234
234
234
235
235
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PART 4: MUSLIM AND HINDU MARRIAGES
18 MUSLIM MARRIAGES .....................................................................................................
18.1 Introduction .............................................................................................................
18.2 Recognition of Muslim marriages ...........................................................................
18.3 The Constitution and Muslim marriages ................................................................
19 HINDU MARRIAGES........................................................................................................
19.1 Introduction .............................................................................................................
19.2 Recognition of Hindu marriages ............................................................................
19.3 The Constitution and Hindu marriages .................................................................
241
241
242
247
249
249
249
251
PART 5: LIFE PARTNERSHIPS
20 LIFE PARTNERSHIPS ......................................................................................................
20.1 Introduction .............................................................................................................
20.2 Protection of life partners by means of ordinary legal rules .................................
20.2.1 General .........................................................................................................
20.2.2 Contract .......................................................................................................
(a) General .................................................................................................
(b) Universal partnership ..........................................................................
(c) Life partnership contract ....................................................................
(d) Agency ..................................................................................................
20.2.3 Estoppel........................................................................................................
20.2.4 Will................................................................................................................
20.2.5 Unjustified enrichment ...............................................................................
20.3 Legislative and judicial recognition of life partnerships .......................................
20.3.1 Heterosexual life partnerships ...................................................................
20.3.2 Same-sex life partnerships...........................................................................
20.3.3 Determining whether a life partnership has come into existence ...........
20.4 The Constitution and life partnerships ..................................................................
255
255
256
256
256
256
257
259
260
260
260
260
261
261
263
266
267
PART 6: DOMESTIC VIOLENCE
21 DOMESTIC VIOLENCE ...................................................................................................
21.1 Introduction .............................................................................................................
21.2 Ordinary civil and criminal remedies .....................................................................
271
271
271
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South African Family Law
21.3 Domestic Violence Act 116 of 1998 ........................................................................
21.3.1 General .........................................................................................................
21.3.2 The persons who qualify for protection under the Act ............................
21.3.3 The conduct which qualifies as domestic violence....................................
21.3.4 The protection order ..................................................................................
(a) The interim protection order .............................................................
(b) The protection order ..........................................................................
(c) Varying and setting aside a protection order ....................................
21.3.5 Protection of a complainant at the scene of an incident of
domestic violence ........................................................................................
21.3.6 Jurisdiction ...................................................................................................
21.3.7 The court proceedings ................................................................................
21.3.8 Legal representation and costs ...................................................................
21.4 Reporting abuse .......................................................................................................
21.4.1 General .........................................................................................................
21.4.2 Child abuse ..................................................................................................
21.4.3 Abuse of an aged person .............................................................................
21.5 Prevention and early intervention in respect of children who are at risk ............
21.6 The Constitution and domestic violence ................................................................
PART 7: THE RESPONSIBILITIES AND RIGHTS OF PARENTS AND CHILDREN
22 CHILDREN’S RIGHTS .....................................................................................................
22.1 Introduction .............................................................................................................
22.2 Section 28 of the Constitution of the Republic of South Africa, 1996 .................
22.2.1 General .........................................................................................................
22.2.2 The right to a name.....................................................................................
22.2.3 The right to family, parental or appropriate alternative care, and
the right to nutrition, shelter, health care and social services .................
22.2.4 The right to be protected from maltreatment, neglect, abuse or
degradation ..................................................................................................
22.2.5 The right to legal representation ...............................................................
22.2.6 The paramountcy of the child’s best interests ...........................................
22.3 The United Nations Convention on the Rights of the Child ................................
22.4 The African Charter on the Rights and Welfare of the Child ...............................
22.5 The Children’s Act 38 of 2005 ................................................................................
23 PARENTAL RESPONSIBILITIES AND RIGHTS............................................................
23.1 The contents of parental responsibilities and rights .............................................
23.1.1 General .........................................................................................................
23.1.2 Guardianship ...............................................................................................
23.1.3 Care ..............................................................................................................
23.1.4 Contact .........................................................................................................
23.1.5 Maintenance ................................................................................................
(a) General .................................................................................................
(b) The bearers of the duty to support a child ........................................
(c) Recovery of expenses relating to support ..........................................
(d) The reciprocity of the duty of support ...............................................
23.2 Ways of acquiring parental responsibilities and rights ..........................................
23.2.1 General .........................................................................................................
23.2.2 Birth..............................................................................................................
23.2.3 A marriage or civil union with the child’s mother at the time of the
child’s conception or birth or at any intervening time .............................
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xv
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23.3
23.4
23.5
23.6
23.2.4 A marriage or civil union between the child’s parents after the
child’s birth ..................................................................................................
23.2.5 A permanent life partnership between the parents at the time of the
child’s birth ..................................................................................................
23.2.6 Acknowledging paternity, contributing to the child’s upbringing,
and contributing to the child’s maintenance ............................................
23.2.7 A parental responsibilities and rights agreement ......................................
23.2.8 Assignment by an order of court ................................................................
23.2.9 Appointment in a will ..................................................................................
23.2.10 Adoption ......................................................................................................
(a) General .................................................................................................
(b) An adoptable child ..............................................................................
(c) The adoptive parent(s) .......................................................................
(d) Consent ................................................................................................
(e) A freeing order ....................................................................................
(f) Consideration of the adoption application .......................................
(g) Advertisements and payment for adoption .......................................
(h) The effect of an adoption order .........................................................
(i) Rescission of an adoption order .........................................................
(j) Inter-country adoption ........................................................................
The position when more than one person has parental responsibilities and
rights in respect of a child .......................................................................................
23.3.1 General ......................................................................................................
23.3.2 Guardianship .............................................................................................
23.3.3 Due consideration of the views and wishes of other co-holders.............
23.3.4 Surrender or transfer of parental responsibilities and rights is
prohibited ..................................................................................................
23.3.5 Parenting plan ...........................................................................................
Judicial interference with parental responsibilities and rights .............................
23.4.1 General ......................................................................................................
23.4.2 The High Court as upper guardian .........................................................
23.4.3 Matrimonial Affairs Act 37 of 1953 ..........................................................
23.4.4 Marriage Act 25 of 1961 ............................................................................
23.4.5 Divorce Act 70 of 1979 ..............................................................................
23.4.6 Domestic Violence Act 116 of 1998..........................................................
23.4.7 Children’s Act 38 of 2005 .........................................................................
(a) General ..............................................................................................
(b) Termination, extension, suspension and circumscription of a
person’s parental responsibilities and rights ...................................
(c) Dispensing with consent to medical treatment, an operation or
an HIV test .........................................................................................
(d) A child in need of care and protection............................................
(e) International child abduction ..........................................................
Enforcement of parental responsibilities and rights .............................................
Termination of parental responsibilities and rights ..............................................
23.6.1 General ......................................................................................................
23.6.2 Termination of the duty of support .........................................................
(a) The child’s death...............................................................................
(b) The child’s adoption .........................................................................
(c) The child’s becoming self-supporting .............................................
(d) The child’s entering into a marriage or civil union........................
(e) The liable party’s insolvency .............................................................
23.6.3 Termination of an order regarding child’s maintenance ......................
312
312
313
314
315
316
317
317
317
317
318
320
320
321
321
322
323
325
325
325
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329
330
330
330
330
330
330
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332
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340
349
349
349
350
350
350
351
351
351
352
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24 GUARDIANSHIP AND CURATORSHIP.........................................................................
24.1 Guardianship ............................................................................................................
24.1.1 General .........................................................................................................
24.1.2 The types of guardians ................................................................................
(a) Testamentary guardian .......................................................................
(b) Assumed tutor ......................................................................................
(c) Tutor dative..........................................................................................
(d) Supposed or putative tutor .................................................................
24.1.3 The requirements for appointment as a guardian ....................................
24.1.4 The rights and duties of a guardian ...........................................................
24.1.5 Termination of guardianship .....................................................................
24.2 Curatorship ...............................................................................................................
24.2.1 General .........................................................................................................
24.2.2 The types of curators ...................................................................................
(a) Curator nominate ................................................................................
(b) Assumed curator ..................................................................................
(c) Curator dative ......................................................................................
(d) Curator or curatrix ad litem....................................................................
24.2.3 The requirements for appointment as a curator .......................................
24.2.4 The rights and duties of a curator ..............................................................
24.2.5 Termination of curatorship ........................................................................
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356
356
356
357
357
357
358
358
358
358
358
358
359
359
BIBLIOGRAPHY ....................................................................................................................
361
TABLE OF CASES ..................................................................................................................
367
TABLE OF LEGISLATION AND INTERNATIONAL INSTRUMENTS ...........................
387
INDEX .....................................................................................................................................
401
PREFACE
We wish to thank the team at LexisNexis, in particular Corné Mulder, Mandy Jonck, Lisa
Sandford, Liz Bisschoff and Elna Brelage for the first-rate quality of their input and for their
co-operation, speed, efficiency and friendliness. Lisa Sandford and Paula Bouwer deserve
special thanks for preparing the table of cases, table of statutes and the index.
This book reflects the law as at 1 August 2015. Decisions up to the July 2015 law reports
were considered for inclusion.
Jacqueline Heaton and Hanneretha Kruger
Pretoria
October 2015
xvii
PART
1
CIVIL MARRIAGES
1
INTRODUCTION
1.1 The definition of the family
As the term “family law” suggests, the main focus of this field of law is the family. The concept
of the “family” is used in both a wide and a narrow sense. In the wide sense it includes all
people who are blood relations or have become related through adoption or any type of
marriage, civil union, life partnership or similar relationship. A child-headed household
which consists solely of minors may conceivably also qualify as a family in the wide sense,1
even though the children in the household need not be related to each other.2 The narrow,
archaic definition of “family” restricts the concept to spouses in a valid marriage and their
children (and, nowadays, the parties to a civil union and their children).
Sometimes a distinction is made between immediate and extended family. “Immediate family” refers to a person’s spouse or civil union partner, his or her children, his or her parents
and his or her brothers and sisters, while “extended family” includes grandparents, aunts,
3
uncles, cousins, nephews, nieces and so forth.
1.2 The scope of this book
This book deals with more than the family in the narrow sense. Civil marriages are discussed
in Part 1 of the book. These marriages are monogamous and may only be entered into by
persons of the opposite sex. Civil marriages are governed by the common law and various Acts
and were, until 2000, the only marital relationship which was fully recognised by South African law.
Since civil marriages and civil unions have a great deal in common, civil unions are discussed in Part 2 of the book. Civil unions have been recognised since 30 November 2006,
when the Civil Union Act 17 of 2006 came into operation. Apart from the fact that a civil
union may be concluded by parties of the opposite or the same sex, the requirements for and
consequences of civil unions are in many respects identical to those of civil marriages.
Customary marriages are discussed in the third part of the book. These marriages gained
full legal recognition when the Recognition of Customary Marriages Act 120 of 1998 came
into operation on 15 November 2000. Many of the requirements and consequences this Act
imposes in respect of customary marriages are the same as those that apply to civil marriages
and civil unions.
Marriages that are concluded purely in terms of religious rites are not yet fully recognised
by South African law. However, if a religious marriage is monogamous and is solemnised in
terms of the Marriage Act 25 of 1961 (as, for example, Jewish and Christian marriages are), the
marriage is recognised. In such event, the marriage has dual validity; in other words, the
________________________
1 Sloth-Nielsen 2009 (2) Speculum Juris 9.
2 See ss 1 and 137 of the Children’s Act 38 of 2005.
3 Further on the meaning of “family”, see Barratt (ed) Persons and the Family 163–167; Department of Social
Development Green Paper on Families (Gen Notice 756 GG 34657 of 3 October 2011) 28–31.
3
4
South African Family Law
religious and civil marriages exist side by side, with the consequences of the civil marriage
being governed by the South African common law and legislation relating to civil marriages,
and the consequences of the religious marriage being governed by the particular system of
religious law in terms of which the marriage was celebrated. Similarly, if solemnisation takes
place under the Civil Union Act, the religious marriage and the civil union exist side by side,
with the consequences of the civil union being governed by the Civil Union Act, and the
consequences of the religious marriage being governed by the particular system of religious
law in terms of which the marriage was celebrated. Many Muslim and Hindu religious officials
do not apply to be appointed as marriage officers in terms of the Marriage Act or the Civil
Union Act, with the result that the marriages they solemnise are purely religious marriages
that do not enjoy full legal recognition. Moves to address the absence of legal recognition of
purely religious Muslim and Hindu marriages have been afoot for some time, and the courts
and legislature have already extended piecemeal recognition to these marriages for specific,
limited purposes. The focus of the discussion in Part 4 of the book is this, limited, legislative
and judicial recognition that has been afforded to Muslim and Hindu marriages.
Part 5 of the book deals with the consequences of the life partnerships of heterosexual and
same-sex couples. In other words, this part of the book deals with the legal position of couples
who live together without entering into a legally recognised marriage or civil union.
The problem of domestic violence, which occurs across all types of family relationships, is
discussed in Part 6. The focus falls mainly on the Domestic Violence Act 116 of 1998.
Part 7 of the book deals with the parent-child relationship. The first chapter in Part 7
covers children’s rights. The second chapter deals with the acquisition, content and termination of parental responsibilities and rights and judicial interference with these responsibilities and rights.
The last part of the book deals with two topics that are traditionally treated as part of family
law even though they are not founded on any family relationship – guardianship and curatorship. The guardianship under consideration in Part 8 is not the guardianship that is a component of parental responsibilities and rights, which is discussed in Part 7 of the book; it
relates to the officially supervised care of the estate, or the person and estate, of a minor.
2
THE ENGAGEMENT
2.1 Introduction
The engagement (or promise to marry) in respect of a civil marriage is an agreement
1
between a man and a woman to marry each other on a specific or determinable date. A valid
engagement is not a prerequisite for the conclusion of a valid civil marriage, but most civil
marriages are preceded by an engagement.2
2.2 The requirements for a valid engagement
The engagement is based on consensus (that is, agreement) and thus the usual rules in connection with consensus apply. For example, a material misrepresentation renders the engage3
ment voidable at the instance of the misled party.
The engagement is concluded by means of offer and acceptance. The parties do not have
to be in each other’s presence. Therefore, unlike a marriage, an engagement can be concluded by a representative, provided that the parties give their consent.4
Both parties to the engagement must have capacity to act. Therefore, for example, someone who does not have capacity to act due to mental illness cannot become engaged as long
as his or her incapacity lasts.5 A minor must obtain his or her parents’ permission to become
engaged. If the minor’s parents withdraw their consent after the engagement but before the
marriage, the engagement is automatically terminated.6 Given the highly personal nature of
an engagement, nobody may conclude an engagement on behalf of a minor without the
minor’s consent.7
At the time of entering into the engagement the parties must be in a position to conclude a
civil marriage with each other. Therefore, they must be unmarried; they may not be related
within the prohibited degrees of relationship; neither of them may be below the age of
puberty; they must be of the opposite sex; and so on.8 A promise by a married person to marry
________________________
1 In Van Jaarsveld v Bridges 2010 (4) SA 558 (SCA), the Supreme Court of Appeal suggested that, instead of
being an enforceable agreement, “[a]n engagement is . . . more of an unenforceable pactum de contrahendo
providing a spatium deliberandi – a time to get to know each other better and to decide whether or not to
marry finally”: par 8.
2 An engagement can eg be void without the parties being aware of it. The fact that the parties were never
engaged does not affect the validity of the marriage.
3 A material misrepresentation includes an innocent or intentional misrepresentation in connection with a
significant personal quality of one of the parties, eg pregnancy, impotence, sterility, mental illness, a serious
physical or mental handicap, or sexual promiscuity: Thelemann v Von Geyso 1957 (3) SA 39 (W); Heaton in
Church (ed) LAWSA Marriage par 6; Joubert in Clark (ed) Family Law Service par A9; Sinclair assisted by
Heaton 319–321; Skelton and Carnelley (eds) Family Law 23; Van der Vyver and Joubert 478.
4 M v M 1991 (4) SA 587 (D) 599D. On the prohibition on marriage by proxy, see ch 3 below.
5 On the capacity to act of a person who is mentally ill, see Heaton Persons 118–120.
6 Schoeman v Rafferty 1918 CPD 485; Sipondo v Nongauza 1927 EDL 255.
7 Brouwer 1.3.4; Van der Keessel Theses Selectae 52.
8 See ch 3 below on marriage impediments.
5
6
South African Family Law
a third party after obtaining a divorce or after his or her spouse’s death is void because it is
contra bonos mores (that is, against good morals).9 If the unmarried party was unaware of the
other party’s marriage, he or she can sue the married party for contumelia (that is, insult).10
2.3 The content and consequences of the engagement
As indicated above, the engagement is an agreement by two persons to marry each other at
some future time. If a date for the marriage has been set, there is a reciprocal duty to marry
on that date. This date can be changed by mutual agreement. If no firm date for the marriage
was set at the time of the engagement, the parties must later agree on a date for the marriage.
As the engagement is an agreement to marry, it requires the couple to be faithful to each
other.11
2.4 Termination of the engagement
2.4.1 General
Obviously, the engagement comes to an end when the parties marry each other. If either
party is a minor, the engagement is terminated if his or her parents withdraw consent to the
marriage, because the intended marriage can no longer validly take place.12 The engagement
is also terminated by the death of either of the parties and by the parties’ mutual agreement
to terminate the engagement.
Unilateral termination of an engagement can be lawful or unlawful. It is lawful if it takes
place for a justa causa (that is, a sound reason). In such event, the termination does not
constitute breach of promise. Breach of promise occurs if one of the parties terminates the
engagement without a justa causa or violates the commitments implicit in the engagement
(such as engaging in a sexual relationship with a third party or marrying a third party).
A justa causa refers to any event that occurs or any condition of or action by one of the parties after the engagement has been entered into which jeopardises the chances of a happy
and lasting marriage and which could induce any reasonable person to rescind the engage13
ment. Justae causae include one of the parties becoming sterile or impotent, developing a
serious hereditary disease, becoming mentally ill, and becoming an alcoholic.14 A serious
argument concerning the matrimonial property system which is to operate in the marriage
probably also constitutes a justa causa.15 It has been held that a strong disagreement between
the parties’ parents concerning the wedding arrangements is not a justa causa.16
17
In Van Jaarsveld v Bridges the Supreme Court of Appeal stated in an obiter dictum that lack
of desire by one of the parties to proceed with the marriage should also be a justa causa
regardless of whose “fault” it is that the marriage is no longer desired. If this lenient view were
to be adopted, the reason for terminating an engagement would become more or less
________________________
9 Friedman v Harris 1928 CPD 43; Viljoen v Viljoen 1944 CPD 137; Pietzsch v Thompson 1972 (4) SA 122 (R).
10 Duncan v Willson (1906) 27 NLR 624; Viljoen v Viljoen 1944 CPD 137; Claassen v Van der Watt 1969 (3) SA 68
(T); Lloyd v Mitchell [2004] 2 All SA 542 (C).
11 Barratt (ed) Persons and the Family 225; Heaton in Church (ed) LAWSA Marriage par 8; Joubert in Clark (ed)
Family Law Service par A14; Sinclair assisted by Heaton 321; Skelton and Carnelley (eds) Family Law 26; Visser and Potgieter 32; Wille’s Principles 234.
12 Schoeman v Rafferty 1918 CPD 485; Sipondo v Nongauza 1927 EDL 255.
13 Van Jaarsveld v Bridges 2010 (4) SA 558 (SCA).
14 Barratt (ed) Persons and the Family 226; Heaton in Church (ed) LAWSA Marriage par 7; Joubert in Clark (ed)
Family Law Service par A14; Sinclair assisted by Heaton 322–323; Van der Vyver and Joubert 478–479; Visser
and Potgieter 33.
15 Hart v Yates (1896) 3 Off Rep 201.
16 Krull v Sangerhaus 1980 (4) SA 299 (E).
17 2010 (4) SA 558 (SCA), Heaton and Kruger Casebook on Family Law case [1].
Chapter 2: The engagement
7
irrelevant, because a party’s lack of desire to proceed with the marriage is inexorably evident
simply from the fact that he or she terminates the engagement. Consequently, almost all – if
not all – unilateral terminations would have a justa causa. Even in those cases where a party
does not start off by expressly indicating that he or she lacks the desire to proceed with the
marriage but acts in a manner that violates a commitment implicit in the engagement, it
could be argued that the conduct does not constitute breach of promise and that there was a
justa causa all along, since the conduct was simply a symptom of his or her lack of desire to
proceed with the marriage and that this justa causa was the real ground of the termination of
18
the engagement.
2.4.2 The consequences of termination of the engagement
(a) Delictual damages for personality infringement
In some instances, termination of an engagement can found a delictual action on the ground
of personality infringement. If the termination wounds the dignity or sullies the honour of
the other party, the injured party may institute the actio iniuriarum. Under this action the
injured party claims solatium (that is, sentimental damages or satisfaction) for the personality
infringement occasioned by the manner in which the termination of the engagement oc20
curred.19 It is irrelevant whether or not the termination had a justa causa. In order to succeed
with the action, the injured party has to prove not only iniuria (that is, injury) but also animus
21
iniuriandi (that is, intention to injure).
The amount awarded as sentimental damages is within the court’s discretion and cannot be
computed beforehand with mathematical precision. In order to arrive at a decision, the court
takes into account such factors as the way in which the termination occurred; the motives
behind that course of action; the social status of the parties; their previous life experience,
and so on. In Davel v Swanepoel 22 the defendant had kept the plaintiff dangling like the proverbial puppet on a string and had secretly married a third party without first terminating the
engagement. This was judged to be a serious iniuria. In Smit v Jacobs 23 the defendant (in this
instance the woman) had likewise entered into a furtive marriage with a third party, also
without first terminating the engagement. The court awarded £100 to the plaintiff as satisfaction. It found that the defendant had acted in a heartless manner. In Guggenheim v Rosenbaum 24 the defendant, having concluded an engagement, later denied all knowledge of its
existence. The court considered this conduct to be an iniuria. It held that this case was quite
distinct from the “normal” case in which sentimental damages would not be awarded, namely
where the defendant acknowledged the engagement but broke it off “in a sensible and noncontumelious manner in the interest of both parties”.25 In Guggenheim the plaintiff was awarded R500 as sentimental damages. The court took into consideration that although the plaintiff had been humiliated, she was an adult woman with a great deal of experience of life. In its
decision, the court further held that the defendant’s conduct after terminating the engagement could also be taken into account in assessing the amount due. Thus, if the defendant
displayed a contemptuous attitude in court, the amount could well be increased.26
________________________
18 See also Heaton 2010 Annual Survey of South African Law 449.
19 See eg Guggenheim v Rosenbaum 1961 (4) SA 21 (W); Bull v Taylor 1965 (4) SA 29 (A), Heaton and Kruger
Casebook on Family Law case [3]; Sepheri v Scanlan 2008 (1) SA 322 (C); Van Jaarsveld v Bridges
2010 (4) SA 558 (SCA); Cloete v Maritz (6222/2010, 16433/2012) [2014] ZAWCHC 108 (13 June 2014).
20 See eg Van Jaarsveld v Bridges 2010 (4) SA 558 (SCA).
21 Ibid.
22 1954 (1) SA 383 (A).
23 1918 OPD 30.
24 1961 (4) SA 21 (W).
25 41.
26 Guggenheim v Rosenbaum 1961 (4) SA 21 (W).
8
South African Family Law
The courts appear hesitant to award sentimental damages in those cases in which either
party realises that he or she no longer cares for the other as a prospective spouse should, and
then in a fair and open manner terminates the engagement.27
The fact that the plaintiff secretly marries another person during the trial does not have
the effect of decreasing the damages.28
(b) Contractual damages for breach of promise
In the past, the courts awarded contractual damages to the jilted party if the other party
committed breach of promise. The courts adopted a sui generis (that is, one of a kind)
approach to calculating the damages. It awarded the jilted party both the prospective loss of
the benefits of the marriage and the actual loss incurred or to be incurred as a result of the
29
breach. As far as prospective loss was concerned, the jilted party was placed in the position
he or she would have been in had the marriage taken place. For example, if a woman who
had no assets of her own were the plaintiff and the intended marriage were to have been in
community of property, she could claim half the man’s existing estate as well as half the net
benefit the marriage in community of property would have conferred on her. She could also
claim the maintenance she would have received during the subsistence of the marriage, and
so on. If the marriage were to have been out of community of property, she would be entitled
to claim all gifts promised, together with such maintenance as she would have received
during the marriage. In respect of prospective loss, the courts reduced the amount by taking
into account factors such as how long the marriage would probably have lasted, the plaintiff’s
age, and the possibility of the plaintiff marrying someone else.30 Under actual loss the jilted
party could claim, inter alia, expenses incurred in connection with the wedding and honeymoon arrangements, the wedding dress, and a change of residence.31
The continued recognition of the engagement by way of awards for contractual damages
32
for breach of promise came under judicial fire in Sepheri v Scanlan. In this case, Davis J
referred to the views of authors who submit that abolition of the contractual claim for breach
of promise should be considered, inter alia because the action places
the marital relationship on a rigid contractual footing and thus raises questions as to whether, in
the constitutional context where there is recognition of diverse forms of intimate personal relationships, it is still advisable that, if one party seeks to extract himself or herself from the initial
intention to conclude the relationship, this should be seen purely within the context of contractual damages.33
A few years later, the Supreme Court of Appeal stated in an obiter dictum in Van Jaarsveld v
34
Bridges that the time had arrived “to recognise that the historic approach to engagements is
outdated and does not recognise the mores of our time”. This was so inter alia because it is
illogical to consider fault in respect of engagements by imposing an economic sanction for
breach of promise while divorce is no longer based on fault. The court also stated that public
35
policy considerations demand reassessment of the law relating to breach of promise. The
________________________
27 Mocke v Fourie (1893) 3 CTR 313; Radlof v Ralph 1917 EDL 168 173; Guggenheim v Rosenbaum 1961 (4) SA 21
(W); Bull v Taylor 1965 (4) SA 29 (A) 36.
28 Davel v Swanepoel 1954 (1) SA 383 (A).
29 See eg Guggenheim v Rosenbaum 1961 (4) SA 21 (W).
30 Guggenheim v Rosenbaum 1961 (4) SA 21 (W); Sepheri v Scanlan 2008 (1) SA 322 (C).
31 Guggenheim v Rosenbaum 1961 (4) SA 21 (W).
32 2008 (1) SA 322 (C).
33 Sepheri v Scanlan 2008 (1) SA 322 (C) 330I–331A. See also Lloyd v Mitchell [2004] 2 All SA 542 (C), where
the continued recognition of the action for breach of promise was raised in the context of dismissal of a
claim for damages by an unmarried woman who was aware that her supposed fiancé was married. On the
inability of a married person to enter into an engagement, see above in this chapter.
34 2010 (4) SA 558 (SCA) par 3.
35 On the reasons for abolishing the claim for contractual damages for breach of promise, see further Sepheri v
Scanlan 2008 (1) SA 322 (C); Cloete v Maritz 2013 (5) SA 448 (WCC); Sinclair assisted by Heaton 314 fn 8;
continued
Chapter 2: The engagement
9
Supreme Court of Appeal further provided guidelines regarding the future development of
the law relating to claims for breach of promise. It stated that “[i]t is difficult to justify the
commercialisation of an engagement in view of the fact that a marriage does not give rise to a
36
commercial or rigidly contractual relationship”. In respect of prospective loss, the court
rejected the notion that when they become engaged, the parties contemplate that breach of
promise would result in the imposition of the financial consequences the marriage would
have had. It further stated that claims for prospective loss are difficult to rationalise, inter alia
because it is impossible to work on any assumption about the parties’ future matrimonial
property system. Parties rarely agree on their matrimonial property system when they become
engaged, and even if they do, either of them can change his or her mind before the wedding.
Having to take the jilted party’s loss of the maintenance into account complicates matters
even more, for such loss depends on the anticipated duration of the marriage and the orders
the court would probably have made on divorce. Furthermore, claims for prospective loss
37
always involve speculation. In so far as claims for actual loss are concerned, the court stated
that actual loss “does not flow from the breach of promise per se but from a number of express
38
or tacit agreements reached between the parties during the course of their engagement”.
The court did not explain the nature of these agreements, but stated that the jilted party who
suffered actual loss which was within the contemplation of the parties “must be placed in the
position in which she or he would have been had the relevant agreement not been concluded; and what the one has received must be set off against what the other has paid or
39
provided”.
40
Subsequently, in Cloete v Maritz, the Western Cape Division of the High Court, Cape Town
was faced with a claim for prospective loss based on breach of promise. The court held,
correctly, that although the statements by the Supreme Court of Appeal in Van Jaarsveld were
not binding because they were obiter dicta, they had strong persuasive force. It pointed out
that courts are obliged to develop the common law and to promote the spirit, purport and
objects of the Bill of Rights. In doing so, they must have regard to prevailing mores and
public policy. In keeping with the views in Sepheri and Van Jaarsveld the court held that the
rule that a party who breaks off an engagement can be held liable on a rigid contractual
footing does not reflect changed mores and public interest and is untenable in view of the
values that underlie the Constitution of the Republic of South Africa, 1996. Applying the
reasoning and guidelines set out in Van Jaarsveld, the court developed the common law to
hold that a claim for contractual damages for prospective loss based on breach of promise is
no longer recognised. It should be noted that the court only abolished the claim for contractual damages for prospective loss; it did not abolish the claim for contractual damages for
actual loss or amend the legal position in respect of the latter type of claim. Nor did it amend
the law relating to claiming sentimental damages. Although the judgment in Cloete is not
binding throughout the country, it will in all probability be followed since it is based on
41
guidelines set by the Supreme Court of Appeal.
(c) Return of the engagement gifts
If the parties mutually agree to terminate the engagement or if the engagement is terminated
due to a justa causa, all gifts made with a view to the marriage (that is, the sponsalitia largitas),
________________________
36
37
38
39
40
41
Joubert 1990 De Jure 201; Labuschagne 1993 De Jure 126; Sharp and Zaal 2011 THRHR 338–339; Geduld and
Dircksen 2013 De Jure 964–966; Bonthuys 2015 SALJ 84–85.
Par 7.
For criticism of the court’s reasoning, see Bonthuys 2015 SALJ 84–85.
Par 11.
Ibid. For criticism of the court’s view that engagements should be viewed like normal contracts, see Bonthuys 2015 SALJ 89–90. The author also shows that the court did not correctly apply the normal rules of
contract to engagements.
2013 (5) SA 448 (WCC), Heaton and Kruger Casebook on Family Law case [2].
But see Nkosi 2014 THRHR 677, who is very critical of the judgment in Cloete and submits that it should not
be followed.
10
South African Family Law
as well as the engagement ring and other gifts presented to show the seriousness of the promise (that is, the arrhae sponsalitiae), must be returned by both parties.42 Small gifts to which no
specific meaning is attached (so-called “out-and-out gifts” or outright gifts) and which have
already been used up, alienated or lost, need not be returned.43
If one of the parties has committed breach of promise, the injured party may reclaim the
sponsalitia largitas and arrhae sponsalitiae he or she gave to the guilty party and may retain the
sponsalitia largitas and arrhae sponsalitiae he or she received from the guilty party.44 Small outright gifts may be retained by the recipient regardless of whether he or she is the guilty or the
injured party.45 If the injured party claims damages, the value of the gifts he or she retained
must be set off against the damages claimed.46
2.5 Satisfaction and damages on the ground of seduction
South African law recognises an action for satisfaction and damages on the ground of seduction. Seduction is extra-marital sexual intercourse with a virgin (or a chaste woman)47 with her
consent. In order to be successful in the action, the woman must prove that she was a virgin
(or a chaste woman) prior to the seduction, that she was seduced, and that sexual intercourse
occurred as a result.48 The action is available regardless of whether the parties were engaged
to each other when the seduction took place.
An action on the ground of seduction comprises two separate claims. The first concerns
satisfaction for defloration and reduction of the woman’s chances of entering into a suitable
and successful marriage.49 The second claim is for damages on the ground of the seduction. If
the woman gave birth to a child as a result of the seduction, the seducer is also responsible for
lying-in expenses (that is, expenses incurred in respect of the child’s birth, such as doctors’
fees and hospitalisation costs) and his share of the child’s maintenance.50
________________________
42 Barratt (ed) Persons and the Family 231; Heaton in Church (ed) LAWSA Marriage par 11; Joubert in Clark
(ed) Family Law Service par A15; Sinclair assisted by Heaton 331; Skelton and Carnelley (eds) Family Law 31;
Van den Heever 41; Van der Vyver and Joubert 479–480; Visser 545; Visser and Potgieter 35–36.
43 Van Duyn v Visser 1963 (1) SA 445 (O); Barratt (ed) Persons and the Family 231; Heaton in Church (ed)
LAWSA Marriage par 11; Joubert in Clark (ed) Family Law Service par A15; Lee and Honoré par 19; Sinclair
assisted by Heaton 331; Skelton and Carnelley (eds) Family Law 31; Van den Heever 41; Van der Vyver and
Joubert 479–480; Visser 545; Visser and Potgieter 35, 36.
44 Barratt (ed) Persons and the Family 231; Heaton in Church (ed) LAWSA Marriage par 11; Joubert in Clark
(ed) Family Law Service par A15; Lee and Honoré par 19; Sinclair assisted by Heaton 331–332; Skelton and
Carnelley (eds) Family Law 31–32; Van den Heever 41; Van der Vyver and Joubert 479, 480; Visser 545;
Visser and Potgieter 36; Wille’s Principles 236. If the guilty party no longer has the sponsalitia largitas and arrhae sponsalitiae, or the gifts have been lost or damaged, their value must be returned to the injured party:
Visser 546.
45 Barratt (ed) Persons and the Family 231; Heaton in Church (ed) LAWSA Marriage par 11; Joubert in Clark
(ed) Family Law Service par A15; Sinclair assisted by Heaton 331–332; Skelton and Carnelley (eds) Family
Law 31–32; Van den Heever 41; Van der Vyver and Joubert 479–480; Visser 545; Visser and Potgieter 35–36.
46 Desco v Santich (1907) 17 CTR 165 166; see also Barratt (ed) Persons and the Family 231; Heaton in Church
(ed) LAWSA Marriage par 11; Sinclair assisted by Heaton 332; Skelton and Carnelley (eds) Family Law 31–
32; Visser and Potgieter 36.
47 In Claassen v Van der Watt 1969 (3) SA 68 (T) the court intimated that any chaste woman can institute the
action.
48 Carelse v Estate De Vries (1906) 23 SC 532; Davel v Swanepoel 1954 (1) SA 383 (A); Bull v Taylor 1965 (4) SA 29
(A). In Claassen v Van der Watt 1969 (3) SA 68 (T) 71 Viljoen J stated: “Had it been alleged that she was a
virgin or a widow, it seems to me that a presumption would operate that she was a virgin or a chaste woman
as the case may be. The onus would then have been on the defendant to prove otherwise”. See also the acceptance of this ruling in Sager v Bezuidenhout 1980 (3) SA 1005 (O) 1007.
49 Calculation of the amount is within the court’s discretion. In Bull v Taylor 1965 (4) SA 29 (A) the social
status of the parties was taken into account. See also M v M 1991 (4) SA 587 (D); Bekker 1992 THRHR 484.
The fact that the woman chose to continue the relationship and to receive further gifts and favours from
the man is also taken into consideration: Saheb v Mather 1946 NPD 703.
50 Davel v Swanepoel 1954 (1) SA 383 (A); Sager v Bezuidenhout 1980 (3) SA 1005 (O); M v M 1991 (4) SA 587
(D). On an unmarried father’s duty of support, see ch 23 below.
Chapter 2: The engagement
11
Because the action on the ground of seduction can be instituted only by a woman, it constitutes inequality before the law and discriminates unfairly against men on the ground of sex,
thus violating section 9 of the Constitution. Another, even stronger, ground for attacking the
constitutionality of the action is that it discriminates unfairly against women and violates their
right to dignity by perpetuating sexual stereotypes and being premised on the notion that
women have diminished responsibility for their actions.51 Because of the serious violation of
dignity and equality that the action entails, its retention cannot be justified. The action
should therefore be abolished.52
________________________
51 The latter line of attack succeeded in the German Constitutional Court: Frank 1994–1995 Journal of Family
Law 360.
52 See further Heaton Bill of Rights Compendium par 3C13; Sinclair 1987 Law and Inequality 99; Labuschagne
1994 Journal for Juridical Science 162; Visser 1997 THRHR 502; Bohler-Muller 2000 (2) Codicillus 2, 2001 Obiter
150–151; Bennett, Mills and Munnick 2009 SAJHR 341–345, 349–350.
3
THE LEGAL REQUIREMENTS FOR A
CIVIL MARRIAGE
3.1 Introduction
A civil 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.1 However, the high
divorce rate makes a mockery of the notion that civil marriage is a life-long union. Therefore,
a more modern version of the definition is that a civil marriage refers to the legally recognised voluntary union of one man and one woman to the exclusion of all other persons
(although the latter part of the definition might also have to be deleted in view of the frequent tolerance of adultery). The definition of a civil marriage highlights one of the differences between civil marriages on the one hand and customary, Muslim and Hindu marriages
on the other, for it refers to a union between one man and one woman, while customary,
Muslim and Hindu marriages permit polygyny (that is, husbands are allowed to take more
than one wife).2 The definition also indicates the main difference between civil marriages and
unions under the Civil Union Act 17 of 2006, for the Act permits civil unions between parties
of the same sex.3
Because a civil marriage is a voluntary union based on consensus (that is, agreement), it is
frequently called a contract.4 A contract is an agreement which is entered into with the intention of creating obligations. Although a civil marriage does give rise to obligations, the creation of obligations is not its primary object. There are so many differences between a contract and a civil marriage as a type of agreement that it is undesirable to describe a civil
marriage as a type of contract.5
________________________
1 See eg Seedat’s Executors v The Master (Natal) 1917 AD 302 309.
2 In Hindu marriages monogamy is the approved norm, but polygyny does exist. On customary, Muslim and
Hindu marriages, see chs 17–19 below. The word “polygamy” is often used to describe the practice whereby
a husband is allowed to take more than one wife, but this is, strictly speaking, incorrect because polygamy
permits both sexes to have more than one spouse. Polyandry refers to the practice of allowing a woman to
have more than one husband: see eg Allen (consultant ed) The Penguin English Dictionary 681 and 682;
Soanes and Stevenson (eds) Concise Oxford English Dictionary 1111 and 1112.
3 S 1 of the Civil Union Act 17 of 2006. On civil unions, see ch 16 below.
4 See eg Prinsloo’s Curators Bonis v Crafford and Prinsloo 1905 TS 669; Pienaar v Pienaar’s Curator 1930 OPD 171;
Volks v Robinson 2005 (5) BCLR 446 (CC); Minister of Home Affairs v Fourie (Doctors for Life International, Amici
Curiae); Lesbian and Gay Equality Project v Minister of Home Affairs 2006 (3) BCLR 355 (CC), 2006 (1) SA 524
(CC).
5 See eg Ex parte AB 1910 TS 1332; Holland v Holland 1973 (1) SA 897 (T); Mahendra v Framashnee Case 8422/
2006, 21 May 2007 (W) (unreported); Van der Linden 1.3.1; Christie and Bradfield Contract 135; Visser and
Potgieter 4; Aquilius 1944 SALJ 239. For a list of some of the differences between a civil marriage and an
ordinary contract, see Joubert in Clark (ed) Family Law Service par A5.
13
14
South African Family Law
3.2 Capacity to act
3.2.1
General
Because a civil marriage is based on agreement, the parties must have capacity to act in order
to be able to enter into a valid civil marriage. Therefore, persons who have no capacity to act,
such as the mentally ill and infantes (that is, persons below seven years of age), are totally
incapable of entering into a civil marriage.6 Others, like minors who are over the age of
puberty (12 years for girls and 14 years for boys), need consent to supplement their limited
capacity to act.
3.2.2
Declared prodigals
The Roman-Dutch writers were divided on the question of whether an interdicted prodigal
may enter into a valid civil marriage without his or her curator’s consent.7 Our case law does
not provide us with a clear answer to the question either. In Pienaar v Pienaar’s Curator 8 an
analogy was sought between the civil marriage of a person who has been placed under curatorship because mental or physical inability has rendered him or her incapable of managing
his or her own affairs and the civil marriage of a declared prodigal, but the court rejected this
analogy. De Villiers JP concluded that someone who has been placed under curatorship
because he or she is unable to manage his or her own affairs may enter into a civil marriage
without his or her curator’s consent if he or she actually has capacity to act when marrying.9 A
declared prodigal, in contrast, may not enter into a civil marriage without having obtained his
or her curator’s consent, or, if he or she does marry without such consent, the civil marriage
is out of community of property. This case does not provide us with a clear answer to the
question of whether the civil marriage of a declared prodigal is completely invalid if it is
concluded without the curator’s consent, or whether it is valid but out of community of
property. In Mitchell v Mitchell 10 this state of uncertainty was left unresolved.
Modern South African writers unanimously adopt the view that the prodigal may enter into
a civil marriage without his or her curator’s consent.11 It is still unclear, however, which matrimonial property system operates in such a marriage. The weight of academic opinion favours
the rule that the prodigal’s advantage determines whether the marriage is in or out of community of property,12 because selection of the matrimonial property system would otherwise
amount to an unauthorised disposition of the prodigal’s property.13
________________________
6 Sometimes people who may not enter into a civil marriage at all, eg mentally ill persons, are called absolutely incompetent to marry, while persons who may enter into a civil marriage but not with each other, eg
persons of the same sex, are called relatively incompetent to marry.
7 Voet 23.1.3 and Kersteman 90 (sv “curatele”) submit that such consent is required, while Brouwer 1.4.18,
Van Bijnkershoek 2.1536 and Van Leeuwen Rooms-Hollands-Regt 4.2.3 fn (e) advocate the opposite view.
8 1930 OPD 171.
9 On the legal status of persons who have been placed under curatorship because they cannot manage their
own affairs, see Heaton Persons ch 8.
10 1930 AD 217.
11 Barratt (ed) Persons and the Family 107; Boezaart Persons 136; Heaton Persons 138; Heaton in Church (ed)
LAWSA Marriage par 22; Heaton in Van Heerden et al (eds) Boberg’s Law of Persons and the Family 155; Kruger
and Skelton (eds) Persons 149; Joubert in Clark (ed) Family Law Service par A31; Van der Vyver and Joubert
362; Wille’s Principles 385–386; Sonnekus 2009 THRHR 139–140. On void and voidable civil marriages, and
the differences between them, see ch 4 below.
12 Barratt (ed) Persons and the Family 107; Hahlo, 5th edn, 67; Heaton in Church (ed) LAWSA Marriage par 22;
Heaton in Van Heerden et al (eds) Boberg’s Law of Persons and the Family 155–156; Visser and Potgieter 41.
But see also Van Schalkwyk 69 who argues that since the curator controls the prodigal’s property, an un
assisted prodigal can never marry in community of property. Van der Vyver and Joubert 363 submit that a
prodigal’s civil marriage is always in community of property if it is entered into without the curator’s consent because any antenuptial contract the prodigal concludes without his or her curator’s consent is invalid.
Joubert in Clark (ed) Family Law Service par A31 also adopts the view that an antenuptial contract concluded
without the curator’s consent is invalid, but he adds that any community of property which may arise from
the prodigal’s civil marriage cannot divest the curator of his or her powers over the prodigal’s property.
13 Heaton in Van Heerden et al (eds) Boberg’s Law of Persons and the Family 155–156. On the legal status of
prodigals, see Heaton Persons ch 10.
Chapter 3: The legal requirements for a civil marriage
3.2.3
15
Mentally ill persons
If someone is de facto (that is, in fact) mentally ill at the moment he or she enters into a civil
marriage, the marriage is void14 as a result of the person’s incapacity to act. For purposes of
concluding a civil marriage, a person is regarded as mentally ill and consequently lacking the
necessary capacity to act, not only when he or she does not understand the nature and consequences of the juristic act,15 but also when he or she apparently understands the nature and
consequences of the juristic act but hallucinations caused by a mental illness prompt him or
her to enter into the marriage, thus negating his or her understanding.16
Declaring someone mentally ill does not on its own affect the person’s capacity to act. If a
person who has been declared mentally ill is of sound mind at a particular moment (that is, if
he or she is capable of understanding the nature and consequences of the juristic act and is
able to make rational judgements concerning his or her actions), he or she is considered to
have full capacity to act. A marriage which is concluded during such a lucidum intervallum
(that is, a clear moment) is valid.17 However, the fact that someone has been declared men
tally ill places the burden on him or her to prove that he or she is in fact normal, while in the
absence of a declaration of mental illness it is the person who alleges mental illness who bears
the burden of proving the mental illness.18
Owing to the highly personal nature of the juristic act, a curator may not consent to a civil
marriage on behalf of a mentally ill person.19
3.2.4
Persons who have been placed under curatorship because they are
incapable of managing their own affairs
In Pienaar v Pienaar’s Curator 20 it was held that someone who is not mentally ill but is subject to
curatorship because he or she is incapable of looking after his or her own affairs, for example
because of a disability or chronic illness, can nevertheless conclude a civil marriage without
the consent of his or her curator if he or she actually has capacity to act when marrying.21
That is to say, the person may marry if he or she is able to understand the nature and consequences of the juristic act and make rational judgements concerning his or her actions at the
time of getting married.
If a curator has not yet been appointed for a person who is de facto incapable of managing
his or her affairs, the person’s capacity to enter into a civil marriage must be determined in
accordance with the ordinary test for determining capacity to marry, namely whether the person has the mental ability to understand the nature and consequences of the marriage and is
able to make rational judgements concerning his or her actions at the time of getting married.
In Francescutti v Francescutti; Ex parte Francescutti 22 it was wrongly held that incapacity to manage
23
one’s own affairs invariably results in incapacity to marry.
________________________
14
15
16
17
18
19
20
21
22
23
On void civil marriages, see ch 4 below.
Vermaak v Vermaak 1929 OPD 13; Uys v Uys 1953 (2) SA 1 (E).
Lange v Lange 1945 AD 332.
Prinsloo’s Curators Bonis v Crafford and Prinsloo 1905 TS 669.
Ibid.
Brouwer 2.4.23, 2.4.27–2.4.30; Voet 23.2.6; Lange v Lange 1945 AD 332. On the legal status of mentally ill
persons, see further Heaton Persons ch 7.
1930 OPD 171.
On the legal status of persons who have been placed under curatorship because they cannot manage their
own affairs, see Heaton Persons ch 8.
2005 (2) SA 442 (W).
See also Sonnekus 2009 THRHR 142.
16
South African Family Law
3.2.5
Minors
(a) General
Minors between seven and 18 years of age have limited capacity to act and therefore cannot
conclude valid juristic acts by means of which they incur obligations, unless they have the
consent of their parents or legal guardians. Such consent is therefore also required for a
24
minor to enter into a valid civil marriage. Section 24(1) of the Marriage Act 25 of 1961
specifically provides that a marriage officer may not solemnise a minor’s marriage “unless the
consent . . . which is legally required for the purpose of contracting the marriage has been
granted and furnished to him in writing”. Whether the requirement that the consent must be
“in writing” means that oral consent is invalid, is unclear. At common law the consent could
be given orally. Most authors argue that this is still the law and that the marriage is not invalid
if consent is given orally.25
Section 27 of the Marriage Act further lays down that if a marriage officer reasonably suspects that a prospective spouse is of an age at which he or she may not enter into a civil
marriage without consent, the marriage officer may refuse to solemnise the marriage unless
he or she is furnished with the written consent or satisfactory proof that consent is not needed.
In addition, section 12 of the Act stipulates that a marriage officer may not solemnise a civil
marriage unless each of the parties either produces his or her identity document or furnishes
the marriage officer with a prescribed affidavit. Both documents reflect the age of the parties.
Unless the minor produces a false identity document or affidavit or false consent, it is therefore highly unlikely that he or she would be able to enter into a civil marriage without the
required consent.
(b) Consent which is required for the civil marriage of a minor
(i) The parents
If a child was born of married parents and both parents are still alive, both of them must consent to the civil marriage, unless the court orders otherwise or sole guardianship has been
granted to one of them.26 This applies even if the parents are divorced. If one of the parents is
dead, the consent of the surviving parent is sufficient.27
If the minor was born of unmarried parents, both of whom have guardianship over him or
her, both parents’ consent is required for the minor’s civil marriage.28 If the minor’s father
does not have guardianship, the mother’s consent is sufficient.29 In the extremely unlikely
event that the minor’s mother is herself still a minor when her child wants to enter into a civil
marriage,30 the mother’s consent would not be required. Instead, her guardian’s consent
would be required, unless the child’s father had guardianship of the child, in which case the
child’s father’s consent would be required.31
If sole guardianship has been awarded to one of the parents, only that parent’s consent is
required.32 If somebody shares guardianship with the child’s parent,33 this legal guardian’s
________________________
24 On the undesirability of marriage by minors, see Müller 2014 Speculum Juris 202.
25 Heaton in Church (ed) LAWSA Marriage par 29; Heaton in Van Heerden et al (eds) Boberg’s Law of Persons
and the Family 837 fn 4; Lee and Honoré par 47(i); Sinclair assisted by Heaton 370; Van der Vyver and
Joubert 503; Visser and Potgieter 43 fn 28; Wille’s Principles 246–247. But see also De Vos 1974 Acta Juridica
259 who argues that failure to provide the consent in writing results in nullity of the marriage.
26 S 18(3)(c)(i) and (5) read with ss 19(1) and 20 of the Children’s Act; see also s 5(1) of the Matrimonial
Affairs Act 37 of 1953 and s 6(3) of the Divorce Act 70 of 1979.
27 S 18(3)(c)(i) and (5) of the Children’s Act.
28 S 18(3)(c)(i) and (5) read with ss 19(1) and 21 of the Children’s Act.
29 S 18(3)(c)(i) and (5) of the Children’s Act.
30 As the youngest age at which a boy may marry is 14 years and the youngest age at which a girl may marry is
12 years (see below in this chapter), the scenario in the text could occur only if the mother gave birth at
the age of six years or less!
31 Ss 18(3)(c)(i) and 19(2) of the Children’s Act.
32 S 18(4) of the Children’s Act.
33 A person can share guardianship with a parent in terms of a parental responsibilities and rights agreement
continued
Chapter 3: The legal requirements for a civil marriage
17
consent must also be obtained, for section 18(5) of the Children’s Act 38 of 2005 states that
the consent of all the persons who have guardianship is necessary for the minor’s marriage. If
the legal guardian exercises guardianship to the exclusion of the minor’s parent, only the
legal guardian’s consent is necessary.34
(ii) The legal guardian
A parent who is the sole guardian of a child may appoint a fit and proper person in his or her
will to act as the child’s legal guardian after the parent’s death.35 If the child is orphaned without a legal guardian having been appointed, the High Court and the Master of the High
Court may appoint a legal guardian to a minor whose interests require this.36 The minor must
obtain his or her legal guardian’s permission to enter into a civil marriage.37
To guard against abuse of the minor and to protect the child’s best interests, a legal guardian cannot consent to a civil marriage between himself or herself and the minor. If a legal
guardian and his or her ward want to enter into a civil marriage, they must obtain the consent
of the High Court.38
(iii) The Minister of Home Affairs
Section 26(1) of the Marriage Act provides that a boy below the age of 18 years and a girl
below the age of 15 years may not marry without the written consent of the Minister of Home
Affairs. As the age of majority is 18 years,39 the requirement in section 26(1) means that all
male minors must obtain the Minister’s consent.
Section 26(1) prescribes that the Minister may only grant consent if he or she considers the
marriage desirable. The section further provides that if the Minister’s consent is obtained, all
the other legal requirements still have to be complied with. This means that the consent of
the minor’s parent(s) or legal guardian must also be obtained, that the prescribed formalities
must be met, and so forth. The section further provides that the Minister’s consent is not required if the court has consented to the marriage.
If a male minor or a girl below the age of 15 years enters into a civil marriage without ministerial consent, the marriage is null and void, unless the Minister ratifies the marriage.40 In
terms of section 26(2), the Minister may ratify the marriage if he or she considers the marriage desirable and in the interests of the parties, the marriage was in all other respects
solemnised in accordance with the provisions of the Marriage Act, and there is no other
lawful impediment to the marriage.41
Section 26 contains no clear directive on whether or not persons below the age of puberty
may conclude a civil marriage. The weight of modern opinion favours the view that the section does not amend the common law in this respect, so that the Minister’s power only applies to civil marriages of girls between 12 and 15 years of age and boys between 14 and 18
years of age.42
________________________
34
35
36
37
38
39
40
41
42
or a court order: see ch 23 below.
S 18(3)(c)(i) and (5) of the Children’s Act.
S 27(1)(a) of the Children’s Act; s 5(3) of the Matrimonial Affairs Act. See further chs 23 and 24 below.
See ch 24 below.
S 18(3)(c)(i) and (5) of the Children’s Act.
On a marriage between a minor and his or her legal guardian, see further below in this chapter.
S 17 of the Children’s Act.
S 26(1) and (2) of the Marriage Act 25 of 1961.
See also s 26(3) of the Marriage Act.
Barratt (ed) Persons and the Family 63, 64; Boezaart Persons 84; Heaton Persons 104; Heaton in Church (ed)
LAWSA Marriage par 23; Heaton in Van Heerden et al (eds) Boberg’s Law of Persons and the Family 836 fn 2;
Kruger and Robinson in Robinson (ed) Law of Children and Young Persons 16; Kruger and Skelton (eds) Persons 129; Lee and Honoré par 41; Sinclair assisted by Heaton 367; Van der Vyver and Joubert 172, 486–487;
Van Schalkwyk 70; Visser and Potgieter 51; Menge 1956 SALJ 450; Spiro 1960 THRHR 5; Van der Walt 1961
continued
18
South African Family Law
Because the difference in the ages below which girls and boys are prohibited from marrying is based on the biological fact that boys reach sexual maturity later than girls, it does not
constitute unfair discrimination between the sexes.43 However, the difference in ages below
which boys and girls who have passed the age of puberty must obtain the consent of the
Minister of Home Affairs may be open to constitutional attack on the ground that it amounts
to unfair sex discrimination.44
(iv) The presiding officer of the Children’s Court
The Marriage Act provides that when either or both of the minor’s parents or his or her legal
guardian is absent, mentally ill or in any other way incompetent to consent to the minor’s
civil marriage, or when the minor cannot for any other good reason obtain the consent of his
or her parent(s) or legal guardian, consent may be granted by the presiding officer of the
Children’s Court.45 The presiding officer may, however, not grant consent if the parent(s) or
legal guardian withholds consent. In such event, the High Court must be approached for
consent in terms of section 25(4) of the Marriage Act.46
When deciding whether to grant consent to the minor’s civil marriage the presiding officer
must also determine whether it is in the minor’s interests to enter into an antenuptial contract. If the presiding officer is satisfied that it is in the minor’s interests, he or she must
ensure that such a contract is entered into before consenting to the marriage. The presiding
officer must assist the minor in the execution of the antenuptial contract and his or her assistance is deemed to be the assistance of the minor’s parent or legal guardian.47 If the presiding
officer refuses to consent to the marriage, the minor may approach the High Court for consent in terms of section 25(4) of the Marriage Act.
(v) The High Court
If one or both parents, the legal guardian, or the presiding officer of the Children’s Court
withholds consent, the minor may approach the High Court for permission to enter into a
civil marriage in terms of section 25(4) of the Marriage Act. For purposes of this particular
application the minor is regarded as having capacity to litigate.48
________________________
43
44
45
46
47
48
THRHR 119. See also s 12(2)(a) of the Children’s Act which provides that a child “below the minimum age
set by law for a valid marriage” may not be given out in marriage or engagement. For this provision to have
a rational meaning there must be a minimum age of marriage which is higher than the child’s date of
birth. As our law has not previously stipulated any cut-off age that is lower than the age of puberty, it seems
reasonable to assume that the minimum age the legislator had in mind when drafting the Children’s Act
was the common-law age of puberty. But see also Hahlo, 5th edn, 90; Conradie 1956 SALJ 279.
Art 2 of the United Nations’ Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriage, to which South Africa acceded on 29 Jan 1993, requires state parties to take legislative
action to specify a minimum age for marriage, but gives no indication of what that minimum age should
be. Art 16(2) of the Convention on the Elimination of All Forms of Discrimination Against Women likewise
provides that child betrothals and marriages are without legal effect and requires state parties to take all
necessary action to specify a minimum age for marriage, but it too does not specify a minimum age. However, art 21(2) of the African Charter on the Rights and Welfare of the Child, which South Africa has also
ratified, specifies that the minimum marriageable age must be 18 years. See further Müller 2014 Speculum
Juris 202.
Cockrell Bill of Rights Compendium par 3E40; Heaton in Van Heerden et al (eds) Boberg’s Law of Persons and
the Family 836 fn 2; Van der Vyver in Robinson (ed) Law of Children and Young Persons 290, 294. S 9(3) of the
Constitution of the Republic of South Africa, 1996 prohibits unfair sex discrimination.
Barratt (ed) Persons and the Family 63; Heaton Bill of Rights Compendium par 3C14.2; Heaton in Van Heerden
et al (eds) Boberg’s Law of Persons and the Family 836 fn 2.
S 25(1) of the Marriage Act.
On s 25(4) of the Marriage Act, see below in this chapter.
S 25(2) and (3) of the Marriage Act.
Ex parte F 1963 (1) PH B9 (N). On a minor’s capacity to litigate, see Heaton Persons 110–111.
Chapter 3: The legal requirements for a civil marriage
19
The court may grant consent only if it is of the opinion that the refusal by the parent, legal
guardian or presiding officer is without adequate reason and contrary to the minor’s interests. Section 25(4) lays down two tests in this regard:
(1) Is the refusal of consent without adequate reason?
(2) Is it contrary to the minor’s interests?49
In B v B 50 Milne DJP convincingly argued that these tests are complementary and must not be
considered separately. The court must take all the circumstances into account and weigh the
reasons for the parents’ refusal, with due allowance for the fact that parents are in a better
position than the court to make a decision of such a personal nature. He concluded that
the Court must ultimately decide, having weighed up the reasons for the parental refusal,
whether by its own objective standards there is “sufficient reason to justify the parental refusal”
and in doing so it must . . . be of paramount importance whether it will be in the best interests
of the minor to allow the minor to marry.51
Even if the minor’s application is unopposed the court will not inevitably override the parents’
refusal to grant consent.52
If the court grants consent, it may also make an order regarding the matrimonial property
system which is to apply in the civil marriage, and, if necessary, it may order that a curator
must be appointed to assist the minor in the execution of an antenuptial contract.53
If the minor’s parent(s) or legal guardian is absent, mentally ill, or in any other way incompetent to consent to the minor’s civil marriage, or if the minor can for any other good
reason not obtain the consent of his or her parent(s) or legal guardian, he or she may not
approach the High Court in terms of section 25(4) unless he or she has already applied for
consent to the presiding officer of the Children’s Court in terms of section 25(1).54 In other
words, the minor may not bypass the presiding officer of the Children’s Court by applying
directly to the High Court.
(c) Instances in which a minor requires no consent to enter into a civil marriage
A minor who has previously entered into a valid civil or customary marriage and whose
marriage has been dissolved by death or divorce may remarry without consent because he or
she attained majority upon entering into the first marriage55 and the dissolution of the marriage did not revive his or her minority.56 As the Civil Union Act restricts civil unions to
adults,57 the issue of the capacity to enter into a civil marriage of a minor who previously
entered into a civil union does not arise.
________________________
49 Allcock v Allcock 1969 (1) SA 427 (N), Heaton and Kruger Casebook on Family Law case [4]; see also De Greeff v
De Greeff 1982 (1) SA 882 (O).
50 1983 (1) SA 496 (N), Heaton and Kruger Casebook on Family Law case [5]; see also Kruger v Fourie 1969 (4)
SA 469 (O).
51 501H; see also C v T 1965 (2) SA 239 (O). The person who refuses consent must be given the opportunity
to put his or her objections before the court: Jinnah v Laattoe 1981 (1) SA 432 (C).
52 De Greeff v De Greeff 1982 (1) SA 882 (O).
53 C v T 1965 (2) SA 239 (O).
54 Ex parte Visick 1968 (1) SA 151 (D); Ex parte Balchund 1991 (1) SA 479 (D).
55 S 24(2) of the Marriage Act. The section refers to a “valid marriage”. At the time when the Marriage Act was
drafted, the legislator clearly had only a civil marriage in mind. However, because s 2 of the Recognition of
Customary Marriages Act 120 of 1998 now recognises customary marriages as valid, the phrase “valid marriage” in s 24(2) of the Marriage Act should be interpreted to cover a valid customary marriage too. Further, as s 6 of the Recognition of Customary Marriages Act confers “full status and capacity” on wives in
customary marriages, and husbands in customary marriages always acquired adult status and capacity upon
entering into a customary marriage, minors of both sexes now obtain majority status when they enter into a
valid customary marriage. On customary marriages, see ch 17 below.
56 Voet 4.4.6; Cohen v Sytner (1897) 14 SC 13.
57 See the definition of “civil union” in s 1 of the Civil Union Act. On civil unions, see ch 16 below.
20
South African Family Law
(d) The effect of absence of the necessary consent
(i) The effect on the validity of the civil marriage
In terms of section 26(2) of the Marriage Act, a marriage entered into without ministerial
consent (when such consent was required) is null and void unless the Minister subsequently
ratifies it because it is desirable and in the parties’ interests that he or she do so and because
the marriage in all other respects complies with the Marriage Act.58
In terms of section 24A(1) of the Marriage Act, the civil marriage of a minor who fails to
obtain the necessary consent from his or her parent(s), legal guardian, or the presiding officer
of the Children’s Court is voidable.59 The marriage may be set aside by the court on application by either of the following applicants:
(1) The minor’s parent(s) or legal guardian, before the minor attains majority and within six
weeks from the date on which he or she or they become aware of the existence of the
marriage.
(2) The minor, before he or she attains majority or within three months thereafter.
The court may not set the marriage aside unless it is satisfied that the dissolution of the
marriage is in the minor’s interest.60 The Act does not stipulate which factors are to be taken
into account in arriving at this decision. Presumably, the factors which guide the court in an
application in terms of section 25(4) for replacement of consent to enter into a civil marriage
will be taken into account.61
If an application for dissolution is not made within the periods mentioned above, the civil
marriage becomes unassailable and continues to exist until it is dissolved by death or divorce.
(ii) The effect on the patrimonial consequences of the civil marriage
Section 24 of the Matrimonial Property Act 88 of 1984 governs the patrimonial consequences
of a civil marriage a minor entered into without consent. It distinguishes between marriages
which are set aside and those that are not.
The patrimonial consequences if the civil marriage is set aside
Section 24(1) of the Matrimonial Property Act regulates the patrimonial consequences of the
civil marriage if it is dissolved because of lack of consent. The section provides that the court
may make an order with regard to the division of the matrimonial property of the spouses “as
it may deem just”. The court clearly has a very wide discretion and can order any arrangement
it considers suitable concerning the division of the spouses’ assets. Section 24(1) contains no
guidelines for the exercise of this judicial discretion. The court will probably have regard to
such factors as the respective ages of the parties, their financial circumstances, their wishes
________________________
58 S 26(2) of the Marriage Act.
59 On voidable civil marriages, see ch 4 below.
60 S 24A(2). Whether the court will dissolve a civil marriage in which both parties are minors who married
without the necessary consent if it is in the interests of one that the marriage be dissolved and in the interests of the other that it be allowed to stand, is unclear. Hahlo, 5th edn, 94 submits that the court will be
inclined to dissolve the marriage, but Joubert in Clark (ed) Family Law Service par A28 suggests that the
court cannot dissolve the marriage unless dissolution is in the interests of both minors. Sinclair assisted by
Heaton 372 supports Joubert’s view.
61 It must be borne in mind, however, that there is a material difference between judicial consent to enter
into a marriage and judicial dissolution of a minor’s marriage. In the former situation the court has to be
satisfied that the parents’ refusal of consent is without adequate reason and contrary to the minor’s interests, ie that the marriage is in the minor’s interests. When an order dissolving the minor’s marriage is
sought, the court has to be satisfied that dissolution is in the minor’s interests, ie that the marriage is not in
the minor’s interests: Heaton in Church (ed) LAWSA Marriage par 47 fn 4; Heaton in Van Heerden et al
(eds) Boberg’s Law of Persons and the Family 843 fn 25; Sinclair assisted by Heaton 372. See also Visser and
Potgieter 46 who submit that the mere fact that the minor’s parents oppose the marriage or that the minor
no longer wishes to continue with the marriage is an insufficient reason. However, the court will not ignore
the minor’s unwillingness to stay married: Van der Vyver and Joubert 508.
Chapter 3: The legal requirements for a civil marriage
21
and whether the major spouse took advantage of the inexperience of the minor spouse and
benefited at the latter’s expense.62
The patrimonial consequences if the civil marriage is not set aside
Section 24(2) of the Matrimonial Property Act regulates the patrimonial consequences if the
civil marriage is not dissolved. It provides that, in such event,
the patrimonial consequences of the marriage are the same as if the minor were of age when the
marriage was entered into and any antenuptial contract in terms of which the accrual system is
included and which has been executed with a view to such a marriage, is deemed to have been
validly executed.
The legislator seems to leave only two possibilities open to the minor:
(1) If the parties did not enter into an antenuptial contract, the primary matrimonial property system, namely community of property, applies.63
(2) If the parties entered into an antenuptial contract which includes the accrual system,64
the antenuptial contract is valid even though the minor did not have the necessary consent to conclude the contract.
Section 24(2) does not expressly deal with an antenuptial contract in which the accrual system is excluded. Some authors are of the opinion that such an antenuptial contract must also
be deemed to have been validly executed.65 Their view is based on the wording of the first part
of section 24(2), which deems the minor to have been “of age when the marriage was entered
into”. These words suggest that effect should be given to whatever matrimonial property system the spouses chose. According to this interpretation, the second part of the section (“and
any antenuptial contract in terms of which the accrual system is included and which has been
executed with a view to such a marriage, is deemed to have been validly executed”) is merely
a superfluous reference to one particular matrimonial property system which is valid – just as
any other matrimonial property system would be if it were chosen by the couple.
Critics of this interpretation point out that it renders the second part of section 24(2)
meaningless, which violates the principle of interpretation of statutes that the legislator is presumed not to make meaningless enactments. To give meaning to the second part of the section, the maxim inclusio unius est exclusio alterius (that is, specific inclusion of one implies the
exclusion of the other) is invoked and it is argued that section 24(2) does not apply to an
antenuptial contract in which the accrual system is excluded. This means that the law has not
been reformed in this respect, and that the antenuptial contract is invalid and the civil marriage
is in community of property because community of property applies in the absence of an
antenuptial contract.66 A variation of the interpretation which relies on the maxim inclusio
unius est exclusio alterius is that the wording of the second part of section 24(2) renders the
clause in the antenuptial contract which excludes the accrual system invalid, with the result
that the marriage is out of community of property but subject to the accrual system.67 The
implication of both variations of the argument is that the minor’s civil marriage cannot from
its inception be subject to complete separation of property.68 The result is that the financial
________________________
62 See also Church and Church in Church (ed) LAWSA Marriage par 111; Heaton in Van Heerden et al (eds)
Boberg’s Law of Persons and the Family 844–845; Kruger and Robinson in Robinson (ed) The Law of Children
and Young Persons in South Africa 39; Sinclair assisted by Heaton 374.
63 Community of property is discussed in ch 6 below.
64 The accrual system is discussed in ch 7 below.
65 Barratt (ed) Persons and the Family 65; Church and Church in Church (ed) LAWSA Marriage pars 111 and
115; Hahlo, 5th edn, 94 and 265; Sinclair 61; Van der Vyver and Joubert 582; Visser and Potgieter 155; Visser 1996 De Jure 159, 161.
66 See also Van Schalkwyk 259; Sonnekus 2009 THRHR 146–147.
67 Sinclair assisted by Heaton 376.
68 If the spouses want their marriage to be subject to complete separation of property, they will have to obtain
a postnuptial court order in terms of s 21(1) of the Matrimonial Property Act, authorising them to enter
into a notarial contract which excludes community of property, community of profit and loss and the
continued
22
South African Family Law
interests of only some minors who married without consent and whose civil marriages are not
set aside, are protected. The failure of section 24(2) to protect those minors whose interests
would best be served by complete separation of property is open to constitutional attack on
the ground that it constitutes an unjustifiable denial of equality before the law and equal
protection and benefit of the law and unjustifiably violates the injunction that the child’s best
interests must be of paramount importance in every matter concerning the child.69
Another issue which arises in respect of section 24(2) is whether an informal antenuptial
contract, purporting only to regulate the property rights of the spouses as between themselves, and not as against third parties, falls within the ambit of the section. On the one hand
it could be argued that, since the first part of section 24(2) suggests that minors are to be
treated like majors and an informal antenuptial contract between majors is effective as between
them, a minor’s informal antenuptial contract should also be valid as between the spouses.70
On the other hand, the word “executed” in the second part of the provision implies that an
informal antenuptial contract is invalid, even if it includes the accrual system.71
(iii) The effect of the Matrimonial Property Act on a civil marriage a minor concluded without consent
before the commencement of the Act
It is not clear whether section 24 of the Matrimonial Property Act and section 24A of the
Marriage Act also apply to a civil marriage a minor entered into before the commencement of
the Matrimonial Property Act. Neither section contains explicit provisions as to its retroactivity. The wording of section 24A of the Marriage Act is slightly clearer than that of section
24 of the Matrimonial Property Act in that it provides that “[n]otwithstanding anything to the
contrary contained in any law or the common law” the civil marriage is voidable. The quoted
phrase suggests that section 24A applies regardless of when the marriage was concluded since
the phrase entails that any legal provision which differs from the section is to be ignored.
Furthermore, it seems that the intention of the legislator was to settle the uncertainty surrounding the consequences of a civil marriage entered into by a minor without the requisite
72
consent. It is submitted that, in keeping with the purposive approach, effect should be given
to this intention and that section 24A of the Marriage Act should be interpreted to apply to
all civil marriages entered into by minors without consent.73
In respect of section 24 of the Matrimonial Property Act, it could, on the one hand, be
argued that the wording of the section does not rebut the presumption that the legislator
does not intend legislation to operate with retroactive effect. On the other hand, it could be
argued that the phrase “to which a minor is a party” (emphasis added) in the section suggests
that the section applies regardless of when the minor entered into the civil marriage to which
________________________
69
70
71
72
73
accrual system. See ch 8 below on applications in terms of s 21(1). Complete separation of property is discussed in ch 7 below.
Ss 9(1) and 28(2) of the Constitution. On the constitutional arguments, see further Heaton Bill of Rights
Compendium par 3C24.
Church and Church in Church (ed) LAWSA Marriage par 115; Sinclair assisted by Heaton 378.
Sinclair assisted by Heaton 378. Hahlo, 5th edn, 265 submits that “executed” means that the antenuptial
contract must be executed and registered. However, execution and registration are not the same thing. An
antenuptial contract might be executed formally before a notary but never be registered in the deeds office. But there can never be registration without execution, for the registrar of deeds will refuse to register
an antenuptial contract that has not been properly executed by a notary: Sinclair assisted by Heaton 378
fn 46. Van Schalkwyk 259 submits that a minor’s executed but unregistered antenuptial contract is valid as
between the parties if it includes the accrual system.
On the purposive approach, see Cool Ideas 1186 CC v Hubbard 2014 (4) SA 474 (CC) and the discussion
immediately below.
The weight of academic opinion favours retroactive application of the section: Heaton in Church (ed)
LAWSA Marriage par 47 fn 1; Heaton in Van Heerden et al (eds) Boberg’s Law of Persons and the Family 841
fn 18; Sinclair assisted by Heaton 379; Van Schalkwyk 72; Visser and Potgieter 47; Wille’s Principles 248
fn 163.
Chapter 3: The legal requirements for a civil marriage
23
he or she “is” a party.74 Furthermore, applying the approach to interpretation of statutes that
has been laid down by the Constitutional Court, it seems that the section applies to all civil
marriages minors entered into without consent. The prescribed approach is that “the words
in a statute must be given their ordinary grammatical meaning, unless to do so would result in
an absurdity”, but that:
(a) . . . statutory provisions should always be interpreted purposively;
(b) the relevant statutory provision must be properly contextualised; and
(c) all statutes must be construed consistently with the Constitution, that is, where reasonably
possible, legislative provisions ought to be interpreted to preserve their constitutional validity.
75
This proviso ... is closely related to the purposive approach referred to in (a).
Like section 24A of the Marriage Act, section 24 of the Matrimonial Property Act seems to
have the object of putting an end to the uncertainty about minors’ civil marriages – in this
particular instance, the uncertainty in so far as the patrimonial consequences of these marriages are concerned. Applying the purposive approach mentioned in (a), one would conclude that the section applies to all civil marriages minors entered into without the required
consent. The same applies to application of the contextual approach mentioned in (b).
Furthermore, it is certainly arguable that interpreting section 24 so as not to exclude minors
who entered into civil marriages without the requisite consent before the Matrimonial Property Act came into operation serves the constitutional objective of achieving equality. The
opposite view would entail differentiation between minors who married before the coming
into operation of the Act and those who married after the coming into operation of the Act.
This differentiation would not bear a rational connection to a legitimate government purpose
and would therefore violate the right to equality before the law and to equal protection and
benefit of the law which is entrenched by section 9(1) of the Constitution of the Republic of
76
South Africa, 1996. It would also not comply with the instruction in section 28(2) of the
Constitution that paramountcy must be afforded to the best interests of the child. As there
does not seem to be any justification for these violations of the Bill of Rights, the differentiation and the failure to afford paramountcy to the best interests of the child would be uncon77
stitutional. However, in keeping with the approach mentioned in (c), this unconstitutionality
could be avoided because the section could be reasonably construed to extend to all civil
marriages minors concluded without consent.
If, however, the court should arrive at the unlikely finding that section 24 of the Matrimonial Property Act does not apply with retroactive effect, the provisions of the Perpetual Edict
would still apply to civil marriages entered into by minors without the necessary consent prior
to the commencement of the Act. In terms of article 17 of the Perpetual Edict, the major may
“at no time” derive any benefit from the minor’s property. This means, very simply, that the
person who marries a minor without the latter having first obtained the necessary consent,
may never obtain any patrimonial benefit from the marriage. Applying this rule, our courts
have in the past declared such civil marriages either in or out of community of property
depending upon which system was in the minor’s best interests at the time he or she entered
into the marriage.78 Consequently the courts judged the circumstances as they were at the
________________________
74 Heaton in Van Heerden et al (eds) Boberg’s Law of Persons and the Family 841 fn 18; Sinclair 61 fn 205;
Sinclair assisted by Heaton 379–380; Wille’s Principles 248 fn 165; but see Van der Vyver and Joubert 582.
75 Cool Ideas 1186 CC v Hubbard 2014 (4) SA 474 (CC) par 28; see also Bertie van Zyl (Pty) Ltd v Minister for Safety
and Security 2009 (10) BCLR 978 (CC), 2010 (2) SA 181 (CC); SATAWU v Garvas 2012 (8) BCLR 840 (CC),
2013 (1) SA 83 (CC). See also s 39(2) of the Constitution, which provides that “[w]hen interpreting any
legislation ..., every court, tribunal or forum must promote the spirit, purport and objects of the Bill of
Rights”.
76 See Harksen v Lane 1998 (1) SA 300 (CC).
77 S 36 of the Constitution contains the limitation clause, which sets out the factors that are to be considered
in determining whether a violation (ie limitation) of a fundamental right is justifiable.
78 Ex parte Dineen 1955 (4) SA 49 (O); Ex parte Bouwer 1954 (2) PH B21 (W); Ex parte Van der Walt 1954 (1) SA
565 (C).
24
South African Family Law
inception of the marriage and then declared that the marriage was in community of property,
out of community of property with retention of community of profit and loss, or subject to
complete separation of property.
3.3 Agreement
3.3.1
General
At the moment of concluding a civil marriage, both parties must have the intention to enter
into a civil marriage with one another. During the wedding ceremony itself, the marriage
officer must expressly ask each party whether he or she accepts the other party as husband or
wife, and both parties must answer in the affirmative.79 The marriage may not be solemnised if
either party replies in the negative. If either party is a minor, he or she must personally
indicate his or her agreement.
Problems in connection with agreement arise when both parties declare their agreement at
the wedding, but it subsequently transpires that genuine agreement was absent, or that there
was a defect regarding the agreement, for example, because the parties laboured under a material mistake or one of them agreed because of a misrepresentation, duress or undue influence.
3.3.2
Mistake
Only a material mistake excludes agreement. The only forms of material mistake which are
recognised in connection with a civil marriage are a mistake concerning the identity of the
other party (that is, error in personam) and a mistake concerning the nature of the juristic act
(that is, error in negotio). Owing to the nature of the marriage ceremony, the only form of mistake that occurs in practice is error in negotio. Such a mistake may occur when, for example,
one of the parties has the firm intention of entering into a civil marriage while the other is
under the impression that he or she is merely registering an engagement80 or is entering into
a customary marriage. Some authors submit that although a material mistake negates agreement, the marriage should not be void but voidable. The matter has not yet been settled in
our law. Because agreement is a requirement for a valid civil marriage, its absence as a result
of a material mistake should result in nullity; in other words, the marriage should be void.81
However, if regard is had to society’s interest in the institution of marriage and, especially, the
interest of third parties to know that persons who went through an apparently legal wedding
ceremony are indeed married, it might be preferable if a material mistake did not render the
marriage void but merely voidable at the instance of the mistaken party.82
A simulated civil marriage or so-called civil marriage of convenience must be distinguished
from a civil marriage entered into while a party laboured under a material mistake. In Martens
v Martens 83 the parties entered into a civil marriage of convenience. The husband married the
wife at the request of a friend so that, as the wife of a South African citizen, the woman would
be eligible for permanent residence. Subsequently the husband tried to have the marriage
annulled. The court dismissed his claim and held that the marriage was valid as the parties
________________________
79 S 30(1) of the Marriage Act.
80 Such were indeed the facts in Benjamin v Salkander (1908) 25 SC 512; Rubens v Rubens (1909) 26 SC 617 and
Kanatopsky v Kanatopsky 1935 EDL 308; see also Johnson v McIntyre (1893) 10 SC 318. In all of the foregoing
cases the civil marriages were declared null and void because of the absence of agreement. See also Ress v
Shapiro 1914 EDL 390 and Weintraub v Weintraub 1921 CPD 595.
81 As is accepted by Van der Vyver and Joubert 492 and Visser and Potgieter 47.
82 See also Heaton in Church (ed) LAWSA Marriage par 31; Lee and Honoré par 53; Sinclair assisted by
Heaton 362; Wille’s Principles 248 fn 169.
83 1952 (3) SA 771 (W), Heaton and Kruger Casebook on Family Law case [6]. See further Maseko v Maseko 1992
(3) SA 190 (W); Kohlhaas v Chief Immigration Officer 1998 (6) BCLR 757 (ZS) (also reported as Kohlhaas v
Chief Immigration Officer, Zimbabwe 1998 (3) SA 1142 (ZSC)).
Chapter 3: The legal requirements for a civil marriage
25
had had the intention of entering into a valid civil marriage and must have realised that they
could only terminate the marriage by divorce.
When one of the parties is mistaken about certain facts concerning the civil marriage itself
or the personal attributes of the other party, the mistake is not material unless the misunderstanding was caused by misrepresentation by the other party. The general principle is that a
mistake which is not material is irrelevant and consequently does not constitute a ground for
dissolution of the marriage. Thus, for example, a mistake about the other party’s name, surname84 or religion85 is irrelevant.
3.3.3
Misrepresentation
If one of the parties misleads the other prior to the civil marriage by making false statements
or creating a false impression by concealing information which should have been divulged,
the marriage is voidable if the misrepresentation was material. Given the unique nature of a
civil marriage, misrepresentation concerning very few matters is regarded as sufficiently
serious. Prenuptial stuprum is one of these. Thus, a husband can have the civil marriage set
aside if he can prove that at the time of the wedding, his wife concealed the fact that she was
pregnant by another man, and that he had been unaware of this state of affairs.86 The only
other instance in which a misrepresentation might possibly result in the civil marriage being
voidable is the concealment by one of the parties that he or she is either impotent or sterile.87
3.3.4
Duress
If one of the spouses was forced to consent to the civil marriage by duress, the marriage is
voidable. In Smith v Smith 88 the woman was coerced to such an extent by her father and prospective husband that she was completely dazed and lacked any will of her own during the
wedding. The court concluded that the duress rendered the marriage voidable and therefore
set it aside.89
3.3.5
Undue influence
Although there is no direct authority for the premise that undue influence renders a civil
marriage voidable, it is submitted that this should be the case.90
3.4 Lawfulness
3.4.1
General
A specific civil marriage or a civil marriage between specific persons may, for a variety of
reasons, be unlawful. Generally, an unlawful civil marriage is void.
3.4.2
An existing civil or customary marriage or civil union
Civil marriages are monogamous. Therefore, neither prospective spouse may be a party to
another civil marriage, a customary marriage or a civil union when he or she enters into a
civil marriage.91 A civil marriage which is concluded in violation of this prohibition is void and
bigamous. However, the purported marriage may be putative if either or both of the spouses
________________________
84
85
86
87
88
89
Ex parte Boshoff 1912 OPD 32; Ex parte Lewies 1928 WLD 192.
Rubens v Rubens (1909) 26 SC 617; Leighton v Roos 1955 (4) SA 134 (N).
Stander v Stander 1929 AD 349. On this ground for annulment, see also ch 4 below.
On annulment of a civil marriage on the ground of impotence or sterility, see ch 4 below.
1948 (4) SA 61 (N), Heaton and Kruger Casebook on Family Law case [7].
It is immaterial whether the duress emanated from the other spouse or a third party: Barratt (ed) Persons
and the Family 240; Heaton in Church (ed) LAWSA Marriage par 33; Joubert in Clark (ed) Family Law Service
par A36; Sinclair assisted by Heaton 360; Visser and Potgieter 50. But see Van der Vyver and Joubert 499.
90 See Katzenellenbogen v Katzenellenbogen and Joseph 1947 (2) SA 528 (W); Mauerberger v Mauerberger 1948 (4) SA
902 (C); Preller v Jordaan 1956 (1) SA 483 (A).
91 Ss 3(2) and 10(4) of the Recognition of Customary Marriages Act; s 8(2) of the Civil Union Act.
26
South African Family Law
honestly believed that the civil marriage was valid.92 Thus, for example, a second civil marriage would be putative if the married spouse believed in good faith that he or she was legally
divorced while this was not the case, or if the unmarried spouse was unaware of the other
spouse’s existing civil marriage.
3.4.3
Persons who are of the same sex
Although the Civil Union Act permits same-sex couples to enter into a civil union,93 civil
marriages are still reserved for people of the opposite sex.94 The rule that persons of the same
sex may not enter into a civil marriage with each other affects not only homosexual but also
transsexual persons. A transsexual person is somebody who suffers from gender-dysphoria
syndrome; in other words, anatomically the person belongs to either the male or female sex,
but psychologically the person identifies with the opposite gender.95 In terms of the Alteration
of Sex Description and Sex Status Act 49 of 2003, a person who has undergone sex reassignment surgery may apply to the Director-General of Home Affairs for the alteration of his or
her sex description in the register of births.96 The application must be accompanied by reports by the medical practitioners who performed the sex reassignment surgery or treatment
or by a medical practitioner with experience in carrying out such surgery or treatment.97
Section 3(2) of the Act provides that once the person’s sex description has been changed on
the register of births, he or she is deemed for all purposes to be a member of his or her new
sex. This means, inter alia, that the person may then marry someone of his or her former sex.
For example, a man who has had sex reassignment surgery to become a woman may marry a
man.
3.4.4
Adoptive parents and their adopted children
An adoptive parent may not marry his or her adopted child.98 For the rest, however, adoption
does not render a civil marriage invalid if it would otherwise have been valid. Thus, if an
adoptive parent adopted two children who were not related by either blood or affinity and
could therefore legally enter into a civil marriage with each other, they would be able to
marry despite the adoption.
3.4.5
Persons who are within the prohibited degrees of relationship
(a) General
Our law prohibits a civil marriage between persons who are within certain degrees of relationship.99 Civil marriages which violate this prohibition are void. Although most of the impediments were originally laid down by the Political Ordinance, amendments were made by the
Marriage Act. Before discussing the prohibitions, we explain the concepts of “consanguinity”
and “affinity”, as a proper grasp of these terms is vital for understanding the prohibited
degrees of relationship.
Consanguinity refers to blood relationship; in other words, it refers to the relationship
which is created by birth between persons who have at least one common ancestor. It is
________________________
92
93
94
95
96
97
98
99
Putative civil marriages are discussed in ch 4 below.
Ss 1 and 8(6) of the Civil Union Act.
W v W 1976 (2) SA 308 (W); Simms v Simms 1981 (4) SA 186 (D).
South African Law Commission Report on the Investigation into the Legal Consequences of Sexual Realignment and
Related Matters Project 52 par 2.2.1; Strauss 1970 CILSA 348. A transsexual must be distinguished from an
intersexual. Intersexuals are hermaphrodites and pseudo-hermaphrodites, ie people who have the gonads
and/or genitalia of both sexes: South African Law Commission op cit par 2.2.2; Strauss op cit 348 fn 3.
S 2(1). On the possible unconstitutionality of the Act’s failure to accommodate transsexuals who are
unwilling or unable to undergo sex reassignment, see Visser and Picarra 2012 SAJHR 527–530.
S 2(2).
S 242(2)(c) and (3) of the Children’s Act.
The precise origin of these taboos is uncertain. The most important reasons for the impediments seem to
be biological, socio-economic, ethical-moralistic and/or religious: Labuschagne 1990 TSAR 416.
Chapter 3: The legal requirements for a civil marriage
27
irrelevant whether the relationship arose as a result of birth out of married or unmarried
parents. Consanguinity may exist in either the direct line, that is, between ascendants and
descendants (such as father and daughter, grandmother and grandson), or the collateral line,
that is, between blood relations who are not related to one another in the direct line, but are
related through a common ancestor (such as brother and sister, cousins, uncle and niece).
Affinity refers to the relationship which comes into being between a married person and
the blood relations of his or her spouse, as a result of the marriage. For legal purposes and in
the context of civil marriages, affinity is restricted to the blood relations of the other spouse.
Thus, for purposes of a civil marriage, no relationship by affinity exists between the blood
relations of one spouse and the blood relations of the other spouse. In this way, a man’s wife’s
sister (that is, his sister-in-law) and his son’s wife (that is, his daughter-in-law) are his relations
by affinity, but they are not relations by affinity of his brother. As with consanguinity, affinity
can exist in either the direct or the collateral line. In the direct line, affinity exists between a
husband and his wife’s blood relations in the direct line and between a wife and her husband’s blood relations in the direct line. For example, a husband is related by affinity in the
direct line to his mother-in-law and his stepdaughters. Affinity in the collateral line exists
between a husband and his wife’s blood relations in the collateral line and between a wife and
her husband’s blood relations in the collateral line. For example, a wife is related to her
brother-in-law by affinity in the collateral line.
(b) Blood relations in the direct line
Blood relations in the direct line (that is, ascendants and descendants) may not enter into a
civil marriage with each other. Such a marriage is absolutely forbidden. For example, no valid
civil marriage is possible between a father and his daughter or a grandfather and his granddaughter. This prohibition, which already existed in Roman law, was included in the Political
Ordinance, and in this way became part of our law. To illustrate:
A ancestor
B child
C grandchild
D great-grandchild
A, B, C and D are blood relations of one another in the direct line, and none of them may
enter into a civil marriage with any of the others.
(c) Collateral blood relations
Articles 6 and 7 of the Political Ordinance regulate the position in respect of a civil marriage
between collateral blood relations. These articles do not contain a general prohibition on
civil marriages between blood relations in the collateral line. A number of prohibitions are,
however, specifically mentioned: neither brother and sister, nor uncle and niece, nor granduncle and grandniece are allowed to enter into a civil marriage with each other. Civil marriage between cousins is permissible, however. On the basis of the foregoing information, one
can deduce a general principle, namely, that blood relations in the collateral line may not
enter into a civil marriage with each other if either of them is related to the common ancestor
within the first degree. (One degree of consanguinity separates one generation from the
generation immediately following it. Thus, to calculate the degrees of blood relationship, one
simply counts the number of people with the exception of the common ancestor. That is to
say, there are as many degrees of blood relationship as there are people, leaving out the
common ancestor.) To illustrate:
28
South African Family Law
A
B
common ancestor
E
C
child
F
grandchild
great-grandchild
G
D
B is related to E in the second degree, to F in the third degree and to G in the fourth degree.
B may not enter into a civil marriage with E, F or G because he is related to the common
ancestor, A, in the first degree. C is related to A in the second degree, as is F. C and F may
therefore enter into a civil marriage with each other, and the same applies to C and G, D and
F, and D and G.100
(d) Relations by affinity in the direct line
In terms of article 8 of the Political Ordinance, persons who are related to one another by
affinity in the direct line may not enter into a civil marriage with each other. Thus, for example, a man may not enter into a civil marriage with his stepdaughter, or his wife’s mother,
grandmother or granddaughter. To illustrate:
D
H
K
C
G
N
I
X
Y
L
A
J
B
O
P
E
F
M
X and Y are married. X is related to H, G, E and F by affinity in the direct line and Y is related
to D, C, A and B by affinity in the direct line. Therefore, after the dissolution of his civil
marriage to Y, X may not enter into a civil marriage with H, G, E, or F. Y may likewise not
enter into a civil marriage with D, C, A or B.
(e) Relations by affinity in the collateral line
By virtue of the provisions of section 28 of the Marriage Act, there is no prohibition on a civil
marriage between a person and his or her relations by affinity in the collateral line. In the foregoing sketch, E is Y’s daughter from a previous civil marriage and A is the son of X, also from
a previous civil marriage, while O and P are the children born of the civil marriage between X
and Y. It is important to bear in mind that a spouse only becomes related by affinity to the
other spouse’s blood relations and that the blood relations of one spouse are not related to
the blood relations of the other spouse. A and E, being stepbrother and stepsister, are not
related to each other and may thus enter into a civil marriage with each other. (A and P are
half-brother and half-sister, their common ancestor being X, and thus – both of them being
related to X in the first degree – are not allowed to enter into a civil marriage with each other.)
________________________
100 Persons are double cousins if their fathers are brothers and their mothers are sisters, or if the father and
the mother of one are respectively the brother and sister of the mother and father of the other. Ie, if two
brothers marry two sisters, or a brother and sister marry a sister and brother, their children are double
cousins. The Marriage Act permits civil marriages between double cousins.
Chapter 3: The legal requirements for a civil marriage
29
After the dissolution of the civil marriage between X and Y, X may enter into a civil marriage
with N, L or M, while Y may enter into a civil marriage with J, K or I; in other words, they may
enter into a civil marriage with their relations by affinity in the collateral line. X, however,
may not enter into a civil marriage with H, G, E or F, and Y may likewise not enter into a civil
marriage with D, C, A or B because they are all relations by affinity in the direct line.
3.4.6
Legal guardians and their wards
A legal guardian may only enter into a civil marriage with his or her minor ward with the consent of the High Court, because in such circumstances the legal guardian cannot consent to
the marriage on behalf of the minor ward.101 Before the commencement of the Matrimonial
Property Act, the legal position was that failure to obtain the court’s consent did not affect
the validity of the civil marriage but brought into operation the penalties stipulated in the
Perpetual Edict. Section 34 of the Matrimonial Property Act inserted section 24A into the
Marriage Act. Section 24A regulates the validity of a civil marriage concluded by a minor
without the consent of his or her parent(s) or legal guardian,102 but fails to spell out the effect
of failure to obtain the court’s consent to a civil marriage between a legal guardian and his or
her minor ward. As the court’s consent simply replaces that of the parent(s) or legal guardian
it may be argued that the consequences of absence of the court’s consent are the same as
those which apply if the consent of the parent(s) or legal guardian is not obtained. In both
cases, the validity of the marriage would be governed by section 24A of the Marriage Act.103
However, it could be argued that section 24A did not alter the common-law rule and that a civil
marriage which a legal guardian and ward enter into without the court’s consent is still valid.104
3.4.7
Persons who belong to different race groups
From the commencement of the Prohibition of Mixed Marriages Act 55 of 1949 on 8 July 1949
until the commencement of the Immorality and Prohibition of Mixed Marriages Amendment
Act 72 of 1985 on 19 June 1985, civil marriages between so-called “white” and “non-white” persons were prohibited in South Africa. Section 7(1) of the Immorality and Prohibition of Mixed
Marriages Amendment Act repealed the Prohibition of Mixed Marriages Act in its entirety
with the result that race no longer constitutes an impediment to entering into a civil marriage.
Section 7 further provides that the Director-General of Home Affairs may direct in writing
that a civil marriage which, “but for the provisions of the Prohibition of Mixed Marriages Act,
1949, would have been a valid marriage in the Republic”, is valid for all purposes as from the
date on which it was concluded.105 Before the director-general may issue such a directive, one
of the spouses must apply for it. The other spouse must consent to the application, unless he or
she is already deceased.106 The director-general must be satisfied of the following conditions:107
(1) The civil marriage would, but for the provisions of the Prohibition of Mixed Marriages
Act, have been valid.
(2) The civil marriage has not been dissolved or declared invalid by a court on a ground
other than the provisions of the Prohibition of Mixed Marriages Act.
(3) Neither spouse married another person after the conclusion of the “mixed marriage”
and during the life of the other spouse.
If the prescribed declaration of validity is not obtained, the civil marriage remains void.108
________________________
101
102
103
104
105
106
107
108
See above in this chapter.
See above in this chapter for a discussion of s 24A of the Marriage Act.
See also Heaton in Church (ed) LAWSA Marriage pars 28 and 47; Wille’s Principles 245–246.
Sinclair assisted by Heaton 348.
S 7(2) and (4).
S 7(2).
S 7(4).
Salter v Municipality of Kirkwood 1986 (3) SA 810 (SE). Non-recognition of an interracial civil marriage
purely because the prescribed declaration has not been obtained is unconstitutional: Heaton Bill of Rights
Compendium par 3C16.1.
30
South African Family Law
3.5 The prescribed formalities
3.5.1
Marriage officers
The Marriage Act sets out the prescribed formalities for a civil marriage. A civil marriage may
only be solemnised by a marriage officer.109 Anyone who purports to solemnise a civil marriage without having the necessary authority to do so, and an authorised marriage officer who
solemnises a prohibited civil marriage, is guilty of an offence.110 The prohibition does not
apply to a religious ceremony which does not purport to effect a valid civil marriage.111 Thus,
for example, anyone who is not a marriage officer and who solemnises a marriage solely in
terms of Muslim or Hindu religious rites does not commit an offence.112
All magistrates, special justices of the peace, and commissioners are ex officio (that is, by
virtue of their office) marriage officers for the district or area in respect of which they hold
office.113 The Minister of Home Affairs may also appoint other persons as marriage officers.
Such persons include any officer in the public, diplomatic or consular service,114 and a minister of religion or anyone holding a responsible position in a religious denomination or organisation for purposes of solemnising marriages in accordance with Christian, Jewish, Muslim or
Indian religious rites.115 Persons who are appointed as marriage officers on account of the
religious office they hold, retain their authority only for as long as they remain ministers of
religion or occupy their responsible position.116 Anyone who is appointed as a marriage officer
by virtue of being a minister of religion or occupying a position of responsibility in a religious
denomination or organisation may refuse to solemnise a civil marriage that will not be in
accordance with the rites, formularies, tenets, doctrine or discipline of his or her religious
denomination or organisation.117
A person who has been appointed as a marriage officer outside the borders of the Republic
may only solemnise a civil marriage if both parties are South African citizens and are domiciled in South Africa.118
If anyone acted as a marriage officer in a specific area, for a specific period of time, or in
respect of a specific civil marriage without actually being a duly appointed marriage officer,
the Minister of Home Affairs may direct in writing that the person shall for all purposes be
deemed to have been a marriage officer during such period, within such area, or in respect of
the particular civil marriage. Before the Minister issues such a directive, he or she must be satisfied that the person believed in good faith that he or she was a duly appointed marriage
officer, or that both spouses believed in good faith that the marriage officer had been duly
appointed.119 A civil marriage which was solemnised by someone who is deemed to have been
a marriage officer is valid and binding if all the other requirements for a valid civil marriage
have been met.120
________________________
109
110
111
112
113
114
115
116
117
118
119
120
S 11(1).
S 11(2).
S 11(3).
On purely religious Muslim and Hindu marriages (ie those that are not solemnised in terms of the
Marriage Act), see chs 18 and 19 below.
S 2(1) of the Marriage Act.
S 2(2) read with s 4. A foreign diplomatic or consular officer serving in South Africa is not a marriage
officer in terms of the Act. In Santos v Santos 1987 (4) SA 150 (W) a Portuguese vice-consul purported to
solemnise a civil marriage between parties who were domiciled in South Africa at the time. The court declared the marriage invalid.
S 3(1).
Ss 3(1), 7 and 8.
S 31.
S 10(1)(a).
S 6(1) and (2).
S 6(3).
Chapter 3: The legal requirements for a civil marriage
3.5.2
31
Formalities preceding the marriage ceremony
Anyone who wishes to raise an objection to an intended civil marriage must lodge the objection with the marriage officer who is to solemnise the marriage.121 The marriage officer must
inquire into the grounds on which the objection is based and may only solemnise the marriage
if he or she is satisfied that there is no lawful impediment to it.
A marriage officer may not solemnise a civil marriage unless each party furnishes his or her
identity document or the prescribed affidavit.122
3.5.3
Formalities during the marriage ceremony
The Marriage Act requires that both parties must be personally present at the solemnisation
of their civil marriage. Thus, no one can conclude a valid civil marriage through a representative (that is, by proxy).123
A civil marriage may be solemnised at any time and on any day of the week, but a marriage
officer is not obliged to solemnise a civil marriage at any other time than between 08:00 and
16:00.124
In terms of section 29(2) of the Act, the marriage must (“shall”) be solemnised in a church
or other building used for religious services or in a public office or private dwelling house
with open doors and in the presence of the parties themselves, and at least two competent witnesses.125 However, the marriage may be solemnised somewhere else if either of the parties
cannot be present at any of the above-mentioned places because of a serious or longstanding
illness. Section 29(2) is couched in imperative language, and non-compliance with this
subsection should therefore, strictly interpreted, render the civil marriage void. However, in
Ex parte Dow 126 it was held that this is not the case. Here a husband applied for annulment of
his civil marriage on the ground that it had been solemnised in the garden of a private dwelling house and not “in” the house as is required by section 29(2). Broome J examined the
objects sought to be achieved by the provision and the changes which had taken place in the
formalities required for the conclusion of a valid civil marriage through the centuries (such as
the abolition of the need for the publication of banns and special licenses to marry), and
concluded that the object of these provisions had been to avoid clandestine marriages.127 All
the provisions which had previously served to inform the public of an intended civil marriage
have been abolished. He further pointed out that, in terms of section 24A of the Marriage
Act, a civil marriage entered into by a minor without the necessary consent is not void, but
may on application be dissolved by a court.128 Similarly, section 26 provides that boys below 18
years of age and girls below 15 years of age cannot conclude a valid civil marriage without the
permission of the Minister of Home Affairs, but if such consent is not obtained, the Minister
may ratify the marriage. Broome J felt that in these situations there were far more compelling
reasons to treat the marriage as void ab initio (that is, from its inception), but the Act did not
do so. He concluded that a civil marriage is such an important relationship, and the consequences of a decree of nullity are so far-reaching, that the legislator could not have intended
________________________
121
122
123
124
125
S 23.
S 12.
S 29(4).
S 29(1).
The South African Law Commission has recommended complete freedom regarding the place at which a
wedding may be conducted: Report on the Review of the Marriage Act 25 of 1961 par 2.22.54.
126 1987 (3) SA 829 (D), Heaton and Kruger Casebook on Family Law case [8].
127 Prior to 1970, the Marriage Act required parties who wanted to enter into a civil marriage to publish
banns before their respective congregations or to publish a notice at their local magistrate’s office. This
served the purpose of advertising the forthcoming marriage so that interested parties had the opportunity
of objecting to it. The couple could avoid giving such notice to the community in general by obtaining a
special licence from a magistrate authorising the marriage.
128 See above in this chapter.
32
South African Family Law
the marriage to be void if “the two-letter word ‘in’ ” was not complied with.129 The application
was accordingly dismissed. In view of the approach to interpretation of statutes that has been
130
dictated by the Constitutional Court, the lenient approach in Ex parte Dow is likely to be
followed in future.
In all marriage ceremonies, the prescribed marriage formula must be adhered to. The
marriage officer must put the following question to each of the parties separately:
Do you, A.B., declare that as far as you know there is no lawful impediment to your proposed
marriage with C.D. here present, and that you call all here present to witness that you take C.D.
as your lawful wife (or husband)?
The parties must reply in the affirmative. If they do not, the wedding cannot proceed. If they
do reply in the affirmative, they must give each other the right hand and the marriage officer
then declares that the parties have been lawfully married.131 It is at this moment that the civil
marriage legally comes into existence. If there is an error, omission or oversight with regard
to the question, declaration, or giving of the right hand, the marriage is nevertheless valid if
the error, oversight or omission was committed in good faith or owing to a physical disability
of either spouse or both of them, and the marriage was in every other respect solemnised in
accordance with the provisions of the Marriage Act.132
The Act permits, but does not require, the blessing of the civil marriage according to religious rites. It also permits the making of rules or regulations in accordance with a particular
denomination or organisation’s religious views.133
3.5.4
Registration of the civil marriage
The marriage officer who solemnises a civil marriage, the parties thereto and two competent
witnesses must sign the marriage register immediately after the wedding.134 The marriage
officer then sends the marriage register to a regional or district representative of the Department of Home Affairs.135 A copy of the entry in the register serves as prima facie proof (that is,
on the face of it, it constitutes proof) that the civil marriage has been solemnised. Nonfulfilment of the registration requirements does not affect the validity of the civil marriage
and registration can be effected postnuptially.136
A duly signed marriage certificate serves as prima facie proof of the existence of the civil
marriage.137 In the absence of a marriage certificate, the existence of the civil marriage can be
proved by means of other evidence.138
________________________
129
130
131
132
133
134
135
136
137
833.
See above in this chapter.
S 30(1).
S 30(3).
Ss 30(2), 33 and 34.
S 29A(1).
S 29A(2).
Ex parte Efron 1940 CPD 199; Ex parte Michaelson 1941 (2) PH B57 (W).
Heaton in Church (ed) LAWSA Marriage par 38; Joubert in Clark (ed) Family Law Service par A4; Sinclair
assisted by Heaton 355–356; Skelton and Carnelley (eds) Family Law 52.
138 See eg Joffe v Joffe 1939 GWL 51; Ex parte Michaelson 1941 (2) PH B57 (W).
4
VOID, VOIDABLE AND PUTATIVE
CIVIL MARRIAGES
4.1 Void civil marriages
4.1.1 The definition of a void marriage
A void civil marriage is a civil marriage which has simply never come into existence. The position is exactly as it would have been had the “marriage” never been concluded.
4.1.2
The grounds for nullity
The court may declare a civil marriage null and void on the ground of non-compliance with
the formal or material requirements for a civil marriage.1 As a general rule, non-compliance
with the formal requirements for a civil marriage renders the marriage void.2 The Marriage
Act 25 of 1961 expressly recognises an exception to this rule, namely a civil marriage in which
an error, omission or oversight regarding the question, declaration or giving of the right
hand which forms part of the marriage formula was committed in good faith or owing to a
physical disability.3 In terms of the decision in Ex parte Dow,4 solemnisation of a civil marriage
in a garden instead of a church or other building used for religious services or a public office
or a private dwelling house with open doors5 also does not render the marriage void.
The following are examples of non-compliance with formal requirements which do render
6
a civil marriage void:
(1) The civil marriage is solemnised by someone who is not a competent marriage officer.
(2) A girl below 15 years of age or a boy below 18 years of age enters into a civil marriage
without having obtained the written consent of the Minister of Home Affairs.
(3) No witnesses are present at the civil marriage.
The following are examples of situations in which a civil marriage is void because the material
7
requirements are not met:
(1) The parties are of the same sex.
(2) One of the parties is already a party to another civil marriage, a customary marriage or a
civil union with someone else.
________________________
1 The formal and material requirements for a valid civil marriage are discussed in ch 3 above.
2 Lee and Honoré par 50 fn (n) submit that the courts ought to interpret the formal requirements in favorem
matrimonii (ie, in favour of marriage) and ought only to find that a marriage is void when a “material” formal requirement has not been met. Material formalities concern the identification of the parties to the
marriage, the existence of consensus, and the participation of the state and community in the establishment
of the marriage, but not those provisions which only ensure that an orderly and dignified marriage ceremony takes place. See also Ex parte Dow 1987 (3) SA 829 (D); Sinclair assisted by Heaton 356–358; Van der
Vyver and Joubert 514; Visser and Potgieter 61; but see Wille’s Principles 307.
3 S 30(3) of the Marriage Act 25 of 1961. See further ch 3 above.
4 1987 (3) SA 829 (D), Heaton and Kruger Casebook on Family Law case [8]. See further ch 3 above.
5 S 29(2) of the Marriage Act.
6 See further ch 3 above.
7 See further ch 3 above.
33
34
South African Family Law
(3) The parties are related to each other within the prohibited degrees of relationship.
(4) One of the parties is below the age of puberty.
(5) One of the parties is mentally ill.
4.1.3 The consequences of a void marriage
A civil marriage that is void ab initio (that is, from the outset) does not affect the status of the
parties or confer any of the consequences of a civil marriage on the parties or their children.
As a result, no matrimonial property system operates as between the parties; the reciprocal
duty of support does not operate between them; they do not inherit intestate from one
another; they are free to enter into another civil marriage, a civil union or a customary marriage; and so forth.
As nullity of the marriage is absolute, either of the parties or an interested third party may
raise it. The nullity may be raised even after the parties’ death.8 Although it is not essential to
obtain a court order declaring the marriage void, it is better to do so for purposes of legal
certainty. Therefore, a declaratory order is usually requested.9 It is important to stress that by
making an order that a marriage has been void since its inception, the court is merely confirming the existing position and therefore its ruling is merely declaratory. The court does
not exercise any discretion whatsoever in this regard.10
Normally, a void juristic act cannot be ratified. However, in respect of civil marriages this
rule is subject to exceptions which are contained in the Marriage Act. Firstly, as is pointed out
in chapter 3 above, a civil marriage which is solemnised by someone who is not a competent
marriage officer is void, but the Minister of Home Affairs may ratify the marriage in terms of
section 6 of the Act. Secondly, section 26(1) of the Act provides that a male minor and a girl
below the age of 15 years may not enter into a civil marriage without the permission of the
Minister of Home Affairs. A civil marriage which is concluded without the required ministerial consent is void, but section 26(2) empowers the Minister to ratify the marriage, thereby
validating it.
The rule that a void marriage has none of the consequences of a valid civil marriage is also
subject to the common-law exception relating to a putative civil marriage. In the case of a
putative marriage, some of the consequences of a valid civil marriage attach to the marriage
even though it is void. The putative civil marriage is discussed below in this chapter.
Finally, it should be noted that the bona fide party to a void civil marriage may institute a
delictual action for satisfaction against the other party to the void civil marriage.11
4.2 Voidable civil marriages
4.2.1 The definition of a voidable marriage
A voidable marriage is a marriage in which grounds are present, either before or at the time
of the wedding, on the basis of which the court can be requested to set the marriage aside.
4.2.2 The grounds for setting aside a voidable civil marriage
A civil marriage is voidable if one or more of the following circumstances are present:
(a) Minority
In terms of section 24A(1) of the Marriage Act, the civil marriage of a minor who fails to
obtain the necessary consent from his or her parent(s), legal guardian, or the presiding
officer of the Children’s Court is voidable. This issue is discussed in chapter 3 above.
________________________
8 See also Heaton in Church (ed) LAWSA Marriage par 41; Sinclair assisted by Heaton 397.
9 See also Heaton in Church (ed) LAWSA Marriage par 41; Lee and Honoré par 48(i); Van der Vyver and
Joubert 515; Visser and Potgieter 64.
10 Ex parte Oxton 1948 (1) SA 1011 (C).
11 Snyman v Snyman 1984 (4) SA 262 (W); Arendse v Roode 1989 (1) SA 763 (C); Zulu v Zulu 2008 (4) SA 12 (D).
Chapter 4: Void, voidable and putative civil marriages
35
(b) Material mistake
A mistake about the identity of the other party or the nature of the juristic act excludes agreement between the parties. The effect of a material mistake on the validity of a marriage is discussed in chapter 3. There it is submitted that a material mistake should render the marriage
voidable, not void.
(c) Duress
A marriage which was entered into under duress is voidable. This issue is also discussed in
chapter 3.
(d) Undue influence
Although there is no direct authority for the premise that undue influence renders a civil
marriage voidable, it is submitted in chapter 3 that this should be the position.
(e) Stuprum
Extra-marital sexual intercourse with a third party before the marriage (that is, stuprum) normally does not affect the validity of a civil marriage.12 Even if one of the spouses has a child
with another person before the marriage, the validity of the marriage is not affected.13 It is
only if the wife is pregnant with another man’s child at the time of the wedding, without her
husband being aware of this, that the husband may apply for annulment of the marriage.14
There obviously is a vast difference between one of the parties having a child with another
person before a civil marriage and pregnancy at the time of the marriage, because in the latter case the presumption pater est quem nuptiae demonstrant (that is, the marriage indicates who
the father is) comes into operation, with the result that the husband can be held liable for
maintenance of another man’s child.15 However, the pater est quem nuptiae demonstrant presumption does not afford an adequate explanation for the voidability of the marriage, for the husband can escape the duty of support towards his wife’s child via the much less drastic avenue
of rebutting the presumption of paternity and obtaining a declaratory order that he is not the
father of the child. It is submitted that the real foundation for the voidability of the marriage
is the wife’s concealment of her stuprum, which constitutes misrepresentation.16
The fact that the husband himself had sexual intercourse with his wife before the marriage
does not affect his right to have the civil marriage annulled, as long as he was unaware at the
________________________
12
13
14
15
Gabergas v Gabergas 1921 EDL 279; Reyneke v Reyneke 1927 OPD 130.
Stander v Stander 1929 AD 349, Heaton and Kruger Casebook on Family Law case [9].
Smith v Smith 1936 CPD 125.
Stander v Stander 1929 AD 349. On the pater est quem nuptiae demonstrant presumption and its rebuttal, see
Heaton Persons 54–65.
16 See also Sinclair assisted by Heaton 395 who limits the voidability to fraud, ie intentional concealment. However, negligent misrepresentation should also suffice. Other authors submit that the remedy is based, not
on misrepresentation, but on mistake: Lee and Honoré par 55 fn (n); Wille’s Principles 308. See also Joubert
in Clark (ed) Family Law Service par A40 and Van der Vyver and Joubert 496 who argue that contemporary
social values and recognition of the risk of the marriage breaking down if the wife is pregnant with another
man’s child at the time of the wedding are the real reasons why stuprum results in the voidability of the
marriage. See further Thomas 2001 THRHR 423 who argues that stuprum as a ground for annulment is
outdated and unconstitutional because it violates sex equality. He submits that the obvious solution is for
the husband to rebut the presumption of paternity and to divorce his wife if he does not wish to remain married to her. It has to be borne in mind, though, that financial consequences, such as post-divorce maintenance and sharing of matrimonial property, result from divorce while they do not accompany annulment.
It seems unfair to impose those consequences on a husband whose wife has concealed her stuprum. It is
submitted that even under our present constitutional dispensation, the wife’s misrepresentation justifies
annulment of the marriage. On the differences between divorce and annulment, see further below under
this heading.
36
South African Family Law
time of the wedding that his wife was pregnant by another man.17 If the husband accepts and
condones his wife’s pregnancy, he loses his remedy.18
If the husband cannot discharge the onus of proving prenuptial stuprum, or if his action
may possibly be defeated by knowledge or acquiescence, he can, instead of suing for annulment, sue for divorce on the ground of the irretrievable breakdown of the civil marriage.19 It
may be easier to prove irretrievable breakdown and to obtain a divorce, but then the financial
consequences of divorce come into play – and they are very different from the consequences
of annulment. Thus, a husband who obtains a divorce rather than an annulment inter alia has
to contend with the possibility of a maintenance award being made against him. As irretriev
able breakdown is a no-fault ground of divorce, our courts are loath to use guilt as a reason to
deny a spouse maintenance to which he or she would otherwise be entitled.20 Thus, in itself, a
wife’s stuprum may be an insufficient reason to deny her post-divorce maintenance. Furthermore, if the husband divorces his wife rather than having the marriage annulled, the spouses
usually have to share at least some of the matrimonial property.21
(f) Impotence
Impotence is the inability to have sexual intercourse. A civil marriage is voidable if one spouse
proves that the other spouse was impotent before the wedding and remains impotent, and
that the plaintiff was unaware of the impotence at the time of the wedding.22 The plaintiff cannot succeed if he or she knew of the impotence or condoned it,23 or if the impotence is temporary or probably curable.24
The impotent spouse may apply for the annulment of the civil marriage on the basis of his
or her own impotence if he or she was unaware of the impotence at the time of entering into
the marriage.25
(g) Sterility
Sterility must be distinguished from impotence. Sterility refers to infertility (that is, being able
to have sexual intercourse but not being able to procreate).
In Venter v Venter 26 it was held that if one of the parties at the time of the civil marriage
fraudulently concealed that he or she was sterile, the other party may have the marriage
annulled. In this particular case, the wife knew that she was sterile as a result an operation she
had undergone, but concealed this fact from her husband. The court rejected her husband’s
action to have the marriage set aside because he did not allege that his wife had fraudulently
concealed her sterility. In other words, the court held that the action rests not on the mere
presence of sterility, but on the fraudulent concealment thereof. In Van Niekerk v Van
Niekerk,27 in contrast, it was held that the mere fact of sterility renders the civil marriage void
able, regardless of whether or not it was fraudulently concealed. This rule at least applies
28
when the procreation of children was an express or implicit aim of the marriage.
________________________
17 Reyneke v Reyneke 1927 CPD 130; Smith v Smith 1936 CPD 125.
18 Kilian v Kilian 1908 EDC 377.
19 Despite the fact that her pregnancy was the cause of the breakdown of the marriage, the wife can also institute
an action for divorce on the ground of irretrievable breakdown. See ch 11 below on irretrievable breakdown.
20 See ch 13 below on post-divorce maintenance for a spouse.
21 See ch 12 below on the patrimonial consequences of divorce.
22 Wells v Dean-Willcocks 1924 CPD 89; Joshua v Joshua 1961 (1) SA 455 (GW); Smith v Smith 1961 (3) SA 359
(SR); B v B 1964 (1) SA 717 (T); D v D 1964 (3) SA 598 (E).
23 Wells v Dean-Willcocks 1924 CPD 89; Smith v Smith 1961 (3) SA 359 (SR).
24 See also Barratt (ed) Persons and the Family 251; Heaton in Church (ed) LAWSA Marriage par 49; Sinclair
assisted by Heaton 390; Skelton and Carnelley (eds) Family Law 47; Van der Vyver and Joubert 494; Visser
and Potgieter 56; Wille’s Principles 308.
25 W v W 1959 (4) SA 183 (C), Heaton and Kruger Casebook on Family Law case [10].
26 1949 (4) SA 123 (W), Heaton and Kruger Casebook on Family Law case [11].
27 1959 (4) SA 658 (GW), Heaton and Kruger Casebook on Family Law case [12].
28 Van Niekerk v Van Niekerk 1959 (4) SA 658 (GW).
Chapter 4: Void, voidable and putative civil marriages
37
The approach in Venter is preferred to that in Van Niekerk:29 it is not the mere fact of sterility,
but the fraudulent concealment thereof which should found the action.30 That this is the
correct approach is supported by the Constitutional Court’s decision in National Coalition for
Gay and Lesbian Equality v Minister of Home Affairs 31 in which it was held that “[f]rom a legal
and constitutional point of view procreative potential is not a defining characteristic of conjugal relationships” and that insisting on procreative potential
would be deeply demeaning to couples (whether married or not) who, for whatever reason are
incapable of procreating when they commence such relationship or become so at any time thereafter. It is likewise demeaning to couples who commence such a relationship at an age when
they no longer have the desire for sexual relations . . . [and to] a couple who voluntarily decide
not to have children or sexual relations with one another; this being a decision entirely within
their protected sphere of freedom and privacy.
4.2.3 The consequences of a voidable civil marriage
A voidable civil marriage remains in force and has all the normal legal consequences of a
valid civil marriage until it is set aside by a court order.32 If a voidable marriage is not set aside,
it remains in force. Therefore the court order setting the marriage aside is essential, and not
merely declaratory.
Because the parties to a voidable marriage are indeed legally the parties to a civil marriage,
the marriage affects their status during its subsistence. For example, the parties have equal
capacity to administer the joint estate if they are married in community of property, and children born or conceived during the subsistence of the marriage are born of married parents.
________________________
29 Although our common-law writers did not distinguish clearly between impotence and sterility, Venter accords
with the position at common law: Van der Walt 1960 THRHR 220; Scholtens 1961 SALJ 159. Lee and
Honoré par 54 fn 2 submit that Van Niekerk should be rejected on policy grounds and because it is not
based on authority. See also Heaton in Church (ed) LAWSA Marriage par 50; Joubert in Clark (ed) Family
Law Service par A39. Forere and Lotz 2012 Journal for Juridical Science state that some authors (notably Heaton, and Skelton and Carnelley) have “overlooked the details of the decision in Van Niekerk” (99) and have
failed to notice that “[f]ar from being antagonistic, the two decisions [Van Niekerk and Venter] are similar to
the extent that they agree that fraudulent concealment of premarital sterility is a ground for setting aside
the marriage”: 100. However, Forere and Lotz seem to have conflated the two grounds on which the decision in Van Niekerk was based. The primary ratio in Van Niekerk relates to sterility per se. Wessels J (with whom
De Vos Hugo J agreed) held that Roman-Dutch law did not dinstinguish between impotence (impotentia
coeundi) and sterility (impotentia procreandi): 671. He concluded that in Roman-Dutch law impotence (in the
sense of sterility and the narrower concept of impotence as we know it today) “was a ground for setting
aside a marriage if the defect existed at the time of the marriage, and ... this is still our law today. Notwithstanding the references in some of the older authorities to fraud, it appears from the cases cited above in which
marriages were set aside on the ground of impotence that fraud is not an essential element. There seems to be no reason based on
public policy why this rule should not be recognised by our Courts at the present time”: 671; emphasis added. De Vos
Hugo J supported this view: 674. In this primary part of the judgment fraud was found to be irrelevant.
Consequently, the decision in Van Niekerk is indeed “antagonistic” to the decision in Venter – fraud is central
to the decision in Venter while in Van Niekerk fraud is relevant only in so far as it is considered as a second,
alternative ground for claiming nullity. De Vos Hugo J makes this clear by stating that “[t]he second
ground on which applicant seeks leave to claim annulment is fraud, that is, fraud consisting in concealment
by the defective [ie sterile] spouse of his or her inability from the able spouse”: 675. The statements in Van
Niekerk about fraud are therefore secondary to the ratio concerning sterility per se, and were added as a precaution in the event that the court’s finding on the first ground (sterility per se) were wrong: see 674, where
De Vos Hugo J indicates that his statements about fraud apply if he is wrong in his conclusion about impotentia coeundi and impotentia procreandi. Therefore the decisions are by no means “similar as far as fraud is
concerned” as Forere and Lotz contend: 99.
30 However, there are valid objections to accepting fraudulent concealment of sterility as a ground for the annulment of a marriage. Hunt 1963 SALJ 109 puts it succinctly: “Why should fraud turn the scales? It is true that
this concealment seems particularly dishonest, but is it any more dishonest or shocking than fraudulent
concealment of cancer, insanity or previous prostitution?” See also Lee and Honoré par 54 fn 2.
31 2000 (1) BCLR 39 (CC), 2000 (2) SA 1 (CC) par 51.
32 See also Barratt (ed) Persons and the Family 249; Heaton in Church (ed) LAWSA Marriage par 42; Joubert in
Clark (ed) Family Law Service par A52; Lee and Honoré par 48(iii); Sinclair assisted by Heaton 401; Skelton
and Carnelley (eds) Family Law 52; Van der Vyver and Joubert 517; Visser and Potgieter 67.
38
South African Family Law
However, if the marriage is set aside, the effect of the decree of annulment is retroactive. This
means that all the consequences of the marriage are extinguished as from the date on which
the marriage was solemnised.33 The status of the parties changes and they are in the same
position as if the marriage never took place. However, the interests of third parties are protected because the validity of transactions with third parties that were concluded prior to the
annulment is not affected by the decree. The interests of children of the marriage are also
protected, for, in terms of section 39 of the Children’s Act 38 of 2005, children who are conceived or born of a voidable marriage which is annulled are treated like children whose
parents’ valid marriage is terminated by divorce.
It is important to distinguish the annulment of a voidable marriage from the granting of a
divorce. As already indicated, a marriage is voidable on the ground of circumstances which
were present before or at the time of the wedding. A divorce, in contrast, is usually granted
on the ground of circumstances that arose during the marriage. As the Divorce Act 70 of 1979
does not apply to the annulment of a voidable marriage (except in so far as children of the
marriage are concerned), the court cannot make an order for maintenance of one of the
parties or for forfeiture of patrimonial benefits or redistribution of assets when it sets a void
able marriage aside.34
4.3 Putative marriages
4.3.1 The definition of a putative marriage35
A putative marriage exists when one of the parties (or both of them) enters into a civil marriage
while being unaware that there is a defect which renders the marriage void. At the time of
entering into the marriage, the particular party therefore believes in good faith that he or she
is entering into a valid civil marriage. For example, a couple enters into a civil marriage without being aware that they are brother and sister and consequently related within the prohibited degrees of blood relationship.
4.3.2 The requirements for a putative marriage
By definition, the first requirement for the existence of a putative marriage is that one of the
parties or both of them must be unaware of the defect which renders their civil marriage void.
At common law, it was further required that all the formalities for the solemnisation of a civil
marriage had to have been complied with. It is not clear whether the requirement of due
solemnisation still forms part of our law. In Bam v Bhabha 36 the Appellate Division (now the
Supreme Court of Appeal) discussed, but did not decide, the matter. Some of our reported
cases require due solemnisation,37 while others hold that defects in form do not preclude a
marriage from being putative.38 It is submitted that the latter view should prevail.39
________________________
33 Barratt (ed) Persons and the Family 250; Lee and Honoré par 48(iii); Sinclair assisted by Heaton 402; Skelton
and Carnelley (eds) Family Law 53; Van der Vyver and Joubert 518; Visser and Potgieter 67; Wille’s Principles
308. But see Joubert in Clark (ed) Family Law Service par A52 who states that it is not entirely clear whether
the annulment has retroactive effect, but indicates that the weight of opinion favours retroactivity.
34 On the consequences of divorce, see chs 12–15 below.
35 It is doubted whether a customary marriage can be a putative marriage: see ch 17 below.
36 1947 (4) SA 798 (A).
37 See eg Ngubane v Ngubane 1983 (2) SA 770 (T), Heaton and Kruger Casebook on Family Law case [16];
Solomons v Abrams 1991 (4) SA 437 (W), Heaton and Kruger Casebook on Family Law case [14].
38 See eg Ramayee v Vandiyar 1977 (3) SA 77 (D); Moola v Aulsebrook 1983 (1) SA 687 (N), Heaton and Kruger
Casebook on Family Law case [13].
39 See also Heaton in Church (ed) LAWSA Marriage par 43; Lee and Honoré par 49; Sinclair assisted by Heaton
406; Van der Vyver and Joubert 520; Visser and Potgieter 69; Wille’s Principles 310; Labuschagne 1989 TSAR
377–378.
Chapter 4: Void, voidable and putative civil marriages
39
4.3.3 The consequences of a putative marriage
(a) General
Although a putative marriage is void ab initio, it has some of the legal consequences of a valid
civil marriage for as long as at least one of the parties is bona fide. In other words, for as long
as one of the parties is, on reasonable grounds, unaware of the defect which renders the
marriage void, the marriage has some of the legal consequences of a valid civil marriage. As
soon as both parties become aware of the defect, the relationship automatically ceases to be a
putative marriage.
The court cannot declare a putative marriage valid, because the marriage is void. The court
simply declares that the relationship was a putative marriage with the result that certain consequences can be attached to it from the date of the wedding until the date on which both
parties became aware of the invalidity of the marriage.
(b) Children born of a putative marriage
According to our common-law writers, children who are born of a putative marriage are born
of married parents.40 In Bam v Bhabha 41 the Appellate Division left open the question of
whether this is an automatic consequence of the marriage of the children’s parents having
been putative or whether it is the court order that turns the children into children born of
married parents. Current practice is that when the court is approached to declare a marriage
to have been putative an application is simultaneously made for a declaration that the children were born of married parents, the assumption being that the order is merely declar
atory.42 As the court simply confirms that the children were born of married parents, it means
that both parents have full parental responsibilities and rights in respect of the children.
Even if a court were to find that the order is not merely declaratory and that children born
of a putative marriage are in truth not born of married parents, this finding is likely to be of
little practical consequence. As the children’s parents would, most probably, have been living
together as if married to each other at the time of the children’s birth, the parents would
qualify as partners in a life partnership. Furthermore, the “husband” would probably have
been identified as the child’s father and he is likely to have contributed to the children’s
upbringing and maintenance for a reasonable period. Therefore, both parents would auto43
matically have acquired full parental responsibilities and rights in respect of the children.
Since a couple whose marriage has been declared putative will usually no longer be living
together at the time of the declaration, the High Court which declares the marriage to be
putative may, as upper guardian of all minors, make any order as to parental responsibilities
and rights that is in the children’s best interests.44
(c) The patrimonial consequences of a putative marriage
If both parties were bona fide at the time of entering into the putative marriage and the marriage was concluded without an antenuptial contract, the parties are treated as having established a joint estate by virtue of having been married in community of property or, more
correctly, by virtue of having concluded a universal partnership (societas universorum bonorum
________________________
40 Brouwer 2.5.32; Van der Keessel Praelectiones 1.5.2.
41 1947 (4) SA 798 (A).
42 Prinsloo v Prinsloo 1958 (3) SA 759 (T); M v M 1962 (2) SA 114 (GW); Vather v Seedat 1974 (3) SA 389 (N);
Ngubane v Ngubane 1983 (2) SA 770 (T); see also W v S 1988 (1) SA 475 (N) 484; Barratt (ed) Persons and the
Family 252; Heaton in Church (ed) LAWSA Marriage par 44; Joubert in Clark (ed) Family Law Service
par A65; Skelton and Carnelley (eds) Family Law 55; Van der Vyver and Joubert 520; Visser and Potgieter
69; Wille’s Principles 311. West and Bekker 2012 Obiter 355 imply that obtaining the declaratory order is indispensable.
43 Ss 19(1), 21(1), 21(4) of the Children’s Act; FS v JJ 2011 (3) SA 126 (SCA). See further ch 23 below.
44 Engar and Engar v Desai 1966 (1) SA 621 (T); Potgieter v Bellingan 1940 EDL 264. On parental responsibilities
and rights and the court’s powers as upper guardian, see ch 23 below.
40
South African Family Law
or societas omnium bonorum).45 If only one party was bona fide, the marriage is treated as having
been in community of property (or having been a universal partnership) if this is to the
advantage of the bona fide party.46 However, in terms of the decision in Zulu v Zulu,47 these
rules do not apply if the putative marriage was concluded while either of the parties was a
48
spouse in an existing, valid civil marriage in community of property. The court held that, in
such event, the pre-existence of the valid civil marriage in community of property renders the
creation of a joint estate between the parties to the putative marriage impossible, because all
the assets of the party who is the spouse in the valid civil marriage fall into the joint estate
which exists between spouses in the pre-existing valid civil marriage.
If the parties to the putative marriage entered into an antenuptial contract in which community of property was excluded, the marriage is treated as having been out of community of
property if this is in the interests of the bona fide party or if both parties were bona fide. The
bona fide party may also enforce any benefit due to him or her in terms of the antenuptial contract, but the mala fide party must return all benefits he or she received in terms of the antenuptial contract.49
________________________
45 Strictly, no matrimonial property system can operate in the marriage because the parties were never legally
married. See also Heaton in Church (ed) LAWSA Marriage par 44; Van der Vyver and Joubert 521; Visser
and Potgieter 70; Wille’s Principles 311. In Zulu v Zulu 2008 (4) SA 12 (D) the applicant seemed to have regarded universal partnership to be an alternative to her claim regarding community of property. On universal partnerships, see further chs 8 and 20 below.
46 See also Barratt (ed) Persons and the Family 252; Heaton in Church (ed) LAWSA Marriage par 44; Skelton and
Carnelley (eds) Family Law 55; Van der Vyver and Joubert 521; Visser and Potgieter 70; Wille’s Principles 311;
Smith 2010 International Journal of Law, Policy and the Family 270, 279.
47 2008 (4) SA 12 (D), Heaton and Kruger Casebook on Family Law case [15].
48 For a suggestion on how the common law could be developed to come to the aid of the bona fide spouse
without ignoring the fact that the pre-existing, valid civil marriage resulted in a joint estate, see Smith 2010
International Journal of Law, Policy and the Family 267. See further Smith 2011 SALJ 567–570.
49 See also Heaton in Church (ed) LAWSA Marriage par 44; Skelton and Carnelley (eds) Family Law 55; Van der
Vyver and Joubert 521; Visser and Potgieter 70; Wille’s Principles 311; Smith 2010 International Journal of Law,
Policy and the Family 270.
5
THE INVARIABLE CONSEQUENCES OF
A CIVIL MARRIAGE
5.1 Introduction
A civil marriage has far-reaching consequences in respect of the spouses and their property.
Some of these consequences come into being ex lege (that is, automatically by operation of
law) and cannot be excluded by the spouses. They are generally referred to as the invariable
consequences of a civil marriage. Other consequences can be regulated by the spouses (usually
beforehand in an antenuptial contract). They are known as the variable consequences of a
civil marriage. The variable consequences relate mainly to the spouses’ estates; in other
words, they relate to the proprietary consequences of the marriage. The invariable consequences, by contrast, relate mainly to the personal consequences of the marriage. This chapter deals with the invariable consequences of a civil marriage.
5.2 The status of the spouses
1
The parties’ status changes when they enter into a civil marriage. For example:
(1) Neither spouse may enter into another civil or a customary marriage or civil union with
anyone else while the civil marriage subsists.2
(2) New impediments to a subsequent civil marriage arise as a result of the relationship by
affinity that is created by the marriage.3
(3) A right of intestate succession is created between the spouses.4
(4) As a result of the civil marriage, any children the couple had together before entering
into the marriage become children born of married parents.5
(5) The spouses have full parental responsibilities and rights in respect of the children born
of the marriage.6
(6) The spouses’ capacity to act is restricted if they marry in community of property.7
(7) A spouse who is a minor when he or she marries attains majority.8
________________________
1 Entering into marriage does not have an effect on citizenship. Therefore no-one acquires or loses South
African citizenship simply by virtue of marriage: s 14 of the South African Citizenship Act 88 of 1995; see
also the definitions of “marriage”, “husband” and “wife” in s 1(1) of this Act.
2 S 10(4) of the Recognition of Customary Marriages Act 120 of 1998; s 8(3) of the Civil Union Act 17 of
2006.
3 See ch 3 above.
4 S 1(1)(a) and (c) of the Intestate Succession Act 81 of 1987.
5 S 38 of the Children’s Act 38 of 2005.
6 Ss 19 and 20 of the Children’s Act.
7 Ss 15(1)–(5) and 17(1) of the Matrimonial Property Act 88 of 1984.
8 Voet 4.4.6; Cohen v Sytner (1897) 14 SC 13.
41
42
South African Family Law
5.3 Consortium omnis vitae
5.3.1
The content and protection of consortium omnis vitae
A civil marriage creates consortium omnis vitae between the spouses. The concept of “consortium
omnis vitae” does not lend itself to a precise definition as virtually all the objects of all the
rights emanating from marriage can be grouped under it and it includes material and immaterial things.9 In Wiese v Moolman 10 consortium was accurately described as a broad, indefinable
concept that nevertheless has a well-understood meaning. In Grobbelaar v Havenga 11 the court
stated that consortium omnis vitae is “an abstraction comprising the totality of a number of
rights, duties and advantages accruing to the spouses of a marriage”. This totality comprises
inter alia “[c]ompanionship, love, affection, comfort, mutual services, sexual intercourse”.12 In
Peter v Minister of Law and Order 13 it was said that “consortium” is used “as an umbrella word for
all the legal rights of one spouse to the company, affection, services and support of the other”.14
One spouse cannot enforce companionship, affection, and so on by means of a court
order, or obtain an interdict to prevent the other spouse from infringing the consortium by, for
example, committing adultery or leaving the matrimonial home.15 Nor can the wronged
spouse sue the offending spouse in delict for infringements of the consortium.16 If the violation
has resulted in the marriage relationship no longer being normal and there is no reasonable
prospect of the restoration of a normal marriage relationship, divorce is normally the only
remedy which can be invoked.17 In the case of domestic violence, the victim can obtain a
protection order against the perpetrator and/or invoke the ordinary delictual and criminal
remedies which operate as between third parties.18 As is explained below in this chapter, the
duty of support can also be enforced as between the spouses.
In the past, a third party who infringed the spouses’ consortium by committing adultery with
one of them could be sued for damages resulting from contumelia (that is, insult) and loss of
consortium.19 The action on the ground of adultery was abolished by the Supreme Court of
20
21
Appeal in RH v DE. In DE v RH the Constitutional Court dismissed an appeal against the
decision of the Supreme Court of Appeal. Thus, it is clear that the action can no longer be
instituted. However, as the law stands, the action on the ground of enticement can still be
instituted against a third party who intentionally persuades one of the spouses to leave the
other.22 And, if a third party provides accommodation to a spouse with the deliberate
________________________
9 See eg King v King 1947 (2) SA 517 (D); Bruwer v Joubert 1966 (3) SA 334 (A); Peter v Minister of Law and
Order 1990 (4) SA 6 (E).
10 2009 (3) SA 122 (T).
11 1964 (3) SA 522 (N) 525.
12 525E, where the court quotes from Best v Samuel Fox Co Ltd 1957 (2) KB 639 665.
13 1990 (4) SA 6 (E) 9F.
14 See also Wiese v Moolman 2009 (3) SA 122 (T) 127B–C, where the court stated that consortium includes “die
samesyn, die kameraadskap, die wedersydse vertroue, liefde en ondersteuning wat vir die gennote uit die
huwelik voortspruit” (ie, the company, the companionship, the reciprocal trust, love and support that result from the marriage for the partners).
15 Wassenaar v Jameson 1969 (2) SA 349 (W); Amra v Amra 1971 (4) SA 409 (D); Osman v Osman 1983 (2) SA
706 (D).
16 Ex parte AB 1910 TPD 1332; Currie v Currie 1942 NPD 362; Asinovsky v Asinovsky 1943 CPD 131; Lamprecht v
Lamprecht 1948 (4) SA 416 (N); but see Olivier Huldigingsbundel, Daniel Pont 272; Sonnekus Die Privaatregtelike Beskerming van die Huwelik 1 fn 1, 311 et seq ; MAD 1943 SALJ 222.
17 On irretrievable breakdown, see s 4(1) of the Divorce Act 70 of 1979 and ch 11 below.
18 See ch 21 below.
19 See eg Bester v Calitz 1982 (3) SA 864 (O); Wiese v Moolman 2009 (3) SA 122 (T).
20 2014 (6) SA 436 (SCA).
21 2015 (9) BCLR 1003 (CC).
22 Woodiwiss v Woodiwiss 1958 (3) SA 609 (D). The plaintiff must prove that the defendant enticed, persuaded
and incited the plaintiff’s spouse to leave him or her, and that this has caused the alienation of affection for
the plaintiff: Van den Berg v Jooste 1960 (3) SA 71 (W). See also Grobbelaar v Havenga 1964 (3) SA 522 (N);
Wassenaar v Jameson 1969 (2) SA 349 (W).
Chapter 5: The invariable consequences of a civil marriage
43
intention of thereby severing the marriage relationship and depriving one spouse of the
other’s consortium, the wronged spouse can institute the action on the ground of harbouring
against the third party. These actions may also fall by the wayside in the future.
5.3.2 The relationship between consortium omnis vitae, the right to family life
and the right to dignity
Although the Constitution does not expressly protect the right to family life,23 the Constitutional Court ruled in Dawood v Minister of Home Affairs; Shalabi v Minister of Home Affairs; Thomas v Minister of Home Affairs 24 that the right to dignity encompasses and protects the rights of
individuals to enter into and sustain permanent intimate relationships. In other words, the
right to family life is protected by the constitutional right to dignity.25 From O’Regan J’s
judgment in Dawood, it is clear that the right to family life includes the spouses’ right to enjoy
consortium.26 She stated that
[e]ntering into and sustaining a marriage is a matter of intense private significance to the parties to that marriage for they make a promise to one another to establish and maintain an intimate relationship for the rest of their lives which they acknowledge obliges them to support one
another, to live together and to be faithful to one another.27
In other words, the spouses undertake to have consortium omnis vitae. O’Regan J further referred to the fact that “[i]n terms of common law, marriage creates a physical, moral and spiritual community of life” which “includes reciprocal obligations of cohabitation, fidelity and
sexual intercourse” and the “reciprocal and enforceable duty of financial support between the
spouses”, that is to say, marriage results in a consortium omnis vitae.28 She indicated that legislation prohibiting the formation of marriage constitutes an infringement of the right to dignity,
as does legislation which significantly impairs the ability of spouses to honour their obligations to one another. She again referred to consortium by pointing out that cohabitation is a
central aspect of marriage, and stated that legislation which significantly impairs the ability of
spouses to live together constitutes a limitation of the right to dignity. She held that section
________________________
23 Prior to the coming into operation of the Constitution, the Constitutional Court considered, and rejected,
the objection that the Constitution should have included an express clause protecting the right to family
life: Ex parte Chairperson of the Constitutional Assembly: In re Certification of the Constitution of the Republic of South
Africa, 1996 1996 (10) BCLR 1253 (CC), 1996 (4) SA 744 (CC).
24 2000 (8) BCLR 837 (CC), 2000 (3) SA 936 (CC) par 36; see also Harksen v Lane 1997 (11) BCLR 1489 (CC)
par 92, 1998 (1) SA 300 (CC) par 93.
25 S 10 of the Constitution protects the right to dignity. Even before the coming into operation of the Constitution, the Constitutional Court indicated that the right to dignity “would clearly prohibit any arbitrary
State interference with the right to marry or to establish and raise a family”: Ex parte Chairperson of the Constitutional Assembly: In re Certification of the Constitution of the Republic of South Africa, 1996 1996 (10) BCLR 1253
(CC), 1996 (4) SA 744 (CC) par 100.
26 The right to family life extends beyond the relationship between persons who are validly married: see eg
National Coalition for Gay and Lesbian Equality v Minister of Home Affairs 2000 (1) BCLR 39 (CC), 2000 (2) SA
1 (CC) in which the phrase was used in the context of same-sex relationships. Furthermore, it clearly covers
the relationship between parents and their children. On the right to family life, see further Ex parte Chairperson of the Constitutional Assembly: In re Certification of the Constitution of the Republic of South Africa, 1996 1996
(10) BCLR 1253 (CC), 1996 (4) SA 744 (CC); Dawood v Minister of Home Affairs; Shalabi v Minister of Home
Affairs; Thomas v Minister of Home Affairs 2000 (8) BCLR 837 (CC), 2000 (3) SA 936 (CC); Du Toit v Minister for
Welfare and Population Development 2002 (10) BCLR 1006 (CC), 2003 (2) SA 198 (CC); Hattingh v Juta 2013 (5)
BCLR 509 (CC), 2013 (3) SA 275 (CC); Cockrell Bill of Rights Compendium par 3E12 fn 7; Heaton Bill of Rights
Compendium par 3C19.2; Joubert in Clark (ed) Family Law Service par A1; Sinclair assisted by Heaton 71–72
fn 176; Van der Linde Grondwetlike Erkenning van Regte ten aansien van die Gesin en Gesinslewe passim; Visser
and Potgieter 12–14; Van Wyk 1990 Stell LR 193–197; Robinson 1995 Obiter 106–107; Visser 1995 THRHR
703–704, 1996 De Jure 351; Jazbhay Oct 2000 De Rebus 56–57; Van der Linde 2000 De Jure 1, 377; Bonthuys
2002 SALJ 751–752; Van der Linde 2002 Obiter 338; Nonyana Aug 2003 LexisNexis Butterworths Property Law
Digest 3; Krüger 2003 THRHR 285; Van der Linde 2003 De Jure 200, 2003 Obiter 163, 2003 SA Public Law 103;
Bonthuys and Sibanda 2003 SALJ 793 et seq; Van der Linde 2008 Obiter 502.
27 Par 30.
28 Par 33; see also National Coalition for Gay and Lesbian Equality v Minister of Home Affairs 2000 (1) BCLR 39
(CC), 2000 (2) SA 1 (CC).
44
South African Family Law
25(9)(b) read with section 26(3) and (6) of the Aliens Control Act 96 of 1991 had the effect
of limiting the right to cohabit in certain marriages between a South African permanent resident and his or her foreign spouse by requiring the foreign spouse to apply for an immigration permit from outside South Africa. She concluded that this limitation constituted an unjustifiable infringement of the right to dignity of the foreign spouse. She accordingly declared
the provisions unconstitutional and required the legislator to correct the unconstitutionality.
In Booysen v Minister of Home Affairs 29 the Constitutional Court applied its decision in Dawood
to other sections of the Aliens Control Act which required an application for a work permit to
be made from outside South Africa, prohibited the applicant from entering South Africa until
the work permit had been issued, and provided that a work permit would be issued only if the
applicant did not, or was not likely to, pursue an occupation in which there were already
enough people in South Africa to meet the needs of the country’s inhabitants. Sachs J concluded that the relevant sections unjustifiably limited the right to dignity of South Africans
and their foreign spouses, and declared them unconstitutional. The Act and the regulations
under the Act have since been amended.
5.4 Spousal maintenance
5.4.1 The reciprocal duty of support between spouses
(a) General
30
From its beginning until its termination, a civil marriage imposes a reciprocal common-law
duty of support on the spouses, provided that the spouse who claims maintenance needs it
and the spouse from whom it is claimed is able to provide it.31 Maintenance includes the
provision of accommodation, clothing, food, medical services and other necessaries.32 The
scope of the duty of support is determined inter alia by the social status of the parties, their
means or income, and the cost of living.33
In respect of a spouse’s ability to provide maintenance, Reyneke v Reyneke 34 should be noted.
In this case, the husband deliberately impoverished himself and the joint estate by spending
part of a lump sum disability payment and giving away the balance to frustrate his wife’s claim
for maintenance. His wife contended that because of his fraudulent conduct he should be
deemed still to have the means to maintain her and should be ordered to make regular maintenance payments to her even though he could not afford them. She argued that the actio
Pauliana utilis and the wife’s right of recourse against her husband for maladministration of
the joint estate should be extended and/or combined by deeming her husband to have
recovered the disability payment, or by deeming him not to have disposed of it.35 The court
rejected this argument. It held that the right of recourse could not arise until the joint estate
was dissolved, because whatever was recovered could only come out of the joint estate and
would simply fall back into it.36 The wife’s claim failed on another ground too. The court
pointed out that it can only make a maintenance order if it is satisfied that the person from
whom maintenance is claimed is able to pay it, and on the facts of this case, the husband
lacked the ability to pay. The court held that it could not extend a remedy in order to afford
________________________
29 2001 (4) SA 485 (CC).
30 On the termination of the common-law duty of support upon the dissolution of the marriage, see further
ch 13 below.
31 See eg Oberholzer v Oberholzer 1947 (3) SA 294 (O); Reyneke v Reyneke 1990 (3) SA 927 (E). In Booysen v Minister
of Home Affairs 2001 (4) SA 485 (CC) the Constitutional Court held that legislation which prevents spouses
from fulfilling their duty of support violates the right to dignity of both spouses. On this decision, see the
discussion under the previous heading.
32 See eg Ex parte Hugo 1960 (1) SA 773 (T).
33 See eg Oberholzer v Oberholzer 1947 (3) SA 294 (O); Young v Coleman 1956 (4) SA 213 (D).
34 1990 (3) SA 927 (E).
35 See ch 6 below on the actio Pauliana utilis and the right of recourse.
36 See ch 6 below on the nature of community of property.
Chapter 5: The invariable consequences of a civil marriage
45
an otherwise remediless person relief by overlooking one of the fundamental principles
applicable to that remedy.
The duty of support applies not only to the husband, but to both spouses in proportion to
their means. The duty of support can be enforced as between the spouses by means of an
action which can be instituted in either the High Court or the Maintenance Court.37
(b) Liability as against third parties
A third party who supplies a spouse with goods or services that are needed for the spouse’s
maintenance may hold the spouse who incurred the particular debt liable in contract. In a
marriage in community of property, the debt will be settled from the joint estate. If there are
insufficient assets in the joint estate to cover the debt but one of the spouses or both of them
have assets which do not form part of the joint estate, the debt can be recovered from those
assets on a pro rata basis.38
The question arises whether a third party who provides items that are required for one
spouse’s maintenance can hold the other spouse liable in the absence of a contract with the
latter spouse. Two possible grounds of liability have been suggested, namely negotiorum gestio
and unjustified enrichment. Liability on the ground of unjustified enrichment arises if one
person obtains a patrimonial advantage (that is, is enriched) at the expense of another in the
absence of a recognised legal ground justifying the enrichment.39 Negotiorum gestio refers to a
situation in which one person promotes the interests of another without the latter’s consent.
Some authors argue that a third party who supplies essential items to a deserted and needy
spouse fulfils the other spouse’s maintenance obligation on his or her behalf and consequently
acts as the spouse’s negotiorum gestor.40 However, this is not necessarily true. One of the requirements for negotiorum gestio is that the gestor must have the intention of promoting the dominus’
interests. (In this case, the dominus is the spouse who is obliged to maintain the other spouse.)
Consequently, the third party can rely on negotiorum gestio only if he or she intended to fulfil
the spouse’s maintenance obligations on his or her behalf.41 Viewed from the position of the
average dealer, this would seldom, if ever, be the case. Therefore, the liability of the spouse
who has a duty of support would usually have to be based on unjustified enrichment.
(c) Termination of the duty of support
As indicated above, the duty of support terminates upon dissolution of the marriage. Thus, in
principle, the duty comes to an end upon the death of either of the spouses. The surviving
spouse may, however, have a claim for maintenance against the deceased spouse’s estate in
terms of the Maintenance of Surviving Spouses Act 27 of 1990.42 Divorce also terminates the
reciprocal duty of support, but the court that grants the decree of divorce may make a main
tenance order in favour of one of the spouses in terms of the Divorce Act 70 of 1979.43
If the spouses are still married but no longer live together, matrimonial guilt determines
whether the duty of support continues. For example, if the husband has to support his wife
and the separation is due to his fault (for example, because he deserted her or through his
misconduct caused her to leave him), his duty to support her continues.44 The same applies if
________________________
37 See the discussion of the Maintenance Act 99 of 1998 below in this chapter.
38 Oberholzer v Oberholzer 1947 (3) SA 294 (O).
39 See eg Pretorius v Van Zyl 1927 OPD 226; Nortjé v Pool 1966 (3) SA 96 (A); McCarthy Retail Ltd v Shortdistance
Carriers CC [2001] 3 All SA 236 (SCA), 2001 (3) SA 482 (SCA).
40 Hahlo, 5th edn, 209 fn 126.
41 See also Barratt (ed) Persons and the Family 263; Sinclair in Van Heerden et al (eds) Boberg’s Law of Persons
and the Family 176 fn 53; Sinclair assisted by Heaton 454 fn 150; Skelton and Carnelley (eds) Family Law 64–
65. See further Van der Vyver and Joubert 550.
42 This Act is discussed in ch 10 below.
43 S 7(1) and (2); see further ch 13 below.
44 Excell v Douglas 1924 CPD 472, Heaton and Kruger Casebook on Family Law case [18]; Pickles v Pickles 1947 (3)
SA 175 (W); Oelofse v Grundling 1952 (1) SA 338 (C); Behr v Minister of Health 1961 (1) SA 629 (SR).
46
South African Family Law
the parties agree to live apart.45 However, if the separation is due to the wife’s fault, she loses
her right to maintenance.46 Once one of the spouses institutes matrimonial proceedings
against the other and claims interim maintenance and a contribution to costs,47 matrimonial
guilt loses its relevance, for the courts’ view is that the enactment of no-fault divorce in 197948
has had the result that matrimonial guilt is not the determining factor in respect of interim
maintenance and a contribution to costs.49
5.4.2 Household necessaries
(a) General
(i) The distinction between the duty of support and liability for household necessaries
The duty to contribute to the purchase of household necessaries is so closely linked to the
duty of support that it is discussed under the duty of support for the sake of convenience. It
should be noted, however, that although the duty of support in many instances overlaps the
duty to contribute to household necessaries, these duties differ in some respects.50 For example, litigation costs fall within the scope of the duty of support,51 but are not household
necessaries. Conversely, if, for example, a wife who is entirely dependent on her husband for
support buys clothes for him, the clothes are household necessaries but do not fall within the
scope of the husband’s duty to support his wife. Likewise, food and veterinary services for the
family’s pets are household necessaries but do not fall within the duty of support. In respect
of many items, however, the duty of support coincides with the duty to contribute to household necessaries. For example, if the husband in the above example pays for his wife’s accommodation, food and clothing, he is discharging not only his duty of support but also his duty
to provide household necessaries.52
(ii) The modern-day relevance of the rules regarding liability for household necessaries
The relevance of the concept “household necessaries” is to be found in the fact that the type
of liability of the spouses depends on whether or not a debt is incurred for household necessaries or for something else. In terms of section 17(5) of the Matrimonial Property Act 88 of
1984, spouses who are married in community of property are jointly and severally liable for
household necessaries irrespective of which spouse buys the household necessaries. By virtue
of section 23 of the Matrimonial Property Act, the same rule applies in marriages out of
community of property. It is therefore of practical importance to establish whether or not a
specific item is a household necessary, because if it is, the purchasing spouse binds himself or
herself and the other spouse if the marriage is out of community of property, or himself or
herself and the joint estate if the marriage is in community of property. If the item is not a
household necessary (or if the spouses no longer share a joint household when the item is
bought), only the spouse who incurs the debt is liable for it unless the circumstances are such
that the third party can rely on negotiorum gestio or unjustified enrichment to found his or her
claim.53
________________________
45 Excell v Douglas 1924 CPD 472; Behr v Minister of Health 1961 (1) SA 629 (SR).
46 Bing and Lauer v Van den Heever 1922 TPD 279; Excell v Douglas 1924 CPD 472; Behr v Minister of Health 1961
(1) SA 629 (SR); Chamani v Chamani 1979 (4) SA 804 (W).
47 Litigation costs form part of the duty of support: see the discussion of the distinction between the duty of
support and the duty to contribute to household necessaries below in this chapter.
48 On the introduction of no-fault divorce, see ch 11 below.
49 On interim maintenance and a contribution to costs, see ch 15 below.
50 Excell v Douglas 1924 CPD 472.
51 See eg Chamani v Chamani 1979 (4) SA 804 (W); Dodo v Dodo 1990 (2) SA 77 (W); Samsudin v Berange 2005
(3) SA 529 (N).
52 See further Sinclair assisted by Heaton 456.
53 In a marriage in community of property, the third party’s claim may also be dependent on whether or not
the consent requirement in s 15 of the Matrimonial Property Act has been complied with. Say, eg, that the
wife purchased a refrigerator on credit and it subsequently transpired that although a refrigerator was a housecontinued
Chapter 5: The invariable consequences of a civil marriage
47
(b) The requirements for the capacity to incur debts for household necessaries
(i) General
A spouse’s capacity to purchase household necessaries is dependent on the existence of a valid
civil marriage and a joint household, and the commodities indeed being household necessaries.
(ii) The existence of a valid civil marriage
The capacity to purchase household necessaries is one of the invariable consequences of a
civil marriage and only exists if the marriage is valid.
(iii) The existence of a joint household
The capacity to conclude binding contracts for household necessaries is dependent on the
existence of a joint household.54 When no joint household exists, the purchasing spouse may
still bind the other spouse, but then the basis of liability is no longer one spouse’s capacity to
bind the other in contract for household necessaries because one of the requirements for such
liability, namely the existence of a joint household, is absent. In such event, liability depends
on whether or not the non-contracting spouse is obliged to maintain the other spouse, and, as
explained above in this chapter, this in turn depends on matrimonial guilt. In other words, in
this case the basis of liability rests on the duty of support, which is not dependent on the existence of a joint household.
(iv) The transaction must relate to household necessaries
Household necessaries are the everyday items which are needed for running a household. In
general, items such as food, clothing, medical and dental services, food and veterinary services for the family’s pets, and so on are household necessaries.
The concept of “household necessaries” can be limited or extended by the necessity or
otherwise of a particular item. Whether or not a specific item is necessary in a specific household is determined inter alia by the practices and customs in the area, and the family’s social
status, means, income and past standard of living.55 From this it follows that what might be
household necessaries for one family might be luxuries for another. In Reloomel v Ramsay 56 the
husband was a reasonably well-off doctor. His wife bought dress fabric for a number of silk
dresses on credit. The court found that the dresses were household necessaries.
The courts use two tests or approaches to determine whether a particular item is a household necessary. The first is the objective approach. In terms of this approach, the court considers all the relevant facts of the case to determine whether the purchasing spouse acted
within the scope of his or her capacity. The court looks at the family’s social background, its
standard of living, and the supply of the specific commodity the family already had at its disposal when the item was bought on credit to determine whether the transaction indeed related
to household necessaries. If, for example, the household already had an adequate supply of
the particular item, the other spouse will not incur liability if another of those items is
bought, because the item will not be considered a household necessary. The objective
________________________
hold necessary for the family, the joint household no longer existed when she bought the item. In terms of
s 17(5) of the Matrimonial Property Act either the wife on her own or the spouses jointly must be held liable
for the purchase price. Since the purchase was not made for the joint household the husband cannot be
held liable alone. If the husband did not consent to the purchase (as required by s 15(2)( f ) of the Act) and
the dealer was bona fide, the debt will be paid from the joint estate and the husband will have a right of recourse against his wife on the dissolution of the joint estate if the estate suffered a loss as a result of the
transaction: see s 15(9)(a) and (b) of the Matrimonial Property Act and the discussion of these subsections
in ch 6 below. On liability on the ground of negotiorum gestio and unjustified enrichment, see above in this
chapter.
54 Ss 17(5) and 23 of the Matrimonial Property Act.
55 Reloomel v Ramsay 1920 TPD 371; Bing and Lauer v Van den Heever 1922 TPD 279; Smith v Philips 1931 OPD
107; Voortrekkerwinkels (Ko-operatief) Bpk v Pretorius 1951 (1) SA 730 (T).
56 1920 TPD 371, Heaton and Kruger Casebook on Family Law case [19].
48
South African Family Law
approach was applied in, inter alia, Voortrekkerwinkels (Ko-operatief) Bpk v Pretorius.57 In this case,
the court held that the husband would not be liable if he could show that there was already
an adequate supply of the specific commodity in the house.
Sometimes the court adopts the subjective approach. In this event it views the matter, as in
Reloomel v Ramsay,58 from the dealer’s point of view and considers only the facts of which the
dealer was aware or of which he or she could reasonably have been expected to be aware. If
the subjective approach is adopted and a spouse buys a specific article while the household is
already well supplied with that specific commodity, a dealer who is unaware of the existing
supply can still hold the other spouse liable because the court will not take the existing supply
into consideration. The subjective approach is fairer because it affords better protection to
third parties.
(c) Revocation or limitation of a spouse’s capacity to purchase household necessaries
(i) Revocation by means of a court order
In terms of section 16(2) of the Matrimonial Property Act, the court can suspend the capacity
of a spouse who is married in community of property to deal with the joint estate for a definite or an indefinite period.59 If such an order is made, the spouse obviously also loses the
capacity to bind the joint estate for debts in respect of household necessaries.
As the law stands, one spouse can apply to have the other declared a prodigal. If the order
is granted, the spouse is, inter alia, deprived of the capacity to conclude contracts for household necessaries.60 However, it is doubted whether our courts will in future be willing to declare someone a prodigal and to interdict the person from dealing with his or her own estate
or the joint estate, since such an order probably constitutes an unjustifiable infringement of
the person’s constitutional rights to dignity and privacy.61
(ii) Revocation by the other spouse
Whether one spouse may unilaterally and without a court order revoke the other spouse’s
capacity to purchase household necessaries is not clear. Modern authors accept that one
spouse may not unilaterally revoke the other’s capacity, because the capacity is not based on
agency (that is, a mandate from the other spouse), but comes into being ex lege when a valid
marriage and a joint household come into existence.62 In the case law there is no unanimity.
On a number of occasions, the courts have stated that revocation is possible provided that it is
clearly conveyed to third parties,63 but in other cases the opposite has been held.64
In this context, the question arises as to the effect of notice one spouse gives to third parties that he or she will not be liable for the other spouse’s debts. In this context too, the
objective and subjective approaches play a role. If the objective approach is adopted, the
spouse who notifies the third party remains liable, despite the notice, for items which, objectively judged, are household necessaries. If the subjective approach is adopted, the court
looks at what the third party knew, and here the notice plays a role. In this case the effect of
the notice is that it can reasonably be expected of the third party to make further enquiries
about the spouses’ circumstances, such as the supply of the particular item in the couple’s
________________________
57
58
59
60
61
1951 (1) SA 730 (T), Heaton and Kruger Casebook on Family Law case [20].
1920 TPD 371.
On suspension of the spouse’s powers in terms of s 16(2), see further ch 6 below.
Traub v Traub 1955 (2) SA 671 (C).
The right to dignity is enshrined in s 10 of the Constitution, and the right to privacy in s 14. On prodigality
and the unconstitutionality of the limitations placed on prodigals, see further Heaton Persons ch 10.
62 See eg Christie and Bradfield Contract 238; Sinclair in Van Heerden et al (eds) Boberg’s Law of Persons and the
Family 174 fn 45, 179; Sinclair assisted by Heaton 446, 454–455; Skelton and Carnelley (eds) Family Law 68;
Van der Vyver and Joubert 547; Visser and Potgieter 109.
63 Reloomel v Ramsay 1920 TPD 371; McNaught v Caledonian Hotel 1938 TPD 577; Behr v Minister of Health 1961
(1) SA 629 (SR).
64 Bing and Lauer v Van den Heever 1922 TPD 279; Chenille Industries v Vorster 1953 (2) SA 691 (O).
Chapter 5: The invariable consequences of a civil marriage
49
household and whether the parties have a joint household, before supplying one of them
with goods. If the third party does not make further enquiries, he or she is deemed to be
familiar with the spouses’ circumstances. In other words, the third party is, for example,
deemed to know the extent of the supply of the particular item in the household. Thus, if the
third party supplies something to a household which already has a sufficient supply of the
particular item, he or she cannot hold the other spouse liable.
(iii) The defence that the purchase was not necessary because one spouse had made sufficient funds
available to the other
Finally, the question arises whether one spouse may limit the other’s capacity to buy household necessaries on credit by making funds available to him or her with which household
necessaries must be bought. In other words, can a spouse who is sued for debts in respect of
household necessaries raise the defence that he or she is not liable for those debts because he
or she provided the other spouse with sufficient funds so that there was no need to purchase
household necessaries on credit? In Reloomel v Ramsay 65 the court rejected this defence. It
adopted the subjective approach and viewed the facts from the dealer’s point of view. Had the
court adopted the objective approach, the defence would probably have succeeded because
buying household items on credit would not have been deemed reasonably necessary in a
household which had already been provided with sufficient funds.
66
5.4.3 The Maintenance Act 99 of 1998
(a) General
The Maintenance Act 99 of 1998 applies in respect of the legal duty of any person to maintain
any other person “irrespective of the nature of the relationship between those persons giving
rise to that duty”.67 Thus the Act covers not only the ex lege duty of support between spouses in
a valid marriage or civil union and the duty of support between blood relations, but extends
to a contractual duty of support between persons who are not related to each other by blood
or marriage.68 Therefore, life partners who have agreed on a duty of support can invoke the
provisions of the Act to enforce this duty.69
(b) The maintenance complaint and maintenance enquiry70
71
When a complaint is made that a person who is liable to maintain someone else is in default
72
or that good cause exists for substituting or discharging an existing maintenance order, a
________________________
65 1920 TPD 371.
66 For a detailed discussion of the Act, see Van Zyl Handbook of the South African Law of Maintenance 57–114. On
some of the hurdles in the implementation of the Act, see Mamashela 2005 SAJHR 490, 2006 Obiter 590; De
Jong 2014 THRHR 198–201. For empirical studies of the application of the Act and its inadequate enforcement mechanisms, see De Jong 2009 SALJ 598 et seq, 2014 THRHR 195. The South African Law Reform
Commission is reviewing the Maintenance Act inter alia with a view to improving enforcement of main
tenance. The Commission published an issue paper for comment in 2014: Issue Paper 28: Review of the
Maintenance Act 99 of 1998.
67 S 2(1).
68 See also Khan v Khan 2005 (2) SA 272 (T).
69 Life partnerships are discussed in ch 20 below.
70 For a step-by-step guide to instituting a maintenance claim in terms of the Act, see Pretorius Jan/Feb 2004
De Rebus 36. On the public mediation services offered in certain divisions of the Maintenance Court, see De
Jong 2009 THRHR 274.
71 It is unclear whether the provisions of the Maintenance Act can be invoked to enforce child maintenance
that is payable from a deceased estate. In NB v Maintenance Officer, Butterworth 2014 (6) SA 116 (ECM) the
court concluded that instead of relying on the Maintenance Act, the provisions of the Administration of
Estates Act 66 of 1965 must be invoked to address an executor’s failure to pay maintenance to a child who
is entitled to maintenance out of his or her parent’s deceased estate. In Du Toit v Thomas [2015] JOL 33337
(WCC) the opposite was held.
72 Whether or not there is good cause for variation is determined in the light of the facts of each case: Roels v
Roels [2003] 2 All SA 441 (C).
50
South African Family Law
73
maintenance officer investigates the complaint and decides whether or not to institute a
maintenance enquiry in the Maintenance Court.74 A maintenance officer is also obliged to
investigate a complaint that good cause exists for the substitution or discharge of a duty to pay
75
maintenance in respect of which no maintenance order has been made. By virtue of this
provision persons such as life partners who agreed to be liable for each other’s maintenance
and divorcing spouses who agreed on post-divorce maintenance without their agreement ever
being made an order of court could make a complaint in terms of the Maintenance Act.
The maintenance officer may undertake his or her own investigation into the complaint
and/or require a maintenance investigator to perform certain tasks forming part of the
investigation.76 The maintenance investigator may, inter alia, be required to locate a person
who is liable to pay maintenance or who can provide relevant information; gather information about the identification, whereabouts and financial position of the person who is
liable to pay maintenance, the financial position of the person who is entitled to maintenance, or any other relevant matter; or take statements from anyone who may be able to give
relevant information.77 A maintenance officer of another Maintenance Court may be asked to
obtain relevant information within the area of his or her jurisdiction.78
The maintenance officer can have any person summoned to appear before the Maintenance Court to give evidence or to produce any book, document or statement (such as a
payslip or statement about earnings signed by the person’s employer).79 The maintenance
officer may further request a magistrate to summon anyone who is likely to have relevant
information regarding the identification, whereabouts, employment or financial position of
the person who is liable for maintenance, or the financial position of the person who is
entitled to maintenance to appear before the Maintenance Court for examination by the maintenance officer.80 When circumstances permit and a Family Advocate is available, a Maintenance Court may instruct a Family Advocate to carry out an investigation in terms of the
Mediation in Certain Divorce Matters Act 24 of 1987 in the maintenance proceedings.81
The Maintenance Court has the power to issue a direction compelling an electronic communications service provider to supply information which can be used to trace a person who
82
may be affected by an order of the court. Such a person includes the maintenance debtor
and/or his or her employer, a maintenance beneficiary, and a person who is contractually
obliged periodically to pay money to the maintenance debtor. This provision is not yet in
operation.
All maintenance enquiries must be concluded as speedily as possible and postponements
must be limited. A court granting a postponement is empowered to make an interim maintenance order pending the finalisation of the matter if it is satisfied that there is prima facie
evidence that one of the parties is legally liable to maintain a person or persons and that the
person(s) may suffer undue hardship as a result of the postponement if an interim mainte83
nance order was not made.
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73 Every Public Prosecutor who has the general power to institute and conduct criminal prosecutions in a
particular court is a maintenance officer for that court: s 4(1)(a). Other public servants may also be appointed as maintenance officers: s 4(2).
74 S 6(1) and (2) of the Maintenance Act. Every Magistrate’s Court is a Maintenance Court: s 3.
75 S 6(1)(c).
76 S 7(1).
77 S 7(2).
78 S 7(1)(c).
79 S 9(1)(a) and (b).
80 S 8(1).
81 S 10(1A) of the Maintenance Act. The Mediation in Certain Divorce Matters Act is discussed in ch 14 below.
82 S 7(3).
83 S 10(6).
Chapter 5: The invariable consequences of a civil marriage
51
(c) The orders the court may make
If a maintenance order is not already in operation, the Maintenance Court may make an
order against the liable person (that is, the maintenance debtor) for the payment of maintenance to the person who is entitled to maintenance (that is, the maintenance creditor), into
the maintenance creditor’s bank account, or to the maintenance officer or another officer,
institution or organisation for onward transmission to the maintenance creditor. If a maintenance order has already been made, the Maintenance Court may substitute or discharge it, or
not make an order.84
85
If a Maintenance Court varies an existing order, the latter order is replaced. However, the
existing order ceases to be of force and effect only in so far as the subsequent order of the
Maintenance Court expressly or by necessary implication replaces it. Thus, if the Maintenance Court merely varies the amount of maintenance that is payable and does not expressly
or by necessary implication deal with other aspects, such as a resolutive condition like a dum
casta clause, those other aspects remain in force. (A dum casta clause provides that the party in
whose favour the order operates will forfeit maintenance if he or she leads an unchaste life.)
86
If an existing maintenance order is replaced, the order may have retroactive effect, provided that this is stated in the order.
Since an order for the periodical payment of sums of money towards the maintenance creditor’s maintenance is merely one of the orders included within the meaning of the term
“maintenance order”, the Maintenance Court may make an order for the payment of maintenance by way of periodical amounts or a lump sum.87 A maintenance order can also include
any provision the court deems fit regarding payment of medical expenses, including requiring the maintenance debtor to register the maintenance creditor as his or her dependant
under a medical aid scheme.88 The court also has the power to direct a person who owes the
maintenance debtor periodical instalments of money because of a contract between them, to
make the periodical payments to the maintenance creditor instead of to the maintenance
debtor. The court only makes such an order if it is satisfied that it this not impracticable in
the circumstances of the case.89
A Maintenance Court that makes a maintenance order may order that two photographs be
taken of the maintenance debtor to facilitate tracing him or her should he or she fail to make
payments under the order.90
The Act also makes provision for orders to be made by default. An order by default is made
only at the request of the maintenance officer. If the Maintenance Court is satisfied that the
person against whom the maintenance complaint was made knows that he or she has been
subpoenaed to appear before the Maintenance Court but has failed to do so, it may call upon
the maintenance complainant to adduce evidence in support of the complaint.91 After considering the evidence, the court may make, substitute or discharge a maintenance order, make
any other order it considers appropriate, or decline to make an order.92 Thus, for example, a
maintenance order by default may be made against a maintenance debtor who tries to prolong or obstruct proceedings by simply not appearing before the court on the appointed date
and time. An order by default can be made against a person in whose favour the maintenance
________________________
84
85
86
87
88
89
90
91
92
S 16(1)(b).
S 22.
Levin v Levin 1984 (2) SA 298 (C); S v Frieslaar 1990 (4) SA 437 (C).
S 1. See also Oshry v Feldman 2010 (6) SA 19 (SCA) and ch 13 below.
S 16(1)(a)(i).
S 16(2).
S 43.
S 18(1).
S 18(2).
52
South African Family Law
93
order operates. The court may make an order in the absence of either or both of the parties
94
if the party or parties consent to such an order.
(d) Appeals
An appeal against a maintenance order made by a Maintenance Court must be brought in
the High Court.95 The appeal does not suspend the duty to pay maintenance under the
maintenance order, unless the appellant alleges that he or she is not legally liable to pay
maintenance.96
(e) Enforcement of a maintenance order97
(i) General
The Maintenance Act provides for civil and criminal sanctions for failure to comply with a maintenance order. The civil sanctions may be imposed even before a maintenance debtor is convicted of the offence of failing to make a payment in accordance with a maintenance order.98
(ii) Civil sanctions
The Act provides that if a maintenance debtor fails to make a payment in accordance with a
maintenance order within 10 days from the date on which the payment becomes payable, the
maintenance creditor may apply to the Maintenance Court for any of the following :
(1) A warrant (writ) of execution against the maintenance debtor’s property.
(2) An order for the attachment of emoluments due to the maintenance debtor (that is,
attachment of the maintenance debtor’s remuneration for employment, such as his or
her salary, wage, or allowance, regardless of whether or not it is expressed in money99).
(3) An order for the attachment of any present or future debt owing or accruing to the
maintenance debtor.100
The Maintenance Court is compelled to furnish the personal particulars of the maintenance
defaulter to credit bureaux and other businesses which grant credit or are involved in the
101
credit rating of persons when it grants any of the above applications. The object of this
provision, which has not yet come into operation, is to prevent a maintenance defaulter from
continuing to receive credit.
If the Maintenance Court issues a warrant of execution or makes an order of attachment,
the warrant or order relates only to the amount necessary to cover the amount the maintenance debtor failed to pay in terms of the maintenance order (which would normally be the
arrear maintenance), together with interest thereon, and the costs of execution or attachment.102 Any pension, annuity, gratuity, compassionate allowance or similar allowance or
benefit may be attached.103
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93
94
95
96
97
98
99
100
101
102
103
S 18.
S 17.
S 25(1).
S 25(3).
For a detailed exposition on the enforcement of the duty of support, see Clark in Van Heerden et al (eds)
Boberg’s Law of Persons and the Family ch 12; Van Zyl Handbook of the South African Law of Maintenance 57–119;
De Jong 2009 SALJ 590. The Reciprocal Enforcement of Maintenance Orders Act 80 of 1963 and the Reciprocal Enforcement of Maintenance Orders (Countries in Africa) Act 6 of 1989 make provision for the
recognition and enforcement in South Africa of maintenance orders issued in designated foreign countries or territories, as well as the recognition of South African maintenance orders in those foreign countries and territories. The designated countries and territories include Botswana, Kenya, Lesotho, Malawi,
Namibia, Nigeria, Swaziland, Zimbabwe, the Australian territories, Germany, New Zealand, the United
Kingdom, several Canadian provinces, and several states in the United States of America.
On this offence, see below in this chapter.
S 1(1).
S 26(2)(a) read with ss 27–30.
S 26(2A).
Ss 27(1), 28(1) and 30(1).
S 26(4).
Chapter 5: The invariable consequences of a civil marriage
53
A warrant of execution operates against the maintenance debtor’s movable property and, if
that is insufficient, his or her immovable property.104 The warrant will be set aside if the
maintenance debtor satisfies the Maintenance Court that he or she has already complied with
the maintenance order.105 Further, on application by the maintenance debtor, the Main
tenance Court may suspend the warrant and make an order for the attachment of emoluments or any present or future debt owing or accruing to the maintenance debtor.106 In
deciding whether to grant this application, the court must take the following factors into
account:
(1) The maintenance debtor’s existing and prospective means.
(2) The financial needs and obligations of, or in respect of, the maintenance creditor.
(3) The maintenance debtor’s conduct in so far as it may be relevant regarding his or her
failure to comply with the maintenance order.
(4) Other circumstances which should, in the court’s opinion, be taken into consideration.107
If the court makes an order for attachment of emoluments, it must instruct the maintenance
debtor’s employer to make payments on behalf of the maintenance debtor until the amount
the maintenance debtor has failed to pay, the interest thereon, and costs have been paid in
full.108 If the maintenance debtor’s employer fails to make any payment on behalf of the
maintenance debtor, the maintenance order can be enforced directly against the employer.109
If the maintenance debtor leaves the service of the employer, the employer must, within
seven days, notify the maintenance officer of the court which made the order.110 If an order
for attachment of a present or future debt owing or accruing to the maintenance debtor is
made, the Maintenance Court must order the person who incurred the debt to make the payments specified in the order.111
It is unclear whether the maintenance creditor may elect to approach the High Court for a
writ of execution instead of using the procedure provided for by the Maintenance Act. Two
single judges in the Western Cape Division of the High Court, Cape Town have delivered
112
conflicting judgments in this regard. In PT v LT, Binns-Ward J held that civil enforcement
of a maintenance order made by any court in South Africa must occur in terms of the
Maintenance Act. He held that since the section of the Act which governs civil enforcement
of maintenance orders no longer specifies that it applies only to orders made under the
113
Maintenance Act, the intention of the legislature must have been that the provision should
apply to all maintenance orders regardless of the court from which they originate. He consequently concluded that the Registrar of the High Court may no longer issue writs of
________________________
104 S 27(1). The maintenance investigator or, in the absence of a maintenance investigator, the maintenance
officer must assist the maintenance creditor in taking the necessary steps to execute the warrant of execution: s 27(2)(b).
105 S 27(3).
106 S 27(4).
107 S 27(5).
108 S 28(1) read with s 29(1).
109 S 29(4).
110 S 29(2). The maintenance debtor must also notify the person, officer, institution or organisation to whom
the maintenance has to be paid, or, if payment has to be made into a bank account, the maintenance
officer of the court that made the maintenance order of the change of employment: s 16(4). An employer
who, without sufficient reason, fails or refuses to make payments on behalf of the maintenance debtor or
to notify the maintenance officer that the maintenance debtor has left his or her service, commits an
offence: s 38(a).
111 S 30(1). If the person fails or refuses without sufficient reason to make the payments stipulated in the
order, he or she commits an offence: s 38.
112 2012 (2) SA 613 (WCC).
113 S 18(a) of the Judicial Matters Second Amendment Act 55 of 2003 substituted par (a) of s 26(1) of the
Maintenance Act by deleting the phrase “under this Act”. S 26(1)(a) currently provides that it applies
“[w]henever any person … against whom any maintenance order has been made has failed to make any particular
payment in accordance with that maintenance order” (emphasis added).
54
South African Family Law
114
execution in respect of enforcement of maintenance orders. In JM v LM, Savage AJ disagreed with the finding in PT v LT. Savage AJ held that the fact that a party may approach the
Maintenance Court to enforce a maintenance order made by the High Court does not necessarily imply that the High Court may not also enforce its own maintenance orders. As there is
no clear inconsistency between the provisions of the Superior Courts Act 10 of 2013 and the
Maintenance Act as to enforcement, a party who wants to enforce a maintenance order made
by the High Court may choose whether to proceed in the High Court or the Maintenance
Court. The finding in JM v LM is in keeping with the earlier decision of Van Oosten J in
115
Thomson v Thomson, where it was held that the Maintenance Act does not preclude a party
from issuing a writ of execution out of the High Court for failure to pay maintenance and
that a party may approach the High Court for enforcement of its maintenance order. It is
submitted that Thomson and JM v LM are preferable to PT v LT. As neither the Maintenance
Act nor the Superior Courts Act excludes the High Court’s power to issue writs of execution
for failure to comply with its maintenance orders, there is no reason to restrict its power in
this way, nor is there any reason to restrict parties’ options in enforcing maintenance orders
116
made by the High Court.
The Maintenance Act does not authorise attachment of a maintenance debtor’s assets in
respect of future maintenance payments (that is, in respect of maintenance payments which
are not yet due and in respect of which the maintenance debtor is not yet in default). The Act
only deals with execution and attachment once the maintenance debtor is in arrears. However, as far as maintenance for children is concerned, our courts have held that they have a duty
in terms of section 28(2) of the Constitution to protect the best interests of children of
maintenance debtors who are likely to shirk their future maintenance responsibilities and
that the High Court is therefore empowered to order enforcement by way of remedies that
fall outside the ambit of the Maintenance Act. The courts have specifically cited the Constitutional Court’s decisions in Bannatyne v Bannatyne (Commission for Gender Equality, as Amicus
Curiae) 117 and Fose v Minister of Safety and Security 118 in support of extension of the enforcement
of a maintenance debtor’s obligations towards his or her children.119 In Fose the Constitutional
Court emphasised the courts’ duty to ensure that effective relief is granted for the infringement of a constitutional right. Bannatyne specifically dealt with enforcement of maintenance.
Mokgoro J referred to difficulties in the Maintenance Courts which result in the maintenance
system not functioning properly and the rule of law being negatively affected. She held that
[t]he judiciary must endeavour to secure for vulnerable children and disempowered women
their small but life-sustaining legal entitlements. If court orders are habitually evaded and defied
with relative impunity, the justice system is discredited and the constitutional promise of human
dignity and equality is seriously compromised for those most dependent on the law.120
She further held that Maintenance Courts and maintenance laws are important mechanisms to
give effect to children’s rights, and that failure to ensure the effective operation of the maintenance system amounts to a failure to protect children. She also indicated that the maintenance system functions on a gendered basis that disadvantages women and undermines the
achievement of gender equality. Effective mechanisms for the enforcement of maintenance
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114 2014 (2) SA 403 (WCC).
115 2010 (3) SA 211 (W).
116 See also De Jong and Heaton in Heaton (ed) Law of Divorce and Dissolution of Life Partnerships 157; Heaton
2014 Annual Survey of South African Law (forthcoming).
117 2003 (2) BCLR 111 (CC), 2003 (2) SA 363 (CC), Heaton and Kruger Casebook on Family Law case [21].
118 1997 (7) BCLR 851 (CC), 1997 (3) SA 786 (CC).
119 For discussions of some of the cases which indicate that maintenance for children is increasingly viewed as
a children’s rights issue, see Moodley in Sloth-Nielsen and Du Toit (eds) Trials and Tribulations, Trends and
Triumphs 188; Hoctor and Carnelley 2007 TSAR 199.
120 Par 27.
Chapter 5: The invariable consequences of a civil marriage
55
obligations were therefore “essential for the simultaneous achievement of the rights of the
child and the promotion of gender equality”.121
In compliance with its constitutional duty to afford effective relief to children whose best
interests were being violated by a recalcitrant maintenance debtor, the High Court in Mngadi
v Beacon Sweets & Chocolates Provident Fund 122 ordered a provident fund to retain the lump sum
withdrawal benefit of the children’s father and to make monthly payments from the benefit
in respect of the children’s future maintenance. Nicholson J held that the Constitution
required that the order be made, because
[t]o refuse the present application would be to further undermine the rights of children and disempowered women [while to] grant the application will be to thwart an unreasonable, intransigent father who has no respect for the provisions of the Maintenance Court order or his
common-law duties to maintain his own kith and kin.123
In this case, the father had resigned from his job in order to escape paying maintenance. He
was not in arrears at the time of the present order but had been in arrears in the past. The
court found that if he were allowed to withdraw his provident fund benefit he would most
probably “either secrete it away, spend it on himself or otherwise dissipate it” and would not
“nurture it carefully and preserve it to perform his maintenance obligations”.124 In Magewu v
Zozo 125 Hlophe J made a similar order in respect of the pension withdrawal benefit of a
maintenance debtor who had been retrenched.
Adopting the same proactive attitude, Ntshangase J in Burger v Burger 126 ordered the attachment of the maintenance debtor’s portion of the proceeds of the sale of immovable property
in order to secure future maintenance for his children. The court further ordered the firm of
attorneys attending to the sale of the property to make maintenance payments to the children’s mother from the maintenance debtor’s portion of the proceeds of the sale if the
mother succeeded in obtaining an emoluments attachment order or a writ of execution
against the maintenance debtor’s property. In this case, the maintenance debtor had resigned
from his employment and was still unemployed. He did not offer any reason for his resignation and did not make serious attempts to obtain new employment. He had fallen into arrears
with his maintenance payments and a writ of execution against his property had failed to
produce any money. He had reacted with hostility when the children’s mother sought to
obtain a commitment from him that he would surrender his portion of the proceeds of the
sale for his children’s maintenance.
In Gerber v Gerber and Pocock127 Ndita J also relied on section 28(2) of the Constitution in
making an order for the attachment and retention of the proceeds of the sale of immovable
property belonging to the maintenance debtor in order to secure payment of future maintenance for his child. The maintenance debtor was in arrears, unemployed and without a source
of income. He was addicted to drugs and had spent more than a million Rand in less than
three months from the sale of shares he had owned. At the time of the application he was in a
drug rehabilitation centre. The court ordered the sheriff to attach and seize R400 000 from
the proceeds of the sale and to hold the amount in an interest-bearing account pending the
outcome of the application by the child’s mother to the Maintenance Court for a determination of the amount of maintenance to be paid in respect of the child. The court further
ordered the appointment of a receiver to take possession and control of the funds and to
retain an amount which would meet the maintenance obligation of the maintenance debtor
as determined by the Maintenance Court, as well as the child’s medical expenses and her
________________________
121
122
123
124
125
126
127
Par 30.
[2003] 2 All SA 279 (D), 2004 (5) SA 388 (D).
289B–C, 398D–E.
287D, 396D–E.
[2004] 3 All SA 235 (C).
2006 (4) SA 414 (D).
Cases 12166/07 and 12691/07, 8 Nov 2007 (C) (unreported).
56
South African Family Law
educational expenses until she completed secondary school, and to make monthly payments
to the child’s mother from that amount.
In Soller v Maintenance Magistrate, Wynberg 128 the court held that the maintenance debtor’s
continual defaulting on his maintenance payments justified an order that a retirement annuity
fund be prohibited from making payments to the maintenance debtor unless the Maintenance Court or the maintenance debtor’s former wife (who had care of the couple’s minor
child) consented to such payment. The fund was further ordered to make annual maintenance payments from the annuity to the child’s mother until the child became self-supporting.
What is particularly important to note is that Van Zyl J held that even a Maintenance Court
could make an order like this because section 28(2) of the Constitution “overrides any real or
ostensible limitation relating to the jurisdiction of magistrates’ courts”.129 He further held that
it would be absurd, and a costly time-wasting exercise, if an applicant for relief in a maintenance
court should be compelled to approach the High Court for such relief because of jurisdictional
limitations adhering to the magistrate’s court. This could never have been the intention of the
Legislature in enacting the Maintenance Act with the professed aim of rendering the procedure
for determining and recovering maintenance “sensitive and fair”.130
Finally, it should be noted that any order of the Maintenance Court has the effect of an order
in a civil action.131 Thus, like any other civil debt, maintenance and arrear maintenance can be
enforced in the ordinary courts in the ordinary way. In other words, enforcement need not
take place in terms of the Maintenance Act.
(iii) Criminal sanctions
Apart from the civil sanctions which may ensue from failing to comply with a maintenance
order, a defaulting maintenance debtor may also be charged with the crime of failing to make
a payment in accordance with a maintenance order.132 If the accused raises the defence that
his or her failure was due to a lack of means,133 he or she will not be acquitted if it is proved
that the failure was due to his or her unwillingness to work or his or her misconduct.134 Criminal proceedings regarding the failure to comply with a maintenance order can be converted
into a maintenance enquiry if the Public Prosecutor requests this or the court considers it
desirable.135
If the accused is convicted of the crime of failing to make a payment in accordance with a
maintenance order, a fine or term of imprisonment (with or without the option of a fine)
may be imposed.136 The convicted maintenance defaulter’s personal particulars may also be
supplied to credit bureaux and other businesses which grant credit or are involved in the
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128
129
130
131
132
133
2006 (2) SA 66 (C).
76C.
76C–D.
S 24(1).
S 31(1). On the offence and its predecessors, see Mamashela 2005 SALJ 217; Carnelley 2012 SAJC 349–351.
The defence of lack of means must be investigated even if the accused does not raise it: see eg S v Morekhure 2000 (2) SACR 730 (T); S v Nduku 2000 (2) SACR 382 (Tk). The onus of proving lack of means is
not discharged if the accused merely shows that his or her salary has dropped: MS v KS 2012 (6) SA 482
(KZP).
134 S 31(2). The state bears the onus of proving that the failure was due to the accused’s unwillingness to work
or his or her misconduct: see eg S v Nduku 2000 (2) SACR 382 (Tk); S v Mabona 2001 (2) SACR 306 (Ck);
S v Cloete 2001 (2) SACR 347 (C); S v Magagula 2001 (2) SACR 123 (T).
135 S 41. See further Mamashela 2005 SALJ 232–233, 2006 Obiter 592–594.
136 S 31(1). Since imprisonment often results in the person losing his or her job or, at the very least, having
no income and being unable to pay maintenance during the period of imprisonment, courts are
frequently loathe to sentence a convicted maintenance debtor to imprisonment (see eg S v Seroke 2004 (1)
SACR 456 (T)), but imprisonment is an appropriate sentence if the maintenance debtor’s failure was deliberate and recalcitrant: Bannatyne v Bannatyne (Commission for Gender Equality, as Amicus Curiae) 2003 (2)
BCLR 111 (CC), 2003 (2) SA 363 (CC); S v Visser 2004 (1) SACR 393 (SCA). See further Carnelley 2012
SACJ 343.
Chapter 5: The invariable consequences of a civil marriage
57
credit rating of persons.137 In terms of a provision which is still to be brought into operation,
the maintenance officer would be compelled to furnish these personal particulars to credit
bureaux and other businesses which grant credit or are involved in the credit rating of per138
sons.
The court may order that the arrear maintenance as well as interest on the arrears be
recovered from the convicted maintenance debtor, and execution may be taken against his or
her property.139 Unless this is impracticable in the circumstances, the court must further
direct a person who owes the convicted maintenance debtor periodical instalments of money
because of a contract between them, to make those periodical payments to the maintenance
creditor instead of the maintenance debtor.140
Ignoring a maintenance order also constitutes contempt of court, for which the maintenance defaulter can be committed to prison. The High Court’s power to commit a maintenance defaulter for contempt was unsuccessfully challenged in Bannatyne v Bannatyne (Commission for Gender Equality, as Amicus Curiae).141 The Constitutional Court held that contempt
proceedings in the High Court to secure the enforcement of a maintenance debt are “appropriate constitutional relief for the enforcement of a claim for the maintenance of children”.142
143
(Hopefully, the same applies to enforcement of maintenance for a spouse.) However, Mokgoro J warned that the High Court may only be approached if there is good and sufficient
reason for doing so. What constitutes good and sufficient reason depends on whether or not,
in the circumstances of the particular case, “the legislative remedies available [that is, the
remedies under the Maintenance Act] are effective in protecting the rights of the complainant and the best interests of the children”.144 In the present case, the complainant had repeatedly approached the Maintenance Court for enforcement of the maintenance order. Two
writs of execution had even been issued but had failed to produce any money. The complainant and her children were left in parlous circumstances while the maintenance defaulter
“utilised the system to stall his maintenance obligations through the machinery of the Act”.145
Mokgoro J concluded that there was indeed good and sufficient reason to approach the High
Court for contempt proceedings.
5.5 The matrimonial home
During the subsistence of a civil marriage,146 both spouses are entitled to live in the matrimonial home and to use the household assets (such as the furniture and appliances), irrespective
of whether they are married in or out of community of property and irrespective of which
spouse owns or rents the matrimonial home or household assets. This right does not arise
because one spouse confers it on the other. It is a sui generis (that is, unique) and invariable
consequence of a civil marriage.147
As a rule, the owning or renting spouse may not eject the other spouse from the matrimonial home without providing him or her with suitable alternative accommodation. Nor may
________________________
137 S 31(4). These businesses will presumably blacklist the defaulter, thereby denying him or her the opportunity of entering into credit agreements which may further reduce the financial resources from which
maintenance can be paid: Sinclair assisted by Heaton 471 fn 206.
138 S 31(4) of the Act.
139 S 40(1) and (2).
140 S 16(2).
141 2003 (2) BCLR 111 (CC), 2003 (2) SA 363 (CC).
142 Par 20.
143 See also De Jong and Heaton in Heaton (ed) Law of Divorce and Dissolution of Life Partnerships 159.
144 Par 23.
145 Par 32.
146 As the right only exists during the subsistence of the marriage it cannot be invoked by a widow: Dique v Van
der Merwe [2001] 2 All SA 289 (T), 2001 (2) SA 1006 (T).
147 Buck v Buck 1974 (1) SA 609 (R).
58
South African Family Law
the other spouse eject the owning or renting spouse.148 Because ejectment is an extraordinary
remedy it will not lightly be granted.149 Matrimonial guilt usually plays an important role,150 as
do the interests of the children who live in the matrimonial home.151 In this regard it should
particularly be borne in mind that section 28(2) of the Constitution requires that a child’s
best interests must be of paramount concern in every matter that concerns the child.152 Therefore even the “innocent” spouse could be ejected from the matrimonial home if the interests
of a child required this.
Instead of using the common-law application for ejectment from the matrimonial home, a
spouse who is subjected to or threatened with domestic violence may invoke the Domestic
Violence Act 116 of 1998 to prevent the other spouse from entering the matrimonial home or
part of it.153
One spouse can protect his or her right to live in the matrimonial home and to use the
household assets against interference by the other spouse. If the other spouse threatens to interfere with the right, for example, by threatening to eject the spouse from the matrimonial
home or remove household assets, an interdict can be sought.154 If the right has already been
violated, for example, if one of the spouses has denied the other access to the home and has
changed the locks or has removed household assets from the property, the prejudiced spouse
may rely on the mandament van spolie.155
The spouse’s right to live in the matrimonial home and to use the household assets in it
does not operate as against third parties.156 Thus, for example, a spouse cannot invoke his or
her right to occupy the matrimonial home as a defence if the property is repossessed because
of non-payment of bond instalments. Nor can the spouse demand occupation of the matrimonial home from a purchaser who validly bought the home from the other spouse.
5.6 Donations between spouses
Before the commencement of the Matrimonial Property Act on 1 November 1984, spouses
who were married out of community of property were prohibited from making donations to
each other. Any donation which was made in contravention of the prohibition was voidable at
the instance of the donor. However, section 22 of the Act provides that subject to the provisions of the Insolvency Act 24 of 1936, “no transaction effected before or after the commencement of this Act is void or voidable merely because it amounts to a donation between
spouses”. This section clearly has retroactive effect. Thus even donations spouses made to
each other before the commencement of the Act are valid.157
________________________
148 Badenhorst v Badenhorst 1964 (2) SA 676 (T); Owen v Owen 1968 (1) SA 480 (E); Whittingham v Whittingham
1974 (2) SA 636 (R). See further Sonnekus 1998 TSAR 647.
149 Badenhorst v Badenhorst 1964 (2) SA 676 (T); Du Plessis v Du Plessis 1976 (1) SA 284 (W); Lovell v Lovell 1980
(4) SA 90 (T), Heaton and Kruger Casebook on Family Law case [22]; Oosthuizen v Oosthuizen 1986 (4) SA
984 (T).
150 Badenhorst v Badenhorst 1964 (2) SA 676 (T); see also Du Plessis v Du Plessis 1976 (1) SA 284 (W).
151 See eg Lovell v Lovell 1980 (4) SA 90 (T).
152 See also ss 6 and 9 of the Children’s Act.
153 S 7(1)(c) and (d). The Act is discussed in ch 21 below.
154 See eg Buck v Buck 1974 (1) SA 609 (R); Du Plessis v Du Plessis 1976 (1) SA 284 (W); Glass v Glass 1980 (3)
SA 263 (W).
155 See eg Rosenbuch v Rosenbuch 1975 (1) SA 181 (W); Oglodzinski v Oglodzinski 1976 (4) SA 273 (D); Coetzee v
Coetzee 1982 (1) SA 933 (C); Manga v Manga 1992 (4) SA 502 (ZSC); Ross v Ross 1994 (1) SA 865 (SE); Du
Randt v Du Randt 1995 (1) SA 401 (O); Mans v Mans (formerly Richens, born Maddock) [1999] 3 All SA 506 (C).
156 See eg Dique v Van der Merwe [2001] 2 All SA 289 (T), 2001 (2) SA 1006 (T). But see Cattle Breeders Farm
(Pvt) Ltd v Veldman 1973 (2) PH B14 (R) where the court protected the wife from eviction by a third party
who was merely her husband’s alter ego. The court held that as long as the company allowed the husband
to live in the company house, it could not evict the wife.
157 Van Rensburg 1991 De Rebus 289 argues that s 22 only applies to donations that have already been “effected”, ie, completed. Reversion clauses in antenuptial contracts and other deeds of donation are not
affected by s 22. A reversion clause refers to an agreement that the donation will revert to the donor in a
continued
Chapter 5: The invariable consequences of a civil marriage
59
Part of the reason why the prohibition on donations between spouses existed was because
the spouses’ creditors could be seriously prejudiced if the spouses could freely make donations to each other. The proviso in section 22 of the Matrimonial Property Act with regard to
the Insolvency Act now protects creditors in the event of insolvency.
The reason why the prohibition on donations did not apply to marriages in community of
property was simply that spouses who are married in community of property can generally not
make donations to one another because they own the joint estate in undivided and indivisible
half-shares.158 If one spouse were to make a donation to the other, the donated item would
simply come out of the joint estate and fall back into it. The donation would therefore have
no effect. As community of property still entails that each spouse owns an undivided and
indivisible half-share of the joint estate, the abolition of the prohibition on donations between spouses has no application in marriages in community of property, unless the donor
spouse donates one of his or her separate assets to the other spouse subject to the provision
that the donation must be excluded from the joint estate.159
5.7 The family name
Many married women still assume their husband’s surname although they need not do so. In
terms of section 26(1) of the Births and Deaths Registration Act 51 of 1992, a wife may assume her husband’s surname or, after having assumed his surname, resume a surname she
bore at any prior time, or add her married surname to any surname she bore at any prior
time (in other words, she may create a double-barrelled surname).160 A husband does not
have the same options. If he wants to assume his wife’s surname or add it to his own, he must
apply to the Director-General of Home Affairs for permission to do so. This differentiation
unjustifiably violates the equality clause.161 The differentiation becomes even more striking
when one compares the position of spouses in a civil marriage with that of civil union partners: in a civil union either civil union partner may assume the other’s surname or, after
having assumed that surname, resume a surname he or she bore at any prior time, or create a
double-barrelled surname consisting of his or her post-civil union surname and a surname he
or she bore at any prior time.162 It is submitted that there is no constitutionally acceptable
justification163 for the differentiation between husbands in civil marriages and partners in civil
unions and that the restriction of the dispensation in section 26(1) to a wife in a civil marriage is unconstitutional.
5.8 Headship of the family
In terms of our common law, the husband is the head of the family.164 In 1984, this commonlaw rule was expressly incorporated into section 13 of the Matrimonial Property Act. In 1993
________________________
158
159
160
161
162
163
164
particular event, such as the beneficiary dying first or the marriage being terminated by divorce. On reversion clauses in antenuptial contracts, see ch 7 below.
See ch 6 below.
Certain assets, eg donations the donor excludes from the joint estate, do not form part of the joint estate:
see ch 6 below.
If both spouses have double-barrelled surnames, the wife’s surname could end up being two doublebarrelled surnames together. Labuschagne 2003 SA Public Law 480 submits that double-barrelled surnames
should be prohibited.
S 9 of the Constitution. See further Heaton Bill of Rights Compendium par 3C22; Sinclair assisted by Heaton
138–139; Sonnekus 1993 TSAR 608. But see the decision of the Namibian Supreme Court in Müller v President of the Republic of Namibia 2000 (6) BCLR 655 (NmS) where a similar argument regarding sex discrimination was rejected. For a critical discussion of the case, and an analysis of whether the rules regarding a
change of surname upon marriage discriminate against men or against women, see Bonthuys 2000 SALJ 468.
S 26(1) of the Births and Deaths Registration Act 51 of 1992, read with s 13(2) of the Civil Union Act. On
civil unions, see ch 16 below.
S 36 of the Constitution contains the limitation clause.
Voet 23.4.20.
60
South African Family Law
the legislator attempted to remove the husband’s headship from our law by deleting the
reference to it from section 13.165 However, as the true source of the rule is the common law
and not section 13, the deletion did not achieve what the legislator had in mind for the
deletion merely reinstated the common-law position.166
Even though the common-law rule that the husband is the head of the family was not abolished by the deletion of section 13, it is arguable that section 11 of the Matrimonial Property
Act achieved the desired result or at least removed much of the content of the husband’s
headship of the family. Section 11 abolishes the husband’s marital power “over the person
and property of his wife”, but is silent on his headship of the family.167 However, because most
instances in which the husband exercises his powers as head of the family entail his exercising
a power over his wife and/or her property, those powers are probably covered by the abolition in section 11. For example, if a husband unilaterally decided that the family should move
to another town or country, he would be attempting to exercise a power over his wife’s person. If he unilaterally determined the lifestyle of the spouses, he would be attempting to
exercise a power over his wife’s property if her property had to be used to (partly) finance
this lifestyle. His decision regarding their lifestyle might also involve exercising a power over
his wife’s person. For example, by unilaterally deciding on a lifestyle that involves frequent
entertaining at home he would be compelling his wife to either participate in entertaining or
to leave the house while he entertained. Thus it may well be that by abolishing the husband’s
marital power “over the person and property of his wife” the legislator simultaneously divested the husband of most (if not all) elements of his headship of the family. Furthermore,
applying the purposive, contextualised and Constitution-consistent interpretation of legisla168
tion dictated by the Constitutional Court, one would conclude that sections 11 and 13 of
the Matrimonial Property Act entail that the common-law rule regarding the husband’s
headship no longer forms part of our law, inter alia because the rule is clearly irreconcilable
with the ostensible purpose and context of chapter II of the Matrimonial Property Act, namely placing spouses in a position of formal equality as against each other.169 If, however, one
were to conclude that the rule that the husband is the head of the family indeed still forms
part of our law, there is no doubt that the rule would be declared unconstitutional if it were
ever challenged, for it clearly constitutes unjustifiable unfair discrimination on the ground of
sex and gender and also constitutes an unjustifiable infringement of wives’ right to dignity.170
________________________
165 General Law Fourth Amendment Act 132 of 1993 s 30. S 4 of the Guardianship Act 192 of 1993 subsequently repealed the remainder of s 13 of the Matrimonial Property Act. The Guardianship Act has itself
since been repealed by s 313 read with schedule 4 of the Children’s Act.
166 See also Barratt (ed) Persons and the Family 275; Clark in Clark (ed) Family Law Service par L6; Sinclair in
Van Heerden et al (eds) Boberg’s Law of Persons and the Family 172; Sinclair assisted by Heaton 132–133, 439;
Sonnekus in Clark (ed) Family Law Service par B2; Wille’s Principles 256; but see Joubert in Clark (ed) Family
Law Service par A53.
167 On the abolition of the marital power, see further ch 6 below.
168 On the approach to interpretation of Acts which has been prescribed by the Constitutional Court, see ch 3
above.
169 See also Visser and Potgieter 72 fn 10.
170 S 9(3) of the Constitution protects the right not to be subject to unfair sex and gender discrimination,
while s 10 protects the right to dignity. See also Barratt (ed) Persons and the Family 274; Church and Church
in Church (ed) LAWSA Marriage par 61; Heaton Bill of Rights Compendium par 3C18; Sinclair in Van
Heerden et al (eds) Boberg’s Law of Persons and the Family 172; Sinclair assisted by Heaton 441–442; Skelton
and Carnelley (eds) Family Law 59.
6
THE VARIABLE CONSEQUENCES
OF A CIVIL MARRIAGE –
MARRIAGE IN COMMUNITY OF PROPERTY
6.1 Introduction
Until the commencement of the Matrimonial Property Act 88 of 1984 on 1 November 1984,
two main matrimonial property systems existed in South Africa, namely marriage in community of property with the marital power, and marriage out of community of property with the
exclusion of both community of profit and loss and the husband’s marital power. The latter
matrimonial property system is also known as complete separation of property. Other matrimonial property systems were possible, but seldom occurred in practice.
The Matrimonial Property Act did not abolish the two matrimonial property systems which
were most common before 1984, but it abolished the marital power1 and introduced a variation of marriage out of community of property, namely the accrual system.2 However, the
primary matrimonial property system has always been, and still is, universal community of
property. In fact, when a couple enters into a civil marriage, a rebuttable presumption arises
that they are marrying in community of property.3 The Matrimonial Property Act did not
change this.
6.2 Cases in which community of property does not arise
As pointed out above, our law rebuttably presumes that all civil marriages are in community
of property. This presumption is rebutted by proving the presence of any of the following
circumstances:
(1) The existence of a valid antenuptial contract in which community of property and community of profit and loss are excluded.4
(2) The existence of a valid postnuptial notarial contract in which community of property
and community of profit and loss are excluded.5
(3) The husband’s lex domicilii at the time of the marriage provides that the marriage is out
of community of property. In terms of South African law, the husband’s lex domicilii at
the time of the wedding determines the matrimonial property system that operates in the
marriage.6 Thus, if the husband is domiciled in a country where marriage is automatically
________________________
1 Originally, the marital power was abolished only in marriages white, coloured and Asian persons entered
into after the coming into operation of the Act: see below in this chapter.
2 The accrual system is discussed in ch 7 below.
3 Edelstein v Edelstein 1952 (3) SA 1 (A); Brummund v Brummund’s Estate 1993 (2) SA 494 (NmHC).
4 The requirements for the creation of a valid antenuptial contract are discussed in ch 7 below.
5 On postnuptial variation of the matrimonial property system by means of a notarial contract, see ch 8 below.
6 Frankel’s Estate v The Master 1950 (1) SA 220 (A). For criticism of this rule, especially in the light of the Constitution of the Republic of South Africa, 1996, see Forsyth 295–296 fn 116, 300; Neels 1992 TSAR 336; Heaton and Schoeman 2000 THRHR 146; Schoeman 2004 TSAR 117–118, 140; Neels and Wethmar-Lemmer
continued
61
62
South African Family Law
out of community of property, the spouses are married out of community of property
unless they enter into an antenuptial contract in which they choose community of property. For example, if the husband is domiciled in England at the time of the marriage
and the parties do not enter into an antenuptial contract, the marriage would, in terms of
English law, be out of community of property. Should the parties later emigrate to South
Africa, the marriage would remain out of community of property.7
(4) The spouses are African persons who entered into a civil marriage which is governed by
section 22(6) of the Black Administration Act 38 of 1927. In terms of this section, civil
marriages African persons entered into before the coming into operation of the Marriage and Matrimonial Property Law Amendment Act 3 of 1988 (that is, before 2 December 1988) are out of community of property, unless the spouses made a joint written
declaration before a magistrate, commissioner or marriage officer, within one month prior
to the marriage, that they wished to marry in community of property, profit and loss.
This position is therefore the exact opposite of that which applies in marriages between
white, coloured and Asian persons. The Marriage and Matrimonial Property Law Amendment Act repealed section 22(6) of the Black Administration Act and brought the patrimonial consequences of civil marriages of African persons into line with those of white,
coloured and Asian persons. The patrimonial consequences of a civil marriage an African couple entered into on or after 2 December 1988 are therefore exactly the same as
those that apply in the civil marriages of white, coloured and Asian persons.
African persons who married before the coming into operation of the Marriage and
Matrimonial Property Law Amendment Act could cause the provisions of the Matrimonial Property Act to apply to their civil marriage by executing and registering a notarial
contract to that effect within two years of the commencement of the Marriage and Matrimonial Property Law Amendment Act.8 In such cases the provisions of the Matrimonial
Property Act applied from the date on which the contract was registered. The possibility
of changing the matrimonial property system in this manner ceased to exist on 2 December 1990, but parties can still alter their matrimonial property system in terms of section
21(1) of the Matrimonial Property Act.9
6.3 The nature of universal community of property
The generally accepted view is that universal community of property entails that the spouses
become tied co-owners in undivided and indivisible half-shares of all the assets and liabilities
they have at the time of their marriage as well as all the assets and liabilities they acquire
during the marriage. Upon marriage, the spouses’ separate estates are automatically merged
into one joint estate for the duration of the marriage. Upon dissolution of the marriage, all
liabilities are settled from the joint estate and the balance of the joint estate is distributed
10
equally between the spouses. This view of the nature of universal community of property was
confirmed and applied by the Appellate Division (now the Supreme Court of Appeal) in
Estate Sayle v Commissioner for Inland Revenue,11 De Wet v Jurgens 12 and Mazibuko v National Director
________________________
7
8
9
10
11
12
2008 TSAR 587–588. Unfortunately, South African private international law does not currently have a ready
replacement for the rule. Therefore, the legislator should step in to enact a suitable and constitutionally
acceptable rule: Heaton Persons 41; Schoeman 2004 TSAR 140.
Frankel’s Estate v The Master 1950 (1) SA 220 (A); see also Sperling v Sperling 1975 (3) SA 707 (A); Bell v Bell
1991 (4) SA 195 (W); Brummund v Brummund’s Estate 1993 (2) SA 494 (NmHC).
Ss 21(2)(a), 25(2) and 25(3) of the Matrimonial Property Act.
On s 21(1) of the Matrimonial Property Act, see ch 8 below.
If the marriage is terminated by divorce, the spouses’ tied co-ownership of undivided and indivisible shares
of the joint estate automatically changes to free co-ownership of determinate and divisible shares: Ex parte
Menzies 1993 (3) SA 799 (C); Gugu v Zongwana [2014] 1 All SA 203 (ECM). See further Heaton in Heaton
(ed) Law of Divorce and Dissolution of Life Partnerships 96.
1945 AD 388, Heaton and Kruger Casebook on Family Law case [23].
1970 (3) SA 38 (A), Heaton and Kruger Casebook on Family Law case [24].
Chapter 6: Variable consequences of a civil marriage - Marriage in community of property
63
of Public Prosecutions.13 It is important to note that this view implies that the spouses cannot
divide the joint estate during the subsistence of the marriage, for their half-shares are not
only undivided, but also indivisible for as long as the marriage lasts.14
6.4 The content of universal community of property
6.4.1 Assets
(a) General
The moment spouses enter into a marriage in community of property, they become coowners of all the assets either of them owns. Generally, all assets acquired by either spouse
after marriage also become part of the joint estate.15 An asset is anything that has monetary
value for the person who holds a right, title or interest in it. Examples of assets are immovable
property; share-block interests; motor vehicles; boats; aeroplanes; money; jewellery; clothing;
loan accounts in companies or partnerships; membership interests in close corporations;
goodwill in firms or businesses; shares; furniture; domestic appliances; works of art; debts one
of the spouses can claim; policies that have a cash or surrender value;16 and pension benefits
that have already accrued to one of the spouses.17
The transfer of ownership which occurs when spouses enter into a marriage in community
of property takes place automatically by operation of law so that no delivery of movable property, registration of immovable property, cession of rights, and so on, is necessary.18
The general rule that all assets of both spouses become part of the joint estate is subject to
exceptions which are discussed immediately below.
________________________
13 2009 (6) SA 479 (SCA); see also Ex parte Menzies 1993 (3) SA 799 (C); Du Plessis v Pienaar [2002] 4 All SA
311 (SCA), 2003 (1) SA 671 (SCA); Corporate Liquidators (Pty) Ltd v Wiggill [2006] 4 All SA 439 (T), 2007 (2)
SA 520 (T); Zulu v Zulu 2008 (4) SA 12 (D).
14 See also ch 8 below. In certain circumstances, the court may divide the joint estate: see the discussion of
s 20 of the Matrimonial Property Act below in this chapter. If the spouses agree on an extra-judicial separation, they may also deviate from the consequences of community of property for the duration of their separation: see ch 9 below.
15 This includes the right to occupy premises in terms of a tenancy, residential permit or statutory lease: Persad
v Persad 1989 (4) SA 685 (D); Toho v Diepmeadow City Council 1993 (2) SA 679 (W); Moremi v Moremi 2000 (1)
SA 936 (W).
16 Prior to the maturity date of the policy or the insured’s death or disability, it is only the policy holder’s
rights to surrender the policy, obtain a loan against the policy, etc that fall into the joint estate: Hees v Southern Life Association Ltd [2000] 1 All SA 327 (W), 2000 (1) SA 943 (W); Danielz v De Wet 2009 (6) SA 42 (C).
Likewise, a person who has been nominated as the beneficiary of a life insurance policy only acquires a
right to the proceeds of the policy when the policy matures or the insured dies or becomes disabled and
the beneficiary accepts the proceeds: Pieterse v Shrosbee; Shrosbee v Love [2006] 3 All SA 343 (SCA), 2005 (1)
SA 309 (SCA); Oshry v Feldman [2011] 1 All SA 124 (SCA), 2010 (6) SA 19 (SCA), Heaton and Kruger Casebook on Family Law case [40]; PPS Insurance Company Ltd v Mkhabela 2012 (3) SA 292 (SCA). On the issue of
whether the proceeds of a life insurance policy fall into the joint estate or into the estate of the deceased
after his or her death, see ch 10 fn 5 below.
17 If the benefits have not yet accrued to the spouse, s 7(7) and (8) of the Divorce Act applies if the marriage
is terminated by divorce: see ch 12 below. On assets, see further Heaton in Heaton (ed) Law of Divorce and
Dissolution of Life Partnerships 70–80.
18 Ex parte Menzies 1993 (3) SA 799 (C); Corporate Liquidators (Pty) Ltd v Wiggill [2006] 4 All SA 439 (T), 2007
(2) SA 520 (T). Immovable property and real rights in immovable property which are obtained during the
subsistence of the marriage are registered in the names of both spouses unless such registration takes place
in the name of a partnership and the spouse is only involved in the capacity of partner: s 17(1) of the Deeds
Registries Act 47 of 1937. If immovable property which is registered in the name of either spouse is brought
into the joint estate, a note reflecting the other spouse’s interest in the property must be made on the title
deed if this is requested: s 17(4) of the Deeds Registries Act.
64
South African Family Law
(b) Separate assets19
(i) Assets excluded in an antenuptial contract
The spouses can exclude assets from the joint estate in an antenuptial contract. The fruits of
such assets form part of the joint estate unless they are also excluded in the antenuptial
contract.20 By virtue of the maxim pretium succedit in locum rei, res succedit in locum pretii (that is,
literally, the price takes the place of the asset, the asset takes the place of the price) any asset
which replaces an asset that is excluded in an antenuptial contract also falls outside the joint
estate.21 Thus, for example, if the spouses excluded an amount of money from the joint estate
and the money is used to buy a house, the house is also excluded from the joint estate.22
(ii) Assets excluded by will or deed of donation
A third party may make a donation or bequest to a spouse, subject to the condition that the
23
asset must not become part of the joint estate. The maxim pretium succedit in locum rei, res
succedit in locum pretii operates in respect of this category of excluded assets too.24 Thus, for
example, if a spouse inherits an amount of money that is excluded from the joint estate and
uses it to buy a motor vehicle, the motor vehicle is his or her separate property.25 However,
the fruits (for example, interest) of the donated or bequeathed asset fall into the joint estate
unless the donor or testator specifically excluded them too.26
(iii) Assets subject to a fideicommissum or usufruct
Property which is subject to a fideicommissum or usufruct is not part of the joint estate, but the
fruits or proceeds derived from such property are.27 Various reasons have been put forward
for this rule.28 The most acceptable explanation is that assets which are subject to a fideicommissum or usufruct do not fall into the joint estate because they are the beneficiary’s personal
rights which he or she cannot alienate.29 As a usufruct is inalienable, it cannot be replaced,
but fideicommissary property can. Some authors suggest that an asset which replaces property
that is subject to a fideicommissum falls into the joint estate, because the rationale for excluding
the fideicommissary property does not apply to the replacement asset.30
________________________
19 As is clear from the list of exceptions, separate assets were recognised at common law. Moseneke DCJ’s
statement in Van der Merwe v Road Accident Fund 2006 (6) BCLR 682 (CC), 2006 (4) SA 230 (CC) par 31 that
the Matrimonial Property Act introduced the notion of separate property is therefore incorrect. On this
point, see further Klopper 2007 THRHR 677–679.
20 Blatchford v Blatchford’s Executors (1861) 1 EDC 365.
21 Ex parte Lelie 1945 WLD 167.
22 If the proceeds are used to buy another asset of the same or a lesser value, the replacement is the spouse’s
separate property. The same applies if the separate asset is merely exchanged for another. However, it is
not clear what the position is if the value of the replacement or substitute exceeds that of the asset which
was originally excluded from the joint estate. Presumably the replacement or substitute is excluded only up
to an amount which is equal to the value of the original asset: Heaton in Heaton (ed) Law of Divorce and
Dissolution of Life Partnerships 80.
23 De Jong and Pintens 2015 TSAR 560 suggest that the default position ought to be that bequests and
donations become separate property.
24 Ex parte Lelie 1945 WLD 167.
25 But see fn 22 above on the difficulty that arises if the value of the replacement or substitute exceeds that of
the inheritance.
26 Yeats 1944 THRHR 159 et seq.
27 Van der Merwe v Van Wyk 1921 EDL 298; Barnett v Rudman 1934 AD 203; Van Wyk v Groch 1968 (3) SA 240
(E); see also Roux v Santam Versekeringsmaatskappy Bpk 1977 (3) SA 261 (T).
28 Coren Consilia 25 finds the reason in the prohibition on alienation which is placed on the property. Voet
23.2.77 states that the reason is that the property is res aliena (ie, the asset of another). In Barnett v Rudman
1934 AD 203 213 Beyers JA was of the opinion that the reason is to be found in the wishes of the testator.
29 Hahlo, 5th edn, 167; see also Church and Church in Church (ed) LAWSA Marriage par 70; Van der Vyver
and Joubert 540.
30 Lee and Honoré par 81(x); Wille’s Principles 270 fn 370; Yeats 1944 THRHR 159 et seq.
Chapter 6: Variable consequences of a civil marriage - Marriage in community of property
65
(iv) Jocalia (that is, engagement gifts)
Arrhae sponsalitiae and sponsalitia largitas do not become part of the joint estate.31 In respect of
this category too, some authors suggest that replacement assets fall into the joint estate.32
(v) Benefits under the Friendly Societies Act 25 of 1956
In terms of section 17 of the Friendly Societies Act 25 of 1956, benefits due to a married
woman in terms of the Act do not fall into the joint estate.33 Restricting the exclusion to benefits that are due to a wife constitutes unfair discrimination that is just as unjustifiable as the
discrimination that was occasioned by section 44(1) and (2) of the Insurance Act 27 of 1943,
except that, here, men are the victims of the discrimination. Section 44(1) and (2) of the
Insurance Act deprived wives of all or some of the benefits of life insurance policies ceded to
them or made in their favour by their husbands. In Brink v Kitshoff 34 the Constitutional Court
set section 44(1) and (2) aside on the ground that it constituted an unjustifiable violation of
women’s right not to be subject to unfair discrimination on the grounds of sex and marital
status.35 It is submitted that the same fate would befall section 17 of the Friendly Societies Act
if it was ever to be challenged under the Constitution.36
(vi) Non-patrimonial damages
Section 18(a) of the Matrimonial Property Act provides that any amount a spouse recovers by
way of non-patrimonial damages for a delict committed against him or her is his or her separate property. In terms of the decision in Van den Berg v Van den Berg,37 this provision includes
disability payments the injured spouse receives in terms of an insurance policy. The court
held that even though such payments are made in terms of the insurance contract between
the spouse and the insurance company, the payment is a direct result of a delict committed
against the spouse. The court therefore concluded that the causa (that is, the ground) for the
payment is delictual and not contractual, and that the amount is covered by section 18(a)
because it relates to non-patrimonial loss.
Section 18(a) is silent on the exclusion of proceeds and replacement assets of nonpatrimonial damages from the joint estate. In the case of marriages which are subject to the
accrual system, the Matrimonial Property Act expressly provides that the proceeds and replacements of some assets excluded from the accrual are similarly excluded from the accrual.38 In accordance with the maxim inclusio unius est exclusio alterius (that is, specific inclusion
of one implies exclusion of the other), the fact that the legislator expressly dealt with proceeds and replacements of excluded assets in some sections of the Act suggests that it did not
intend the proceeds and replacements of other excluded assets to be excluded from either
the joint estate or the accrual.39 Thus, the proceeds and replacement assets of non40
patrimonial damages are probably not excluded from the joint estate.
________________________
31 On the meaning of these terms, see ch 2 above. At common law, all jocalia became the sole property of the
recipient: see Yeats 1944 THRHR 159 et seq who refers to Rodenburg, Matthaeus, Van Wesel, Groenewegen
and Cos. In Reddy v Chinasamy 1932 NPD 461 the matter of sponsalitia largitas was raised. The husband had
given his wife a pair of gold bracelets during their engagement. During the marriage a creditor attached
them. The court decided, mistakenly in view of the common law, that the bracelets fell into the joint estate.
In Barkhan v Barkhan 1960 (4) SA 288 (W), followed in Levin v Levin 1960 (4) SA 469 (W), the court held
that arrhae sponsalitiae (in this case, an engagement ring) fall outside the joint estate and cannot be recovered by the husband upon divorce.
32 Lee and Honoré par 81(x) fn; Wille’s Principles 271 fn 373; Yeats 1944 THRHR 159 et seq.
33 As the Act is silent on the exclusion of proceeds or replacement assets, it is presumably only the amount of the
benefits that is excluded from the joint estate. But see Lee and Honoré par 81 fn; Wille’s Principles 272 fn 375.
34 1996 (6) BCLR 752 (CC), 1996 (4) SA 197 (CC).
35 Ss 9(3) and 36 of the Constitution.
36 See also Heaton Bill of Rights Compendium par 3C23.
37 2003 (6) SA 229 (T). For criticism of the view that such damages are non-patrimonial, see Mailula 2005
THRHR 310–315.
38 Ss 4(1)(b)(ii) and 5(1) of the Matrimonial Property Act. See further ch 7 below.
39 But see Wille’s Principles 271 fn 371.
40 See also Heaton in Heaton (ed) Law of Divorce and Dissolution of Life Partnerships 81.
66
South African Family Law
(vii) Damages as a result of personal injury inflicted by the other spouse
In terms of section 18(b) of the Matrimonial Property Act, patrimonial and non-patrimonial
damages which are awarded to a spouse as a result of bodily injuries caused either wholly or
partly by his or her spouse become the injured spouse’s separate property.41 As the section is
silent on the exclusion of proceeds or replacement assets, it is presumably only the amount of
the damages that is excluded.42
(viii) Costs in a matrimonial action
If spouses who are married in community of property become involved in a matrimonial
action with each other without the marriage being dissolved, any costs awarded to either of
them do not fall into the joint estate.43
(ix) Proceeds excluded by the court in terms of the Prevention of Organised Crime Act 121 of 1998
In terms of section 50(1) read with section 48(1) of the Prevention of Organised Crime Act
121 of 1998, a property that is, on a balance of probabilities, “an instrumentality” of an offence
in schedule 1 of the Act, the proceeds of unlawful activities, or property associated with terrorist and related activities may be forfeited to the state. If the owner of the property is married
in community of property, both spouses’ rights in the property are forfeited to the state
because the spouses own the property in undivided and indivisible shares.44 The forfeited
property vests in a curator bonis on behalf of the state as of the date that the forfeiture order
takes effect.45 The curator disposes of the property and deposits the proceeds into the Criminal Assets Recovery Account.46 In terms of the decision of the Supreme Court of Appeal in
Mazibuko v National Director of Public Prosecutions,47 the court that makes the forfeiture order
may order the curator not to deposit the full proceeds into the Criminal Assets Recovery
Account if one of the spouses is an “innocent owner” in the sense of having acquired his or
her interest in the property legally and not having known or had reasonable grounds to suspect that the property was an instrumentality of an offence referred to in schedule 1, the proceeds of unlawful activities, or property associated with terrorist and related activities.48 The
Supreme Court of Appeal further held that the Act empowers the court to order that the
innocent owner’s excluded interest in the proceeds of the forfeited asset falls outside the joint
estate.
(c) Attachment of separate assets
In Du Plessis v Pienaar 49 the Supreme Court of Appeal made it clear that creditors of spouses
who are married in community of property can look to the joint estate and the estates of both
spouses for recovery of a joint debt. The court also held that exclusion of an asset from the
joint estate does not protect the asset in the case of insolvency, because all property of both
spouses fall into the insolvent estate if the spouses are sequestrated.50 The court stated that
the fact that a spouse owns separate assets
________________________
41 S 18(b) of the Matrimonial Property Act. Originally, the section excluded only damages for nonpatrimonial loss. The Constitutional Court found this restriction unconstitutional: Van der Merwe v Road
Accident Fund 2006 (6) BCLR 682 (CC), 2006 (4) SA 230 (CC). S 21 of the Judicial Matters Amendment Act
66 of 2008 amended s 18(b) in keeping with the Constitutional Court’s decision.
42 See fn 22 above.
43 Comerma v Comerma 1938 TPD 220; Wulfsohn v Van der Gryp 1961 (1) SA 596 (W).
44 See above in this chapter.
45 S 56(2) of the Prevention of Organised Crime Act.
46 S 57(1) read with the definition of “account” in s 1(1).
47 2009 (6) SA 479 (SCA).
48 See s 52(2) and (2A).
49 [2002] 4 All SA 311 (SCA), 2003 (1) SA 671 (SCA); see also De Wet v Jurgens 1970 (3) SA 38 (A); Badenhorst
v Bekker 1994 (2) SA 155 (N).
50 On the testator or donor’s inability to exclude an asset from an insolvent joint estate, see further Evans
2003 SA Merc LJ 228; Roux Sept 2012 De Rebus 30. Robinson in Atkin (ed) 2007 International Survey of Family
Law 281 suggests that the principles laid down in Van der Merwe v Road Accident Fund 2006 (6) BCLR 682
(CC), 2006 (4) SA 230 (CC) regarding the unconstitutionality of distinguishing between spouses married
continued
Chapter 6: Variable consequences of a civil marriage - Marriage in community of property
67
is relevant to the manner in which the property may be dealt with by the spouses inter se [that is,
as between themselves] and to their rights upon dissolution of the marriage but does not affect
the ordinary right of a creditor to look to all the property of the debtor in satisfaction of a debt.51
In other words, if, for example, a testator excludes property from an heir’s joint estate, the
exclusion operates only as between the spouses and not as against third parties. Consequently,
even the excluded asset can be attached for joint debts, and the excluded asset falls into the
insolvent estate if the spouses are sequestrated.
The judgment does not deal with attachment of separate assets if the spouses are still solvent. It seems that in such event, one spouse’s separate assets may not be attached for the
other spouse’s separate debts.52
6.4.2
Liabilities
(a) General
As a general rule, marriage in community of property not only results in community of assets
but also in community of liabilities. The merger of liabilities, like the merger of assets, applies
to antenuptial debts as well as debts incurred during the subsistence of the marriage.
In the past, the exact nature of the spouses’ liability for joint debts was unclear as the then
Appellate Division delivered conflicting judgments in this regard. On the one hand there was
authority that the spouses are quite simply joint debtors,53 while on the other hand the same
court also held that the spouses remain separate debtors even though the debt has to be paid
from the joint estate.54 More recently, the Supreme Court of Appeal has favoured the view
that the spouses are joint debtors.55 One consequence of this view is that one spouse who is
married in community of property cannot stand surety for the other spouse’s debts because
those debts are joint debts and in our law a person cannot stand surety for his or her own
debt.56 This is the position even if the spouse who stands surety has separate property.57
(b) Antenuptial debts
The Roman-Dutch authors state that all antenuptial debts of both spouses become joint debts
as soon as a marriage is concluded in community of property. They further state that there
are no exceptions to this rule.58 In principle, the rule that marriage in community of property
causes all antenuptial debts to become joint debts still applies in our law. This rule extends
not only to contractual debts of both spouses but also to maintenance obligations towards
parents, siblings, children from a previous marriage, and children born of unmarried parents.59 However, it is not entirely clear whether the rule still applies to antenuptial delictual
debts. Since section 19 of the Matrimonial Property Act applies whenever “a spouse” is liable
________________________
51
52
53
54
55
56
57
58
59
in community of property and those married out of community as far as non-patrimonial damages are concerned might require reconsideration of the law’s refusal to exclude the separate assets of a spouse who is
married in community of property from the insolvent estate.
Par 5. See further Nagel and Boraine 1993 De Jure 457; Sonnekus 1994 TSAR 143, 2003 TSAR 575.
Lee and Honoré par 84; Wille’s Principles 274; see also s 19 of the Matrimonial Property Act which indicates
that one spouse’s delictual debts cannot be recovered from the other spouse’s separate property; they can
only be recovered from the separate property of the spouse who committed the delict, or from the joint
estate if that spouse has no (or insufficient) separate assets.
See eg De Wet v Jurgens 1970 (3) SA 38 (A).
See eg Santam Versekeringsmaatskappy Bpk v Roux 1978 (2) SA 856 (A).
Nedbank Ltd v Van Zyl 1990 (2) SA 469 (A), Heaton and Kruger Casebook on Family Law case [25]; Du Plessis v
Pienaar [2002] 4 All SA 311 (SCA), 2003 (1) SA 671 (SCA).
Nedbank Ltd v Van Zyl 1990 (2) SA 469 (A).
Ibid (obiter); Du Plessis v Pienaar [2002] 4 All SA 311 (SCA), 2003 (1) SA 671 (SCA).
See eg Voet 23.2.80; Matthaeus Paroemia vol II 22.
On liability for maintenance in respect of a child born of unmarried parents, see Estate De Klerk v Rowan
1922 EDL 334 as opposed to Fitzgerald v Rex 1926 NPD 445. Voet 23.2.82 makes such a duty of support an
obligation of the joint estate, without exception.
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South African Family Law
for delictual damages, it may be that the section relates not only to a delict committed during
the subsistence of the marriage but also to one committed prior to marriage but in respect of
which damages have not yet been paid.60 If section 19 indeed extends to an antenuptial
delictual debt, the delictual debt must be recovered first from the separate property of the
spouse who committed the delict, and then from the joint estate to the extent that the
spouse’s separate assets are insufficient to meet the debt. In so far as the damages are recovered from the joint estate, an adjustment must be made in favour of the other spouse upon
division of the joint estate.61
(c) Debts incurred during the subsistence of the marriage
(i) Contractual debts
The answer to the question of whether a contractual debt incurred during the marriage must
be recovered from the joint estate or from the separate assets of the spouse who incurred the
debt depends on whether or not the spouse had the capacity to bind the joint estate. This, in
turn, depends on whether, if required, the other spouse’s consent to the transaction was
obtained.62 If the spouse who incurred the contractual debt indeed had the capacity to bind
the joint estate, the debt becomes a joint debt which can be recovered from the joint estate.
(ii) Delictual debts
Section 19 of the Matrimonial Property Act regulates the liability for delictual damages of
spouses who are married in community of property. It provides that when a spouse is liable
for damages or a contribution towards damages for a delict he or she committed, the creditor
must recover the amount as follows:
(1) Firstly, from the separate property of the spouse who committed the delict.63
(2) Secondly, if there is no or insufficient separate property, from the joint estate.64
In so far as the damages or contribution is recovered from the joint estate, an adjustment
65
must be made in favour of the other spouse upon division of the joint estate. The separate
assets of the spouse who committed the delict must first be exhausted before joint assets may
be seized. If joint assets are used and the joint estate is large enough for an adjustment to be
effected upon dissolution, the spouse who did not commit the delict is adequately protected.
However, if upon division the joint estate is too small for a total adjustment to be effected, the
spouse who did not commit the delict unfortunately has no remedy.
As a general rule, spouses who are married in community of property cannot sue each other
in delict, as each spouse owns half the joint estate and the amount recovered as damages will
come from the joint estate only to return to it.66 However, the Matrimonial Property Act
permits a spouse who is married in community of property to recover damages in respect of
bodily injuries caused either wholly or partly by the other spouse from that spouse. The
injured spouse can therefore hold his or her spouse, or that spouse’s insurer, liable for
damages resulting from, for example, a motor vehicle accident. The amount the injured
spouse receives is the spouse’s separate asset.67 If one spouse claims damages from the other,
the amount must, by virtue of section 19 of the Act, first be recovered from the separate assets
of the spouse who committed the delict. Should the separate assets be insufficient or should
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60
61
62
63
64
65
66
67
See also Hahlo, 5th edn, 170, 184; Wille’s Principles 273.
For a detailed discussion of s 19, see below in this chapter.
The capacity of the spouses to administer the joint estate and incur debts is discussed below in this chapter.
Separate property is property which does not form part of the joint estate: see the definition in s 1 of the
Matrimonial Property Act and the discussion of separate assets above in this chapter.
This principle also applies to the costs, if any, that the spouse must meet in such action.
For the formula for and an example of calculating the adjustment, see Heaton in Heaton (ed) Law of
Divorce and Dissolution of Life Partnerships 95.
Tomlin v London and Lancashire Insurance Co Ltd 1962 (2) SA 30 (D).
S 18(b) of the Matrimonial Property Act.
Chapter 6: Variable consequences of a civil marriage - Marriage in community of property
69
there be no separate assets at all, the damages must be paid out of the joint estate, with an
adjustment taking place when the joint estate is dissolved.
(iii) Other separate debts
At present, the legal position regarding other separate debts, such as criminal fines and a
spouse’s maintenance obligations towards his or her parents, siblings, children born of
unmarried parents, and children from a previous marriage, is unclear. Since the legislator has
seen fit to provide that a delictual debt a spouse who is married in community of property
incurs is that spouse’s separate debt,68 it seems only proper that the same rule should apply to
a criminal fine. In other words, subject to the innocent spouse’s right of recourse upon dissolution of the joint estate, a criminal fine should be recoverable from the joint estate if the
guilty spouse has no or insufficient separate assets. The same rule ought to apply to maintenance debts in respect of a spouse’s parent, sibling, or child born of unmarried parents or a
previous marriage, for otherwise the other spouse would be compelled to contribute to the
support of someone in respect of whom he or she has no duty of support.69
In terms of section 17(1)(a) of the Matrimonial Property Act, a spouse may institute legal
proceedings in connection with his or her separate property without the other spouse’s consent. Legal costs and debts in respect of such separate property ought also to be recovered
first from the separate property of the spouse concerned.
The legislator ought to intervene to achieve legal certainty about liability for all separate
debts by extending section 19 of the Matrimonial Property Act to criminal fines and other
70
separate debts of spouses married in community of property.
(d) Debts which are outstanding at the dissolution of the joint estate
(i) Contractual debts
Antenuptial contractual debts which have not yet been paid after the marriage has been dissolved can be recovered only from the original debtor.71 Whether the original debtor has a
right of recourse against the other spouse is unclear. Voet72 is of the opinion that the original
debtor has a right of recourse pro semisse (that is, for half the debt), while Van der Keessel73
holds the opposite view. In the only reported case on the issue, Reis v Executors of Gilloway,74
the court rejected a right of recourse, but this decision is difficult to reconcile with the idea
that, upon marriage, both antenuptial and postnuptial debts become joint debts. Furthermore, on the ground of fairness Voet’s view is preferred.75
After the dissolution of the marriage, contractual debts incurred during the subsistence of
the marriage can be claimed in full from the spouse who originally incurred the debt, or half
the debt can be claimed from the original debtor and the other half from the other spouse.76
________________________
68 See the discussion of s 19 of the Matrimonial Property Act above in this chapter.
69 The duty of support rests on blood relationship, adoption and marriage. Spouses are obliged to support
one another (see ch 5 above), as are blood relations. However, one spouse is not obliged to support the
other spouse’s blood relations: see ch 23 below.
70 See also De Jong and Pintens 2015 TSAR 561.
71 Grotius 2.11.15; Voet 23.2.80, 42.1.33; Van Leeuwen Rooms-Hollands-Regt 4.23.6, 5.3.13; Censura Forensis
1.4.23.21; Van der Keessel Theses Selectae 222, 224; Praelectiones 2.11.11, 2.11.12, 2.11.15; Blatchford v Blatchford’s Executors (1861) 1 EDC 365; Thom v Worthmann 1962 (4) SA 83 (N).
72 23.2.80.
73 Theses Selectae 224; Praelectiones 2.11.15.
74 (1834) 1 Menz 186.
75 See also Church and Church in Church (ed) LAWSA Marriage par 87; Hahlo, 5th edn, 182; Lee and
Honoré par 97(i); Van der Vyver and Joubert 675–676; Visser and Potgieter 182; De Jong and Pintens 2015
TSAR 561.
76 Grotius 23.2.52, 23.2.80, 42.1.33; Thom v Worthmann 1962 (4) SA 83 (N); BP Southern Africa (Pty) Ltd v Viljoen
2002 (5) SA 630 (O); but see also Skelton and Carnelley (eds) Family Law 98 where it is stated – confusingly
and without reference to authority – that a debt that was incurred during the subsistence of the marriage
may be recovered “only from the original debtor” and also that “the creditor can recover 50% of the debt
from the original debtor and the other 50% from the spouse who did not incur the debt”.
continued
70
South African Family Law
If the original debtor pays the debt in full, he or she has a right of recourse for half, as the
debt was a joint liability.77 If one of the spouses possesses most of the assets of the former joint
estate after its dissolution (as a result of, for example, a forfeiture order made against the
other spouse upon divorce),78 the debt can be claimed in full from him or her without the
other spouse first being excussed.79
(ii) Delictual and other separate debts
Delictual and other separate debts which are outstanding after the dissolution of the marriage
can only be claimed from the original debtor. If the original debtor pays the debt, he or she
has no right of recourse against his or her former spouse.80
6.5 Administration of the joint estate
6.5.1 Abolition of the marital power
Before the commencement of the Matrimonial Property Act, the husband had the marital
power in all marriages in community of property. The marital power inter alia gave the husband the power to incur debts, and to buy, sell, pledge and burden joint assets as well as his
wife’s separate assets over which his marital power had not been excluded.81 The common law
and the Matrimonial Affairs Act 37 of 1953 granted a degree of protection to the wife, but the
protection came nowhere near eliminating the objections to the marital power. For women,
the marital power was not only a restriction on their capacity to act, but also a serious violation of their dignity, because they were placed in a position of inferiority to their husbands.
Section 11 of the Matrimonial Property Act abolished the marital power and replaced it with a
system of equal administration of the joint estate.82 The effect of the abolition of the marital
power was to do away with the restrictions the marital power placed on the wife’s capacity to
act and litigate.83 However, the abolition did not affect the legal consequences of any act or
omission which took place before the abolition of the marital power.84
The abolition of the marital power was initially restricted to civil marriages white, coloured
and Asian persons concluded on or after 1 November 1984 (that is, after the coming into
operation of the Matrimonial Property Act). White, coloured, and Asian spouses who were
married before the coming into operation of the Act were, however, granted a four-year
period within which they could abolish the marital power by means of the execution and
registration of a notarial contract.85 They could also jointly apply to court for permission to
abolish the marital power and change their matrimonial property system.86
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77
78
79
80
81
82
83
84
85
86
If the marriage has been dissolved by the death of one of the spouses, the creditor may not proceed directly
against the surviving spouse. The creditor has to lodge his or her claim with the executor of the deceased’s
estate. If an executor has not yet been appointed, the creditor must report the death and estate to the Master of the High Court so that an executor can be appointed: Wright v Westelike Provinsie Kelders Bpk [2001] 4
All SA 581 (C). On the dissolution of a joint estate by death, see ch 10 below.
Voet 23.2.80; Van der Keessel Theses Selectae 225.
On forfeiture of patrimonial benefits upon divorce, see ch 12 below.
Maury (Edms) Bpk h/a Franelle Gordyn Boutique v Erasmus 1988 (2) SA 314 (O); BP Southern Africa (Pty) Ltd v
Viljoen 2002 (5) SA 630 (O).
Van der Keessel Theses Selectae 94, 225.
Estate Sayle v Commissioner for Inland Revenue 1945 AD 388 396.
On equal administration of the joint estate, see the discussion under the next heading below.
S 12 of the Matrimonial Property Act; Godfrey v Campbell 1997 (1) SA 570 (C).
S 11(4) of the Matrimonial Property Act; see also Senwes Bpk v Gouws [2003] 2 All SA 216 (O).
S 25(2) of the Matrimonial Property Act. Initially this concession applied only for two years, but it was later
extended by another two years: Matrimonial Property Amendment Act 91 of 1986; GN R2114 of 9 Oct
1986.
S 21(1) of the Matrimonial Property Act. S 21(1) is discussed in ch 8 below.
Chapter 6: Variable consequences of a civil marriage - Marriage in community of property
71
When the Matrimonial Property Act was enacted, it did not apply to the civil marriages of
African persons.87 This restriction was removed by the Marriage and Matrimonial Property
Law Amendment Act, with the result that the Matrimonial Property Act governs all civil
marriages that have been concluded since 2 December 1988 (that is, the date of commencement of the Marriage and Matrimonial Property Law Amendment Act). African persons who
entered into a civil marriage before the coming into operation of the Marriage and Matrimonial Property Law Amendment Act could apply the provisions of the Matrimonial Property
Act (including the abolition of the marital power) to their marriage by executing and registering a notarial contract to that effect within two years of the date of commencement of the
Marriage and Matrimonial Property Law Amendment Act (that is, until 2 December 1990).88
It was only when section 29 of the General Law Fourth Amendment Act 132 of 1993 came
into operation on 1 December 1993 that the marital power was abolished completely in all
civil marriages. Section 29 of the General Law Fourth Amendment Act replaced section 11 of
the Matrimonial Property Act and further provided that the provisions of the Matrimonial
Property Act regarding equal administration of the joint estate would henceforth apply to all
marriages in community of property.
6.5.2 The principle of equal administration of the joint estate
The marital power was replaced by equal administration of the joint estate. Section 14 of the
Matrimonial Property Act provides that a wife who is married in community of property has
the same capacity to dispose of the assets of the joint estate, incur debts which lie against the
joint estate, and manage the joint estate, as a husband had immediately prior to the commencement of the Act. The spouses thus have equal powers to administer the joint estate and
incur debts that bind the joint estate.
Were the legislator to require by way of a principle of joint management that both spouses
act together on all occasions, that is to say, were the consent of both spouses required for all
juristic acts concerning the joint estate, everyday commercial traffic would be hampered
immensely. However, the spouses’ interests in the joint estate and the interests of third parties
would be left unprotected if either spouse could deal freely with the estate. The Matrimonial
Property Act lays down that, in principle, either spouse can perform any juristic act with
regard to the joint estate without the consent of the other spouse,89 but that the other
spouse’s consent must be obtained for certain juristic acts.90 The practical effect of the consent requirement is that both spouses’ capacity to act is restricted. The acts for which both
spouses’ consent is required are those which are considered to be of such importance that
unilateral action could lead to serious friction.91
6.5.3 Acts for which the consent of both spouses is required
(a) General
Sections 15(2), 15(3) and 17(1) of the Matrimonial Property Act list the acts for which both
spouses’ consent must be obtained.92 The legislator requires different types of consent
________________________
87
88
89
90
91
S 25(1) of the Matrimonial Property Act.
Ss 3 and 4 of the Marriage and Matrimonial Property Law Amendment Act 3 of 1988.
S 15(1).
Ss 15(2), 15(3) and 17(1).
South African Law Commission Report Pertaining to Matrimonial Property Law with Special Reference to the Matrimonial Affairs Act, 1953, the Status of the Married Woman, and the Law of Succession in so far as it Affects the Spouses
par 19.2.
92 The consent requirement ceases to apply when the marriage comes to an end. Therefore it does not apply
to a marriage that has been dissolved by divorce: Gugu v Zongwana [2014] 1 All SA 203 (ECM). Nor is the
consent of the executor of the deceased spouse’s estate required in place of the deceased spouse’s consent:
Kotzé v Oosthuizen 1988 (3) SA 578 (C). The consent requirement also does not apply if one of the spouses
has been appointed as the other’s curator: Vaal Reefs Exploration and Mining Company Limited v Burger [1999]
4 All SA 253 (SCA), 1999 (4) SA 1161 (SCA); but see Van Schalkwyk 2001 De Jure 149.
72
South African Family Law
depending on the type of juristic act the spouse intends performing. The Act provides for
four types of consent. The different types of consent and the acts for which they are required
are discussed below.
(b) Prior written consent, attested by two competent witnesses, in respect of each transaction
separately
This form of consent is necessary for the following transactions:
(1) Alienating or burdening immovable property which forms part of the joint estate, or conferring any other real right in it.93 In other words, such consent is required for entering
into a transaction which requires registration in the deeds office, such as transferring immovable property, registering a mortgage or servitude over such property, or granting
any other real right over such property.
(2) Suretyship.94
Section 15(4) provides that ratification is not permitted in respect of these juristic acts.
Therefore, the written, attested consent must be obtained before the juristic act occurs. As
the consent must be granted separately for each of the acts, one spouse cannot grant a power
of attorney or mandate to the other to enter into such juristic acts in general.95
(c) Written consent, attested by two competent witnesses, in respect of each transaction
separately
This form of consent is necessary for the following transactions:
(1) Entering into a contract to alienate, burden with a mortgage or servitude, or confer any
other real right in immovable property which forms part of the joint estate.96 The difference between these juristic acts and those that are listed in category (1) under the previous heading is that the present category relates to the contract which creates the obligation
to alienate, burden with a mortgage or servitude, or confer the real right, while category
(1) under the previous heading relates to the juristic act that actually alienates, mortgages,
burdens with a servitude or confers a real right in immovable property.
(2) Receiving credit under a credit agreement as defined in the National Credit Act 34 of
2005.97
________________________
93 S 15(2)(a).
94 S 15(2)(h); see also Amalgamated Banks of South Africa Bpk v De Goede [1997] 2 All SA 427 (SCA), 1997 (4) SA
66 (SCA).
95 The spouses may not deviate from these provisions in their antenuptial contract: Van Wyk 1985 De Rebus 21.
96 S 15(2)(b). If a loan agreement provides that the loan is to be secured by way of a mortgage, this does not
turn the loan agreement into a transaction that falls within the ambit of s 15(2)(b): Gounder v Top Spec Investments (Pty) Ltd [2008] 3 All SA 376 (SCA), 2008 (5) SA 151 (SCA). Sonnekus 2005 TSAR 377 submits
that a transaction in terms of which a bank lends more money to its client on the ground of an existing
mortgage bond falls within the ambit of s 15(2)(b) even though the transaction does not burden immovable property which forms part of the joint estate with another mortgage bond.
In Pinnacle Point Casino (Pty) Ltd v Auret [1999] 2 All SA 491 (C) the court held that a contract for the alienation of immovable property which is concluded without the spousal consent required by s 15(2)(b) is “not
invalid per se” as the other spouse can ratify it within a reasonable time. In Markram v Scholtz [2000] 4 All SA
452 (NC) it was common cause that such a contract is unenforceable until the other spouse has signed it.
The court did not question this assumption.
97 S 15(2)( f ). For a detailed analysis of whether a credit card transaction is a credit agreement as envisaged in
s 15(2)( f ), see Otto 1997 TSAR 216. On the issue of whether both spouses must be notified of termination
of debt review under the National Credit Act before the creditor may commence legal proceedings to enforce a debt under the Act, see Subramanian v Standard Bank Ltd (7008/11) [2012] ZAKZPHC 12 (13 March
2012) (where the court held that both spouses must receive notice); Motor Finance Corporation v Herbert
(16098/2011) [2012] ZAWCHC 35 (24 April 2012) (where the court held that only the spouse who entered
into the contract must receive notice); Moosa July 2013 De Rebus 26.
Chapter 6: Variable consequences of a civil marriage - Marriage in community of property
73
(3) Purchasing immovable property under a contract of sale as defined in the Alienation of
Land Act 68 of 1981.98
These juristic acts may be ratified.99 As is the case in respect of the juristic acts listed in the
previous paragraph, consent must be granted separately in respect of each act. Thus one
spouse cannot grant a power of attorney or mandate to the other to enter into such juristic
acts in general.
(d) Written consent without any further requirements
This form of consent is necessary for the following transactions:
(1) Alienating, ceding or pledging shares, stock, debentures, debenture bonds, insurance
policies, mortgage bonds, fixed deposits or any similar assets or any investment by or on
behalf of the other spouse in a financial institution.100
(2) Alienating or pledging assets held mainly as investments and which form part of the joint
estate. Examples of such assets are jewels; coins; stamps; and paintings.101
(3) Withdrawing money credited to the name of the other spouse in any account in a banking institution or post office savings bank.102
(4) Instituting or defending legal proceedings which do not relate to the spouse’s profession, trade or business, or his or her separate property, or the recovery of nonpatrimonial damages for a delict committed against him or her.103
Ratification is permitted in respect of the juristic acts listed under (1) to (3) above.104
(e) Oral or tacit consent
For certain juristic acts the Act simply requires consent, without stipulating the form of
consent that is required. In these cases, consent may be given in writing, but oral or even tacit
consent will suffice. This form of consent is required for the following transactions:
(1) Alienating or pledging furniture or “other effects of the common household” which
form part of the joint estate.105 Whether a specific item falls within this category is determined in view of the circumstances of each case. Examples of items which probably qualify as household effects are furniture; curtains; crockery; cutlery; and household
appliances such as stoves, refrigerators, washing machines, microwave ovens, tumble
driers and dishwashers.
(2) Receiving money which is owed to the other spouse for any of the following:
(a) Remuneration in any form, including a bonus, pension, or gratuity for services rendered, or in respect of his or her profession, trade or business, or damages for loss
106
of income from those sources.
(b) Income derived from his or her separate property.
________________________
98 S 15(2)(g).
99 S 15(4). The ratification must take the form the Matrimonial Property Act requires for consent to the
particular juristic act: Van der Vyver and Joubert 557; Visser and Potgieter 127; Van Schalkwyk 2001 De
Jure 155; see also Church and Church in Church (ed) LAWSA Marriage par 73; Sinclair in Van Heerden et
al (eds) Boberg’s Law of Persons and the Family 190 fn 103.
100 S 15(2)(c). Muller 2006 THRHR 269 submits that an insured who effected a life insurance policy before
entering into a marriage in community of property must obtain spousal consent for an alteration or revocation of a nomination under the policy.
101 S 15(2)(d).
102 S 15(2)(e).
103 S 17(1). See further the discussion of the spouse’s capacity to litigate below in this chapter.
104 S 15(4).
105 S 15(3)(a).
106 One spouse does not require the consent of the other spouse to enter into a contract to earn remuneration: Maharaj v Sanlam Life Insurance Ltd and Others [2011] 2 All SA 571 (KZD), 2011 (6) SA 17 (KZD).
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(c) Interest and dividends on, or the proceeds of, shares, investments, insurance policies or annuities.
(d) An inheritance, donation, bursary or prize.107
(3) Donating any asset from the joint estate to a third party108 if the donation will unreasonably prejudice the other spouse’s interest in the estate.109 Whether unreasonable prejudice will occur is determined in view of the value of the donation; the reasons for making
it; the parties’ standard of living; their social and financial position; and any other factor
the court considers relevant.110
Ratification is permitted for these juristic acts.111
6.5.4 Acts for which the other spouse’s consent is unnecessary
No consent is necessary for juristic acts which are not mentioned in the Matrimonial Property
Act.
In addition, so as not to impede commercial traffic unnecessarily, section 15(6) of the Act
provides that consent is not required for the transactions listed in sections 15(2)(b), (c), ( f ),
(g) and (h) if they are performed by a spouse in the ordinary course of his or her profession,
trade or business. A spouse may thus in the ordinary course of his or her profession, trade or
business conclude a contract to alienate immovable property,112 receive credit, alienate shares,
purchase land, bind himself or herself as surety, and institute or defend legal proceedings
without spousal consent.113
114
In Strydom v Engen Petroleum Ltd the Supreme Court of Appeal held that, in substance,
section 15(6) is a proviso to the consent requirement in section 15(2). Therefore, section
15(6) cannot be viewed in isolation of section 15(2). If it is alleged that a particular juristic act
occurred in the ordinary course of a person’s profession, trade or business and the person
disputes this allegation, he or she must prove not only that he or she was married in community of property when the juristic act occurred and that his or her spouse did not consent to
115
it, but also that section 15(6) does not apply.
It seems that the courts are willing to interpret the requirement that the spouse must have
acted in the ordinary course of his or her profession, trade or business quite leniently. In
Amalgamated Banks of South Africa Bpk v De Goede 116 a man donated 12 per cent of the member’s
interests in a close corporation to his son and son-in-law. The son was a full-time teacher and
the son-in-law a full-time clerk in the Air Force. They bound themselves as sureties in their
capacity as members of the close corporation for the debts of the close corporation but did
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107 S 15(3)(b). As the section refers only to receiving money due or accruing to a spouse by way of inheritance
or legacy, spousal consent is not required for the renunciation of an inheritance or legacy: Gounden v Master of the High Court [2015] JOL 32896 (KZD).
108 A transaction in terms of which property is sold well below its value constitutes a donation in respect of
the difference between the selling price and the value of the property: Visser v Hull 2010 (1) SA 521
(WCC).
109 S 15(3)(c).
110 S 15(8). Van Niekerk A Practical Guide to Patrimonial Litigation in Divorce Actions par 4.2.1.1 submits that it
should be assumed that a donation will unreasonably prejudice the other spouse’s interest in the joint estate, and that the respondent therefore bears the onus of proving that the donation does not and will
probably not unreasonably prejudice the other spouse’s interest. See also Church and Church in Church
(ed) LAWSA Marriage par 73; Sinclair 18 fn 82.
111 S 15(4).
112 Consent is still required in order to give transfer. On this anomaly, see Church and Church in Church
(ed) LAWSA Marriage par 73; Sinclair 17 fn 80; Van Aswegen 1984 Modern Businessman’s Law 143–144; Van
Wyk 1985 De Rebus 23.
113 See also s 17(1)(c).
114 [2013] 1 All SA 563 (SCA), 2013 (2) SA 187 (SCA); Heaton and Kruger Casebook on Family Law case [29].
115 For criticism of this finding, see Sonnekus 2013 TSAR 551.
116 [1997] 2 All SA 427 (SCA), 1997 (4) SA 66 (SCA).
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75
not take part in the day-to-day management of the business. Despite this, the majority judgment of the Supreme Court of Appeal was that the men had signed the deeds of suretyship in
the ordinary course of their business. Whether the facts of the case justified this conclusion is
doubtful.117
In Tesouriero v Bhyjo Investments Share Block (Pty) Ltd 118 it was held that the decision in De
Goede means that a spouse acts in the ordinary course of his or her business if he or she signs a
deed of suretyship in respect of a lease of business premises by a close corporation of which he
or she owns half the member’s interests and in the business of which he or she is actively
engaged.119 It is submitted that even in the absence of the decision in De Goede the facts of this
particular case were such that the court would have had to conclude that the suretyship had
120
been signed in the ordinary course of the spouse’s business.
In Strydom v Engen Petroleum Ltd the majority of the Supreme Court of Appeal referred to its
earlier decision in De Goede and held that the key issue in determining whether a person had
executed a deed of suretyship in the ordinary course of his or her business is “whether the
surety’s involvement in that business is his or her business and whether the execution of the
suretyship was in the ordinary course of the surety’s business, not the business of the compa121
ny, close corporation, partnership or trust”. If the surety is “a mere salaried employee,
having no commercial interest in the business’ success or failure”, it may be that he or she did
122
not execute the suretyship in the ordinary course of his or her business. However, if the
person holds a number of non-executive directorships that are the principal source of his or
her income, he or she “may well when executing a deed of suretyship for one of those com123
panies be acting in the ordinary course of [his or her] business”. According to the majority,
these examples illustrate that the issue of whether a deed of suretyship was executed in the
124
ordinary course of a person’s business is a question of fact. In the present case, the court
held that a husband who fulfilled marketing functions that were integral to the operations of
the business, had a debit loan account with the business, signed directors’ resolutions, and
was present at business meetings had executed the contested suretyship agreement in the
ordinary course of his business.
Finally, section 15(7) of the Matrimonial Property Act exempts transactions on the stock
exchange concerning listed securities, and transactions concerning deposits at a banking
institution in the name of the spouse who wishes to deal with the deposit, from the consent
requirement.
6.5.5 Protective measures in respect of the administration of the joint estate
(a) Protection of third parties
Section 15(9)(a) of the Matrimonial Property Act protects a third party who enters into a
transaction with a person who is married in community of property if the third party does not
know and cannot reasonably be expected to know that the person’s spouse had to consent to
the transaction or that the necessary consent was not obtained. In such a case the transaction
________________________
117 See also Barratt (ed) Persons and the Family 294; Sonnekus 1998 TSAR 161–163; but see McLennan 2000
SALJ 369.
118 2000 (1) SA 167 (W).
119 On the issue of when a spouse can be said to be acting in the ordinary course of his or her profession,
trade or business, see further Visser and Potgieter 122 fn 27; Sonnekus 1998 TSAR 155; McLennan 2000
SALJ 367; Van Schalkwyk 2001 De Jure 155–158; Sonnekus 2013 TSAR 549–550.
120 See also Dormell Properties 282 CC v Bamberger (20191/14) [2015] ZASCA 89 (29 May 2015), where the
surety was the sole director and shareholder of the business.
121 Par 10.
122 Ibid.
123 Ibid.
124 See also Investec Bank Ltd v Naidoo (unreported, DCLD Case no 9640/98, cited in Strydom), where it was
held that the question of whether somebody had executed a suretyship in the ordinary course of his or
her business must be judged objectively with reference to what is expected of a businessperson.
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is deemed to have been entered into with the required consent. In other words, in so far as a
bona fide third party is concerned, the transaction is valid and enforceable. The protection
that section 15(9)(a) affords can be invoked only by the third party. Spouses who did not
comply with the consent requirement may not rely on the section in order to hold the third
party to the transaction.125
The Act does not prescribe how it must be established whether the third party could reasonably have known that consent was required or not given. In Distillers Corporation Ltd v Modise 126
the court held that the use of the word “reasonably” implies that an objective test must be
used. Thus the matter must be considered from the point of view of the reasonable person in
the third party’s position. The court further held that if a deed of suretyship contains a clause
stating that the surety is legally competent to execute the deed, and a spouse who is married
in community of property signs the deed after having read it and without being misled by the
creditor about the import of the deed, the reasonable person in the creditor’s position would
accept that the surety has the necessary spousal consent.127 In Visser v Hull 128 the court adopted
a different approach in respect of third parties who were the blood relations of the spouse
who sold immovable property belonging to the joint estate to them without the required
spousal consent. At the time of the sale and transfer of the property, the spouses were living
apart. In the documentation relating to the sale and transfer, the husband indicated that he
was unmarried. While the spouses were still living together, the third parties had visited the
couple at the immovable property, which was the spouses’ matrimonial home. The third parties knew that the couple had children together and that the children and their mother continued to live in the house after the seller had left. The court held that a third party must “do
more than rely upon a bold assurance by another party regarding his or her marital status”.129
What is required is that the third party must undertake “an adequate inquiry”.130 As the third
parties in the present case were the seller’s blood relations and knew that the seller’s children
and their mother had lived in the house for many years, the third parties should have made
enquiries regarding whether the seller was married and, if so, whether the marriage was in
community of property. In the circumstances of this case, the third parties could reasonably
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125 Govender v Maitin 2008 (6) SA 64 (D). In this case, the court held that it could never have been the legislator’s intention to “provide a weapon to enable partners in a marriage in community of property to
enforce transactions against third parties where any of such spouses contract contrary to the peremptory
provisions of s 15(2) with third parties who act in good faith and do not know and cannot reasonably
know that the transaction is being entered into contrary to those provisions”: par 11.
126 2001 (4) SA 1071 (O), Heaton and Kruger Casebook on Family Law case [26].
127 Sinclair 17 fn 80, 20 fn 88 and Van Wyk 1985 De Rebus 22 submit that an approach which least restricts
commercial traffic should be adopted, and that the ordinary businessperson who has made enquiries
ought to be able to rely on the information supplied by the spouse. The decision in Distillers Corporation
Ltd v Modise seems too lenient even for this approach as the court did not require the creditor to make
any enquiries whatsoever about the surety’s marital status or the presence of spousal consent. The mere
fact that the surety signed a document in which it was stated that he was legally competent to sign the
deed of suretyship was considered sufficient. For criticism of the decision, see Christie and Bradfield Contract 237; Sonnekus 2002 Journal for Juridical Science 153; Steyn 2002 SALJ 253; Jacobs and Steynberg 2003
THRHR 510. Sonnekus 2005 TSAR 379–381 is of the view that a bank which fails to ensure that the consent requirement is met when it grants a bank loan which is secured by means of a mortgage bond or
when it lends more money to a spouse on the basis of an existing mortgage bond will rarely be able successfully to invoke s 15(9)(a). He suggests that banks should protect themselves by requiring both spouses
to sign the loan and mortgage documents and by investigating applicants’ marital status and matrimonial
property system: 378–383. He also recommends that banks should, on an annual basis, require their clients to provide written confirmation of their marital status (and, presumably, also of the matrimonial
property system that operates in the marriage): 381. See further Barratt (ed) Persons and the Family 298;
Hahlo, 5th edn, 253; Sinclair in Van Heerden et al (eds) Boberg’s Law of Persons and the Family 191; Skelton
and Carnelley (eds) Family Law 93–94; Visser and Potgieter 128; McLennan 2000 SALJ 367; Sonnekus
2013 TSAR 547–548, 554.
128 2010 (1) SA 521 (WCC).
129 Par 8.
130 Ibid.
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77
have been required to make enquiries from the children and their mother and/or members
of the close-knit local community in which the children and their mother lived.
The Act is silent on the consequences if the third party was mala fide, that is if he or she
indeed knew that spousal consent was necessary and was not obtained. From the case law it
appears that the transaction is void. In Amalgamated Bank of South Africa Bpk v Lydenburg Passasiersdienste 131 the court held that a deed of suretyship which had been signed without the required spousal consent was void. In Amalgamated Banks of South Africa Bpk v De Goede 132 the
Supreme Court of Appeal reversed the decision in Lydenburg Passasiersdienste on the facts, as it
concluded that the particular deed of suretyship had indeed been signed in the ordinary
course of the spouses’ business and was therefore valid.133 The Supreme Court of Appeal, however, did not deal with that part of the decision of the court a quo in which it had been held
that a deed of suretyship signed without the required spousal consent is void. Lydenburg Passasiersdienste therefore still is authority for the view that a juristic act which contravenes the consent requirement is invalid.
In Bopape v Moloto 134 the court applied the judgment in Lydenburg Passasiersdienste and
ordered a woman who had received donations totalling approximately R200 000 from her
lover, whom she knew to be married in community of property, to repay the money. The
court further held that the prejudiced spouse may recover the transferred asset from the mala
fide third party even though he or she may also have a remedy against his or her spouse. In
this case, the defendant argued that the donations were valid in so far as she, as a third party,
was concerned and that her lover’s wife had to invoke the remedies afforded her by sections
15(9)(b) and 20 of the Matrimonial Property Act.135 The court rejected this argument and
held that there was no reason to limit the remedies of an aggrieved spouse to sections
15(9)(b) and 20. In Visser v Hull 136 the court approved of the reasoning in Bopape and set aside
a transaction between mala fide third parties and a spouse who had failed to obtain the requis137
ite spousal consent.
(b) Protection of the spouses as between themselves
(i) Statutory remedies
Statutory right to adjustment upon dissolution of the joint estate
Section 15(9)(b) of the Matrimonial Property Act governs the position if a spouse enters into
a transaction with a third party while he or she knows or ought reasonably to know that his or
her spouse will probably not consent to the transaction. If the joint estate suffers a loss as
a result of the transaction, an adjustment must be effected upon division of the joint estate
in favour of the spouse whose consent was not obtained.138 The same applies if the spouse
________________________
131 1995 (3) SA 314 (T), Heaton and Kruger Casebook on Family Law case [27].
132 [1997] 2 All SA 427 (SCA), 1997 (4) SA 66 (SCA).
133 S 15(6) of the Matrimonial Property Act allows the spouse independently to enter into certain transactions for which spousal consent is normally required if those transactions take place in the ordinary
course of the spouse’s profession, trade or business: see above in this chapter.
134 [1999] 4 All SA 277 (T), 2000 (1) SA 383 (T), Heaton and Kruger Casebook on Family Law case [28]; see
also Markram v Scholtz [2000] 4 All SA 452 (NC). See further Vaal Reefs Exploration and Mining Company
Limited v Burger [1999] 4 All SA 253 (SCA), 1999 (4) SA 1161 (SCA) in which the court did not rely on
Amalgamated Bank of South Africa Bpk v Lydenburg Passasiersdienste but simply stated that a transaction which
occurs without the required spousal consent is void unless s 15(9)(a) applies.
135 On these and the other remedies of the spouses as between each other, see the discussion below in this
chapter.
136 2010 (1) SA 521 (WCC).
137 On possible mechanisms for recovering the assets that were alienated in Bopape and Visser, see Barratt (ed)
Persons and the Family 295–297; Sonnekus 2000 TSAR 577; Van Schalkwyk 2001 De Jure 147; Barratt 2011
Stell LR 277–279, 281–283.
138 For the formula for and an example of calculating the adjustment, see Heaton in Heaton (ed) Law of
Divorce and Dissolution of Life Partnerships 95. If the marriage ends in divorce, the adjustment will be
continued
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enters into the transaction while his or her power to deal with the joint estate has been
suspended.139
Dispensing with the other spouse’s consent
If the required spousal consent cannot be obtained for some reason or another and the court
is satisfied that a good reason exists for dispensing with the other spouse’s consent, it may
authorise the transaction in terms of section 16(1) of the Matrimonial Property Act.140 The
section also empowers the court to dispense with the consent of a spouse who unreasonably
withholds consent.
In Cloete v Cloete 141 the husband alleged that his wife’s refusal to consent to the exercising of
an option to purchase immovable property from her mother with a view to developing the
property was unreasonable. He sought an order in terms of section 16(1) dispensing with his
wife’s consent and authorising him to exercise the option on his own. On the facts, the court
found that section 16(1) was inapplicable, as the option had been granted to the spouses
jointly. Therefore, neither of them could exercise it individually with the consent of the
other; they had to exercise it jointly. In an obiter dictum the court dealt with the reasons for the
wife’s refusal to exercise the option, namely the breakdown of the marriage and the institution of divorce proceedings which resulted in the wife not wanting to be involved in a business relationship with her husband; the husband’s seeking an order for forfeiture of benefits
against his wife in the divorce proceedings; the bad relationship between the husband and his
mother-in-law, which resulted in his mother-in-law’s not wanting to be involved in a contractual relationship with him; the fact that the transaction would impose obligations on the wife
without any guarantee that the venture would succeed; and the fact that the purpose which
the wife’s mother had sought to achieve by granting the option to the spouses (namely, conferring benefits on her daughter as her son-in-law’s spouse) could no longer be achieved as a
result of the impending divorce. The court found that these reasons rendered the wife’s
refusal reasonable. An order in terms of section 16(1) would accordingly not have been
justified even if the section was applicable.
Suspension of a spouse’s powers in respect of the joint estate
In terms of section 16(2) of the Matrimonial Property Act, the High Court may suspend any
power a spouse has in respect of the joint estate for a definite or an indefinite period. The
court will order such suspension only if the prejudiced spouse applies for it and satisfies the
court that the order is necessary for the protection of his or her interests in the joint estate. If
a spouse contravenes the suspension, the consequences are the same as in the case of juristic
acts performed without the required consent.142
Immediate division of the joint estate
If one spouse’s conduct seriously prejudices or will probably seriously prejudice the other
spouse’s interests in the joint estate, the prejudiced spouse may apply to court in terms of section 20 of the Matrimonial Property Act for the immediate division of the joint estate. The
applicant must convince the court of the following:
(1) His or her interests in the joint estate are being seriously prejudiced or will probably be
seriously prejudiced by the other spouse’s conduct or proposed conduct.
(2) No other person will be prejudiced by the order.143
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139
140
141
142
143
claimed together with the divorce, unless the remedy in s 20 of the Matrimonial Property Act has already
been applied. S 20 is discussed below in this chapter.
On suspension of a spouse’s power to deal with the joint estate, see below in this chapter.
For purposes of s 16(1) “court” includes a judge in chambers and a Magistrate’s Court: s 1.
Case CA 52/2009, 10 Dec 2009 (ECGD) (unreported).
Those consequences are discussed above in this chapter.
S 20(1).
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79
The court may order that the joint estate be divided in equal shares or on such other basis as
it deems just. The court may further replace community of property with another matrimonial
property system subject to such conditions as it deems fit.144 In terms of an obiter dictum in Leeb
v Leeb 145 the court will determine the basis on which the joint estate is to be divided by taking
into account factors such as the duration of the marriage; the assets each spouse brought into
the marriage; each spouse’s debts at the commencement of the marriage; each spouse’s
contribution to the joint estate during the marriage; the prejudice one spouse suffered in
respect of assets of the joint estate as a result of the other spouse’s conduct; and antenuptial
debts that were settled from the joint estate during the subsistence of the marriage.
(ii) Common-law remedies
General
It was indicated above that the marital power afforded a husband wide powers to deal with
assets of the joint estate. This meant, inter alia, that he could alienate joint assets to the detriment of his wife without consulting her.146 The common law, however, did afford the wife
some protection against her husband’s malice. Now that the marital power has been abolished, the common-law remedies are available to both spouses.147 It is important to note that
the common-law remedies are based on fraud, that is, the intention to prejudice the other
spouse.148 Consequently, they are not available if one of the spouses merely enters into an
unwise transaction which prejudices the other spouse. The burden of proof on the prejudiced
spouse is therefore a very heavy one. Furthermore, if the prejudiced spouse consented to the
alienation, he or she cannot invoke the common-law remedies even if the other spouse’s
intention was to defraud him or her by way of the transaction.149
Interdict
The first of the common-law remedies which is based on the other spouse’s fraud is the interdict. This remedy is available if one of the spouses intends to alienate an asset of the joint
estate with the intention of prejudicing the other spouse. In such event, the spouse who
stands to be prejudiced may apply for an interdict to prevent his or her spouse from proceeding with the transaction.150 It must be borne in mind, however, that one of the requirements
for an interdict is that the party must not have a suitable alternative remedy. If the threatened
juristic act is one for which the Matrimonial Property Act requires spousal consent, the spouse
who approaches the court for an interdict would have to prove that his or her right to adjustment in terms of section 15(9)(b) of the Matrimonial Property Act does not offer a
________________________
144 S 20(2). Although the court is not obliged to change the matrimonial property system, a change will
almost always be necessary to ensure effective protection of the prejudiced spouse. If the court does not
change the matrimonial property system, it will have to separate the portion that is awarded to each
spouse from the joint estate otherwise the division of the joint estate will have no effect whatsoever.
145 [1999] 2 All SA 588 (N).
146 See eg Voet 23.2.54; Van der Keessel Praelectiones 1.5.22; Davis v Trustee of Minors Brisley (1901) 18 SC 407
417; Cullammah v Munean 1941 NPD 163; Estate Sayle v Commissioner for Inland Revenue 1945 AD 388; Ex
parte Van Kraayenburg; Ex parte Ahlers 1946 TPD 686; Mundy v Mundy 1946 WLD 280; Pickles v Pickles 1947
(3) SA 175 (W); Pretorius v Smith 1971 (4) SA 459 (T); Laws v Laws 1972 (1) SA 321 (W); Nel v Cockcroft
1972 (3) SA 592 (T); Govender v Chetty 1982 (3) SA 1078 (C).
147 Church and Church in Church (ed) LAWSA Marriage par 77; Hahlo, 5th edn, 251, 256; Skelton and
Carnelley (eds) Family Law 96; Visser and Potgieter 130. See also Bopape v Moloto [1999] 4 All SA 277 (T),
2000 (1) SA 383 (T) where the court held that the prejudiced spouse’s remedies are not limited to ss
15(9)(b) and 20 of the Matrimonial Property Act.
148 Pickles v Pickles 1947 (3) SA 175 (W); Pretorius v Pretorius 1948 (1) SA 250 (A); Pretorius v Smith 1971 (4) SA
459 (T); Govender v Chetty 1982 (3) SA 1078 (C).
149 Pretorius v Smith 1971 (4) SA 459 (T); Govender v Chetty 1982 (3) SA 1078 (C).
150 Mundy v Mundy 1946 WLD 280; Pickles v Pickles 1947 (3) SA 175 (W); Laws v Laws 1972 (1) SA 321 (W); Tel
Peda Investigation Bureau (Pty) Ltd v Laws 1972 (2) SA 1 (T).
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suitable alternative remedy,151 for example, because the joint estate would be completely
152
depleted if the threatened juristic act took place.
Actio Pauliana utilis
If one of the spouses has already alienated an asset of the joint estate in fraud of the other
spouse, the prejudiced spouse may recover the asset from the third party with the actio Pauliana utilis.153 In Laws v Laws 154 Margo J required proof that the third party knew that the alienation was in fraud of the other spouse’s rights when he or she entered into the transaction; in
other words, the third party must have been complicit in defrauding the other spouse. It is
submitted that this view is incorrect.155
It is unclear whether the actio Pauliana utilis may be invoked during the subsistence of the
marriage or, at any rate, while the joint estate remains undivided. The matter was left open in
Ex parte Van Kraayenburg; Ex parte Ahlers,156 but in Nel v Cockcroft 157 it was held, on authority of
Voet and Van der Keessel, that the action may only be instituted after dissolution of the
marriage. This is most unsatisfactory and the decision in Nel has been justly criticised.158 In an
obiter dictum in Reyneke v Reyneke 159 Jones J correctly pointed out that it is illogical to grant a
spouse the right to recover assets of the joint estate from a third party, but to delay the ability
to enforce that right until dissolution of the joint estate, because by that time the right may be
useless. In view of modern legal and social thinking on a spouse’s rights in the joint estate and
the criticism in Reyneke, it is hoped that the courts will in future depart from the decision in
Nel.160
Common-law right of recourse upon dissolution of the joint estate
Another common-law remedy which is based on fraudulent prejudice to a spouse is the right
of recourse upon dissolution of the joint estate. If one spouse has already alienated assets of
the joint estate in fraud of the other spouse and the asset cannot be recovered under the actio
Pauliana utilis, the prejudiced spouse has a right of recourse against the other spouse or his or
her estate upon dissolution of the marriage.161
Having the other spouse declared a prodigal
Finally, a spouse can be declared a prodigal with the result that all the powers he or she
enjoys in respect of the joint estate and any separate property he or she may have are taken
out of his or her hands.162 However, it is doubted whether our courts will in future resort to
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151 Van Niekerk A Practical Guide to Patrimonial Litigation in Divorce Actions par 4.2.1.1.
152 On interdict applications in family law proceedings, see further Catto in Heaton (ed) Law of Divorce and
Dissolution of Life Partnerships 530–533.
153 Pickles v Pickles 1947 (3) SA 175 (W); Laws v Laws 1972 (1) SA 321 (W).
154 1972 (1) SA 321 (W).
155 See also Hahlo, 5th edn, 196; Van Niekerk (ed) A Practical Guide to Patrimonial Litigation in Divorce Actions
par 3.5.7; Van Wyk 1972 THRHR 262–263; but see Van der Vyver and Joubert 246. See also JA v DA 2014
(6) SA 233 (GJ) where Sutherland J stated obiter that an asset that has been fraudulently alienated to a bona fide third party cannot be recovered. This view seems to have been based on Laws v Laws 1972 (1) SA
321 (W).
156 1946 TPD 686.
157 1972 (3) SA 592 (T), Heaton and Kruger Casebook on Family Law case [30].
158 Reyneke v Reyneke 1990 (3) SA 927 (E); Hahlo, 5th edn, 195 fn 45; Sonnekus 2000 TSAR 589.
159 1990 (3) SA 927 (E).
160 The fact that whatever is recovered from the third party will fall back into the joint estate is no obstacle to
the actio Pauliana utilis. On the contrary, this is precisely what the remedy should achieve because the
wrong done to the prejudiced spouse would thus be effectively “cancelled”. On the actio Pauliana utilis,
see further Barratt 2011 Stell LR 281–283.
161 Cullammah v Munean 1941 NPD 163; Ex parte Van Kraayenburg; Ex parte Ahlers 1946 TPD 686; Laws v Laws
1972 (1) SA 321 (W).
162 Yared v Yared 1952 (4) SA 182 (T).
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81
interdicting someone as a prodigal, for the limitations placed on interdicted prodigals most
probably unjustifiably infringe their constitutional rights to dignity and privacy.163
6.5.6 Capacity to litigate
(a) General
Section 17 of the Matrimonial Property Act regulates the capacity to litigate of spouses who
are married in community of property. As a point of departure, section 17(1) lays down that
one spouse may not institute or defend legal proceedings without the other spouse’s written
consent, unless the proceedings relate to any of the following:
(1) The spouse’s separate property.164
(2) The recovery of non-patrimonial damages for a delict committed against the spouse.165 It
should be noted that the exception is limited to a delict which was committed against the
spouse. If the spouse committed the delict, the ordinary rule regarding the need for
spousal consent to litigate applies.
(3) The spouse’s profession, trade or business.166
Non-fulfilment of the consent requirement in respect of litigation does not affect the validity
of the proceedings.167 Third parties are therefore protected fully. The sanction for not obtaining spousal consent is that the court may make a costs order against the litigating spouse. If
such an order is made, the court may order that the costs be recovered from the separate
property of the litigating spouse. In so far as his or her separate property is insufficient, the
costs can be recovered from the joint estate. In the latter event, the court may order that an
adjustment must be effected in favour of the non-consenting spouse upon division of the joint
168
estate. The court exercises its discretion with due regard to the non-consenting spouse’s interests in the joint estate and the reasons for the lack of consent.169
If a spouse unreasonably withholds consent to litigation, or if a spouse’s consent cannot be
obtained for another reason, the court may grant consent.170 If the protection of a spouse’s
interests in the joint estate demands this, the court may suspend the other spouse’s power to
consent to legal proceedings for a definite or an indefinite period.171
(b) Insolvency
Section 17(4) of the Matrimonial Property Act provides that an application for the sequestration of a joint estate must be made against both spouses and an application for the surrender
of a joint estate must be made by both spouses. However, an application for the sequestration
of a debtor’s estate will not be dismissed solely because the estate is a joint estate if the applicant satisfies the court that, despite taking reasonable steps, he or she could not establish
whether the debtor is married in community of property or establish the name and address of
________________________
163 The right to dignity is enshrined in s 10 of the Constitution and the right to privacy in s 14. On prodigality, and the unconstitutionality of the limitations placed on prodigals, see further Heaton Persons ch 10.
See also Heaton in Heaton (ed) Law of Divorce and Dissolution of Life Partnerships 111–112.
164 S 17(1)(a).
165 S 17(1)(b).
166 S 17(1)(c). Van Wyk 1985 De Rebus 24 submits that there is a need for additional exceptions such as litigation in respect of children from a previous marriage. Visser and Potgieter 131 submit that the common
law renders the other spouse’s consent unnecessary in such litigation and in matrimonial disputes.
167 S 17(2).
168 For the formula for and an example of calculating the adjustment, see Heaton in Heaton (ed) Law of
Divorce and Dissolution of Life Partnerships 95.
169 S 17(3).
170 S 16(1).
171 S 16(2).
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the debtor’s spouse. If a sequestration order is granted against only one of the spouses, the
order is valid and automatically relates to both spouses.172
(c) Suing for joint debts
Section 17(5) of the Matrimonial Property Act stipulates which spouse should be sued when a
debt is recoverable from the joint estate. The section expressly provides that it applies
“[w]here a debt is recoverable from a joint estate”. As the joint estate comes to an end when
the marriage is dissolved by death or divorce, section 17(5) cannot be invoked after the
dissolution of the marriage. After the dissolution of the marriage, the common law regulates
173
recovery of unpaid debts.
The general rule in respect of joint debts is that the suit can be brought either against
both spouses jointly, or against the spouse who incurred the debt. The spouse who did not
incur the debt cannot be held liable on his or her own unless the debt was incurred for
household necessaries, in which event the spouses are jointly and severally liable.174 Thus,
175
either of them can be sued for the full debt relating to household necessaries. If the debt
176
relates to the separate property of a spouse, this spouse must be sued.
________________________
172 ABSA Bank Ltd t/a Trust Bank v Goosen 1998 (2) SA 550 (W). However, the other spouse may approach the
court for an order setting aside the sequestration order if he or she believes that the court should not
have made the order on the facts before it.
173 But see Maharaj v Sanlam Life Insurance Ltd and Others [2011] 2 All SA 571 (KZD), 2011 (6) SA 17 (KZD)
where the court incorrectly applied s 17(5) after the spouses’ marriage had ended in divorce. For criticism of the judgment in Maharaj, see further Heaton 2011 Annual Survey of South African Law 451–453.
174 On liability for household necessaries, see further ch 5 above.
175 In Maharaj v Sanlam Life Insurance Ltd and Others [2011] 2 All SA 571 (KZD), 2011 (6) SA 17 (KZD) the
court incorrectly held that a debt which is incurred in the course of a spouse’s earning an income for the
joint estate relates to “necessaries for the joint household” with the result that the spouses are jointly and
severally liable for the debt. The expression “necessaries for the joint household” refers to household necessaries, not income that is necessary to maintain the joint household, as the court held. See further
Heaton 2011 Annual Survey of South African Law 450–451.
176 See above in this chapter.
7
THE VARIABLE CONSEQUENCES
OF A CIVIL MARRIAGE –
MARRIAGE OUT OF COMMUNITY OF PROPERTY
7.1 The antenuptial contract
7.1.1 The purpose of an antenuptial contract
Before they marry, the prospective spouses must decide whether they want their marriage to
be in or out of community of property, for they cannot freely change their matrimonial property system postnuptially.1 As is explained in chapter 6 above, the primary matrimonial property system is universal community of property. If the spouses do not wish to be married in
community of property, or if they want to deviate from the normal consequences of universal
community of property, for example, by excluding particular assets from the joint estate or
excluding one spouse’s liability for the other’s antenuptial debts, they have to enter into an
antenuptial contract.2 The primary purpose of an antenuptial contract thus is to deviate from
(some of) the common-law or statutory rules regarding the matrimonial property consequences of marriage. Apart from dealing with the matrimonial property system, antenuptial
contracts often include marriage settlements (that is, donations between spouses). Sometimes
the spouses create a trust, enter into an agreement about succession, or govern their right of
recourse in respect of expenses for household necessaries in their antenuptial contract. The
contents of antenuptial contracts are discussed in more detail below in this chapter.
The term “antenuptial contract” can be used in a narrow and a wide sense. In the narrow
sense it refers to the formal contract that is executed before a notary and registered in the deeds
office in terms of the Deeds Registries Act 47 of 1937.3 In the wide sense it is an informal agreement between the parties which binds only them. In Mathabathe v Mathabathe 4 Stegmann J stated
that in the wide sense an antenuptial contract is “[e]very seriously intended promise of marriage, or contract of betrothal, or engagement to be married”. In other words, it includes every
kind of agreement intending spouses conclude before marriage with a view to bringing about
the marriage itself or regulating any aspect of it. Stegmann J could see no reason
why the expression “antenuptial contract” should not in an appropriate context be used in a still
broader sense to refer to a pre-marital agreement which does not deal with proprietary rights
expressly or tacitly and which leaves them to be dealt with by implication of law.5
This point of view was correctly rejected in Milbourn v Milbourn.6 In the latter case, Coetzee
DJP pointed out that even if a contract of engagement was an antenuptial contract, a view he
________________________
1 See ch 8 below on the ways in which the matrimonial property system can be changed postnuptially.
2 See ch 6 above on assets that are excluded from the joint estate in an antenuptial contract, and liability for
antenuptial debts.
3 See below in this chapter on the formal requirements for an antenuptial contract.
4 1987 (3) SA 45 (W) 51J.
5 52I.
6 1987 (3) SA 62 (W); see also Lagesse v Lagesse 1992 (1) SA 173 (D); Kruger 1992 THRHR 492; Neels 1992
TSAR 336; Vrancken 1993 TSAR 180.
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did not share, such a contract would have to contain more than the mere stipulation that the
parties would marry each other. It would also have to contain provisions regarding the spouses’
proprietary rights.7
7.1.2
The formalities for the creation of a valid antenuptial contract
(a) General
Our law has long held that an informal antenuptial contract is valid only inter partes (that is, as
between the parties).8 It is not valid as against third parties. Thus the marriage is considered
to be in community of property in so far as the spouses’ debtors and creditors are concerned.
This is still the position in our law, for section 86 of the Deeds Registries Act provides that
unless an antenuptial contract is registered in terms of section 87 of the Act, it is of no force
or effect as against anyone who is not a party to it.9 In terms of section 87, an antenuptial contract which is executed in South Africa must be attested by a notary and registered in a deeds
registry within three months of its execution or within such extended period as the court may
on application allow.10 An antenuptial contract which is executed outside South Africa must
be attested by a notary or entered into in accordance with the law of the place of its execution. A foreign antenuptial contract has to be registered in a deeds registry in South Africa
within six months of its execution or within such extended period as the court may on application allow.
(b) Postnuptial execution and registration of an antenuptial contract
If the spouses entered into an antenuptial contract prior to marriage, but failed to comply with
the formalities of notarial execution and registration, the High Court may be approached in
terms of section 88 of the Deeds Registries Act for permission to have the contract formally
executed and registered after the marriage. The application may be made by either of the
spouses or both of them, or even by a beneficiary under a will.11 Three requirements must be
met before the court will permit postnuptial execution and registration of the antenuptial
contract:12
(1) The parties must definitely have agreed on the terms of the contract before entering into
marriage.13
(2) The parties must give good reasons for their failure properly to execute and/or register
the contract before the marriage.14
________________________
7 65B. Both cases dealt with redistribution of assets in terms of s 7(3) of the Divorce Act 70 of 1979: see ch 12
below.
8 See eg Steytler v Dekkers (1872) 2 Roscoe 102; Aschen’s Executrix v Blythe (1886) 4 SC 136; Ex parte Spinazze
1983 (4) SA 751 (T), Heaton and Kruger Casebook on Family Law case [32]; Odendaal v Odendaal [2002] 2 All
SA 94 (W); Schmitz v Schmitz [2015] All SA 85 (KZD), Heaton and Kruger Casebook on Family Law case [34].
9 Ex parte Spinazze 1983 (4) SA 751 (T), confirmed on appeal: 1985 (3) SA 650 (A); Lagesse v Lagesse 1992 (1)
SA 173 (D); Honey v Honey 1992 (3) SA 609 (W). If an antenuptial contract could be concluded without any
formalities, third parties (eg creditors) could clearly be disadvantaged. Consequently it is only fair to require
that the existence of the agreement should be publicised if the spouses wish it to be valid against third parties: Ex parte Kloosman 1947 (1) SA 342 (T). In South Africa such publicity is achieved through registration
in the deeds office.
10 See further Ex parte Moodley; Ex parte Iroabuchi 2004 (1) SA 109 (W); Ex parte Cheng; Ex parte Cheng; Ex parte
Yang 2004 (1) SA 118 (W).
11 In re Langston’s Estate 1932 NPD 191. See further Ex parte Moodley; Ex parte Iroabuchi 2004 (1) SA 109 (W); Ex
parte Cheng; Ex parte Cheng; Ex parte Yang 2004 (1) SA 118 (W).
12 See Hahlo, 5th edn, 266–272 for a comprehensive discussion of these requirements.
13 This requirement is expressly stated in s 88; see also Ex parte Chater 1942 OPD 106; Ex parte Winwood 1946
NPD 279; Ex parte Martin 1943 CPD 545; Ex parte Hersch 1946 TPD 548.
14 Ex parte Coovadia 1960 (2) SA 773 (W); Ex parte Motala 1961 (3) SA 459 (D).
Chapter 7: Variable consequences of a civil marriage – Marriage out of community of property
85
(3) The application must be made within a reasonable time after it was discovered that the
agreement was not properly executed and/or registered.15
If the court authorises postnuptial execution and registration, the contract has the same
effect as a duly executed and registered antenuptial contract. The court may impose whatever
conditions it deems suitable in respect of the execution of the contract, and may specify the
period within which the executed contract must be registered in the deeds registry.16
7.1.3
Additional requirements which apply to the antenuptial contract of a
minor
A minor who enters into an antenuptial contract must personally sign the contract.17 As with
any contract in terms of which a minor incurs obligations, the minor must have the consent
of his or her guardian to enter into an antenuptial contract. Although section 18(3)(c)(i)
read with section 18(5) of the Children’s Act 38 of 2005 requires the consent of all the guardians of a minor for the minor’s marriage, the Act is silent on the minor’s antenuptial contract.
Therefore, the general rule as set out in section 18(4) of the Children’s Act applies, namely
that any of the child’s guardians may independently exercise guardianship over the minor.
Thus, for example, the consent of either parent of a child born of married parents is sufficient for the minor’s entering into an antenuptial contract. The same applies if both parents
of a child born of unmarried parents have guardianship in respect of the child.18 If sole guardianship has been awarded to one of the parents, only the sole guardian needs to give consent.19 If both parents are deceased, the minor’s legal guardian must consent. If consent to
the minor’s marriage must be obtained from the presiding officer of the Children’s Court,
the presiding officer must assist the minor in the execution of the antenuptial contract.20 If
the High Court grants consent to the marriage, it may order that the minor sign the antenuptial contract with the assistance of a court-appointed curator.21
It is submitted that it is not legally required that the person who assists the minor in entering into the antenuptial contract must indicate his or her consent by signing the contract.22
However, as a matter of practice, notaries refuse to execute, and registrars of deeds refuse to
register an antenuptial contract that has not been signed by the person who assists the minor.
Several authors also state that the person must sign the antenuptial contract. Some cite
________________________
15 Ex parte Shand 1925 CPD 217; Ex parte Karbe 1939 WLD 351; Ex parte Said 1943 WLD 223; Ex parte Kloosman
1947 (1) SA 342 (T); Ex parte Roche 1947 (3) SA 678 (D). The facts in Ex parte Sanders 2002 (5) SA 387 (C)
fell squarely within the ambit of s 88. However, the parties approached the court for permission to change
their matrimonial property system in terms of s 21(1) of the Matrimonial Property Act, and the court incorrectly granted the application. On s 21(1) and Ex parte Sanders, see further ch 8 below. On the differences
between applications in terms of s 21(1) of the Matrimonial Property Act and s 88 of the Deeds Registries
Act, see Ferreira and Jacobs 2003 THRHR 339.
16 The court usually provides that the existing rights of creditors are not prejudiced (Ex parte Van Rensburg
1947 (4) SA 435 (C)) and that the order must be published in the Government Gazette and a local newspaper
(Ex parte Kloosman 1947 (1) SA 342 (T)).
17 Ex parte Potgieter 1943 OPD 4.
18 See also Church and Church in Church (ed) LAWSA Marriage par 115; Heaton in Van Heerden et al (eds)
Boberg’s Law of Persons and the Family 752 fn 30; Visser and Potgieter 137 (but see 137 fn 42 where the authors state that it is not clear whether the consent of one parent suffices). Visser 1996 De Jure 155 argues
that the requirement that both parents must consent to the minor’s marriage should be interpreted to include giving consent to the matrimonial property system resulting from the marriage. Kruger in Clark (ed)
Family Law Service par F24 and Williams Aug 2002 De Rebus 35 seem to share Visser’s view.
19 S 18(4) of the Children’s Act 38 of 2005.
20 S 25(2) of the Marriage Act 25 of 1961.
21 C v T 1965 (2) SA 239 (O).
22 See also Kruger in Clark (ed) Family Law Service par F24. The author adds, however, that “practically” the
minor and his or her parent or legal guardian will have to sign the antenuptial contract before a notary.
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section 87(1) of the Deeds Registries Act as authority,23 but section 87(1) does not deal with
this matter at all. Nor does our case law require the person’s signature.24
If a minor has the requisite consent to marry but does not have consent to enter into an
antenuptial contract, the antenuptial contract is void and cannot be ratified or registered
after the marriage has taken place.25
7.1.4
The contents of an antenuptial contract
26
(a) General
The parties may include any provision in their antenuptial contract which is not impossible,
contrary to good morals (contra bonos mores) or contrary to the law or the nature of marriage.27
Thus a provision to the effect that the parties need not be faithful to each other or live
together is void.28 So too is an agreement which is likely to encourage separation or divorce.
However, the mere fact that an agreement is made in contemplation of a possible future
separation or divorce does not mean that it is void, for “[i]t is the effect and not merely the
fact of the agreement which must be assessed”.29
(b) The matrimonial property system
As is indicated above, the primary purpose of an antenuptial contract is to regulate the
spouses’ matrimonial property system. Most antenuptial contracts exclude community of
property and replace it with some form of separation of property. Various possibilities exist in
this regard. Each of the three most common forms of marriage out of community of property
is discussed under a separate heading below in this chapter.
(c) A right of recourse in respect of household necessaries
Section 23 of the Matrimonial Property Act 88 of 1984 governs liability for household necessaries in marriages out of community of property. It provides that, as against third parties, the
spouses are jointly and severally liable for debts for household necessaries, irrespective of
which spouse originally incurred the debt.30 As between themselves, the spouses are obliged to
contribute to expenses for household necessaries on a pro rata basis (that is, proportionately)
________________________
23 Church and Church in Church (ed) LAWSA Marriage par 115; Hahlo, 5th edn, 264; Lee and Honoré
par 99. Williams Aug 2002 De Rebus 35 also states that signature is required but does not cite authority in
support of his view.
24 See Ex parte Bullard 1937 TPD 297; Ex parte Potgieter 1943 OPD 4; Ex parte Roos 1945 GWL 1; Ex parte Shein
1947 (1) SA 471 (W); Ex parte Dineen 1955 (4) SA 49 (O); Ex parte Makkink and Makkink 1957 (3) SA 161 (N);
Ex parte Blignaut 1963 (4) SA 36 (O). In Wille’s Principles 283, Ex parte Van Niekerk 1917 CPD 133 and Ex parte
Bullard are cited as authority for requiring the parent or guardian’s signature. In Bullard the court actually
held that there are no legal requirements as to the precise formalities for a father’s consent to his minor
child’s antenuptial contract (302), while Van Niekerk dealt with the propriety of an attorney’s acting for
both parties to an antenuptial contract, and not the issue of the guardian’s signature. For an analysis of the
relevant case law, see Heaton in Van Heerden et al (eds) Boberg’s Law of Persons and the Family 752–753 fn 30.
25 Edelstein v Edelstein 1952 (3) SA 1 (A), Heaton and Kruger Casebook on Family Law case [31]; Ex parte Du Toit
1953 (4) SA 130 (O); Ex parte Davis 1957 (4) SA 594 (T). The rules set out above apply only if the minor has
obtained consent to marry but failed to obtain consent to enter into an antenuptial contract. If the minor
marries without the necessary consent, s 24 of the Matrimonial Property Act regulates the patrimonial consequences of the marriage. On s 24 of the Matrimonial Property Act, see ch 3 above.
26 Prospective spouses often do not bargain as equals and antenuptial contracts often insulate the wealthier
spouse’s financial position. On the unequal bargaining positions of prospective spouses and the consequences of the rigid enforcement of antenuptial contracts despite the parties’ unequal bargaining position,
see eg Glendon Transformation of Family Law 139–140; Boshoff 2001 SALJ 317; Bonthuys 2004 SALJ 879, esp
894–897; Heaton 2005 SAJHR 553–556; Barratt 2013 SALJ 695–698.
27 Voet 23.4.15, 23.4.16, 23.4.19, 23.4.20; Ex parte Wismer 1950 (2) SA 195 (C).
28 Van Oosten v Van Oosten 1923 CPD 409.
29 Stembridge v Stembridge [1998] 2 All SA 4 (D).
30 S 23(5).
Chapter 7: Variable consequences of a civil marriage – Marriage out of community of property
87
according to their individual means.31 If one spouse contributes more, or has contributed
more than his or her pro rata share, he or she has a right of recourse against the other spouse
if the marriage was concluded before the coming into operation of the Matrimonial Property
Act.32 In marriages concluded after the coming into operation of the Act there is no automatic right of recourse, but the spouses may agree that they will nevertheless have a right of
recourse against one another.33 Couples who want to marry out of community of property may
therefore want to include a right of recourse in respect of excess payments for household
necessaries in their antenuptial contract.34
(d) Succession
In their antenuptial contract the spouses may agree on the devolution of their estates after
their respective deaths. They may, for example, stipulate that the surviving spouse will be the
first-dying spouse’s sole heir or that upon the death of the first-dying spouse the estates of
both spouses will devolve on their children, with the surviving spouse acquiring a usufruct
over certain property. An agreement between living persons containing stipulations concerning the devolution of their estates is called a pactum successorium. As a rule, pacta successoria are
not recognised. However, a pactum successorium in an antenuptial contract is recognised in our
law.
Although a pactum successorium in an antenuptial contract has the same scope and purpose
as a will, it is contractual in nature and therefore it can only be amended by a will which is
made jointly by the spouses. If the spouses do make a joint will, the surviving spouse still has
the choice of inheriting either in terms of the pactum successorium or the will.35
(e) Marriage settlements
A marriage settlement is a donation which one spouse makes to the other in terms of an antenuptial contract. A marriage settlement may be subject to a time clause or condition. Thus a
husband may, for example, undertake to transfer a sum of money or an insurance policy to
his wife when their first child is born.36
A reversion clause is frequently included in respect of a marriage settlement. In a reversion
clause the donor stipulates an event upon which the donation will revert to him or her, for
example, if the beneficiary predeceases the donor.37 The clause is enforceable, provided that
it does not violate the institution of marriage or its sanctity. In Cumming v Cumming 38 the spouses’ antenuptial contract provided that the marriage settlements the husband made in favour
of his wife would revert to him should the spouses divorce. The marriage indeed ended in
divorce. The wife challenged the reversion clause, but the court upheld it. Le Roux J pointed
out that since a spouse is not obliged to make a marriage settlement one who does so may
limit the donation as he or she sees fit. The other spouse becomes bound by that limitation
upon accepting the marriage settlement. He held that the mere fact that a husband makes a
________________________
31 S 23(2). In marriages celebrated before the commencement of the Matrimonial Property Act, this duty is
deemed to have been in existence from the inception of the marriage.
32 S 23(3).
33 S 23(1) and (4).
34 The arrangement need not be contained in the antenuptial contract. Accordingly, the spouses may also
agree on a right of recourse during the subsistence of the marriage. If they do not reach such an agreement, the spouse who contributes more than his or her compulsory pro rata share has no claim against the
other spouse. He or she would therefore have to ensure, by means of a maintenance order if need be, that
the other spouse makes his or her full contribution.
35 On the amendment of an antenuptial contract, see further below in this chapter.
36 By virtue of the normal rules of the law of contract, the clause must not be void for vagueness, as is the case
when eg the husband undertakes to give certain property to his wife at such time and in such quantities as
may seem expedient to him: Towert v Towert 1956 (1) SA 429 (W); Murray v Murray 1959 (3) SA 84 (W);
Kantor v Kantor 1962 (3) SA 207 (T).
37 Wilson v Wilson 1946 EDL 33.
38 1984 (4) SA 585 (T), Heaton and Kruger Casebook on Family Law case [33].
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marriage settlement in favour of his wife only for the duration of their marriage and stipulates
that it will revert to him upon divorce does not indicate an intention to interfere with the
marital relationship. He did add, however, that had the husband acted in a manner which was
calculated to break up the marriage so that he could recover his donation the wife “would
have her remedies at law”.39 This presumably means that in such an event the reversion clause
would not be enforced.
In principle, a marriage settlement becomes irrevocable when the marriage takes place.
However, because the prohibition on donations between spouses has been abolished,40 spouses
may freely agree to cancel or amend a marriage settlement. If they cannot reach agreement in
this regard, the donation specified in the antenuptial contract must be carried out unless the
court orders amendment of the marriage settlement.41
Before the coming into operation of the Matrimonial Property Act, marriage settlements
were common, as they were exempt from the prohibition on donations between spouses.
Because of the abolition of the prohibition, spousal donations need no longer be included in
an antenuptial contract. At present, the main advantage of including a donation in the antenuptial contract is that such inclusion confers some protection on the donation in the case of
insolvency.42
7.1.5 Interpretation of an antenuptial contract
An antenuptial contract is interpreted in exactly the same way as any other contract.43 Spouses
do not have to use specific terms or phrases in the drafting of an antenuptial contract, as long
as their intention is clear from the wording which is used.44 In case of doubt it is accepted that
every legal consequence which is neither explicitly nor tacitly excluded is retained.45 In other
words, if there is any doubt, it is assumed that the parties intended the minimum departure
from the common law or statute.
7.1.6 Cancellation and amendment of an antenuptial contract
The parties may cancel or amend their antenuptial contract right up until the wedding. However, once the wedding has taken place the parties cannot, as a general rule, cancel or amend
the antenuptial contract.46 To determine whether a subsequent agreement between the
spouses has the effect of cancelling or amending the antenuptial contract the terms of the
antenuptial contract must be compared to the terms of the subsequent agreement. For
example, a subsequent agreement to create a societas universorum bonorum (that is, a universal
partnership relating to present and future assets, liabilities, profits and losses) is irreconcilable with an antenuptial contract that provides for complete separation of property, because
47
such a universal partnership in effect amounts to a marriage in community of property.
However, depending on the terms of the specific antenuptial contract, spouses who married
subject to complete separation of property may be able to enter into a societas universorum quae
________________________
39
40
41
42
43
44
45
46
47
591.
S 22 of the Matrimonial Property Act. See further ch 5 above.
On the amendment of antenuptial contracts, see further below in this chapter.
S 27 of the Insolvency Act 24 of 1936.
Voet 23.4.28, 23.4.71, 23.4.73; Cradock v Estate Cradock 1949 (3) SA 1120 (N); Towert v Towert 1956 (1) SA
429 (W). See also JG v MG 2012 (3) SA 12 (FB) where a clause that the parties could not give effect to without the cooperation of a body that was not a party to the contract was interpreted as being analogous to a
clause in a contract of sale in terms of which the seller sold property of which he or she was not the owner.
See Williams Aug 2002 De Rebus 35 for a step-by-step guide on drafting antenuptial contracts.
Grobbelaar v Van der Vyver 1954 (1) SA 248 (A).
Edelstein v Edelstein 1952 (3) SA 1 (A).
Union Government (Minister of Finance) v Larkan 1916 AD 212; Honey v Honey 1992 (3) SA 609 (W).
JW v CW 2012 (2) SA 529 (NCK); EA v EC (09/25924) [2012] ZAGPJHC 219 (25 October 2012); RD v TD
2014 (4) SA 200 (GP), Heaton and Kruger Casebook on Family Law case [39]. On postnuptial changes to the
matrimonial property system, see further ch 8 below.
Chapter 7: Variable consequences of a civil marriage – Marriage out of community of property
89
ex quaestu veniunt (that is, a universal partnership that is limited to the sharing of present and
48
future assets, liabilities, profits and losses acquired from commercial undertakings).
For a limited period after the coming into operation of the Matrimonial Property Act section 21(2) of the Act permitted amendment of certain antenuptial contracts by way of a
registered notarial contract. Section 21(2) provided for a transitional period during which
spouses who married before the coming into operation of the Act with an antenuptial contract excluding community of property and community of profit and loss could apply the
accrual system to their marriage without the intervention of the court, by merely executing
and registering a notarial contract to that effect. Initially this concession operated for a
period of two years from the commencement of the Act, but it was later extended by another
two years (that is, until 1 November 1988).49
Furthermore, the repeal of the prohibition on donations between spouses50 has resulted in
spouses being able to agree to replace a marriage settlement with another donation or to
revoke it completely.
The spouses can also, by means of a joint will, amend certain succession clauses contained
in their antenuptial contract. If they appoint each other mutually as heirs or legatees, or if
one appoints the other as heir or legatee, they may amend this pactum successorium by means
of a joint will,51 but then the surviving spouse has a choice between inheriting in terms of the
joint will or the antenuptial contract.52 If the spouses appoint a third party as heir or legatee
in their antenuptial contract and the third party is a party to the antenuptial contract, they
cannot revoke the third party’s benefit without his or her consent.53 If the third party is not a
party to the antenuptial contract but has already accepted the benefit, the spouses likewise
cannot revoke the succession clause without the third party’s consent.54 In all other cases, they
can revoke or amend the third party’s benefit by means of a joint will.55
An antenuptial contract can also be amended by the High Court if it does not properly
convey the terms of the parties’ actual agreement or true intention.56 In such event, the court
orders rectification of the antenuptial contract.
________________________
48 Fink v Fink 1945 WLD 226; Mühlmann v Mühlmann 1984 (3) SA 102 (A); RD v TD 2014 (4) SA 200 (GP). But
see Van Schalkwyk (2013) 10 LitNet Akademies (Regte) 11 November 2013, http://www.litnet.co.za/Article/
nahuwelikse-onderhandsebuitegeregtelike-verandering-van-die-huweliksgoederebedeling-stante (accessed
22 June 2015), who is of the view that if the antenuptial contract excludes not only community of property
but also community of profit and loss, the spouses may not enter into a societas universorum quae ex quaestu
veniunt because this type of partnership would defeat the exclusion of community of profit and loss. The
decision in RD v TD is preferred to Van Schalkwyk’s view as it is not only more logical, but also has a more
equitable outcome.
49 Matrimonial Property Amendment Act 91 of 1986; GN R2114 of 9 Oct 1986. In terms of ss 3 and 4 of the
Marriage and Matrimonial Property Law Amendment Act 3 of 1988, African persons who married before
the coming into operation of the Marriage and Matrimonial Property Law Amendment Act could also, until 2 Dec 1990, cause the provisions of the Matrimonial Property Act to apply to their civil marriage by the
mere execution and registration of a notarial contract to that effect, despite the fact that these spouses did
not enter into an antenuptial contract. As is explained in ch 6 above, civil marriages African persons entered into before the coming into operation of the Marriage and Matrimonial Property Law Amendment
Act were automatically out of community of property and community of profit and loss in terms of s 22(6)
of the Black Administration Act 38 of 1927.
50 S 22 of the Matrimonial Property Act, which is discussed in ch 5 above.
51 Union Government (Minister of Finance) v Larkan 1916 AD 212.
52 Ibid; Ex parte Executors Estate Everard 1938 TPD 190.
53 Ex parte Balsillie 1928 CPD 218.
54 Ibid.
55 Voet 23.4.63.
56 Ex parte Mouton 1929 TPD 406; Ex parte Joannou 1942 TPD 193; Ex parte Kilroe 1945 GWL 27; Ex parte Dunn
1989 (2) SA 429 (NC). In the latter case, the parties had agreed to make the accrual system applicable to
their marriage. Owing to a bona fide error, the antenuptial contract excluded the accrual system. The
spouses successfully applied for rectification of the contract.
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The court may further order an amendment to or cancellation of an antenuptial contract if
there are sound reasons for doing so. The Free State Division of the High Court has held that
it has this power only in respect of the amendment of a trust created in an antenuptial contract.57 The other divisions of the High Court exercise this power mainly in respect of replacing or cancelling a marriage settlement or when the terms of a trust must be amended.58
However, in Ex parte Coetzee 59 the then Witwatersrand Local Division of the High Court (now
the Gauteng Local Division of the High Court, Johannesburg) cancelled an antenuptial
contract purely because its existence threatened the spouses’ happiness.
7.1.7 Termination of an antenuptial contract
An antenuptial contract does not lapse on dissolution of the spouses’ marriage.60 Any provisions which have not yet been implemented, such as marriage settlements, must still be
carried out. The antenuptial contract comes to an end only when all the contractual obligations have been fulfilled.
The remainder of this chapter focuses on the three variations of marriage out of community
of property which are most commonly encountered in antenuptial contracts.
7.2 Marriage out of community of property and community of
profit and loss without the accrual system
The matrimonial property system which is out of community of property and community of
profit and loss without the accrual system is called “complete separation of property”. Most
couples who entered into an antenuptial contract before the commencement of the Matrimonial Property Act were married subject to complete separation of property and without the
marital power.61 Consequently, antenuptial contracts with these provisions were referred to as
standard-form antenuptial contracts.62 Since the coming into operation of the Matrimonial
Property Act, a marriage which is entered into with an antenuptial contract that excludes
community of property and community of profit and loss is automatically subject to the
accrual system.63 If the spouses do not wish the accrual system to apply to their marriage and
want to be married subject to complete separation of property, they have to stipulate this in
their antenuptial contract. The antenuptial contract which leaves the accrual system intact has
therefore become the new standard-form antenuptial contract.
The effect of complete separation of property is that the parties remain in the same financial position as they were before the marriage. Each spouse retains the estate he or she had
before the marriage as well as everything he or she acquires during the marriage. Each spouse
________________________
57 Ex parte Nathan Woolf 1944 OPD 266; Ex parte Venter 1948 (2) SA 175 (O).
58 Ex parte Louw (1907) 26 SC 350; Ex parte Tasker (1909) 26 SC 587; Ex parte Orchison 1952 (3) SA 66 (T). See
Hahlo, 5th edn, 274 for a comprehensive discussion.
59 1984 (2) SA 363 (W). In this case, the parties had concluded an antenuptial contract from which community of property was excluded at the insistence of the bride’s father, while they foresaw that their marriage
would be unhappy unless they were married in community of property.
60 If the marriage is dissolved by divorce, however, the court may order forfeiture of benefits against one of
the spouses, which may result in the spouse’s forfeiting benefits conferred in the antenuptial contract: see
ch 12
below.
61 African persons who entered into a civil marriage before the coming into operation of the Marriage and
Matrimonial Property Law Amendment Act were automatically married out of community of property and
profit and loss: see fn 49 above.
62 A survey conducted by the South African Law Commission at the deeds office in Pretoria revealed that less
than 3% of all antenuptial contracts concluded prior to the coming into operation of the Act deviated from
the old standard-form contract: Report Pertaining to Matrimonial Property Law with Special Reference to the Matrimonial Affairs Act, 1953, the Status of the Married Woman, and the Law of Succession in so far as it Affects the Spouses
par 12.1.1.
63 The accrual system is discussed below in this chapter.
Chapter 7: Variable consequences of a civil marriage – Marriage out of community of property
91
has full capacity to act and can enter into contracts without the other’s assistance. The spouses can also freely enter into contracts with each other. However, they cannot conclude contracts that cancel or substantially amend their matrimonial property system, such as entering
into a universal partnership to share all their current and future assets, debts, losses and
64
profits. The spouses are not liable for each other’s contractual or delictual debts, as each
spouse binds only himself or herself.65 They can therefore sue each other in contract or
delict.66 The spouses have full capacity to litigate and can independently institute or defend
legal proceedings.
7.3 Marriage out of community of property with retention of
community of profit and loss
In a marriage out of community of property with retention of community of profit and loss
each spouse retains the assets he or she owns at the time of the wedding and remains separately liable for his or her antenuptial debts. Donations, bequests and inheritances that are
received during the subsistence of the marriage likewise remain the separate property of the
spouse who receives them. In this regard the position is exactly the same as in a marriage that
is subject to complete separation of property. However, because community of profit and loss
is retained, all profit and loss arising during the marriage become joint profit and loss and
constitute a joint estate of which each spouse owns an undivided half-share. This variation of
marriage out of community of property is rare.
The main differences between marriage out of community of property with retention of
community of profit and loss and the accrual system are that in the case of community of
profit and loss the spouses share postnuptial profits and losses, and this sharing occurs during
the subsistence of the marriage. Under the accrual system, only profits are shared, and the
sharing takes place only upon dissolution of the marriage.
7.4 The accrual system
7.4.1 Introduction
Complete separation of property is often very prejudicial to the spouse who is not the primary
breadwinner. If the spouse who has little or no income and few or no assets is unable to
accumulate his or her own estate, he or she may find himself or herself in a most unfavourable
financial position upon dissolution of the marriage.67 The accrual system is an attempt on the
part of the legislator to address this situation. According to the South African Law Commission “[t]he fundamental idea is that one spouse contributes financially and otherwise to the
growth of the other spouse’s estate and should therefore be entitled to share in that spouse’s
estate on the dissolution of the marriage”.68 The accrual system is therefore founded on the
notion that, upon the dissolution of a marriage out of community of property and community
________________________
64 See above in this chapter and ch 8 below.
65 This rule is subject to the exception in s 23 of the Matrimonial Property Act regarding household necessaries: see above in this chapter.
66 In Rohloff v Ocean Accident and Guarantee Corp Ltd 1960 (2) SA 291 (A) the then Appellate Division (now the
Supreme Court of Appeal) confirmed this position with regard to claims ex lege Aquilia. Whether spouses
married out of community of property may institute the actio iniuriarum against each other was answered in
the negative in C v C 1958 (3) SA 574 (SR), but it is doubted whether this decision will be followed.
67 See eg the facts in Edelstein v Edelstein 1952 (3) SA 1 (A). For a comprehensive discussion of the disadvantages of the old standard-form antenuptial contract, see South African Law Commission Report Pertaining
to Matrimonial Property Law with Special Reference to the Matrimonial Affairs Act, 1953, the Status of the Married
Woman, and the Law of Succession in so far as it Affects the Spouses par 12.1.
68 South African Law Commission Report Pertaining to Matrimonial Property Law with Special Reference to the Matrimonial Affairs Act, 1953, the Status of the Married Woman, and the Law of Succession in so far as it Affects the Spouses
par 17.1.
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of profit and loss, both spouses must share in the growth their estates have shown, without
there having been a joint estate during the subsistence of the marriage.
7.4.2 Marriages to which the accrual system applies
Section 2 of the Matrimonial Property Act provides that the statutory accrual system applies to
all marriages that are concluded out of community of property and community of profit and
loss after the coming into operation of the Act (that is, as from 1 November 1984), except in
so far as the system is expressly excluded in the couple’s antenuptial contract.69 Thus, parties
who nowadays want complete separation of property to operate in their marriage must expressly exclude community of property and community of profit and loss as well as the accrual
system in their antenuptial contract.70
The accrual system does not automatically apply to marriages out of community of property
and community of profit and loss which were concluded before 1 November 1984.71 As indicated above, white, coloured and Asian persons who were married out of community of property by means of an antenuptial contract before the commencement of the Matrimonial Property Act were granted a four-year period within which they could apply the accrual system to
their marriage by means of a notarial contract. African persons were granted a two-year
period after the commencement of the Marriage and Matrimonial Property Law Amendment
Act 3 of 1988 to introduce the accrual system.72 In the notarial contract, the spouses had to
indicate whether the accrual system was to apply from the date of the contract or from the
date on which the marriage was concluded; in other words, retroactively.73
7.4.3
When and how accrual sharing takes place
(a) General
The accrual system can be described as a type of postponed community of profit.74 During its
subsistence, the marriage is out of community of property and community of profit and loss.
Each spouse retains and controls his or her own estate, but on dissolution of the marriage the
spouses share in the accrual or growth their estates have shown during the subsistence of the
marriage.
(b) The accrual claim
Section 3(1) of the Matrimonial Property Act provides that accrual sharing is brought about
by giving the spouse whose estate shows the smaller accrual or no accrual, “a claim against the
________________________
69 S 2 applies to formal and informal antenuptial contracts: Odendaal v Odendaal [2002] 2 All SA 94 (W); see
also Lagesse v Lagesse 1992 (1) SA 173 (D); Honey v Honey 1992 (3) SA 609 (W). In the case of an informal
antenuptial contract, the party who alleges that the accrual system was excluded must prove this: Odendaal v
Odendaal. From Odendaal it appears that in the case of an informal antenuptial contract the exclusion need
not occur in so many words, although there must be no doubt that the parties agreed that they did not
want the accrual system to apply. See further Van Schalkwyk 2002 De Jure 368. As s 2 states that the accrual
system applies “except in so far as that system is expressly excluded by the antenuptial contract” (emphasis added), it is clear that the accrual system may be partially excluded and may therefore be varied to the extent
of the exclusion. Thus, the spouses may modify the statutory accrual system, eg by excluding the 50:50 accrual sharing the Act provides for and replacing it with a 40:60 division: Heaton in Heaton (ed) Law of Divorce and Dissolution of Life Partnerships 63.
70 Costa May 2003 De Rebus 31 submits that the legislator should abolish the option of excluding the accrual
system because such exclusion violates the “partnership spirit of marriage”.
71 S 2.
72 See fn 49 above.
73 S 21(2)(b). Depending on their decision whether or not the accrual system should apply retroactively, the
spouses had to declare the net values of their estates as at the beginning of the marriage or as at the time of
the execution of the contract. This declaration could be contained in a separate statement: s 21(2)(c).
74 See eg Hahlo, 5th edn, 304; Sinclair 33; De Jong and Pintens 2015 TSAR 557. Church and Church in
Church (ed) LAWSA Marriage par 102 state, however, that referring to the accrual system as a deferred
community of gains “may create the impression that more is shared than the statutory formula actually provides for”; see also Van Wyk 1985 De Rebus 59.
Chapter 7: Variable consequences of a civil marriage – Marriage out of community of property
93
other spouse or his estate for an amount equal to half of the difference between the accrual
of the respective estates of the spouses”, that is:
Accrual claim = ½ × (larger accrual – smaller accrual).
The accrual claim is determined on a factual and mathematical basis and is not a matter of
75
76
discretion. The plaintiff bears the onus of establishing the value of the accrual claim.
(c) The difference between the accrual claim and the right to accrual sharing
Section 3(2) of the Act expressly provides that the claim arises upon dissolution of the marriage, except when the protective measure contained in section 8 of the Act is applied.77
During the marriage, the accrual claim is not an asset in the estate of the ultimate recipient.
Section 3(2) further provides that during the marriage “the right of a spouse to share . . . in
the accrual of the estate of the other spouse is . . . not transferable or liable to attachment,
and does not form part of the insolvent estate of a spouse”. It is important to note that section
3(2) refers to the claim one spouse has against the other for half the difference between the
accrual in the respective estates, and the right of a spouse to share in the accrual of the other
spouse’s estate. The claim differs from the right. Section 3(2) makes it clear that the claim
arises upon dissolution of the marriage. However, in respect of the right, section 3(2) refers
to the position during the marriage. The implication is that the right to share in the other
spouse’s accrual has a separate existence from the claim, and that the right exists during the
subsistence of the marriage.78 That the right exists during the subsistence of the marriage also
appears from section 8(1) of the Act, which protects a spouse’s “right to share in the accrual
of the estate of the other spouse”. If there were no right during the subsistence of the marriage, section 8 would be meaningless.
In Reeder v Softline 79 the court recognised the difference between the claim and the right. It
held that, pending the dissolution of the marriage (or an order in terms of section 8), one
spouse merely has a contingent right to the accrual in the other spouse’s estate. The right
becomes vested only when the marriage is dissolved and if there is indeed an accrual claim.
(d) The difference between accrual sharing and sharing of assets
It is important to note that the accrual system does not give the spouses rights in respect of
80
each other’s property or entitle the spouse whose estate shows the smaller or no accrual to a
transfer of assets by the other spouse. Section 4(1)(a) of the Act refers to the accrual as “the
amount by which the net value” of a spouse’s estate at the dissolution of the marriage exceeds
the “net value” at the commencement of the marriage,81 and section 3(1) refers to the accrual
claim as “an amount equal to half of the difference between the accrual of the respective
estates of the spouses” (emphasis added). (The net value is the value after all outstanding
debts have been paid, and includes all amounts owed to the estate.) In Buffalo City Municipality
82
v Smith Kroon J emphasised the difference between “[t]he reference to the … amount in
contradistinction to a reference to an asset” (emphasis in the original). This difference makes
it clear that the accrual and accrual claim relate to monetary amounts; they do not relate to
assets nor do they entitle the spouse whose estate shows the smaller or no accrual to claim a
transfer of assets of the other spouse.83 Of course, spouses who are getting divorced can agree
________________________
75
76
77
78
79
80
81
82
83
MM v JM 2014 (4) SA 384 (KZP); RP v DP 2014 (6) SA 243 (ECP).
MGB v DEB [2013] 4 All SA 99 (KZD) (also reported as MB v DB 2013 (6) SA 86 (KZD)).
On s 8, see below in this chapter.
But see Sonnekus in Clark (ed) Family Law Service par B9, Van Niekerk A Practical Guide to Patrimonial
Litigation in Divorce Actions par 3.4.2, and Visser and Potgieter 147 who equate the right and the claim and
state that the right arises upon dissolution of the marriage. See further Ferreira 2002 THRHR 287.
[2000] 4 All SA 105 (W), 2001 (2) SA 844 (W); see also RS v MS 2014 (2) SA 511 (GJ).
Reeder v Softline [2000] 4 All SA 105 (W), 2001 (2) SA 844 (W).
The calculation of the accrual is discussed in more depth below in this chapter.
[2009] ZAECGHC 81, 23 November 2009.
See also Heaton in Heaton (ed) Law of Divorce and Dissolution of Life Partnerships 66; De Jong and Pintens
2015 TSAR 558.
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that the accrual claim will be satisfied by way of a transfer of assets, but this does not change
the fact that, in terms of the Act, the accrual claim is for an amount of money.
Because the accrual system merely confers a contingent right to the accrual in the other
spouse’s estate during the marriage and neither spouse has rights in respect of each other’s
property, neither spouse can obtain an order directing that certain assets of the other spouse
84
be placed in trust pending the outcome of divorce proceedings between the spouses.
7.4.4 Calculating the accrual
(a) General
As is pointed out above, section 4(1)(a) of the Matrimonial Property Act provides that the
accrual of a spouse’s estate is the amount by which the net value of his or her estate at the dis85
solution of the marriage exceeds the net value at the commencement of the marriage.
Sections 4 and 5 of the Act prescribe that certain assets are excluded from the accrual. To
calculate the accrual, one therefore has to deduct the net commencement value of the estate
as well as the value of the assets which do not form part of the estate’s accrual, from the net
end value of the estate. In other words:
Accrual = Net end value – adapted net commencement value – assets which do not
form part of the accrual
The commencement value of the estate and the assets which do not form part of the accrual
are discussed under separate headings below.
(b) The commencement value (or the initial value)
The Matrimonial Property Act prescribes a number of methods for proving the commencement or initial value of an estate:
(1) A spouse may declare the net commencement value of his or her estate in the spouses’
antenuptial contract. If this is not done, the commencement value may be declared in a
separate statement either before or within six months of the wedding. This statement
must be signed by the other spouse, attested by a notary, and filed together with a copy
of the parties’ antenuptial contract in the protocol of the notary before whom the antenuptial contract was executed.86 Such a statement or antenuptial contract, or a certified
copy, is prima facie proof of the net commencement value of the estate.87
(2) If the commencement value is not declared in either the antenuptial contract or a separate statement, it is deemed to be nil unless the opposite is proved.88
(3) The net commencement value of a spouse’s estate is also deemed to be nil if the spouse’s
liabilities exceed his or her assets at the commencement of the marriage.89
________________________
84 Reeder v Softline [2000] 4 All SA 105 (W), 2001 (2) SA 844 (W). See also RS v MS 2014 (2) SA 511 (GJ).
85 On the uncertainty as to whether the net value of a spouse’s estate includes trust assets or their value, see
ch 12 below.
86 S 6(1). In Mathabathe v Mathabathe 1987 (3) SA 45 (W) Stegmann J stated in an obiter dictum that s 6 restricts
the term “antenuptial contract” to a notarially executed antenuptial contract, ie one which is not just informally concluded by the parties. He further indicated that this interpretation applies to the whole of ch I of
the Matrimonial Property Act, which governs the accrual system. In Odendaal v Odendaal [2002] 2 All SA 94
(W) Goldstein J differed from Stegmann J, at least in so far as s 2 of the Act is concerned.
87 S 6(3). In Olivier v Olivier 1998 (1) SA 550 (D) Combrinck J held that parties who declare the commencement value of their estates in their antenuptial contract are bound by that declaration. For them, the declared value is conclusive proof. It is only in respect of third parties that the declared value is merely prima
facie proof. However, in Thomas v Thomas [1999] 3 All SA 550 (D) the court held that the declared net commencement value is merely prima facie proof and that interested parties (who obviously include the spouses) may prove the real commencement value. It is submitted that the latter decision is correct. The wording
of the section seems clear enough in this respect. See also Heaton in Heaton (ed) Law of Divorce and Dissolution of Life Partnerships 64 fn 36; Sonnekus 2010 TSAR 219–221; but see Van Schalkwyk 1998 De Jure 185.
88 S 6(4)(b).
89 S 6(4)(a).
Chapter 7: Variable consequences of a civil marriage – Marriage out of community of property
95
When the accrual is calculated, the net commencement value of each spouse’s estate has to
be determined with due allowance for the fluctuating value of money. The weighted average
of the consumer price index (commonly known as the CPI) as published from time to time in
the Government Gazette is prima facie proof of any change in the value of money.90 Thus, the net
commencement value of a spouse’s estate is adapted in accordance with the weighted average
of the CPI.
The number by which the commencement value must be multiplied to get the adapted
commencement value is calculated as follows: CPI value for the month in which the marriage
is dissolved ÷ CPI value for the month of the wedding.
Consider the following example: Mr and Mrs X married in May 1987 and divorced in February 2014. Mr X had no assets at the time of the wedding, while the commencement value of
Mrs X’s estate was R10 000. According to the historical CPI table the following are the relevant index percentages:
May 1987: 14
February 2014: 107,3
107,3 ÷ 14 = 7,6642857
Therefore, the commencement value is multiplied by 7,6642857: R10 000 × 7,6642857 =
R76 642,86. Thus, the adapted commencement value of Mrs X’s estate is R76 642,86.
(c) Assets which do not form part of the accrual
In terms of the Matrimonial Property Act, the following assets do not form part of the accrual:91
(1) Any non-patrimonial damages a spouse receives during the marriage.92 As the section of
the Act that excludes non-patrimonial damages is silent on the exclusion of proceeds or
replacement assets, it is presumably only the amount of the damages that is excluded.93
________________________
90 S 4(1)(b)(iii). The CPI is published in the Government Gazette every month, but it is easier to use the consolidated table published by the Central Statistical Service on its website at www.statssa.gov.za. It contains an
index percentage for every month since Jan 1960. A historical table is available at http://
www.statssa.gov.za/publications/P0141/CPIHistory.pdf. Seeing that the CPI is not a reliable standard by
which to determine the change in the value of all assets, the spouses may select another criterion (eg market value) in their antenuptial contract, or stipulate that the fluctuation in the value of money will not be
taken into consideration in respect of certain assets, or will not be taken into consideration at all. See par
17.6.2 of the Report Pertaining to Matrimonial Property Law with Special Reference to the Matrimonial Affairs Act,
1953, the Status of the Married Woman, and the Law of Succession in so far as it Affects the Spouses for the South
African Law Commission’s reasons for recommending the CPI as the criterion for adapting the commencement value.
91 Prizes a spouse wins in a competition or lottery are not expressly excluded from the accrual. Referring to
German law, Sonnekus 2004 TSAR 365 submits that such assets ought usually also to be excluded from the
accrual. See also Sonnekus in Clark (ed) Family Law Service par B14; De Jong and Pintens 2015 TSAR 563.
On whether the proceeds or surrender value of a life insurance policy are to be taken into account for purposes of calculating the accrual if the marriage is dissolved by death, see Herbst March 2004 De Rebus 28;
Muller 2006 THRHR 269–270.
92 S 4(1)(b)(i).
93 Unlike some of the other sections which deal with assets falling outside the accrual, s 4(1)(b)(i) makes no
mention of assets that replace non-patrimonial damages (eg assets bought with the amount) or are acquired by reason of ownership of the non-patrimonial damages (ie, fruits, such as interest). Therefore, in
accordance with the maxim inclusio unius est exclusio alterius, the value of replacement assets and fruits are
not deducted when calculating the accrual: Church and Church in Church (ed) LAWSA Marriage par 108;
Sinclair 35 fn 132. See also Heaton in Heaton (ed) Law of Divorce and Dissolution of Life Partnerships 82. Furthermore, no provision is made for adjustment of non-patrimonial damages in accordance with the CPI or
any other mechanism. Thus only the original amount is deducted: Church and Church in Church (ed)
LAWSA Marriage par 108; Sinclair 35 fn 132. A provision in respect of replacement assets and/or fruits
and/or indexation of the damages can naturally be included in the spouses’ antenuptial contract. De Jong
and Pintens 2015 TSAR 563 recommend that the Act should provide for a uniform rule regarding replacement assets.
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South African Family Law
(2) Assets the spouses exclude in their antenuptial contract. The Act stipulates that the proceeds of such excluded assets, and assets which replace such excluded assets or are acquired with their proceeds, are also excluded.94 The Supreme Court of Appeal has held,
correctly, that if a specific asset is excluded in the spouses’ antenuptial contract, the value of the asset is irrelevant in the determination of the accrual; in other words, the asset
is ignored for purposes of calculating the accrual and therefore does not form part
95
of either the net commencement or the net end value of the spouse’s estate.
(3) An inheritance, legacy or donation one of the spouses receives from a third party. The
Act stipulates that the proceeds of inheritances, legacies and donations, and assets which
replace, or are acquired with the proceeds of such assets are also excluded.96 An inheritance, legacy or donation does form part of the accrual, however, if the testator or donor
stipulates this or if the parties include a clause to this effect in their antenuptial contract.97
(4) Donations inter vivos (that is, donations between living persons) between the spouses.98
Since the donor would usually already have parted with the donated asset, the value of
the asset will no longer be part of his or her net estate on divorce. For this reason, it is
logical that a further exclusion of the value of the donated asset in terms of section 5(2)
should not take place when the accrual in the donor’s estate is determined. If the donation has not yet been effected, the debt in terms of the contract of donation must be deducted in determining the net value of the donor’s estate. In these circumstances, too, it
is logical that a further exclusion of the value of the donated asset in terms of section 5(2) should not take place when the accrual in the donor’s estate is determined. As
the donation or the right to claim the donation (in the case of an uneffected donation)
will be an asset in the estate of the donee, its value must be added in determining the net
________________________
94 S 4(1)(b)(ii). Like s 4(1)(b)(i), s 4(1)(b)(ii) is silent on indexation of the excluded asset. If the asset (or substitute or fruits) is something other than money, indexation is probably unnecessary because s 4(1)(b)(ii)
provides that the entire asset “is not taken into account as part of that estate”. Ie, it is as if the asset, including increases and decreases in its value (and fruits), does not form part of the spouse’s estate at all. Therefore, if the spouses exclude eg the matrimonial home owned by the wife at the date of marriage in their
antenuptial contract, the value of improvements and alterations also falls outside the accrual of the wife’s
estate even if the husband paid for them. The position is different if the spouses do not exclude the matrimonial home but merely declare its value to be (part of) the commencement value of the wife’s estate. In
the latter case, it is only the value of the home as adapted in accordance with the CPI that is deducted. In
this event, the value of the improvements and alterations apparently forms part of the accrual. Because the
section does not expressly mention indexation, it seems that, if the excluded asset (or its substitute or
fruits) is a sum of money, only the original amount is excluded. Spouses would therefore be well advised to
include an express provision on indexation in their antenuptial contract. Another issue is whether an asset
can be said to have been acquired by virtue of the possession or former possession of the excluded asset if
its value exceeds that of the asset which was originally excluded in the antenuptial contract. The Act provides no guidance on this matter. De Jong and Pintens 2015 TSAR 563 recommend that the Act should
provide for indexation of all excluded assets, especially where the assets consist of money. They further
recommend that intermingling of one spouse’s excluded assets and the other spouse’s non-excluded assets
(eg because the latter spouse funded improvements or alterations to an excluded asset) should be regulated by the Act: 564.
95 Bath v Bath [2014] JOL 31724 (SCA).
96 S 5(1). See the preceding fn on the problems in respect of indexation and the issue of acquiring an asset by
virtue of the possession or former possession of the excluded asset.
97 S 5(1). It is unclear whether the spouses may validly include a term in their antenuptial contract which
overrides the wishes of the testator or donor. Sinclair 35–36 fn 133 contends that they may do so. However,
the courts may well be hesitant to interpret the Act in a way that allows spouses to dictate the conditions
upon which a testator may bequeath a benefit to one of them, as this may be found to infringe freedom of
testation. See also Church and Church in Church (ed) LAWSA Marriage par 108 and Sonnekus in Clark
(ed) Family Law Service par B14 who submit that the wishes of the testator or donor will prevail. It should be
borne in mind that even if the latter interpretation were to be preferred, the spouses could still frustrate
the wishes of the testator or donor once the inheritance, legacy or donation has been received, for the
beneficiary could simply donate it to his or her spouse.
98 S 5(2).
Chapter 7: Variable consequences of a civil marriage – Marriage out of community of property
97
value of the donee’s estate. The value of the donation will therefore be part of the accrual
of the donor’s estate. Consequently, it should be clear that, regardless of whether or not
the donation has already been effected, the exclusion in section 5(2) applies only to the
accrual of the donee’s estate. As section 5(2) is silent on the exclusion of proceeds and
replacement assets, it is presumably only the donation that is excluded.99
In the event of a dispute, the spouse who alleges that certain assets are excluded from the
accrual bears the onus of indicating which assets are to be excluded and why they are to be
100
excluded.
(d) The date on which the value of a spouse’s estate is to be calculated for purposes of
accrual sharing
If a marriage that is subject to the accrual system is dissolved by death, the accrual of the
deceased spouse’s estate is determined before effect is given to any inheritances or donations
mortis causa (that is, donations which take effect upon the donor’s death).101 Accrual sharing
thus takes place before the deceased spouse’s estate is distributed in terms of the rules of the
102
law of succession. The value of each spouse’s estate at the date of the deceased spouse’s
death is used to determine the accrual in each estate.
If the marriage is dissolved by divorce, the position is less clear-cut. The issue of the date
that is to be used for purposes of determining the value of each spouse’s estate if the marriage
is dissolved by divorce has been the subject of conflicting case law and much academic de103
bate. In Le Roux v Le Roux, the court held that a proper interpretation of section 3(1) of the
Matrimonial Property Act entails that one spouse may not proceed with a claim for accounting of the value of the other spouse’s estate before divorce, because the section expressly
states that the accrual claim arises “[a]t the dissolution” of the marriage. As the plaintiff does
not have an acquired and complete cause of action to claim payment until the divorce order
has been granted, two distinct actions are required: the divorce action and an action for an
104
order relating to the accrual claim.
105
In JA v DA the court arrived at a similar finding. It, too, held that the wording of section
3(1) dictates that the value of the accrual in the spouses’ estates and of the accrual claim
cannot be determined before the dissolution of the marriage. However, it further held that
policy reasons and considerations of cost savings and the avoidance of delays indicated that
the institution of two distinct actions should be avoided. It stated that the “pleading of circumspect prayers” in the divorce action which makes the accrual order dependent on the
106
granting of a divorce order could avoid the need to institute two actions.
In contrast, several divisions of the High Court have held that litis contestatio is the date on
107
which the value of the spouses’ estates is to be determined. In MB v NB the court stated in
an obiter dictum that the date on which the spouse with the smaller accrual acquires his or her
accrual claim must be distinguished from the date on which the value of the spouses’ respective estates is to be determined. The latter date is a procedural issue. Litis contestatio should be
used as the date on which the value of the respective estates is to be determined because this
is the moment “when the dispute crystallises and can be presented to the court for
________________________
99 See fn 93 above. The section is silent about indexation of the excluded donation.
100 AM v JM 2011 JDR 0091 (WCC); MGB v DEB [2013] 4 All SA 99 (KZD) (also reported as MB v DB 2013
(6) SA 86 (KZD).
101 S 4(2).
102 Radebe v Sosibo 2011 (5) SA 51 (GSJ). See further ch 10 below.
103 [2010] JOL 26003 (NCK); see also Skelton and Carnelley (eds) Family Law 109; Van Niekerk A Practical
Guide to Patrimonial Litigation in Divorce Actions pars 2.4, 3.4.2; Visser and Potgieter 147.
104 See also Willemse v Willemse (OPD) 12 September 2006 (Case 3600/2004), cited by De Jong 2012 Stell LR
227.
105 2014 (6) SA 233 (GJ).
106 Par 20.
107 2010 (3) SA 220 (GSJ), Heaton and Kruger Casebook on Family Law case [88].
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108
109
decision”. This view was applied in MGB v DEB, where the court held that “it is wholly
impractical that parties to a divorce should go to the lengths of establishing a right to accrual
in the divorce action and then have to embark upon a further litigious exercise in order to
110
decide the extent of such accrual”. As the court pointed out in MGB v DEB, it is unlikely
that the legislature could have intended “to devise a procedure which seems only calculated
to prolong the settlement of disputes between parties to a marriage, and to greatly increase
111
112
the legal costs of being able to resolve their differences”. In Schmitz v Schmitz the court
supported the approach in MB v NB and MGB v DEB. It further held that consistency and
economic equity would be ensured by using litis contestatio as the date on which the values of
the respective estates are to be determined. It would be inequitable to allow one spouse to
share in the post-separation accrual of the other spouse’s estate if the spouses have been
separated for a long time. Moreover, at litis contestatio at the latest, “the underlying partner113
ship” between the spouses has come to an end.
On a strict, literal interpretation of section 3(1) the view that the accrual and the accrual
claim must be determined at the dissolution of the marriage appears correct. However, using
litis contestatio as the pertinent date is preferable as the latter approach is realistic, saves costs,
expedites the trial, and “limit[s] the temptation to squander assets that some spouses seem to
114
find irresistible”.
The Matrimonial Property Act imposes a reciprocal duty on the spouses (or the executors
of their estates if they are deceased) to provide each other with full particulars of the value of
the respective estates for the purpose of determining the accrual. They must provide these
details within a reasonable time of being requested to do so.115
116
(e) An example of the accrual calculation
The calculation of the accrual of spouses’ estates and the accrual claim can be explained by
means of the following example: H and W are married subject to the accrual system. At the
time of the wedding, H owns no assets and has a study loan of R10 000, while W has savings in
the amount of R20 000 and no debts. When H dies five years later, he leaves a net estate of
R250 000, which is made up as follows:
Intestate inheritance received from his father
R15 000
Satisfaction received for defamation
R5 000
Assets amassed himself
R230 000
R250 000
________________________
108 233C.
109 [2013] 4 All SA 99 (KZD) (also reported as MB v DB 2013 (6) SA 86 (KZD)). But see JA v DA 2014 (6) SA
233 (GJ) where it was held that the distinction between procedure and substance does not change the
moment for determining the value of the spouses’ estates.
110 Par 31.
111 Ibid. On the undesirability of adjudicating proprietary claims after the divorce, see De Jong 2012 Stell LR
228–231; De Jong and Pintens 2015 TSAR 559.
112 [2015] 3 All SA 85 (KZD), Heaton and Kruger Casebook on Family Law case [34].
113 Par 24.
114 MB v NB 2010 (3) SA 220 (GSJ) par 42. See also Heaton in Heaton (ed) Law of Divorce and Dissolution of
Life Partnerships 98; De Jong 2011 THRHR 472. See further De Jong and Pintens 2015 TSAR 563–564.
115 S 7. On the uncertainty as to when the particulars may be sought, see De Jong 2012 Stell LR 232. In B v B
[2009] ZAWCHC 58, 27 March 2009 it was held that a spouse may not, as part of his or her action for divorce, seek an order that the defendant must render an account containing full particulars of the value of
his or her estate for purposes of determining the difference between the accrual of the spouses’ estates.
The plaintiff must, instead, seek an order in terms of s 7 of the Matrimonial Property Act, and both
spouses must provide full particulars of the value of their respective estates.
116 For other examples, see Barratt (ed) Persons and the Family 313; Skelton and Carnelley (eds) Family Law
112–114; Visser and Potgieter 151–152; Church and Church in Church (ed) LAWSA Marriage par 106;
Sonnekus in Clark (ed) Family Law Service par B14.
Chapter 7: Variable consequences of a civil marriage – Marriage out of community of property
99
At the time of H’s death, the net value of W’s estate is R70 000. Suppose that, according to the
weighted average of the CPI, money was worth twice as much at the commencement of the
marriage as at its dissolution.
The accrual is calculated as follows:
H’s estate:
Net value on dissolution
R250 000
Minus net commencement value (deemed to be nil as debts exceedR0
ed assets upon marriage)
Minus assets which do not form part of the estate’s accrual
– Intestate inheritance
R15 000
– Satisfaction (non-patrimonial damages)
R5 000
R20 000
Accrual
W’s estate:
Net value on dissolution
Minus net commencement value as adapted in terms of the CPI
(R20 000 × 2 = R40 000)
Minus assets which do not form part of the estate’s accrual:
– None
Accrual
R20 000
R230 000
R70 000
R40 000
R0
R30 000
W’s estate has the smaller accrual. Therefore she can claim half the difference between the
two accruals from the executor of H’s estate.
W’s accrual claim = ½ (R230 000 – R30 000)
= ½ (R200 000)
= R100 000
7.4.5 Protection of a spouse’s right to share in the accrual
Since it is obvious that spouses who are married subject to the accrual system have an interest
in each other’s estates during the marriage, the legislator has created a mechanism to protect
this interest. Section 8(1) of the Act provides that if, during the subsistence of the marriage,
one spouse by his or her conduct seriously prejudices or will probably seriously prejudice the
other spouse’s right to share in the accrual at the dissolution of the marriage, the spouse who
has been prejudiced or stands to be so prejudiced may apply to the High Court for the
immediate division of the accrual. The court may order such a division only if it is satisfied
117
that no other person will be prejudiced.
The court may order division of the accrual in accordance with the provisions of the Act or
on such other basis as it deems just.118 Thus it may, for example, divide the difference between
the accruals on a 40:60 basis, instead of the usual 50:50 basis. By making an unequal division
________________________
117 In JA v DA 2014 (6) SA 233 (GJ) Sutherland J stated that it might be difficult to satisfy the requirement of
absence of prejudice to third parties, because a third party to whom the other spouse had alienated
assets would be prejudiced if the application were granted. It seems that the judge lost sight of the fact
that the application in terms of s 8 does not seek to set aside transactions that have already been completed; consequently it does not affect rights third parties have already obtained. See also Heaton 2014
Annual Survey of South African Law (forthcoming).
118 Schulze 2000 THRHR 120 submits that the accrual should be determined as at the date of service of the
papers in the application in terms of s 8, for otherwise the spouse may use the intervening time to diminish his or her estate even further. The risk of further depletion could be overcome by applying for an
urgent interim interdict when the papers are served.
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South African Family Law
of the accrual, the court can compensate the prejudiced spouse for loss suffered as a result of
the other spouse’s conduct.
If the court orders immediate division, it may also order that the marriage will no longer be
subject to the accrual system and will in future be subject to complete separation of property.119 If the court does not alter the matrimonial property system, it means that the accrual
system continues to apply to the marriage. A new accrual system, as it were, comes into being
from the date of the court order. For purposes of calculating this “new” accrual, the commencement value of each spouse’s estate consists of the value of that estate after the accrual
has been divided in terms of the court order.
One may ask with some justification whether the interest the spouses have in each other’s
estates is adequately protected by section 8.120 The protection is probably adequate if the
spouse who stands to be prejudiced is aware of the intended prejudicial conduct. Before
applying for division of the accrual, or at the time when the application is served, he or she
can seek an interdict to prevent the other spouse from entering into the juristic act which will
prejudice him or her.121 But, if the other spouse has already depleted his or her estate, there is
little the prejudiced spouse can do. If assets have been transferred to a third party with the
fraudulent intention of prejudicing the other spouse, the prejudiced spouse can recover the
property from the third party with the actio Pauliana utilis.122 However, as it is very difficult to
prove fraudulent intention, the prejudiced spouse’s chances of success are slim.123
As the law stands, the prejudiced spouse may also apply to have the other spouse declared a
prodigal.124 However, it is doubted whether our courts will in future be willing to declare
someone a prodigal and to interdict him or her from dealing with his or her estate, since such
an order most probably amounts to an unjustifiable infringement of the person’s constitutional rights to dignity and privacy.125 Furthermore, even if the court were to interdict the
________________________
119 S 8(2). If an amendment to the matrimonial property system is ordered, the new matrimonial property
system must be indicated on the copy of the antenuptial contract which is filed in the deeds registry:
s 8(3) and (4).
120 See also Hahlo, 5th edn, 308; Wille’s Principles 300; Van Aswegen 1984 Modern Business Law 148; Van Wyk
1985 De Rebus 59; Zaal 1986 TSAR 57; De Jong and Pintens 2015 TSAR 557, 564.
121 Reeder v Softline [2000] 4 All SA 105 (W), 2001 (2) SA 844 (W) (obiter); JA v DA 2014 (6) SA 233 (GJ)
(obiter); Church and Church in Church (ed) LAWSA Marriage par 105; Wille’s Principles 301.
122 Church and Church in Church (ed) LAWSA Marriage par 105; Hahlo, 5th edn, 309; Wille’s Principles 301;
Van Aswegen 1984 Modern Business Law 148.
123 On the actio Pauliana utilis, see further ch 6 above. In the case of a marriage subject to the accrual
system, there is no joint estate which can be used as a reason for delaying the right to invoke the actio
Pauliana utilis until the dissolution of the marriage. However, Van Wyk 1985 De Rebus 61 submits that invocation of the actio Pauliana utilis might fail, because prejudice would be difficult to prove since the accrual claim arises only upon dissolution of the marriage. It must be remembered though that the right to
share in the other spouse’s accrual already exists during the subsistence of the marriage (see above in
this chapter), and that it is this contingent right which is prejudiced by the other spouse’s fraudulent
disposition. See also Heaton in Heaton (ed) Law of Divorce and Dissolution of Life Partnerships 113.
The legislator should perhaps consider extending the protection afforded to spouses who are married
subject to the accrual system by requiring the consent of both spouses for certain transactions. Here one
thinks especially of donations. Hahlo, 5th edn, 308–309 gives a number of examples of countries in
which this kind of protection applies. Sonnekus 1997 TSAR 1 suggests that if a spouse incurred expenditure in respect of, or made donations to a lover, the amounts spent or the value of the donations made
should be deemed still to form part of his or her estate. This will result in the end value of the estate being larger, thereby affording the “innocent” spouse a larger accrual claim against the “guilty” spouse. See
also De Jong and Pintens 2015 TSAR 564, who recommend that the value of squandered or concealed assets and excessive donations should be added to the net end value of the estate of a spouse who acted
with the intention to diminish the value of his or her estate to the detriment of the other spouse.
124 Reeder v Softline [2000] 4 All SA 105 (W), 2001 (2) SA 844 (W) (obiter); Church and Church in Church
(ed) LAWSA Marriage par 105; Wille’s Principles 300. For an unsuccessful application for an interdict in a
marriage subject to the accrual system, see RS v MS 2014 (2) SA 511 (GJ).
125 Ss 10 and 14 of the Constitution of the Republic of South Africa, 1996. On prodigality and the unconstitutionality of the limitations placed on prodigals, see further Heaton Persons ch 10.
Chapter 7: Variable consequences of a civil marriage – Marriage out of community of property
101
spouse as a prodigal, the order would not afford the prejudiced spouse any redress in respect
of the other spouse’s past conduct.
7.4.6 Satisfaction of the accrual claim
A spouse can find himself or herself in a financial dilemma as a result of an accrual claim by
his or her spouse. For example, a businessman who unexpectedly, on the death of his wife,
has to pay an amount equal to half his estate to her heirs may have to sell his business.126 In
terms of section 10 of the Matrimonial Property Act, a court may on the application of the
spouse against whom an accrual claim lies order that satisfaction of the accrual claim be
deferred. Deferment may be granted on such conditions as the court deems just, including
the furnishing of security, payment by way of instalments, payment of interest, and delivery or
127
transfer of specified assets.
7.4.7
Renouncing the accrual claim
The Matrimonial Property Act does not expressly regulate the position when a spouse does
not want to share in the accrual of the other spouse’s estate when the claim falls due. If the
spouse who wants to renounce his or her claim is solvent, there should be no objection to the
renunciation because a solvent person may renounce any claim. The position becomes more
complicated if the claimant is insolvent when the accrual claim arises, for in such event,
renunciation would prejudice the spouse’s creditors in that they would not be able to attach
the share of the accrual the insolvent spouse would have received from the solvent spouse.
Let us suppose that a wife’s estate increased during the marriage, while her husband’s liabilities exceeded his assets at the dissolution of the marriage. If the husband enforced the claim
to share in the accrual in the wife’s estate, his creditors could attach the amount as soon as it
was transferred to him. But what would the position be if he renounced his claim? Would
effect be given to this renunciation? In other words, can the husband legally renounce his
accrual claim to the detriment of his creditors?
It is submitted that the answer lies in the difference between the accrual claim and the
right to share in the accrual of the other spouse’s estate, which is explained above in this
chapter. Section 3(2) of the Matrimonial Property Act excludes the right to share in the
accrual from a spouse’s insolvent estate. The right therefore never forms part of a spouse’s
insolvent estate. The claim, however, is not excluded from the insolvent estate. Thus the
claim indeed forms part of the spouse’s insolvent estate.128 Renunciation of the claim would
usually amount to a disposition without value as envisaged in section 26 of the Insolvency Act
24 of 1936 and would be liable to be set aside.129
________________________
126 For examples of the implications of accrual sharing on specific testamentary terms, see Green Nov 2008
De Rebus 22.
127 For concern about the way in which the court framed part of its order in MGB v DEB [2013] 4 All SA 99
(KZD) (also reported as MB v DB 2013 (6) SA 86 (KZD)), see Heaton 2013 Annual Survey of South African
Law 454.
128 See also Van der Vyver and Joubert 567; Van Wyk 1985 De Rebus 60; Van Aswegen 1986 De Rebus 273;
Meskin et al par 5.3.6. But see Sinclair 34 fn 129 who argues that s 3(2) can be interpreted as meaning
that “what is acquired by way of this marriage system does not ever fall into one’s insolvent estate, even
years after the dissolution of the marriage”. She does indicate, however, that she doubts this interpretation. Sonnekus in Clark (ed) Family Law Service par B15 indicates that the matter is uncertain, but argues
for exclusion of the amount of the accrual claim from the insolvent estate after dissolution of the marriage.
129 Hahlo, 5th edn, 310 submits that even if a spouse’s liabilities far exceed his or her assets, he or she can
renounce the claim, but he does not address the issue of whether the renunciation would amount to a
disposition without value as envisaged in s 26 of the Insolvency Act.
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South African Family Law
7.5 Advantages and disadvantages of the main matrimonial
property systems
7.5.1
General
From the foregoing and the information in chapter 6 it is clear that, at present, there are
three main matrimonial property systems, namely universal community of property, complete
separation of property, and the accrual system. Prospective spouses must decide which of
these systems suits their particular circumstances best. Naturally, one cannot claim that one
particular matrimonial property system is always the best, because the different systems are
designed to accommodate different circumstances. Some of the advantages and disadvantages
of each of these systems are set out below.
7.5.2 Marriage in community of property
The main advantages of this system are:
(1) It applies by operation of law without an antenuptial contract having to be executed and
therefore requires no effort or expense on the part of prospective spouses.
(2) Each spouse automatically shares in the assets that are accumulated during the subsistence of the marriage.
(3) Antenuptial assets are also shared. (For some spouses this could, however, be a disadvantage.)
(4) The credit-worthiness of husband and wife is the same during the subsistence of the
marriage.
The main disadvantages of this system are:
(1) The principle of joint liability for debts results in neither spouse being protected against
the other’s creditors. Insolvency, in particular, poses serious problems for both spouses.
(2) Unless the damages are payable because of personal injury, the spouses cannot recover
delictual damages from each other or each other’s insurers.
(3) The administration of the joint estate during the subsistence of the marriage is complicated.
(4) A liquidity problem can occur if the marriage is terminated by the death of one of the
spouses.
7.5.3 Complete separation of property
The main disadvantage of this system is that the spouses have no right to share in any part of
one another’s estate. This obviously prejudices the spouse who is financially in the weaker
position upon the dissolution of the marriage. In some cases, however, the absence of any
form of sharing may be an advantage. For example, by opting for complete separation of
property a wealthy widower and a wealthy widow who marry each other can ensure that their
estates remain separate for their respective heirs.
7.5.4 The accrual system
The main advantages of this system are:
(1) The spouses share in the growth of each other’s estate.
(2) Whatever each spouse amassed prior to the marriage is not shared. (However, this can
also be a disadvantage.)
(3) The spouses are not liable for each other’s debts, with the result that each spouse’s estate
is protected against claims by the other’s creditors, unless one of them is insolvent at the
dissolution of the marriage.
(4) The spouses may freely enter into contracts with each other.
Chapter 7: Variable consequences of a civil marriage – Marriage out of community of property
103
(5) The spouses can incur delictual liability against each other and can consequently hold
each other’s insurers liable.
(6) The administration of each spouse’s estate is uncomplicated.
The main disadvantages of this system are:
(1) The spouses have to enter into an antenuptial contract to apply this system to their
marriage.
(2) The spouses do not share in each other’s credit-worthiness, which can result in a homemaker having little credit-worthiness during the subsistence of the marriage if his or her
estate is small.
(3) The calculation of the accrual upon dissolution of the marriage can be complicated.
8
ALTERATION OF THE
MATRIMONIAL PROPERTY SYSTEM
8.1 The principle of immutability in matrimonial property law
Until the commencement of the Matrimonial Property Act 88 of 1984, the immutability principle was applied strictly in our matrimonial property law. Therefore, the matrimonial property system chosen by the spouses remained fixed during the subsistence of the marriage.1
This position was disadvantageous for many spouses as it often happens that spouses’ financial
circumstances change to such an extent during their marriage that the system they initially
chose becomes totally inappropriate. For this reason, the legislator relaxed the immutability
principle in the Matrimonial Property Act by creating several mechanisms for effecting a
postnuptial change of the matrimonial property system.
Firstly, for a limited period, which has expired, certain spouses were permitted to incorporate the accrual system into their marriage out of community of property simply by concluding
a registered notarial contract.2 This option is discussed in chapter 7 above.
Secondly, in limited circumstances, the court has the power to order the immediate division of the spouses’ matrimonial property and to change the couple’s matrimonial property
system at the request of one of the spouses. Section 20 of the Matrimonial Property Act
empowers the court to order the immediate division of the joint estate and to change the
spouses’ matrimonial property system if the conduct of one of them seriously prejudices or
will seriously prejudice the interests of the other spouse in the joint estate. Section 8 of the
Act confers a similar power on the court in respect of immediate division of the accrual. Section 20 is discussed in chapter 6 above, and section 8 in chapter 7 above.
The last mechanism for alteration of the matrimonial property system which the Matrimonial Property Act introduced is the joint application to court in terms of section 21(1) for permission to change the matrimonial property system. This section is discussed under the next
heading.
The High Court also still has its common-law powers to rectify, amend or cancel an antenuptial contract that does not correctly reflect the terms of the parties’ agreement, and to
vary or cancel the antenuptial contract if there are sound reasons for doing so. These powers
are discussed in chapter 7 above. Depending on the facts of the case, the rectification, amendment or cancellation can amount to changing the couple’s matrimonial property system.
The above-mentioned mechanisms all achieve a change to the matrimonial property system
that binds the spouses as well as third parties.
________________________
1 See eg Union Government (Minister of Finance) v Larkan 1916 AD 212; Honey v Honey 1992 (3) SA 609 (W); SB
v RB [2015] 2 All SA 232 (ECLD).
2 Spouses in whose marriage the marital power operated could use the same mechanism to exclude the
marital power: s 25(2) of the Matrimonial Property Act 88 of 1984. In this instance, however, the change
did not relate to the matrimonial property system; it simply related to the administration of the matrimonial property. S 25(2) is discussed in ch 6 above.
105
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South African Family Law
8.2 Court-sanctioned alteration of the matrimonial property system
in terms of section 21(1) of the Matrimonial Property Act
88 of 1984
8.2.1
General
In terms of section 21(1) of the Matrimonial Property Act, spouses may jointly apply to court
for leave to change the matrimonial property system applicable to their marriage. It makes no
difference whether they are married in or out of community, or whether they married before
3
or after the commencement of the Act.
The wording of section 21(1) indicates that it deals with a postnuptial change to the spouses’ matrimonial property system. Thus the section is not a means of bestowing full validity on
the matrimonial property system the spouses selected in an informal antenuptial contract
prior to marriage.4 In Ex parte Sanders 5 the spouses’ antenuptial contract was apparently never
properly executed and in any event never registered, which was their attorney’s fault. When
the spouses discovered this state of affairs they successfully approached the court in terms of
section 21(1) for permission to change their matrimonial property system to the one they had
agreed upon prior to marriage. It is submitted that the court should not have granted the
application, as changing the matrimonial property system was not at issue at all. What the
spouses actually wanted to achieve was validity as against third parties of the matrimonial
property system they had chosen before marriage, and which already operated as between
them.6 Accordingly, their remedy lay in section 88 of the Deeds Registries Act 47 of 1937,
which authorises spouses who concluded an informal antenuptial contract to apply to court
for permission to have the contract formally executed and registered postnuptially, with the
result that it becomes binding as against third parties.7 The same objection applies to Ex parte
Engelbrecht.8 In this case, too, the spouses agreed that they would marry out of community of
property. They did not enter into a formal antenuptial contract as they were under the
mistaken impression that they could simply inform the marriage officer of their intention.
When the marriage officer told them that such a declaration of intent was insufficient, they
decided to go ahead with the wedding anyway as all the wedding arrangements had already
been made. They later successfully approached the court for an order in terms of section
21(1) permitting them to change their matrimonial property system to separation of property.
8.2.2
Statutory requirements
Section 21(1) of the Matrimonial Property Act provides that the spouses must jointly apply to
the High Court. They must set out the proposed new matrimonial property system in a notarial
contract and submit it to the court. If the court authorises the change, the approved notarial
contract must be registered in terms of section 89 of the Deeds Registries Act.
The court will approve the new system if the following conditions are met:
(1) There are sound reasons for the proposed change.
(2) Notice of the proposed change has been given to all the creditors of the spouses.
(3) No other person will be prejudiced by the change.
________________________
3 Some practitioners are unaware of this provision and advise their clients that they have to divorce and
remarry subject to a different matrimonial property system: see SB v RB [2015] 2 All SA 232 (ECLD).
4 An informal antenuptial contract is valid only as between the parties: see ch 7 above.
5 2002 (5) SA 387 (C).
6 Inter se the spouses were not married in community of property, as was incorrectly contended. Because they
had entered into an informal antenuptial contract in which they had excluded community of property prior to marriage, they were married out of community of property. It was only in so far as third parties were
concerned that the absence of a formally executed and registered antenuptial contract rendered the marriage in community of property: see ch 7 above.
7 See also Ferreira and Jacobs 2003 THRHR 339. On s 88 of the Deeds Registries Act 47 of 1937, see further
ch 7 above. On the differences between applications in terms of s 21(1) of the Matrimonial Property Act
and s 88 of the Deeds Registries Act, see Ferreira and Jacobs op cit.
8 1986 (2) SA 158 (NC).
Chapter 8: Alteration of the matrimonial property system
107
What constitute sound reasons for a change depends on the facts and circumstances of each
case.9 In Ex parte Engelbrecht 10 the court held that the words “sound reasons” must be interpreted according to their ordinary grammatical meaning and therefore refer to facts which are
convincing, valid and based on reality (“feite wat oortuigend, geldig en verankerd aan die
werklikheid is”).
The courts readily find that the requirement of sound reasons has been met. For instance,
in Ex parte Krös 11 the reasons the parties advanced for the proposed change were that they had
been ignorant about the consequences of community of property when they had married. It
was only during their marriage that they had realised that separation of property would have
suited their circumstances much better, inter alia because the husband wanted to start a
business and the wife wanted to be sure that her children from a previous marriage would
benefit from the assets she had brought into the marriage. In Ex parte Engelbrecht 12 the spouses
thought that they could marry out of community of property simply by informing the marriage officer that they wanted to do so. When the marriage officer told them that such a
declaration of intent was insufficient, they went ahead with the wedding anyway. They later
sought court approval to change their matrimonial property system to separation of property.
In Ex parte Sanders 13 the spouses were under the mistaken impression that they had entered
into a valid antenuptial contract. When they discovered that the contract had not been
properly executed and registered they approached the court for an order permitting them to
change to separation of property.14 In Ex parte Burger 15 the parties, who had married subject to
complete separation of property, applied for permission to change to the accrual system. The
reason for the proposed change was that the husband’s estate had grown much more than
the wife’s and the parties wanted the wife to have a fair share of this increase upon the dissolution of the marriage. The above applications were all granted.
Circumstances such as those in Ex parte Coetzee 16 would surely also be considered sound reasons.17 This case was decided before the Matrimonial Property Act came into operation and
concerned the court’s common-law power to vary or cancel an antenuptial contract if there
are sound reasons for doing so.18 The parties had concluded an antenuptial contract from
which community of property was excluded at the insistence of the bride’s father, while they
foresaw that their marriage would be unhappy unless they were married in community of
property. The court cancelled the antenuptial contract because its existence threatened the
spouses’ happiness.
8.2.3
Procedural requirements
In Ex parte Lourens 19 the Cape Provincial Division (now the Western Cape Division of the High
Court, Cape Town) held that it is desirable to have a uniform procedure for applications in
terms of section 21(1). The court therefore set procedural requirements for this division of
the High Court. Similar requirements were subsequently laid down for the Free State Division
of the High Court in Ex parte Le Roux; Ex parte Von Berg 20 and the Transkei High Court (now
________________________
9
10
11
12
13
14
15
16
17
18
19
20
Ex parte Engelbrecht 1986 (2) SA 158 (NC); Ex parte Lourens 1986 (2) SA 291 (C).
1986 (2) SA 158 (NC) 160H.
1986 (1) SA 642 (NC), Heaton and Kruger Casebook on Family Law case [35].
1986 (2) SA 158 (NC).
2002 (5) SA 387 (C).
Above in this chapter it was argued that in this case and in Ex parte Engelbrecht 1986 (2) SA 158 (NC) the
spouses should not have approached the court in terms of s 21(1) of the Matrimonial Property Act. They
should instead have relied on s 88 of the Deeds Registries Act.
1995 (1) SA 140 (D), Heaton and Kruger Casebook on Family Law case [37].
1984 (2) SA 363 (W).
See also Church and Church in Church (ed) LAWSA Marriage par 124 fn 7.
On this power, see ch 7 above.
1986 (2) SA 291 (C).
1990 (2) SA 70 (O). See also the earlier case of Ex parte Coertzen 1986 (2) SA 108 (O) in which the application was refused because the notice to the creditors did not indicate the date on which the application
would be heard. The court further held that in order to protect third parties who may be prejudiced by the
continued
108
South African Family Law
the Eastern Cape Local Division of the High Court, Mthatha) in Ex parte Madikiza.21 Other
divisions of the High Court have also laid down procedural requirements by means of court
rules. Briefly, and generally summarised, the procedural requirements are the following:
(a) Notice
Notice of the application must be given to the registrar of deeds. The draft notarial contract
setting out the spouses’ proposed new matrimonial property system must be annexed to the
application.22
Notice of the intention to make the application must be published in the Government Gazette
and one, or even two, local newspapers at least two weeks before the application will be heard.
The date on which the application will be heard must be specified in the notice.
At least two weeks’ prior notice of the application must also be given by certified post to all
creditors of the spouses.
(b) The financial position of the spouses
The applicants must furnish sufficient information regarding their assets and liabilities to enable the court to judge whether or not there are sound reasons for the proposed change and
whether or not any other person will be prejudiced thereby. It should also be stated whether
or not the estate of either of the applicants has been sequestrated in the past.
(c) Sound reasons
The proposed change in the existing matrimonial property system must be fully substantiated.
(d) Absence of prejudice
The applicants must explain why no other person will be prejudiced by the proposed change.
The notarial contract setting out the proposed new matrimonial property system must furthermore contain a provision preserving the rights of existing creditors.
(e) Domicile and residence
The application must contain particulars about the applicants’ domicile and residence showing that the division of the court in which the application is being brought has jurisdiction in
the matter.
8.2.4
Retroactive alteration
Whether the matrimonial property system can be altered with retroactive effect is unclear. In
Ex parte Krös 23 it was held that it can be done. The court’s interpretation is in keeping with the
intention of the legislator, namely the creation of a flexible method for altering the matrimonial property system, but is based on a very liberal interpretation of the wording of section
21(1). In Ex parte Oosthuizen,24 in contrast, the court adopted a strict approach to the wording
of the section and held that the court does not have the power to change the matrimonial
property system with retroactive effect.
Krös as well as Oosthuizen dealt with applications by spouses who were married in community
of property and wanted to change to separation of property. In Ex parte Burger 25 the parties
wanted to introduce the accrual system retroactively into their marriage out of community of
property. In the notarial contract setting out their proposed new matrimonial property system, the spouses indicated that they wanted the values of their estates as at the date of the
conclusion of the notarial contract to be used as the initial values for purposes of calculating
________________________
21
22
23
24
25
proposed change, and creditors who inadvertently had not been given notice, a rule nisi must be issued and
published in a newspaper.
1995 (4) SA 433 (Tk).
The registrar of deeds must submit his or her views on the contract to the court. The court is obviously not
bound by those views.
1986 (1) SA 642 (NC).
1990 (4) SA 15 (E), Heaton and Kruger Casebook on Family Law case [36].
1995 (1) SA 140 (D).
Chapter 8: Alteration of the matrimonial property system
109
their accruals. Magid J concluded that this could not be done. He held that the spouses had
to use the “normal basis of the accrual system”, which entails that the accrual is based on the
growth of each spouse’s estate from the moment that the marriage is entered into. Therefore,
the spouses had to use the values as at the date of their marriage as the initial values of their
estates. However, he considered it unnecessary to deal with the conflicting judgments in Krös
and Oosthuizen on whether or not a retroactive change is permissible, as he did not view his
decision as one amounting to a retroactive introduction of the accrual system. He held that by
implementing the accrual system from the beginning of their marriage, the applicants were
simply acting in accordance with the “normal basis of the accrual system” and were not doing
anything retroactively. This reasoning is difficult to accept. If a change that is applied for postnuptially operates as from the date of marriage it must perforce be a retroactive change. Furthermore, the implication of Magid J’s decision is that spouses who invoke section 21(1) have
no choice but to alter their matrimonial property system with retroactive effect – at least when
they apply for introduction of the accrual system.
8.2.5
The effect that changing from community of property to separation of
property has on jointly owned property
In Ex parte Menzies 26 the applicants were married in community of property. They applied for
leave to change to separation of property. They further sought an order declaring that certain
immovable properties would henceforth vest in both of them in equal undivided shares as
joint owners. Some of these properties were registered in the name of the husband only. As the
wife was not a registered owner of these properties, the registrar of deeds averred that the wife’s
half-share in the properties would first have to be transferred to her by means of a formal deed
of transfer. The court held that this was unnecessary. It explained that when the matrimonial
property system is changed the tied-up co-ownership the spouses have in the assets of the joint
estate changes to free co-ownership. The spouses still have equal shares and their shares
27
remain undivided, but the shares now become divisible at the instance of either spouse.
8.3 Extra-judicial alteration of the matrimonial property system
Although the common-law immutability principle has been relaxed, it has not been abolished. Therefore, spouses who want an amendment of their matrimonial property system to
operate as against third parties must use one of the mechanisms set out above in this chapter.
This is the position regardless of the proprietary system which operates in the marriage.
Because spouses who are married out of community of property may freely enter into contracts with one another, the question arises whether they may, without resorting to one of the
mechanisms discussed above, agree to alter their matrimonial property system only as between themselves; in other words, may they alter their matrimonial property system extrajudicially if they want the alteration to operate not as against third parties, but only inter se?
Since section 22 of the Matrimonial Property Act abolished the common-law prohibition
28
on donations one would expect the answer to be in the affirmative because most alterations
to the matrimonial property system could be construed as a donation (which might, of
course, be subject to donations tax). For example, if spouses who married subject to the
accrual system agreed to replace the accrual system with complete separation of property, the
agreement could be viewed as a contract of donation (provided, of course, that all the requirements for such a contract were satisfied). The amount of the donation would be equal to
the amount of the accrual claim the spouse whose estate shows the smaller or no accrual
________________________
26 1993 (3) SA 799 (C).
27 The position is similar to the change that takes place as a result of divorce, ie, the spouses’ tied coownership of indeterminate and indivisible shares in the joint estate changes to free co-ownership of determinate and divisible shares in the former joint estate: Gugu v Zongwana [2014] 1 All SA 203 (ECM); see
also Corporate Liquidators (Pty) Ltd v Wiggill 2007 (2) SA 520 (T).
28 See further ch 5 above.
110
South African Family Law
would have had against the other spouse. However, our courts have held that an extra-judicial
alteration of the matrimonial property system is impermissible even if the spouses only wish to
bind themselves. From the case law it appears that this rule applies regardless of the type of
agreement the spouses enter into to try to achieve the alteration.
In Honey v Honey,29 the parties were married out of community of property with the accrual
system in terms of a duly executed and registered antenuptial contract. A few years after the
marriage they entered into a further written agreement which was notarially executed but was
neither registered in the deeds registry nor authorised in terms of section 21(1) of the Matrimonial Property Act. This postnuptial contract purported to exclude the accrual system
from their marriage. The wife subsequently sued her husband for divorce and the court had
to decide on the validity of the postnuptial contract. The court held that the contract was
invalid and unenforceable between the parties inter se and against third parties, because the
immutability principle is independent from the now-abolished prohibition on donations and
renders void all postnuptial variations by the spouses of their matrimonial property system
which are not authorised by the court.
The courts have adopted the same approach to agreements in which spouses who are married subject to complete separation of property seek to create universal partnerships. In JW v
30
31
32
CW, EA v EC and RD v TD it was held that spouses who are married subject to complete
separation of property may not enter into a societas universorum bonorum (that is, a universal
partnership relating to present and future assets, liabilities, profits and losses), because such a
33
partnership in effect amounts to creating community of property. Depending on the terms
of their antenuptial contract, spouses may, however, enter into a societas universorum quae ex
quaestu veniunt (that is, a universal partnership that is limited to the sharing of present and
34
future assets, liabilities, profits and losses acquired from commercial undertakings). In RD v
35
TD spouses who were married subject to complete separation of property started a fish
farming business shortly after they married. In their subsequent divorce proceedings, the
defendant brought a counterclaim requesting a declaration that a societas universorum quae ex
quaestu veniunt existed between the parties in respect of the business. The plaintiff raised an
exception against the counterclaim on the ground that it lacked averments to disclose a cause
of action because the alleged partnership would constitute an impermissible amendment of
the terms of the spouses’ antenuptial contract that specifically excluded community of profit
and loss. The court pointed out that the counterclaim related to a societas universorum quae ex
quaestu veniunt as opposed to a societas universorum bonorum because it was limited to the fish
farming business. The court held that although the terms of the spouses’ antenuptial contract
excluded community of profit and loss, it did not exclude the spouses’ freedom to enter into
a joint undertaking for their joint profit. As the joint profit the spouses made from the business would be divided between them as partners and each spouse’s share of the profit would
fall into his or her separate estate, the profit would not be merged in violation of the terms of
36
their antenuptial contract. The court also referred to Fink v Fink and Mühlmann v Mühl37
mann where, at a time when the immutability principle still applied in its strict form, courts
had found that universal partnerships existed between spouses who were married subject to
________________________
29
30
31
32
33
34
35
36
37
1992 (3) SA 609 (W), Heaton and Kruger Casebook on Family Law case [38].
2012 (2) SA 529 (NCK).
(09/25924) [2012] ZAGPJHC 219 (25 October 2012).
2014 (4) SA 200 (GP); Heaton and Kruger Casebook on Family Law case [39].
JW v CW 2012 (2) SA 529 (NCK); EA v EC (09/25924) [2012] ZAGPJHC 219 (25 October 2012); RD v TD
2014 (4) SA 200 (GP). See also ch 7 above.
Fink v Fink 1945 WLD 226; Mühlmann v Mühlmann 1984 (3) SA 102 (A); RD v TD 2014 (4) SA 200 (GP). On
the two types of universal partnerships our law recognises, see eg Annabhay v Ramlall 1960 (3) SA 802 (N);
Sepheri v Scanlan 2008 (1) SA 322 (C); Ponelat v Schrepfer 2012 (1) SA 206 (SCA); Butters v Mncora 2012 (4)
SA 1 (SCA); Henning 2014 THRHR 231.
2014 (4) SA 200 (GP).
1945 WLD 226.
1984 (3) SA 102 (A).
Chapter 8: Alteration of the matrimonial property system
111
complete separation of property and who operated businesses together. In Fink and Mühlmann, the spouses had entered into universal partnerships relating specifically to their businesses. The exception to the counterclaim was accordingly dismissed.
Contrary to the view that was adopted in earlier editions of this work, it is submitted that
the courts’ finding that an extra-judicial alteration of the matrimonial property system is
impermissible even if the spouses only want to bind themselves, is correct. In earlier editions
it was argued that even before the enactment of section 21(1) of the Matrimonial Property
Act, the immutability principle did not prohibit spouses who were married out of community
of property from entering into transactions which had the effect of amending their matrimonial property system as between themselves, because such spouses were permitted to enter
into a universal partnership and a postnuptial universal partnership has an effect on the
division of the spouses’ matrimonial property as between themselves. However, as the court
indicated in RD v TD, in the old decisions where a universal partnership between spouses was
38
at issue, the partnership took the form of a societas universorum quae ex quaestu veniunt. This
type of universal partnership does not alter the spouses’ matrimonial property system, because each spouse’s share of the partnership assets, liabilities, profits and losses falls into his
or her separate estate; it is not merged with the other spouse’s share in some sort of joint
estate. Therefore, the foundation of the criticism in earlier editions of this work of the courts’
view that spouses cannot extra-judicially alter their matrimonial property system inter se was
inaccurate – spouses were, in truth, never allowed to enter into universal partnerships which
altered their matrimonial property system; they were only permitted to enter into universal
partnerships which did not alter their matrimonial property system.
________________________
38 See Fink v Fink 1945 WLD 226; Isaacs v Isaacs 1949 (1) SA 952 (C); Mühlmann v Mühlmann 1984 (3) SA 102
(A). The position in respect of unmarried partners is different: see ch 20 below.
9
DISSOLUTION OF A CIVIL MARRIAGE –
GENERAL
9.1 The ways in which a marriage is dissolved
A civil marriage can be dissolved in three ways:
1
(1) By the death of one or both of the spouses.
(2) By the annulment of a voidable marriage.
(3) By divorce.
In the chapters that follow, the dissolution of a civil marriage by death and divorce are discussed. Annulment is discussed in chapter 4 above.
9.2 Judicial separation
Until the commencement of the Divorce Act 70 of 1979, the courts had the power to issue
orders for judicial separation. These orders did not dissolve the marriage; they merely temporarily suspended some of the spouses’ marital obligations, particularly the duty to live together. Section 14 of the Divorce Act deprived the courts of their power to order judicial
separation.2 Thus, the only orders for judicial separation which might still operate today are
those handed down before the commencement of the Act on 1 July 1979. Judicial separation
has therefore become virtually obsolete and will not be discussed any further.3
9.3 Extra-judicial separation
Spouses may still agree on extra-judicial separation. Extra-judicial separation rests on an
agreement between the spouses that they will live apart. The spouses may also agree on the
proprietary consequences which are to operate while they live apart, the payment of maintenance, occupation of the matrimonial home, parental responsibilities and rights in respect of
their children, and so forth, but their agreement does not bind third parties.4 The agreement
operates only as between the spouses and binds the spouses only for as long as both of them
uphold it. Despite the separation agreement, either spouse may institute divorce proceedings,
seek an order in connection with the parental responsibilities and rights in respect of their
children,5 or approach the court to amend the maintenance agreement they entered into.6
________________________
1 If a marriage is dissolved by the death of one of the spouses, divorce and ancillary proceedings between
them fall away. Therefore, the surviving spouse cannot, for example, proceed with a claim for redistribution of assets in terms of s 7(3)–(6) of the Divorce Act 70 of 1979 he or she had instituted before deceased’s
death: YG v Executor, Estate Late CGM 2013 (4) SA 387 (WCC).
2 The courts may no longer issue orders for restitution of conjugal rights either: s 14 of the Divorce Act 70 of
1979.
3 For a comprehensive discussion of this remedy, see Hahlo, 4th edn, 329 et seq.
4 Hahlo, 5th edn, 321.
5 The order may be sought in terms of the Matrimonial Affairs Act 37 of 1953 or the Children’s Act 38 of
2005: see ch 23 below.
6 The order may be sought in terms of the Maintenance Act 99 of 1998: see ch 5 above.
113
10
DISSOLUTION OF A CIVIL MARRIAGE BY DEATH
10.1 Marriage in community of property
In a marriage in community of property, the death of either spouse terminates both the
marriage and the community of property. As this termination happens ex lege,1 the court need
not be approached for an order dissolving either the marriage or the joint estate. Furthermore, because the spouse’s death terminates the marriage and the joint estate, the spousal
2
3
consent requirements imposed by the Matrimonial Property Act 88 of 1984 no longer apply.
An executor winds up the joint estate in terms of the Administration of Estates Act 66 of
1965. This, inter alia, involves paying all debts owed by the joint estate and exacting payment
for all debts owed to the joint estate. It should be noted that unpaid antenuptial debts of
either spouse are not paid from the joint estate but from the net half of the debtor, irrespective of whether the debtor is the deceased or the surviving spouse.4 Once all the debts have
been settled, the executor delivers half the net balance of the joint estate to the surviving
spouse.5 This half belongs to the surviving spouse because he or she owns it by virtue of the
matrimonial property system which operated in the marriage, namely community of property,
and not because he or she inherits it.6 The other half devolves on the heirs of the deceased
spouse.
________________________
1 See eg Grimbeek v The Master 1926 CPD 183; Joseph v Joseph 1951 (3) SA 776 (N); Danielz v De Wet 2009 (6) SA
42 (C).
2 The consent requirements are discussed in ch 6 above.
3 Kotzé v Oosthuizen 1988 (3) SA 578 (C).
4 On liability for antenuptial debts, see ch 6 above.
5 In Danielz v De Wet 2009 (6) SA 42 (C) it was held that it is only after the death of the deceased that the
death benefits (proceeds) of a life insurance policy arise. Since the joint estate is terminated by the spouse’s
death, the death benefits fall into the deceased’s estate instead of into the joint estate. This decision is at
odds with the approach Muller 2006 THRHR 267 and 269 advocates. Muller states that practitioners have
regularly treated the proceeds of a life insurance policy without a nominated beneficiary as part of the joint
estate. Sonnekus 2010 TSAR 184 and Wood-Bodley 2010 SALJ 224 also differ from the view adopted in Danielz v De Wet.
6 See eg Estate Sayle v Commissioner for Inland Revenue 1945 AD 388, Heaton and Kruger Casebook on Family Law
case [23]. The surviving spouse does not have to quantify his or her share of the joint estate or lodge a
claim against the estate: Barnard v Van der Merwe 2012 (3) SA 304 (GNP). According to Ex parte Vonzell 1953
(1) SA 122 (C) and Nell v Nell 1976 (3) SA 700 (T), the surviving spouse receives half the joint estate even if
he or she murdered the deceased spouse. In Leeb v Leeb [1999] 2 All SA 588 (N), by contrast, it was held
that the murderer can be deprived of the benefits he or she obtained as a result of the marriage in community of property because no one should be allowed to benefit from his or her own crime and because
the murder renders the surviving spouse unworthy of benefiting from the deceased spouse’s contributions
to the joint estate. See also Danielz v De Wet 2009 (6) SA 42 (C) where a wife conspired to assault and do
grievous bodily harm to the deceased. The court held that the wife was unworthy of inheriting in terms of
the deceased’s will. See further Hahlo, 5th edn, 173 fn 100, 1953 SALJ 1, Sonnekus 2010 TSAR 175, WoodBodley 2010 SALJ 30 and Schoeman-Malan LitNet Akademies (Regte) 3 Dec 2013, http://www.litnet.co.za/
privaatregtelike-perspektief-op-onwaardigheid-om-te-erf-die-uitwerking-van-gesinsmoorde/ (accessed 22 June
2015), who support the view that the murderer can be deprived of the benefits arising from community of
property; but see Lee and Honoré par 95 who support the view advanced in Ex parte Vonzell and Nell v Nell.
115
116
South African Family Law
Some of the disadvantages inherent in community of property come to the fore when one
of the spouses dies. For example, in order to meet creditors’ claims, the executor is both entitled and obliged to liquidate some, or even all, of the assets of the joint estate. This applies
even in respect of immovable property, because the executor may not mortgage such property
to discharge a debt.7 Even if there are no creditors, the surviving spouse may experience
serious problems when the heirs’ inheritances have to be paid out. The executor has the
power to liquidate part of the joint estate, or even the entire joint estate, in order to pay the
heirs in cash. Often this deprives the surviving spouse of his or her only shelter or means of
income (for example, a house, farm or family business). However, the surviving spouse is
allowed to buy some of the assets or even the whole estate. A third disadvantage is that control
of the joint estate is removed from the surviving spouse and vested in the executor. Without
the consent of the Master of the High Court, the surviving spouse may only deal with the assets
of the estate in order to preserve and protect them, to pay the deceased’s funeral expenses,
and to maintain the household and the dependants of the deceased or the surviving spouse.
The old rules concerning the wife’s renouncing her rights in the joint estate have fallen
into disuse.8 The same probably applies to boedelhouderschap (that is, continuation of the joint
estate by the surviving spouse and the children born of the marriage).9
10.2 Marriage out of community of property
Antenuptial contracts are not terminated by the death of either spouse. Therefore, any
outstanding marriage settlements and pacta successoria (that is, agreements concerning the
devolution of an estate) must be implemented.10
The executor winds up only the deceased spouse’s estate. The surviving spouse must lodge
any claims he or she has against the deceased estate with the executor. This includes a claim
in terms of section 23 of the Matrimonial Property Act in respect of household necessaries.11
If the accrual system applies to the marriage and the accrual of the surviving spouse’s estate is
less than the accrual of the deceased spouse’s estate, the surviving spouse must lodge a claim
12
against the deceased spouse’s estate and quantify the claim. If the accrual of the deceased
spouse’s estate is less than the accrual of the surviving spouse’s estate, the executor must
lodge a claim against the surviving spouse on behalf of the deceased spouse’s estate and
quantify it.13 It is only once the accrual claim has been satisfied that the estate devolves on the
14
heirs of the deceased spouse.
10.3 Maintenance of Surviving Spouses Act 27 of 1990
10.3.1 General
In terms of the Maintenance of Surviving Spouses Act 27 of 1990 the surviving spouse in a
marriage which is dissolved by death after 1 July 199015 has a claim against the estate of his or
her deceased spouse in respect of his or her reasonable maintenance needs until his or her
________________________
7 Williams v Williams (1896) 13 SC 200.
8 Church and Church in Church (ed) LAWSA Marriage par 88; Hahlo, 5th edn, 185; Lee and Honoré par 95;
Yeats 1945 THRHR 118; De Vos 1954 THRHR 133.
9 Natal Bank Ltd v Rood’s Heirs 1909 TS 243; Pont 1958 THRHR 231; but see Hahlo, 5th edn, 186 who submits
that boedelhouderschap is not yet obsolete although it is moribund. Lee and Honoré par 95 and Wille’s Principles 318–319 still treat boedelhouderschap as part of our law.
10 See ch 7 above.
11 See ch 7 above on the right of recourse in respect of expenses incurred for household necessaries.
12 Barnard v Van der Merwe 2012 (3) SA 304 (GNP).
13 The accrual system is discussed in ch 7 above. For an exposition of the rules which determine whether the
proceeds of a life insurance policy fall into the accrual upon the death of one of the spouses, see Muller
2006 THRHR 269–270. See also fn 5 above.
14 S 4(2) of the Matrimonial Property Act; Radebe v Sosibo 2011 (5) SA 51 (GSJ).
15 This is the date on which the Act came into operation.
Chapter 10: Dissolution of a civil marriage by death
117
death or remarriage.16 This claim arises regardless of the matrimonial property system which
operated in the marriage and regardless of whether or not the surviving spouse stands to
inherit from the deceased spouse.
However, the claim arises only if the surviving spouse is unable to provide for his or her
reasonable maintenance needs from his or her own means and earnings.17 The surviving
spouse’s means include any matrimonial property (such as half the joint estate or a share of
the accrual of the deceased spouse’s estate) and any inheritance from the deceased’s estate to
which he or she may be entitled.18 Voluntary contributions made to the surviving spouse’s
maintenance by his or her children do not fall within the ambit of the term “means” and are
therefore ignored when determining whether the surviving spouse is able to provide for his
or her own maintenance needs.19
10.3.2 Reasonable maintenance needs
The surviving spouse’s maintenance claim is limited to the amount which is needed to meet
his or her reasonable maintenance needs.20 When determining the surviving spouse’s reasonable maintenance needs the following factors must be taken into account:
21
(1) The amount available in the deceased estate for distribution to heirs and legatees.
22
(2) The existing and expected means, earning capacity, financial needs and obligations of
the surviving spouse.
(3) The duration of the marriage.
(4) The surviving spouse’s standard of living during the subsistence of the marriage.
(5) The surviving spouse’s age at the time of the deceased’s death.
(6) Any other relevant factor which should be taken into account.23
Whether a particular fact is relevant depends on the facts of the particular case. In Mann v
24
Leach the plaintiff’s maintenance claim extended to a new motor vehicle and ongoing
medical expenses. As she was elderly, her state of health, eyesight and capacity to drive were
25
considered relevant. In Oshry v Feldman the Supreme Court of Appeal held that additional
administrative burdens, including the costs attendant on an award for periodical maintenance which might continue for longer than anticipated, are relevant factors to be taken into
account when deciding on the mechanism that should be used to meet the surviving spouse’s
maintenance claim.
10.3.3 Disposal of the maintenance claim
The surviving spouse’s claim for maintenance must be proved and disposed of in terms of the
Administration of Estates Act.26 This means that the claim must be lodged with the executor
of the deceased estate.
________________________
16
17
18
19
20
21
22
23
24
25
26
S 2(1).
Ibid.
S 1.
Oshry v Feldman [2011] 1 All SA 124 (SCA), 2010 (6) SA 19 (SCA).
S 2(1).
The proceeds of insurance policies for which beneficiaries have been nominated are excluded from this
amount if the beneficiaries accept the proceeds: Oshry v Feldman [2011] 1 All SA 124 (SCA), 2010 (6) SA 19
(SCA); see also fn 5 above.
“Existing and expected means” refer only to the surviving spouse’s own means: Oshry v Feldman [2011] 1 All
SA 124 (SCA), 2010 (6) SA 19 (SCA).
S 3.
[1998] 2 All SA 217 (E).
[2011] 1 All SA 124 (SCA), 2010 (6) SA 19 (SCA), Heaton and Kruger Casebook on Family Law case [40]. For
criticism of the decision, see Sonnekus 2010 TSAR 808.
S 2(3)(a) of the Maintenance of Surviving Spouses Act.
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South African Family Law
The executor has the usual powers of an executor under the Administration of Estates Act.
In addition, the Maintenance of Surviving Spouses Act expressly empowers the executor to
enter into an agreement with the surviving spouse and the interested heirs and legatees in
order to settle the surviving spouse’s maintenance claim either fully or partially.27 In terms of
this agreement, a trust may be created, assets or a right in assets of the deceased estate may be
transferred to the surviving spouse or the trust, or an obligation may be imposed on an heir
or legatee.28 Thus, for example, the agreement may provide that the former matrimonial
home will be transferred to the surviving spouse, that assets will be transferred to a trust of
which the surviving spouse will be the beneficiary, or an heir may grant the surviving spouse a
usufruct over the former matrimonial home, which allows the surviving spouse to stay in the
30
property.29 In Oshry v Feldman the court held that the claim can be settled by way of periodical payments or payment of a lump sum, and that the totality of the circumstances of the case
31
must be considered in order to arrive at a just result.
If the parties are unable to reach agreement on the surviving spouse’s maintenance claim
32
and/or the way in which it is to be settled, the court may be approached for an order.
The surviving spouse does not have a right of recourse against anyone to whom money or
property has been validly distributed in terms of the Administration of Estates Act.33 This
means that if the deceased’s whole estate has already been distributed in terms of the Administration of Estates Act without the surviving spouse’s maintenance claim being met, the surviving spouse is left without recourse.
10.3.4 The order of preference
The surviving spouse’s maintenance claim has the same order of preference in respect of other
claims against the deceased’s estate as that of a dependent child of the deceased spouse. If the
surviving spouse’s claim and that of a dependent child compete with one another and there
are insufficient resources from which they can be met, they are reduced proportionately.34
________________________
27 S 2(3)(d).
28 Ibid.
29 Sonnekus 1990 TSAR 491 correctly points out that when the former matrimonial home has been bequeathed
to somebody other than the surviving spouse, accommodation is often the surviving spouse’s most pressing
need.
30 [2011] 1 All SA 124 (SCA), 2010 (6) SA 19 (SCA).
31 Oshry v Feldman [2011] 1 All SA 124 (SCA), 2010 (6) SA 19 (SCA).
32 As happened in, eg, Oshry v Feldman [2011] 1 All SA 124 (SCA), 2010 (6) SA 19 (SCA).
33 S 2(2) of the Maintenance of Surviving Spouses Act.
34 S 2(3)(b).
11
THE GROUNDS FOR DIVORCE
11.1 Introduction
Before the coming into operation of the Divorce Act 70 of 1979 on 1 July 1979, our law recognised four grounds for divorce, namely adultery, malicious desertion, incurable mental illness
lasting at least seven years, and imprisonment for at least five years after having been declared
a habitual criminal.1 The old divorce law was essentially based on the idea that in every divorce action there was a guilty and an innocent party. The fault principle also played a significant role in respect of the consequences of divorce. Thus, for example, only the innocent
spouse could claim maintenance, and the guilty spouse forfeited all the patrimonial benefits
of the marriage if the innocent spouse applied for a forfeiture order against him or her.
The Divorce Act now regulates divorce and its consequences. The Act provides for three
no-fault grounds of divorce:
(1) The irretrievable breakdown of the marriage as contemplated in section 4.
(2) The mental illness of a party to the marriage as contemplated in section 5.
(3) The continuous unconsciousness of a party to the marriage as contemplated in section 5.2
11.2 Irretrievable breakdown of the marriage
11.2.1 The test for irretrievable breakdown
The crucial issue with regard to the principle of breakdown is to establish when a marriage can
be considered as having broken down irretrievably. In other words, according to what criterion
must irretrievable breakdown be established? Section 4(1) of the Divorce Act expressly provides that the court may only grant a decree of divorce on the ground of the irretrievable
breakdown of a marriage
if it is satisfied that the marriage relationship between the parties to the marriage has reached
such a state of disintegration that there is no reasonable prospect of the restoration of a normal
marriage relationship between them.
It is clear that section 4(1) lays down two requirements:
(1) The marriage relationship must no longer be normal.
(2) There must be no reasonable prospect of the restoration of a normal marriage relationship between the spouses.
Consequently, it is very important to determine when a marriage relationship is no longer
normal. As a jurist, one must preferably work with a legal concept, and thus little benefit is to
be gained by consulting sociologists, marriage guidance counsellors, theologians, psychologists, and so on in an attempt to ascertain precisely what constitutes a normal marriage. On the
contrary, one would probably find a large number of disparate definitions among the
________________________
1 Hahlo, 4th edn, 361 et seq.
2 S 3 of the Divorce Act 70 of 1979.
119
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South African Family Law
exponents of those disciplines. The legal definition of a “normal marriage relationship”
should be sought in the concept of consortium omnis vitae.3 When either spouse or both spouses
behave in such a way that the consortium is terminated or seriously disrupted, it can be said
that a normal marriage relationship no longer exists between the spouses.4
The method the courts use to determine whether the consortium has been terminated or
seriously violated involves subjective and objective elements. A purely objective approach
means that the court only considers its own interpretation of the facts and circumstances of
the marriage in question while a purely subjective approach means that the court only considers the plaintiff’s attitude. A purely subjective approach would result in the marriage being
regarded as having broken down irretrievably as soon as the plaintiff sued for divorce.5
In Schwartz v Schwartz 6 Corbett JA stated the court’s approach clearly:
In determining whether a marriage has reached such a state of disintegration that there is no reasonable prospect of the restoration of a normal marriage relationship between the parties it is
important to have regard to what has happened in the past, ie the history of the relationship up
to the date of trial, and also to the present attitude of the parties to the marriage relationship as
revealed by the evidence at the trial.
The court also decided in no uncertain terms that it is inadmissible to try and determine
whether or not a marriage has broken down irretrievably by considering what might happen
if it were to refuse the decree of divorce.7
In Swart v Swart 8 Flemming J stated that a marriage has broken down if one spouse no longer wishes to continue with the marriage. The formation of such an intention, however, does
not prove the irretrievability of the breakdown. The formation of an intention to sue for
divorce is the subjective element in the approach to determining marriage breakdown.
However, in order to assess the probability of the restoration of a normal marital relationship,
the court also has to consider the reasons which prompted the plaintiff to sue for divorce, and
the parties’ conduct. Only when the court has determined, in the light of all the circumstances of the particular case, that there is no reasonable prospect of the restoration of a normal
marital relationship, will it find that the marriage has broken down irretrievably and grant a
decree of divorce. The court looks at the objective scantiness and surmountability of the
reasons why a divorce was applied for (“die objektiewe karigheid en oorkombaarheid van die
redes waarom op die aanvra van ’n egskeiding besluit is”) to ascertain whether the marriage
in question can still be saved.9
In Coetzee v Coetzee 10 it was held that in order to succeed in a divorce action based on irretrievable breakdown, the plaintiff must prove that there has been a change in the pattern of
the marriage from which breakdown can be deduced. The very unfortunate implication of
this decision is that a divorce cannot be obtained in a marriage which was unhappy from the
start and has remained unhappy throughout. It is submitted that permanently tying spouses
to an unhappy marriage is not in keeping with the legislator’s intention in enacting section 4
11
of the Divorce Act.
________________________
3 On the meaning and content of consortium omnis vitae, see ch 5 above.
4 In eg Schwartz v Schwartz 1984 (4) SA 467 (A) and Naidoo v Naidoo 1985 (1) SA 366 (T) the court took the
infringement of various aspects of the consortium into consideration.
5 On the subjective and objective approaches, see further Barratt (ed) Persons and the Family 329; Glover in
Clark (ed) Family Law Service par D2; Heaton in Church (ed) LAWSA Marriage par 162; Lee and Honoré par
117 fn (n); Robinson in Heaton (ed) Law of Divorce and Dissolution of Life Partnerships 12–15; Skelton and
Carnelley (eds) Family Law 123; Van der Vyver and Joubert 655–656; Visser and Potgieter 159–160; Wille’s
Principles 324; Barnard and Van Aswegen 1981 THRHR 199.
6 1984 (4) SA 467 (A) 475, Heaton and Kruger Casebook on Family Law case [41].
7 479.
8 1980 (4) SA 364 (O), Heaton and Kruger Casebook on Family Law case [42].
9 368; see further Naidoo v Naidoo 1985 (1) SA 366 (T); Vermeulen v Vermeulen; Buffel v Buffel 1989 (2) SA 771
(NC).
10 1991 (4) SA 702 (C).
11 See also Robinson in Heaton (ed) Law of Divorce and Dissolution of Life Partnerships 15.
Chapter 11: The grounds for divorce
121
11.2.2 The guidelines in section 4(2)
(a) General
Section 4(2) of the Divorce Act contains guidelines as to when a marriage is regarded as having
broken down irretrievably. These guidelines are merely examples of instances when the probability is high that a normal marriage relationship no longer exists and that there is no reasonable prospect for the restoration of a normal marriage relationship.12 It is important to
keep in mind, firstly, that the particular instances are not the only proof of irretrievable
breakdown, and, secondly, that they are not necessarily conclusive proof of irretrievable
breakdown. In other words, the court may find irretrievable breakdown on totally different
facts, or it may find that a marriage has not broken down irretrievably, despite the existence
of the situation mentioned in a particular guideline.
Each of the guidelines is set out under a separate heading immediately below.
(b) Section 4(2)(a): The parties have not lived together as husband and wife for a
continuous period of at least one year immediately prior to the date of the institution of
the divorce action
The first question one could ask regarding this guideline is what the position would be if the
spouses resumed cohabitation during the year of separation in order to try and effect a reconciliation. Since the legislator requires an unbroken period of at least one year, it is clear that if
this period were to be interrupted by periods of resumed cohabitation, the plaintiff would
have to present more evidence to the court than the mere fact that the spouses have lived
apart for a year.
The guideline further sets out the particular form the separation should take: the spouses
must not have lived together as husband and wife. The issue is not geographic separation, but termination of the consortium between the spouses. If the parties have, in fact, lived geographically apart for a year or longer, termination of the consortium is assumed and the court will
probably grant a decree of divorce in the absence of evidence justifying or clarifying the separation. Even if the spouses have continued living together under the same roof there is no
reason why the plaintiff cannot show that the consortium has been terminated, for example,
because they no longer have sex, no longer communicate with each other, and so on.
If the plaintiff wishes to rely only on the spouses having lived apart for a year without adducing any further evidence, he or she must produce proof that the full period of at least a
year has elapsed. The plaintiff would consequently have to prove the exact date on which the
separation commenced. If the spouses still share the same house, the plaintiff would have to
prove the particular point in time at which the consortium came to an end. In the latter case,
more evidence would have to be adduced than would be necessary in the former case.
(c) Section 4(2)(b): The defendant has committed adultery and the plaintiff finds it
irreconcilable with a continued marriage relationship
In terms of the old, fault-based law of divorce, the mere commission of adultery by the defendant was enough to found a divorce. Section 4(2)(b) of the Divorce Act, however, requires that
the plaintiff must also show that he or she finds it impossible to continue with the marriage
because of the defendant’s adultery. The test to determine whether the plaintiff considers the
defendant’s adultery irreconcilable with the continuation of the marriage is subjective.
The measure of proof required to support a claim of adultery is not indicated in section
4(2). Of necessity, the word “adultery” retains the same meaning as before. Consequently,
one could argue that adultery must still be proved as in the past. Conversely, one could argue
that the phrase “the court may accept evidence that…” in section 4(2) means that it is not
necessary to convince the court on a balance of probabilities that adultery was committed.
The plaintiff should, however, place some evidence of adultery before the court. A mere
allegation that the defendant committed adultery would not ensure success.
________________________
12 South African Law Commission Report on the Law of Divorce and Matters Incidental Thereto pars 9.5 and 18.4.
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South African Family Law
(d) Section 4(2)(c): A court has declared the defendant a habitual criminal and the
defendant is undergoing imprisonment as a result of the declaration
As the guideline is expressly limited to imprisonment on the ground of habitual criminality,
the plaintiff would in all other cases of imprisonment have to adduce evidence other than the
mere fact of the defendant’s imprisonment to prove that the marriage has broken down irretrievably. This guideline would have been far more effective if a particular period of imprisonment on its own were regarded as proof of irretrievable breakdown of the marriage. However,
it must be borne in mind that, in terms of section 4(2)(a), the plaintiff may in any event sue
for divorce after a year’s separation, regardless of whether or not the separation resulted from
imprisonment.
11.3 Incurable mental illness or continuous unconsciousness
11.3.1 General
Section 5(1) of the Divorce Act provides that mental illness without a reasonable prospect of a
cure constitutes a ground for divorce, while section 5(2) provides that unconsciousness with
no reasonable prospect of recovery is a ground for divorce. According to the then South
African Law Commission (which is now called the South African Law Reform Commission),
section 5 was adopted because “one is concerned with a special situation for which special
rules must be laid down. For this reason it appears to be desirable to treat mental illness as a
separate ground for divorce”.13 The same applies to continuous unconsciousness. The “special
rules” refer to the criteria that apply to establishing these two grounds for divorce, and the
elimination of the spouses’ conduct as a factor which can affect the consequences of the
divorce.14
11.3.2 The criteria contained in section 5
In terms of section 5(1), the plaintiff can obtain a divorce on the ground of the defendant’s
mental illness if he or she satisfies the court of the following:
(1) The defendant has been admitted to an institution as a patient in terms of a reception
order under the Mental Health Act 18 of 1973, or is being detained as a state patient or
mentally ill convicted prisoner at an institution. The Mental Health Act has since been
replaced by the Mental Health Care Act 17 of 2002. The equivalent of a patient who has
been admitted by virtue of a reception order is a mental health care user who is receiving
involuntary care, treatment and rehabilitation services.15
(2) The defendant has not been unconditionally discharged from the institution or place of
detention for a continuous period of at least two years immediately prior to the institution of the divorce action.
(3) There is no reasonable prospect that the defendant will be cured of his or her mental illness. This fact must be proved by the evidence of at least two psychiatrists, one of whom
must be appointed by the court.
Section 5(2) stipulates the circumstances in which the defendant’s continuous unconsciousness constitutes a ground for divorce:
(1) The defendant must be in a state of continuous unconsciousness caused by a physical disorder.
(2) The unconscious state must have lasted for a continuous period of at least six months immediately prior to the institution of the divorce action.
________________________
13 Report on the Law of Divorce and Matters Incidental Thereto par 11.1. However, the same approach has not been
adopted in respect of customary marriages: see ch 17 below.
14 S 9(2), which is discussed below in this chapter.
15 On the Mental Health Care Act, see Heaton Persons 122–128.
Chapter 11: The grounds for divorce
123
(3) There must be no reasonable prospect that the defendant will regain consciousness. This
fact must be proved by the evidence of at least two doctors, one of whom must be a
court-appointed neurologist or neurosurgeon.
11.3.3 Divorcing a mentally ill or unconscious spouse in terms of section 4
instead of section 5
In the case of incurable mental illness and continuous unconsciousness, the legislator has
seen fit to lay down special rules regarding divorce. The question arises whether someone
who wants to divorce his or her mentally ill or unconscious spouse is compelled to institute
the divorce action in terms of section 5 or whether the action may be brought in terms of
section 4. In other words, the question is whether the requirements of section 5 must always
be met if one of the spouses is mentally ill or unconscious, or whether the plaintiff has a
choice whether to rely on section 4 or section 5.
In several decisions16 it has been held that the requirements of section 5 need not be complied with in order to obtain a divorce order against a mentally ill or unconscious spouse, and
that a decree of divorce can be granted under section 4 if the plaintiff can prove that the
marriage has broken down irretrievably, either because of the defendant’s condition or for
some other reason.17
By employing section 4, the plaintiff can escape the stricter requirements of section 5. However, as Hahlo18 points out, only in the most exceptional circumstances will a court make a
forfeiture order against a defendant whose mental illness or unconsciousness is the reason for
a divorce which is granted in terms of section 4.
11.3.4 Special rules in respect of divorce on the ground of incurable mental
illness and continuous unconsciousness
(a) Section 5(3)
Section 5(3) of the Divorce Act empowers the court to appoint a legal practitioner to represent the defendant at the court proceedings, and to order the plaintiff to bear the costs of the
defendant’s legal representation.
(b) Section 5(4)
In terms of section 5(4), the court may make any order it deems fit in respect of requiring the
plaintiff to furnish security for any patrimonial benefits to which the defendant may be
entitled as a result of the divorce.
(c) Section 9(2)
Section 9(2) provides that forfeiture of patrimonial benefits may not be ordered against a
defendant if the marriage is dissolved on the ground of the defendant’s incurable mental
illness or continuous unconsciousness.19
(d) Maintenance
The Act does not make special provision for maintenance for either of the parties to divorce
proceedings instituted in terms of section 5. From this omission it can be deduced that the
________________________
16 Dickinson v Dickinson 1981 (3) SA 856 (W); Krige v Smit 1981 (4) SA 409 (C); Smit v Smit 1982 (4) SA 34 (O);
Ott v Raubenheimer 1985 (2) SA 851 (O).
17 See also Barratt (ed) Persons and the Family 332; Glover in Clark (ed) Family Law Service par D4; Hahlo, 5th
edn, 351; Heaton in Church (ed) LAWSA Marriage par 169; Lee and Honoré par 116 fn (n); Robinson in
Heaton (ed) Law of Divorce and Dissolution of Life Partnerships 20–24; Skelton and Carnelley (eds) Family Law
125; Van der Vyver and Joubert 667; Visser and Potgieter 163; Wille’s Principles 329–330; Kaganas 1982 SALJ
345; Midgley 1982 SALJ 22; Scott 1982 Obiter 20; Van Loggerenberg 1982 THRHR 174; Barnard 1983
THRHR 354; Zaal 1983 SALJ 114, 1985 CILSA 237.
18 5th edn, 351 fn 56.
19 Forfeiture of benefits is discussed in ch 12 below.
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South African Family Law
plaintiff may claim maintenance from the mentally ill or unconscious defendant in terms of
section 7(2) of the Act.20
11.4 Defences against an action for divorce
If a spouse rebuts the allegation that the marriage has broken down irretrievably, a divorce
will obviously not be granted. If the defendant succeeds, for example, in convincing the court
that there is a possibility of reconciliation between the parties, the court will probably postpone the proceedings in terms of section 4(3) of the Divorce Act in order to afford the spouses
an opportunity to attempt to save their marriage. An unsuccessful attempt at reconciliation
does, however, provide strong evidence of irretrievable breakdown so that a decree of divorce
will be granted if the spouses have found themselves unable to reconcile by the end of the
period for which the divorce proceedings have been postponed. The prospect of a further
attempt at reconciliation being successful is in any event extremely remote.
11.5 The court’s discretion to refuse a decree of divorce
The use of the word “may” in sections 3, 4 and 5 of the Divorce Act creates the impression
that the court has the power to refuse to grant a divorce even if it is proved, for example, that
the marriage has broken down irretrievably. In Smit v Smit 21 the court was prepared to recognise the existence of such a discretion. However, in Schwartz v Schwartz 22 the Appellate Division (now the Supreme Court of Appeal) in an obiter dictum expressed the view that the court
does not have this discretion and that a divorce must be granted once it has been proved that
a marriage has broken down irretrievably. Corbett JA stated:
In the first place, I am not convinced that s 4(1) does confer upon the Court the kind of discretion contemplated by counsel’s submission. It is true that s 4(1) is couched in permissive terms.
It provides that a Court “may grant a decree of divorce” . . . It does not necessarily follow, however, that the Legislature intended to confer a discretion on the Court. Section 4(1) is clearly an
empowering section: it confers legislatively a power which the Court did not previously enjoy. A
statutory enactment conferring a power in permissive language may nevertheless have to be construed as making it the duty of the person or authority in whom the power is reposed to exercise
that power when the conditions prescribed as justifying its exercise have been satisfied.23
When the Appellate Division had to decide the issue in Levy v Levy,24 it confirmed the view
which was expressed in Schwartz and expressly rejected the opposite view that had been
expressed in Smit.
Thus, generally speaking, the court has no discretion whether or not to grant a divorce if
one of the grounds for divorce has been proven.25 However, in terms of section 5A of the Divorce Act, the court may refuse a divorce or make any other order it considers just if, despite
the divorce, the spouses or either of them will not be free to remarry unless the marriage is
also dissolved in accordance with the prescripts of the spouses’ religion or the religion of
________________________
20
21
22
23
24
25
S 7(2) is discussed in ch 13 below.
1982 (4) SA 34 (O), Heaton and Kruger Casebook on Family Law case [43].
1984 (4) SA 467 (A).
473–474.
1991 (3) SA 614 (A) 625E–G.
The most important objection to the court’s having a discretion is obviously that it is pointless to refuse a
divorce if the marriage has broken down irretrievably. After all, the court cannot resurrect a dead marriage.
See also CC v MVC [2013] 4 All SA 327 (GSJ), 2014 (2) SA 430 where it was held that parties should not be
shackled to a moribund marriage. On the court’s discretion, see further Barratt (ed) Persons and the Family
332–333; Glover in Clark (ed) Family Law Service par D1; Hahlo, 5th edn, 344–347; Heaton in Church (ed)
LAWSA Marriage par 172; Lee and Honoré par 116; South African Law Commission Report on the Law of Divorce and Matters Incidental Thereto par 10.3; Robinson in Heaton (ed) Law of Divorce and Dissolution of Life
Partnerships 24–27; Skelton and Carnelley (eds) Family Law 126–127; Van der Vyver and Joubert 654–655;
Visser and Potgieter 158–159; Van Wyk 1979 De Rebus 636–637; De Waal and Van Heerden 1987 TSAR 257.
See also Ex parte Inkley and Inkley 1995 (3) SA 528 (C) 531–532.
Chapter 11: The grounds for divorce
125
either of them, or unless a religious barrier to remarriage is removed.26 However, the court
may not refuse to order a divorce if the spouse within whose power it is to have the religious
marriage dissolved or the religious barrier removed has taken all the necessary steps in this
regard.27
Section 5A applies only to the divorce proceedings of couples who, in addition to having
concluded a civil marriage, are also married in terms of the rules of a particular religion. The
section does not apply if the spouses have entered into only a religious marriage.28 In other
words, section 5A applies to marriages which have dual validity because they qualify as both
religious and civil marriages. A religious marriage qualifies as a civil marriage if it is monogamous and meets the requirements of the Marriage Act 25 of 1961.29 In such event, the
religious and civil marriage exist side by side, with the consequences of the civil marriage
being governed by the common law and the legislation that applies to civil marriages, and the
consequences of the religious marriage being governed by the particular system of religious
law in terms of which the marriage was celebrated. If the marriage has dual validity, the civil
marriage can be dissolved in terms of the Divorce Act, but the religious marriage will not
necessarily be terminated by the secular divorce order that is granted in terms of the Divorce
Act, for the specific religion to which the parties subscribe may not allow divorce at all (as in
the case of the Roman Catholic faith30 and certain branches of the Hindu religion31) or may set
additional requirements for dissolution of the religious marriage (as in the case of Jewish
marriages).32 If the particular religion allows divorce but sets additional requirements for the
dissolution of the religious marriage, the religious marriage continues to exist unless it is
dissolved in accordance with the rules of the particular religion. If the religion does not allow
divorce at all, there obviously is no way in which the religious marriage can be dissolved,
regardless of any order the court may make in terms of section 5A of the Divorce Act. In such
cases, the court should, logically, not make an order in terms of section 5A, because neither
party can take any steps to have the religious marriage dissolved or the religious barrier
removed.33
The purpose of section 5A is to relieve the desperate position in which, for example, a Jewish woman finds herself if her husband refuses to grant her a Jewish religious divorce (that is,
________________________
26 Van Schalkwyk 2000 De Jure 189 and 190 submits that s 5A does not empower the court to withhold a
divorce and make another order it deems just. The court must either refuse a divorce, or order the divorce
coupled with any other order it deems just. It is submitted that the wording of the section does not justify
this interpretation. S 5A does not fetter the court’s discretion on what other order it may deem just. In
terms of the section, the court may either refuse to order a divorce and leave it at that, or it may make any
other order it deems just. A just order may be that a divorce is refused and some additional sanction, such
as a punitive maintenance order, is imposed.
27 Some lawyers are critical of s 5A because there is no guarantee that a religious officer or body which is
approached for dissolution of the religious marriage or removal of the religious barrier will grant the application: Barker Jan 1998 De Rebus 55, 56; O’Connor April 1998 De Rebus 24. These critics lose sight of the
qualification in s 5A, namely that the court may not refuse to grant the divorce if it is satisfied that the
spouse within whose power it is to have the marriage dissolved or the barrier removed “has taken all the
necessary steps to have the marriage so dissolved or the barrier to the remarriage of the other spouse removed”. The secular divorce order is therefore not dependent on the successful outcome of an application
for dissolution of the religious marriage or the actual removal of the barrier to remarriage but merely on
the spouse’s taking “all the necessary steps” to obtain dissolution or removal of the barrier. See also Heaton
2008 Stell LR 457 fn 38.
28 The dissolution of a purely religious marriage is governed by the system of religious law governing the
marriage.
29 See ch 3 above on the requirements the Marriage Act 26 of 1951 sets for marriages, especially the solemnisation of marriages.
30 O’Connor April 1998 De Rebus 24.
31 Singh v Ramparsad 2007 (3) SA 445 (D).
32 Berkowitz v Berkowitz 1956 (3) SA 522 (SR); Raik v Raik 1993 (2) SA 617 (W); Amar v Amar [1999] 2 All SA
376 (W), 1999 (3) SA 604 (W).
33 Heaton 2008 Stell LR 457 fn 38; see also Van Schalkwyk 2000 De Jure 188.
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South African Family Law
a get). In Jewish religious law, only the husband has the power to grant a get. As her secular
divorce is meaningless under Jewish religious law, a wife who has not been granted a get
cannot remarry while her religious marriage exists. If she enters into another marriage after
the court has made the secular divorce order but before she has obtained a get, her second
marriage is void in the eyes of Jewish religious law and the children fathered by her new
husband are born of unmarried parents.34 In the only reported case on section 5A, Amar v
Amar,35 Goldstein J issued a divorce decree in terms of the Divorce Act but ordered the husband who was unwilling to co-operate in giving a get, to pay maintenance to his wife (who was
not otherwise entitled to maintenance from him) until such time as their marriage was
terminated by the granting of a get.
It has been argued that section 5A violates the constitutional right to equality36 because it
treats spouses in religious marriages differently from spouses whose marriages are not governed by a system of religious law. On a proper interpretation of the concept of equality this
argument should be rejected. It is trite that equality does not mean that all people must be
treated alike. The Constitutional Court has repeatedly made it clear that substantive equality
is what must be achieved,37 and substantive equality demands that spouses whose marriages
are governed by a system of religious law which could be used by one spouse to unduly prejudice the other should be treated differently from spouses whose marriages are not subject to
such a system. Furthermore, because, apparently, it is usually the husband who exploits the
religious prescripts,38 the object of section 5A also is to achieve substantive gender equality.
Therefore it is submitted that, instead of offending the equality clause, section 5A conforms
to it. It has also been argued that section 5A infringes the right to freedom of religion39
because a party to a secular divorce action could be forced to take religious steps. In this
regard, it is submitted that the limitation of the right to freedom of religion is justifiable, as
the purpose of the limitation is the achievement of substantive equality, which is at the core of
our Bill of Rights.40
________________________
34 On the Jewish law of divorce and possible avenues for ensuring that a get is granted, see Berkowitz v Berkowitz
1956 (3) SA 522 (SR); Raik v Raik 1993 (2) SA 617 (W); Amar v Amar [1999] 2 All SA 376 (W), 1999 (3) SA
604 (W); Bilchitz in Rautenbach et al Introduction to Legal Pluralism in South Africa 289–291; South African
Law Commission Report on Jewish Divorces 1 et seq; Segal 1988 SALJ 97; Blackbeard 1994 THRHR 641; Friedman 1994 SALJ 97; Ger 1998 Responsa Meridiana 78; Moosa Oct 1999 De Rebus 37; Bonthuys 2000 SALJ 15–
16.
35 [1999] 2 All SA 376 (W), 1999 (3) SA 604 (W).
36 S 9 of the Constitution of the Republic of South Africa, 1996; see Church 1997 THRHR 292, 295.
37 See eg Brink v Kitshoff 1996 (6) BCLR 752 (CC), 1996 (4) SA 197 (CC); President of the Republic of South Africa
v Hugo 1997 (6) BCLR 708 (CC), 1997 (4) SA 1 (CC); Bannatyne v Bannatyne (Commission for Gender Equality,
as Amicus Curiae) 2003 (2) BCLR 111 (CC), 2003 (2) SA 363 (CC), Heaton and Kruger Casebook on Family
Law case [21].
38 South African Law Commission Report on Jewish Divorces par 2.5; see also Ger 1998 Responsa Meridiana 86.
39 Church 1997 THRHR 292, 295. But see Friedman 1994 SALJ 97 and 111 who submits that the legislation
gives due recognition to, and indeed safeguards, the right to freedom of religion. Mahomed 1997 De Rebus
496 shares this view. The right to freedom of religion is protected by s 15(1) of the Constitution.
40 On the constitutionality of s 5A, see also Glover in Clark (ed) Family Law Service par D1; Heaton Bill of Rights
Compendium par 3C25; Robinson in Heaton (ed) Law of Divorce and Dissolution of Life Partnerships 29; Skelton
and Carnelley (eds) Family Law 127–128; Visser and Potgieter 164–165; Bonthuys 2000 SALJ 15–16.
12
THE PATRIMONIAL CONSEQUENCES OF
DIVORCE
12.1 Introduction
Sections 6 to 10 of the Divorce Act 70 of 1979 deal with the consequences of divorce regarding
division of the spouses’ assets, post-divorce maintenance for one of the spouses, the interests
of the couple’s children, and costs. In this chapter, the focus falls on division of the spouses’
assets, that is, the patrimonial consequences of divorce.
12.2 Settlement agreements
In South Africa it is accepted practice to regulate the consequences of divorce by means of
agreement. In fact, in most divorces the spouses enter into a settlement agreement (also called
a deed of settlement or consent paper).1 In their settlement agreement, the spouses regulate
matters such as the division of their assets, payment of maintenance, the allocation and exercising of parental responsibilities and rights, and liability for the costs of the proceedings.2
The parties may include any provision in their deed of settlement which is not impossible,
3
contra bonos mores or contrary to the law or public policy. Thus the spouses may, for example,
agree on a division of their assets which deviates from the normal rules regarding the matrimonial property system which operates in their marriage. For instance, they may agree that,
despite the fact that the accrual system operates in their marriage, neither spouse will have an
accrual claim against the other and each spouse will simply retain his or her own assets, that
one spouse will receive all the assets that belong to both spouses, or that one spouse will
4
transfer particular assets to the other.
In terms of section 7(1) of the Divorce Act, the court may make an order with regard to the
division of the spouses’ assets and the payment of maintenance in accordance with the spouses’ settlement agreement, provided that the agreement is in writing. The court is not compelled to make an order in accordance with the settlement agreement – it has a discretion in
the matter.5 Furthermore, it may accept only parts of the settlement agreement. For example,
________________________
1 For criticism of the courts’ blithe reliance on the assumption that settlement agreements are based on
autonomy and freedom of choice, which inter alia ignores the fact that women’s economic, educational and
socially inferior position is reflected in their bargaining power within the realm of the family, see eg Barratt
(ed) Persons and the Family 338; Bonthuys 2001 THRHR 208–210; Heaton 2005 SAJHR 566–570. Mediation
can be a useful tool to get spouses to arrive at a settlement agreement: see De Jong 2012 Stell LR 237–238.
2 For a step-by-step guide to drafting settlement agreements, see Helman Sept 2002 De Rebus 38.
3 In PL v YL 2013 (6) SA 28 (ECG) the court added the requirement that the agreement must not violate a
fundamental right. It is submitted that public policy encompasses this requirement as it is unthinkable that,
under our constitutional dispensation, unjustifiable violations of fundamental rights could be in keeping
with public policy: see also Heaton in Heaton (ed) Law of Divorce and Dissolution of Life Partnerships 87 fn 180.
4 On the possibility of changing sole ownership of immovable property by one spouse to joint ownership by
both spouses and registering a right of habitatio in favour of the spouses’ minor children, see Sonnekus in
Heaton (ed) Law of Divorce and Dissolution of Life Partnerships 50–54.
5 Rowe v Rowe 1997 (4) SA 160 (SCA); Lebeloane v Lebeloane [2000] 4 All SA 525 (W); PL v YL 2013 (6) SA 28
(ECG).
127
128
South African Family Law
in Kotze v Kotze 6 the court refused to sanction a clause in which divorcing parents undertook
to educate their child in a particular church and further undertook that the child would “fully
participate in all the religious activities” of that church. The court held that the clause violated the child’s right to freedom of religion.7 If the court is of the view that the settlement
agreement should not be made an order of court, it must inform the parties of the reasons
8
for this view and give the parties an opportunity to address its concerns. If the concerns are
not adequately addressed, the court must “leave it to the parties to elect to either be content
with their agreement or parts thereof not being incorporated into the court’s order, or to
9
10
proceed to trial”; the court may not draft a replacement settlement agreement for the parties.
Section 7(1) empowers the court that grants a decree of divorce to make an order “in accordance with a written agreement between the parties”. The section does not stipulate that
the deed of settlement must be incorporated into the divorce order. The various divisions of
the High Court do not follow a uniform practice with regard to incorporating a settlement
agreement into the divorce order. In most divisions the settlement agreement is incorporated
into the divorce order and thereby turned into an order of court.11 In KwaZulu-Natal, the
12
agreement is not incorporated. Instead, those clauses of the agreement which the court
considers readily enforceable are embodied in the divorce order.
It is unclear whether an order declaring a deed of settlement to be “binding” amounts to
incorporating the deed of settlement into the divorce order. In Brandtner v Brandtner 13 the
Witwatersrand Local Division of the High Court (now the Gauteng Local Division of the High
Court, Johannesburg) held that declaring the deed of settlement binding simply means that
the court is issuing a declaratory order that the agreement is binding as between the parties
and does not amount to incorporating it into the divorce order. However, in Tshetlo v
15
16
Tshetlo, 14 Lebeloane v Lebeloane and JW v HW the same division of the High Court held the
opposite.
If the settlement agreement is made an order of court, the clauses in the agreement which
are capable of immediate execution can be enforced as the terms of a court order and not
merely as contractual terms. Although making the settlement agreement an order of court
does not remove the contractual basis of the agreement, the court order entails that the terms
17
of the agreement can be enforced by way of the remedies available to a judgment creditor.
For example, if one of the parties fails to comply with the order, immediate execution against
his or her property is possible and he or she can be convicted of contempt of court. The court
may also instruct a third party nominated by it to render performance to the judgment
debtor, or order the Registrar of Deeds to sign documents which are required for the transfer
18
of immovable property. If an obligation is conditional on some or another event, the court
may make an order compelling the judgment debtor to comply with the terms of the settle19
ment agreement.
________________________
6
7
8
9
10
11
12
13
14
15
16
17
18
19
2003 (3) SA 628 (T).
S 15(1) of the Constitution of the Republic of South Africa, 1996.
PL v YL 2013 (6) SA 28 (ECG).
Ibid par 49.
PL v YL 2013 (6) SA 28 (ECG).
Ibid par 17. These divisions include the Gauteng and Gauteng Local Divisions of the High Court and the
Western Cape Division of the High Court: Thutha v Thutha 2008 (3) SA 494 (Tk).
Practice Directive 15 of the KwaZulu-Natal High Court. On incorporation of settlement agreements, see
further Hothey-Mahomed 2014 THRHR 334.
1999 (1) SA 866 (W).
[2000] 4 All SA 375 (W), 2000 (4) SA 673 (W).
[2000] 4 All SA 525 (W).
2011 (6) SA 237 (GSJ).
Swadif (Pty) Ltd v Dyke 1978 (1) SA 928 (A); PL v YL 2013 (6) SA 28 (ECG).
PL v YL 2013 (6) SA 28 (ECG).
Ibid. See also DS v RM 2015 (3) SA 424 (WCC), where the court made an order directing the sale by auction
of immovable property belonging to the former spouses and distribution of the proceeds in accordance
with the terms of the settlement agreement.
Chapter 12: The patrimonial consequences of divorce
129
A settlement agreement or a term in a settlement agreement that has been made an order
20
of court can be amended, rescinded or suspended by the parties by mutual consent. If either
party refuses to agree to the amendment, rescission or suspension, the court may be
approached in terms of section 8(1) of the Divorce Act if the dispute relates to guardianship,
care, contact or maintenance and there is sufficient reason for the variation, rescission or
suspension.21 If the dispute relates only to maintenance, the Maintenance Court may be
approached in terms of the Maintenance Act 99 of 1998.22 Being a contract, the settlement
agreement may also be set aside on any of the grounds which apply to the setting aside of a
contract, such as misrepresentation. Furthermore, if the deed of settlement does not correctly
reflect the parties’ true agreement, the court may order rectification of the deed. If the
settlement agreement or its terms are not made an order of court, the agreement is merely a
contract and cannot be enforced in the same way as an order of court. This means, inter alia,
that if one of the parties fails to comply with the provisions of the deed of settlement, his or
her property cannot immediately be attached in execution of the agreement and the party
cannot be imprisoned for contempt of court. The parties can agree to vary or rescind the
agreement, but if either of them refuses to agree to the variation or rescission, the original
agreement operates as it stands, unless the normal rules of the law of contract permit the
setting aside of the contract. If the deed of settlement does not correctly reflect the parties’
true agreement, the court may order rectification of the deed.
As a settlement agreement is, in essence, a contract, the rules which apply to the interpreta23
tion of contracts apply to the interpretation of settlement agreements. For the purposes of
the interpretation of the agreement it does not matter whether or not the agreement was
made an order of court in terms of section 7(1), because the essence of the agreement re24
mains the same.
With the exception of the discussions in chapter 13 below on waiver of the right to claim
rescission, suspension or variation of a maintenance order, and termination of a maintenance
order, the rules which are discussed in this chapter and the next two chapters relate mainly to
the position if the spouses do not enter into a settlement agreement. However, these rules
also play a role in respect of settlement agreements, as the spouses bargain in the shadow of
the law. In other words, when negotiating their settlement agreement, the parties usually
adopt their respective bargaining positions in the light of the legal rules on division of property, maintenance, parental responsibilities and rights, and so forth.25
12.3 The patrimony of the spouses
12.3.1 General
The effect of divorce on the division of the spouses’ property depends on whether the spouses married in or out of community of property and, if the latter, whether the accrual system
applies to their marriage. The rules which are set out in chapters 6 and 7 above determine
________________________
20 But see DS v RM 2015 (3) SA 424 (WCC), where it was held that a settlement agreement that has been
made an order of court may not be varied unless the variation is authorised by the court. This dictum is at
odds with the view that making a settlement agreement an order of court does not remove the contractual
basis of the agreement: see above in this chapter. The court in DS was, it must be stated, not adamant that
the settlement agreement may not be varied without court intervention, for it held that if it were wrong on
the principle that parties may not vary or delete parts of an incorporated settlement agreement, the facts of
the particular case did not prove that the parties had varied the agreement. Therefore, neither of them
could rely on the alleged variation.
21 See further chs 13 and 14 below. On the effect of a non-variation clause in a deed of settlement, see ch 13
below.
22 See ch 5 above.
23 Engelbrecht v Senwes Ltd 2007 (3) SA 29 (SCA).
24 Odgers v De Gersigny 2007 (2) SA 305 (SCA), Heaton and Kruger Casebook on Family Law case [56].
25 The phrase “bargaining in the shadow of the law” was coined by Mnookin and Kornhauser 1979 Yale LJ
950.
130
South African Family Law
which assets and liabilities fall into each spouse’s estate, or into the joint estate if the spouses
married in community of property, and which assets are to be excluded for purposes of
calculating the accrual in a spouse’s estate.26 In addition, the Divorce Act makes special
provision for the division of pension interests upon divorce. The sharing of pension interests
is discussed under the next heading.
The division of the spouses’ assets further depends on whether or not the court orders forfeiture of patrimonial benefits. The rules regarding forfeiture are explained below in this
chapter. In certain marriages out of community of property, the court also has a discretion to
order redistribution of assets, as is explained below in this chapter.
If the court does not grant an order for forfeiture of benefits, the divorce order in respect
of a marriage in community of property automatically operates as an order for division of the
joint estate. If the spouses cannot reach agreement on how the estate is to be divided, the
court may either order the division it deems just or appoint a liquidator (or receiver) to
divide the estate.27 If the spouses do not use the services of a liquidator, the division of the
joint estate must be jointly administered by them and neither of them may alienate any of the
28
assets of the former joint estate without the other’s cooperation.
Finally, it should be noted that although divorce is no longer fault-based, misconduct still
plays a role in respect of the patrimonial consequences of divorce, as fault is taken into
account in respect of forfeiture of benefits and can also be taken into account in respect of
redistribution of assets.29 It can also still be considered in respect of spousal maintenance.30
12.3.2 Pension interests31
(a) General
A pension benefit is not an asset in a person’s estate, because the right to claim the benefit
only vests in the person when the benefit accrues to him or her (which usually occurs when
he or she reaches a specific age, retires, resigns or is dismissed or retrenched). However, in
terms of section 7(7)(a) of the Divorce Act, a spouse’s “pension interest” is deemed to be part
of his or her assets upon divorce for purposes of determining the patrimonial benefits to
which the spouses may be entitled.32 Spouses’ pension interests are therefore included for
purposes of dividing their assets and when calculating the value of their estate(s) for purposes
of maintenance.
Section 7(7)(a) of the Divorce Act expressly states that a spouse’s pension interest “shall …
be deemed to be part of his assets” for purposes of “the determination of the patrimonial
benefits to which the parties to any divorce action may be entitled”. The word “shall” signifies
________________________
26 If, at the time of the divorce, the spouses are the sole members of a close corporation which has served its
purpose, the court will order the winding up of the close corporation if the spouses cannot agree on how to
proceed: Moore v Nouveau Investments CC [2008] 4 All SA 566 (W). For criticism of the traditional view on
the property which can be divided upon divorce, which excludes many forms of “new property” such as
career assets and earning power, see eg Clark and Goldblatt in Bonthuys and Albertyn (eds) Gender, Law
and Justice 222–223; Sinclair 69–72; Bonthuys 2001 THRHR 199–200; Heaton 2005 SAJHR 570–573.
27 See eg Dhanwanthi v Shanduth 1961 (2) SA 692 (N); Van Onselen v Kgengwenyane 1997 (2) SA 423 (B); Ex
parte Randles: In re: King v King [1998] 2 All SA 412 (D); Maharaj v Maharaj [2002] 2 All SA 34 (D), 2002 (2)
SA 648 (D); Kgopane v Kgopane (1819/2011) [2012] ZANWHC 58, 16 August 2012. Nkosi Nov 2011 De Rebus
22 argues that either spouse has the right to seek the appointment of a liquidator if the spouses cannot
agree on division of the estate, but that the court is not obliged to appoint a liquidator if there are good
reasons for refusing to do so, such as that the value of the joint estate is too low to justify the appointment.
28 Gugu v Zongwana [2014] 1 All SA 203 (ECM).
29 See below in this chapter. See ch 11 above on the movement from fault-based to no-fault divorce.
30 See ch 13 below.
31 For a brief explanation of the difference between endowment policies, retirement annuities and pension
fund benefits, and the importance of distinguishing between these financial instruments when drawing up
a settlement agreement, see Reed Sept 2005 De Rebus 20.
32 This provision came into operation on 1 Aug 1989 (the date of the coming into operation of s 2 of the
Divorce Amendment Act 7 of 1989).
Chapter 12: The patrimonial consequences of divorce
131
an imperative. Thus, as the court held in Maharaj v Maharaj,33 section 7(7)(a) “states quite
unequivocally” that a pension interest is deemed to be part of the assets of a divorcing spouse
in the determination of the patrimonial benefits to which the spouses may be entitled. As a
result, the value of the pension interest is automatically included for purposes of determining
the proprietary consequences of the divorce even if the divorce order does not expressly
34
mention the pension interest. This view has also been adopted in Fritz v Fundsatwork Umbrella
35
36
37
38
Pension Fund, Macallister v Macallister, Kotze v Kotze, and Motsetse v Motsetse. However, in
Sempapalele v Sempapalele, 39 the court wrongly adopted the view that the provision that the
pension interest of a party is deemed to be an asset in his or her estate for purposes of determining the patrimonial benefits to which he or she may be entitled upon divorce means that
the interest is not ordinarily part of the joint estate of a couple who married in community of
property, but that it may be taken into account upon divorce. The court concluded that the
pension interest must be dealt with expressly at the time of the divorce, as it does not auto40
matically fall into the joint estate. In ML v JL the Free State Division of the High Court made
statements that seem to support the view in Sempapalele. However, as the same division of the
41
High Court subsequently indicated in Motsetse v Motsetse when it rejected ML v JL, the judgment in ML v JL “is not an example of clarity”.
(b) Meaning and calculation of “pension interest”
In terms of the definition of “pension interest” read with the definition of “pension fund” in
section 1 of the Divorce Act, the value of a spouse’s pension interest is calculated in the
following manner:42
(1) If the spouse is a member of a pension fund other than a retirement annuity fund as
defined in section 1(1) of the Pension Funds Act 24 of 1956, the pension interest is the
benefit to which the spouse would have been entitled had he or she terminated his or
her membership of the fund on the date of the divorce by resigning from his or her employment.
(2) If the spouse is a member of a retirement annuity fund, the pension interest is equal to
all the spouse’s contributions to the fund up to the date of the divorce, together with
annual simple interest on those contributions calculated at the rate the Minister of Justice and Constitutional Development prescribes in terms of the Prescribed Rate of Interest Act 55 of 1975.43
If the member spouse’s employment ceased before the divorce and the member transferred
his or her accrued pension benefit to an approved pension preservation fund or provident
preservation fund, the pension interest is equal to the benefits to which the spouse would
________________________
33 [2002] 2 All SA 34 (D), 2002 (2) SA 648 (D).
34 See also Heaton in Heaton (ed) Law of Divorce and Dissolution of Life Partnerships 74, 77; Van Schalkwyk 2002
De Jure 173, 175; Sonnekus 2011 TSAR 794–795; Van Schalkwyk 2013 De Jure 849; Marumoagae 2014 PELJ
2500–2510. See further Marumoagae 2014 (1) Speculum Juris 55. If the joint estate of spouses who were
married in community of property has already been divided after divorce, the court cannot grant an order
declaring that the pension interest of one of the spouses must be deemed to be part of the joint estate, because there no longer is a joint estate into which the pension interest can be deemed to fall: Fritz v Fundsatwork Umbrella Pension Fund 2013 (4) SA 492 (ECP).
35 2013 (4) SA 492 (ECP).
36 [2013] JOL 30404 (KZD).
37 [2013] JOL 30037 (WCC).
38 [2015] 2 All SA 495 (FB).
39 2001 (2) SA 306 (O). The approach in Sempapalele is supported by Davey Sept 2013 De Rebus 26.
40 (3981/2010) [2013] ZAFSHC 55, 25 April 2013.
41 Par 17.
42 See further Ex parte Randles: In re: King v King [1998] 2 All SA 412 (D).
43 The total amount of annual simple interest may not exceed the fund return on the non-member spouse’s
portion of the member spouse’s pension interest: s 37D(5) of the Pension Funds Act 24 of 1956.
132
South African Family Law
have been entitled in terms of the rules of the preservation fund had his or her membership
44
of the fund terminated on the date of the divorce.
As the Government Employees Pension Fund and the Post Office Retirement Fund are
distinct statutory bodies, the pension interests of members of these funds do not fall within
the ambit of the definition of “pension interest” set out above. For this reason, spouses of
members of these retirement funds initially could not share in their spouses’ pension interests on divorce. The inequality occasioned by the differentiation between spouses of members
of pension funds as defined in the Pension Funds Act and spouses of members of the Government Employees Pension Fund and the Post Office Retirement Fund was successfully
45
challenged on constitutional grounds. As a result, the Government Employees Pension Law,
1996 and the Post and Telecommunication-related Matters Act 44 of 1958 were amended to
entitle spouses of members of the Government Employees Pension Fund and the Post Office
46
Retirement Fund to claim their share of their spouses’ pension interests on divorce.
It is only the amount of the pension interest as at the date of the divorce that is deemed to
47
be part of the member’s assets. Subsequent interest and growth are not included. Consequently, even if a non-member spouse is awarded 100 percent of the member’s pension or
100 percent of the value of the pension or retirement annuity at maturity, he or she is entitled
only to the amount as at the date of the divorce, because this is all the statutory definition of
48
“pension interest” provides for.
The amount of a spouse’s pension interest is reduced by any part of the pension interest to
which another person is entitled by virtue of a previous divorce.49 In other words, if someone
is getting divorced for a second time, the amount of the pension interest deemed to be part
of his or her estate for purposes of the second divorce is reduced by any amount of the
pension interest which has already been awarded to his or her first spouse.
(c) The difference between a pension interest and a pension benefit
It is important to bear in mind that there is a difference between a pension interest and a
pension benefit. A pension interest is an interest that has not yet accrued to the member by the
time of the divorce. It therefore excludes a withdrawal benefit that accrues to a spouse prior
50
to divorce. Section 7(7) and (8) of the Divorce Act relates only to a pension interest.
________________________
44 S 37D(6) of the Pension Funds Act. If the spouse deferred payment of his or her pension benefit until his
or her actual retirement without transferring the accrued pension benefit to an approved preservation
fund, the pension benefit is treated no differently from any other asset that belongs to the spouse at the
time of the divorce, for in such event the date of the member spouse’s entitlement to the pension benefit
has not been postponed; it is merely the date of payment of the benefit that has been postponed. See further Eskom Pension and Provident Fund v Krugel 2012 (6) SA 143 (SCA).
45 Wiese v Government Employees Pension Fund 2012 (6) BCLR 599 (CC); Ngewu v Post Office Retirement Fund 2013
(4) BCLR 421 (CC). See also Minister of Communications v Ngewu 2014 (3) BCLR 364 (CC).
46 S 1 of the Government Employees Pension Law now defines “pension interest” as the benefit to which a
member of the Government Employees Pension Fund would have been entitled had he or she terminated
his or her membership of the fund on the date of the divorce by resigning from his or her employment.
The Post and Telecommunication-related Matters Act does not define “pension interest” but appears implicitly to incorporate the definition that appears in s 1 of the Divorce Act by referring to orders made in
terms of s 7(8)(a) of the Divorce Act (such orders obviously pertain to pension interests as defined in s 1 of
the Divorce Act): ss 10B and 10F of the Post and Telecommunication-related Matters Act.
47 However, the non-member spouse is entitled to the accrual of fund return on his or her portion of the
pension interest at fund return from the date on which the fund is informed of the non-member’s choice
as to whether the amount must be paid to him or her or be transferred to a pension fund of his or her
choice until the date on which payment or transfer is effected: s 37D(4)(c)(ii) of the Pension Funds Act.
48 Old Mutual Life Assurance Co (SA) Ltd v Swemmer 2004 (5) SA 373 (SCA).
49 S 7(7)(b) of the Divorce Act; see also s 24A(2)(c) of the Government Employees Pension Law; s 10F(2)(j)
of the Post and Telecommunication-related Matters Act.
50 Eskom Pension and Provident Fund v Krugel 2012 (6) SA 143 (SCA).
Chapter 12: The patrimonial consequences of divorce
133
51
A pension benefit is a benefit (withdrawal benefit) that has already accrued to the member.
This benefit falls into the spouse’s estate (or the joint estate if the spouses are married in
community of property) just like any other asset which belongs to that spouse does.52 If a
spouse receives a lump-sum pension payment as well as a monthly pension as a result of the
termination of his or her membership of the fund before the divorce, both amounts fall into
his or her estate (or into the joint estate) at the time of the divorce and must be taken into
account upon divorce.53
(d) Payment or transfer of the non-member spouse’s portion of the pension interest
Section 7(8)(a) of the Divorce Act empowers the court granting a decree of divorce to order
the member’s fund to pay any part of the pension interest which is due to the member’s
spouse directly to the non-member spouse when the pension accrues to the member spouse.54
In other words, the fund may be ordered to pay the non-member spouse’s portion directly to
him or her when the member spouse becomes entitled to his or her pension or retirement
annuity. The non-member spouse may choose to have his or her portion of the member’s
pension interest transferred to a pension fund of his or her choice instead of having it paid
55
directly to him or her.
If the pension fund falls under the Pension Funds Act, the non-member’s portion of the
pension interest is deemed to accrue to the member on the date of the divorce, unless the
56
spouses divorced before 13 September 2007. In the latter event, the non-member’s portion
57
is deemed to have accrued to the member on 13 September 2007. If the spouse is a member
of the Government Employees Pension Fund, the non-member’s portion is deemed to accrue
to the member on the date of the divorce, unless the spouses divorced before 14 December
58
2011. In the latter event, the non-member’s portion is deemed to have accrued to the
59
member on 14 December 2011. If the spouse is a member of the Post Office Retirement
Fund, the non-member’s portion is deemed to accrue to the member on the date of the
60
divorce, unless the spouses divorced before 27 January 2014. In the latter event, the non61
member’s portion is deemed to have accrued to the member on 27 January 2014.
A non-member spouse who is awarded a portion of his or her spouse’s pension interest
does not become the owner of the policy or un-accrued pension benefits to which his or her
portion of the pension interest relates.62 Nor does he or she become a member or beneficiary
in relation to the pension fund.63 Thus the non-member spouse cannot exercise any of the
________________________
51 Logically, a pension benefit becomes part of the estate of a spouse once the spouse becomes entitled to
claim the benefit. If the benefit is part of the spouse’s estate, there is no reason to deem it to be part of his
or her assets (as s 7(7)(a) does in respect of a pension interest): see also Heaton in Heaton (ed) Law of Divorce and Dissolution of Life Partnerships 79 fn 130.
52 De Kock v Jacobson 1999 (4) SA 346 (W); Government Employees Pension Fund v Naidoo [2006] 3 All SA 332
(SCA), 2006 (6) SA 304 (SCA); Elesang v PPC Lime Ltd 2007 (6) SA 328 (NC).
53 De Kock v Jacobson 1999 (4) SA 346 (W).
54 See also s 37D(1)(d)(i) of the Pension Funds Act; ss 21(1) and 24A(1) of the Government Employees
Pension Law; ss 10B(1) and 10F(1) of the Post and Telecommunication-related Matters Act. The pension
fund must be named in the order or be identifiable from it: s 37D(4)(a)(i)(aa) of the Pension Funds Act.
In ML v JL (3981/2010) [2013] ZAFSHC 55, 25 April 2013 the court seems to have been ignorant of the
fact that the pension fund need only be identifiable – not identified. On the issue of when a pension fund
is identifiable from a court order, see Mothupi 2010 SA Merc LJ 220–225.
55 S 37D(4)(b)(i) of the Pension Funds Act; s 24A(2)(e) of the Government Employees Pension Law; s
10F(2)(e) of the Post and Telecommunication-related Matters Act.
56 S 37D(4)(a) of the Pension Funds Act.
57 S 37D(4)(d) of the Pension Funds Act.
58 S 24A(2)(a) of the Government Employees Pension Law.
59 S 24A(2)(j) of the Government Employees Pension Law.
60 S 10F(2)(a) of the Post and Telecommunication-related Matters Act.
61 S 10F(2)(j) of the Post and Telecommunication-related Matters Act.
62 Old Mutual Life Assurance Co (SA) Ltd v Swemmer 2004 (5) SA 373 (SCA).
63 S 37D(4)(c)(i) of the Pension Funds Act.
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rights of the member spouse, such as anticipating or postponing the date on which the
pension or retirement annuity will fall due.64
The court is not compelled to make an order in terms of section 7(8)(a); it has a discretion
65
in this regard. If the court decides not to make an order, this does not mean – as the court
66
incorrectly held in JW v SW – that the non-member spouse loses his or her right to share in
the other spouse’s pension interest. Section 7(8)(a) deals with the court’s power to make an
order compelling the pension fund to pay the non-member spouse’s portion of the member’s
pension benefit directly to the non-member. It does not deal with the issue of whether the
67
non-member is entitled to share in the member’s pension. The latter issue is governed by
section 7(7), which, as indicated above, unequivocally deems the pension interest to be part
of the member’s assets on divorce for purposes of determining the patrimonial benefits to
which the spouses may be entitled. Consequently, a court’s refusal to make an order in terms
of section 7(8)(a) cannot deprive the non-member of his or her right to share in the mem68
ber’s pension interest.
Because section 7(7)(a) deems spouses’ pension interests to be part of their assets for purposes of determining the patrimonial benefits to which they may be entitled on divorce, the
court need not expressly make an order in respect of the spouses’ pension interests. The
presence or absence of an order dealing with the pension interests does not change the fact
that the pension interests are, by virtue of section 7(7)(a), deemed to be part of the member’s assets on divorce for purposes of determining the patrimonial benefits to which the
spouses may be entitled. However, the absence of an order in terms of section 7(8)(a) has farreaching consequences in respect of claiming the non-member’s portion of the member’s
pension interest. If the court does not make an order in terms of section 7(8)(a), the nonmember cannot claim any portion of the member’s pension interest from the pension fund,
because pension funds are, by legislation, only permitted to deduct specified amounts from a
member’s pension benefit and to pay them to somebody other than the member. In terms of
the various Acts governing pension funds, an order in terms of section 7(8)(a) is required to
enable the non-member to compel the member’s pension fund to pay his or her portion of
69
the member’s pension interest to him or her. In the absence of an order in terms of section
7(8)(a), the non-member would have to claim his or her portion of the member’s pension
interest from the member personally or arrive at some other arrangement with the member
70
that takes account of the non-member’s portion of the member’s pension interest.
(e) Excluded marriages
The provisions of the Divorce Act regarding pension interests do not apply to spouses who
married on or after 1 November 1984 in terms of an antenuptial contract which excludes
community of property, community of profit and loss and the accrual system.71 In other words,
pension interests are not taken into account on divorce if the spouses married subject to complete separation of property on or after 1 November 1984.
________________________
64
65
66
67
68
69
70
71
Old Mutual Life Assurance Co (SA) Ltd v Swemmer 2004 (5) SA 373 (SCA).
JW v SW 2011 (1) SA 545 (GNP).
2011 (1) SA 545 (GNP).
Van Niekerk A Practical Guide to Patrimonial Litigation in Divorce Actions par 7.2.4.1; Heaton 2011 Annual
Survey of South African Law 448; Van Schalkwyk 2013 De Jure 853.
See also Heaton in Heaton (ed) Law of Divorce and Dissolution of Life Partnerships 77.
S 37D(1) of the Pension Funds Act; s 21(1) of the Government Employees Pension Law; s 10B of the Post
and Telecommunication-related Matters Act.
Macallister v Macallister [2013] JOL 30404 (KZD); Kgopane v Kgopane (1819/2011) [2012] ZANWHC 58, 16
August 2012.
S 7(7)(c) of the Divorce Act.
Chapter 12: The patrimonial consequences of divorce
135
12.4 Forfeiture of patrimonial benefits
12.4.1 The requirements for a forfeiture order
Section 9(1) of the Divorce Act empowers the court that grants a divorce order on the
72
ground of the irretrievable breakdown of the marriage to order total or partial forfeiture of
73
benefits, taking into account the following factors:
(1) The duration of the marriage.
(2) The circumstances which led to the breakdown of the marriage.
(3) Any substantial misconduct on the part of either spouse.
In Wijker v Wijker 74 the Appellate Division (now the Supreme Court of Appeal) held that the
abovementioned factors need not all be present and need not be viewed cumulatively. Con75
sequently, they need not all be alleged. The Appellate Division further indicated that although misconduct was no longer a requirement for obtaining a forfeiture order, the
introduction of no-fault divorce did not do away with fault as a factor in respect of forfeiture
orders.76 It held that the fact that section 9(1) lists substantial misconduct as a separate factor
does not mean that misconduct cannot also be considered in the context of the circumstances which led to the breakdown of the marriage. The court further held that “substantial
misconduct” can include conduct which has nothing to do with the breakdown of the marriage. It warned, however, that too much importance should not be attached to misconduct
which is not of a serious nature.77
In terms of section 9(1), an order for forfeiture of benefits may only be granted if the court
is satisfied that in the absence of the order, one spouse will be unduly benefited in relation to
the other. The decision in Wijker v Wijker is important in this regard too. The Appellate Division held that in deciding whether an order for forfeiture should be made the court should
first determine whether or not the party against whom the order is sought will in fact be
78
benefited if the order is not made. This is a purely factual issue. Once it has been established
that that party will indeed benefit, the court must determine whether the benefit is undue.
Although this involves a value judgement, the value judgement is made after the court has
considered the three factors mentioned in section 9(1).79
The court may not use a forfeiture order as a mechanism for deviating from the normal
consequences of the spouses’ matrimonial property system and achieving a redistribution of
assets simply because it considers this fair and just. In Wijker the court a quo had granted a
forfeiture order against the husband as it was considered unfair that he should share in the
________________________
72 S 9(1) and (2) expressly provides that a forfeiture order may not be made if the divorce is granted on the
ground of the mental illness or continuous unconsciousness of the defendant.
73 S 9 does not indicate whether the court may make a forfeiture order of its own accord. On the basis of the
presumption that the legislator does not intend to amend the law any more than is necessary, s 9 should be
interpreted as not conferring this power on the court: PL v YL 2013 (6) SA 28 (ECG); see also Barnard 78;
Church and Church in Church (ed) LAWSA Marriage par 90; Glover in Clark (ed) Family Law Service par D9;
Hahlo, 5th edn, 373; Heaton in Heaton (ed) Law of Divorce and Dissolution of Life Partnerships 91; Lee and
Honoré par 131 fn (n); Wille’s Principles 339 fn 1011. On the three factors listed in s 9, see further
Marumoagae 2014 De Jure 93–94.
74 1993 (4) SA 720 (A), Heaton and Kruger Casebook on Family Law case [44].
75 Engelbrecht v Engelbrecht 1989 (1) SA 597 (C); Wijker v Wijker 1993 (4) SA 720 (A).
76 See also Singh v Singh 1983 (1) SA 781 (C).
77 See also Klerck v Klerck 1991 (1) SA 265 (W). On the conflicting decisions as to whether domestic violence
constitutes gross misconduct or substantial misconduct, see Bonthuys in Heaton (ed) Law of Divorce and
Dissolution of Life Partnerships 491–492.
78 The spouse who seeks the forfeiture order must establish the nature and extent of the benefit that is to be
forfeited: Engelbrecht v Engelbrecht 1989 (1) SA 597 (C); JW v SW 2011 (1) SA 545 (GNP); MG v RG 2012 (2)
SA 461 (KZP).
79 See also Engelbrecht v Engelbrecht 1989 (1) SA 597 (C). On the meaning of “undue benefit”, see further
Marumoagae 2014 De Jure 97–99.
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South African Family Law
assets of a company his wife had built up and to which he had contributed little. The Appellate Division rejected application of the principle of fairness in the context of forfeiture. Van
Coller JA held that sight must not be lost of what the matrimonial property system which
operates in the marriage entails. He pointed out that the fact that in a marriage in community of property one spouse shares in the other’s successful venture is a consequence of the
80
particular matrimonial property system. He held that to say that this result is unfair is not
only at odds with the basic concept of community of property but also with section 9(1) of the
Divorce Act, because section 9(1) does not provide for the application of a principle of fairness. Only the three factors that are listed in section 9(1) may be taken into account. He further held that even if it was assumed that the husband had not made much of a contribution
to the business from which he stood to benefit, this did not necessarily mean that the benefit
was undue.81 In this case, the Appellate Division found that the husband would not be unduly
benefited. In Botha v Botha 82 the Supreme Court of Appeal referred to its decision in Wijker
and reiterated that when exercising its value judgement on whether or not to order forfeiture, the court must confine itself to the factors which are mentioned in section 9(1). Because
section 9(1) does not contain the catch-all phrase “any other factor”, it is impermissible to
83
consider any other factor, such as fairness or the reason why particular assets were acquired.
12.4.2 Benefits which can be forfeited
The generally accepted view is that forfeiture of benefits does not entail that a spouse loses his
or her own assets. It merely entails that the spouse loses the claim he or she has to financial
benefits generated by the other spouse.84 Thus, for example, if the marriage is in community
of property, the spouse against whom a court orders total forfeiture receives only those assets
he or she brought into the joint estate, unless he or she brought more than half the assets
into the joint estate. In the latter event, he or she receives half the joint estate. In essence,
therefore, a forfeiture order is effective only if it is made against the poorer spouse.85 The
same problem arises if the accrual system applies to the marriage, for then the spouse whose
estate shows the larger accrual retains his or her half of the difference between the accrual in
the spouses’ respective estates.86
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80
81
82
83
See also JW v SW 2011 (1) SA 545 (GNP).
See also Soupionas v Soupionas 1983 (3) SA 757 (T); Engelbrecht v Engelbrecht 1989 (1) SA 597 (C).
[2006] 2 All SA 221 (SCA), 2006 (4) SA 144 (SCA).
See also Marumoagae 2015 Obiter 232, who argues that the High Court erroneously used fairness to arrive at
its decision in Molapo v Molapo (4411/10) [2013] ZAFSHC 29 (14 March 2013).
84 See eg Smith v Smith 1937 WLD 126; Ex parte De Beer 1952 (3) SA 288 (T); Steenberg v Steenberg 1963 (4) SA
870 (C); Rousalis v Rousalis 1980 (3) SA 446 (C); Leeb v Leeb [1999] 2 All SA 588 (N); JW v SW 2011 (1) SA
545 (GNP); Barratt (ed) Persons and the Family 339–341; Glover in Clark (ed) Family Law Service par D9;
Hahlo, 5th edn, 378–379; Skelton and Carnelley (eds) Family Law 155, 157; Van der Vyver and Joubert 673;
Van Niekerk A Practical Guide to Patrimonial Litigation in Divorce Actions par 3.3.2; Visser and Potgieter 180;
Wille’s Principles 340; Heaton 2005 SAJHR 557; Marumoagae 2015 Obiter 238.
85 Heaton in Heaton (ed) Law of Divorce and Dissolution of Life Partnerships 93; Heaton 2005 SAJHR 557. But see
Bonthuys 2014 SALJ 439, who argues that the judicial interpretation which protects the wealthier spouse
from forfeiture is not in keeping with Roman-Dutch law and early South African case law.
86 Sinclair 1981 SALJ 474. But see Hahlo, 5th edn, 385, who states that the court may order that no accrual
sharing is to take place, that accrual sharing is to take place only to the extent that it benefits the spouse in
whose favour the order is made, or that all accruals or the greater part of the accruals must be awarded to
the spouse in whose favour the order is made. In other words, the court may make a forfeiture order which
amounts to a variation of the spouses’ matrimonial property system if the accrual system applies to their
marriage. (See also Roothman 1994 De Rebus 356.) Whether this view is correct is doubted, especially in
view of Wijker v Wijker 1993 (4) SA 720 (A) and Botha v Botha [2006] 2 All SA 221 (SCA), 2006 (4) SA 144
(SCA) where it was held that only the three factors which are listed in s 9(1) are relevant when deciding
whether or not a forfeiture order is to be made and that fairness cannot be used in order to deviate from
the matrimonial property system which operates in the marriage. See also Heaton in Heaton (ed) Law of
Divorce and Dissolution of Life Partnerships 93 fn 229; Heaton 2005 SAJHR 557 fn 32.
Chapter 12: The patrimonial consequences of divorce
137
In a marriage in community of property, the benefits which can be forfeited include the
right to occupy premises in terms of a tenancy, residential permit or statutory lease which was
conferred on the spouse against whom the forfeiture order operates but in respect of which
the other spouse paid the rent.87 Benefits which can be forfeited in the case of a marriage out
of community of property include the right to share in the accrual of the other spouse’s
estate;88 benefits by virtue of a succession clause; and marriage settlements.89 For example, if a
husband made a marriage settlement to his wife and the promised asset was transferred to the
wife during the subsistence of the marriage, the court may order the wife to return the asset.
If the asset was never transferred, the court may make an order that the wife may no longer
enforce the donation.
Whether benefits acquired during the subsistence of the marriage and which were not conferred in the couple’s antenuptial contract can be forfeited, is unclear. In some cases it has
been held that the patrimonial benefits are fixed at marriage by the terms of the parties’
antenuptial contract and that donations which fall outside the terms of the antenuptial
contract cannot be forfeited.90 In other cases it has, however, been held that benefits obtained
during the subsistence of the marriage can also be forfeited.91 It must, however, be borne in
mind that if a transaction that was made outside the terms of the antenuptial contract was a
92
donation proper and the donee displayed gross ingratitude towards the donor or was guilty
of ill-treatment of the donor, the donor need not request forfeiture of the donation, because
93
he or she may simply revoke the donation.
Only those benefits which exist at the time of the divorce can be forfeited. Thus, for example, if a spouse is ordered to forfeit a retirement annuity, it is only the value of the annuity as
a pension interest at the date of the divorce which is forfeited.94 Consequently, the forfeiture
order does not mean that the spouse in whose favour the forfeiture order operates must
receive the full proceeds of the retirement annuity when it falls due, including the growth
that has been accumulated after the divorce.95
________________________
87 Persad v Persad 1989 (4) SA 685 (D), Heaton and Kruger Casebook on Family Law case [46]; Toho v Diepmeadow
City Council 1993 (2) SA 679 (W); Moremi v Moremi 2000 (1) SA 936 (W).
88 S 9 of the Matrimonial Property Act 88 of 1984. On the accrual system, see ch 7 above.
89 Watt v Watt 1984 (2) SA 455 (W), Heaton and Kruger Casebook on Family Law case [45]. See ch 7 above on
succession clauses and marriage settlements.
90 See eg Dawson v Dawson (1892) 9 SC 446; Kilroe v Kilroe 1928 WLD 112; Watt v Watt 1984 (2) SA 455 (W).
This view is supported by Sinclair and Kaganas 1984 Annual Survey of South African Law 110; see also Glover
in Clark (ed) Family Law Service par D9; Van der Vyver and Joubert 669, 670; Wille’s Principles 341.
91 See eg Kohn v Kohn 1914 WLD 9; Martin v Martin 1925 EDL 264. See also Koza v Koza 1982 (3) SA 462 (T)
in which the court accepted, without deciding the issue, that patrimonial benefits are not restricted to
those conferred in the antenuptial contract. Visser and Potgieter 184 and Hahlo 1984 SALJ 456 support the
wide interpretation of “benefits of the marriage” as benefits flowing from the marriage as a continuing relationship. Van Niekerk A Practical Guide to Patrimonial Litigation in Divorce Actions par 2.6 does not provide a
clear answer on whether the benefits are restricted to those arising upon marriage. He states that parties
who are married out of community of property can claim forfeiture “of benefits arising upon marriage,
which benefits can potentially include donations in terms of an antenuptial contract [and] donations made
during the course of the marriage”.
92 A donation proper is one that is made out of sheer liberality or disinterested benevolence, and not for
another reason, such as a sense of duty or a desire to evade creditors. Eg, if a husband transfers a house
and/or motor vehicle to his wife, the transaction might not qualify as a donation proper because the transfer might be the result of the husband’s sense of duty towards his wife: see eg Kay v Kay 1961 (4) SA 257
(A); Grasso v Grasso 1987 (1) SA 48 (C).
93 Voet 39.5.4; Heaton in Heaton (ed) Law of Divorce and Dissolution of Life Partnerships 94; Van Niekerk A
Practical Guide to Patrimonial Litigation in Divorce Actions pars 2.7.5, 3.4.3.2; Wille’s Principles 1036–1037; Owens in Joubert et al (eds) LAWSA Donations par 310. A marriage settlement may not be revoked, because it is
not a donation proper – it is made with a view to the marriage and not out of sheer liberality or disinterested benevolence: Van Niekerk op cit par 3.4.3.2; Owens op cit par 321.
94 Old Mutual Life Assurance Co (SA) Ltd v Swemmer 2004 (5) SA 373 (SCA). On the meaning of “pension
interest”, see above in this chapter.
95 Old Mutual Life Assurance Co (SA) Ltd v Swemmer 2004 (5) SA 373 (SCA).
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South African Family Law
12.5 Redistribution of assets
12.5.1 The introduction of redistribution as a reformative and
remedial measure
In chapter 7 above it is indicated that the accrual system was introduced, inter alia, because a
spouse who married subject to complete separation of property did not have a right to share
in the assets the other spouse acquired during the subsistence of the marriage. As the accrual
system was not imposed retroactively, the legislator inserted section 7(3) to (6) into the
Divorce Act96 to assist spouses who married subject to complete separation of property prior to
the commencement of the Matrimonial Property Act 88 of 1984 or the Marriage and Matrimonial Property Law Amendment Act 3 of 1988. Section 7(3) to (6) empowers the court, in
limited circumstances, to make an order that the assets, or part of the assets of one spouse be
transferred to the other spouse if the court considers this to be just. These provisions introduced a novel concept, namely redistribution of assets upon divorce, into our law. The purpose of this reformative and remedial measure was to remedy the inequity
which could flow from the failure of the law to recognise a right of a spouse upon divorce to
claim an adjustment of a disparity between the respective assets of the spouses which is incommensurate with their respective contributions during the subsistence of the marriage to the
maintenance or increase of the estate of the one or the other.97
Of course, this justification for a remedial judicial discretion to redistribute assets on divorce
applies equally to marriages subject to complete separation of property which were concluded
after the introduction of the Matrimonial Property Act and the Marriage and Matrimonial
Property Law Amendment Act. The persistent restriction of the discretion only to civil marriages concluded before the coming into operation of the two Acts strikes one as indefensible,
especially since the discretion has since been extended to all customary marriages which are
98
terminated by divorce. As explained below in this chapter, the restriction of the discretion
may be unconstitutional.
12.5.2 The prerequisites for a redistribution order
(a) General
In terms of section 7(3) of the Divorce Act, one spouse may ask the court to transfer the other
spouse’s assets, or such part of the other spouse’s assets as the court may deem just, to him or
99
her on divorce, if certain prerequisites are met. These prerequisites are the following:
(a) The spouses must not have entered into any agreement regarding the division of
their assets; and
(b) they must have married each other:
(i) before the coming into operation of the Matrimonial Property Act on 1
November 1984, in terms of an antenuptial contract which excludes community of property, community of profit and loss, and accrual sharing in any
form; or
(ii) before the coming into operation of the Marriage and Matrimonial Property
Law Amendment Act on 2 December 1988, in terms of section 22(6) of the
100
Black Administration Act.
________________________
96
97
98
99
S 7(3)–(6) was inserted into the Divorce Act 70 of 1979 by s 36 of the Matrimonial Property Act.
Beaumont v Beaumont 1987 (1) SA 967 (A) 987H–I.
See ch 17 below.
Because a claim in terms of s 7(3) is personal and ancillary to divorce proceedings, it is extinguished by
the death of the spouse against whom the claim lies: YG v Executor, Estate Late CGM 2013 (4) SA 387
(WCC).
100 Due to the express limitation of the remedy to parties who married before 1 Nov 1984 or 2 Dec 1988,
divorcing civil union partners cannot invoke s 7(3) of the Divorce Act – civil unions were first recognised
in 2006: see ch 16 below.
Chapter 12: The patrimonial consequences of divorce
139
The court may not make a redistribution order of its own accord. The party who seeks redistribution must apply for the order but need not set out its exact nature and extent in any
detail.101
(b) Marriages that are subject to complete separation of property by operation of the law
Section 7(3) originally referred only to marriages which were subject to complete separation
of property by virtue of an antenuptial contract. It did not make express provision for marriages which were subject to complete separation of property, not by virtue of the provisions
of an antenuptial contract, but by operation of the law. In order to assist African spouses
whose civil marriages were subject to complete separation of property in terms of section
22(6) of the Black Administration Act,102 Stegmann J in Mathabathe v Mathabathe 103 attached a
very broad meaning to the concept “antenuptial contract”. He held that
[e]very seriously intended promise of marriage, or contract of betrothal, or engagement to be
married, has potential legal consequences and is literally an “antenuptial contract” when that
expression is used, as it properly may be, to refer to every kind of premarital agreement.104
He even declared that he could see no reason
why the expression “antenuptial contract” should not in an appropriate context be used in a still
broader sense to refer to a pre-marital agreement which does not deal with proprietary rights
expressly or tacitly and which leaves them to be dealt with by implication of law.105
Applying this artificially broad definition of “antenuptial contract”, Stegmann J concluded
that a marriage which is subject to section 22(6) of the Black Administration Act is indeed a
marriage in which complete separation of property operates because of an antenuptial contract, and that a spouse in such a marriage can therefore seek redistribution of assets in terms
of section 7(3) of the Divorce Act. In 1988 the issue of the applicability of section 7(3) to
marriages which are subject to section 22(6) of the Black Administration Act was settled when
the legislator expressly included these marriages in section 7(3).106
However, the legislator failed to address the position in respect of foreign marriages which
are dissolved by divorce in South Africa and which are out of community of property by virtue
of the rules of the particular foreign legal system. With regard to such marriages, the first difficulty was whether those marriages could be said to have been entered into in terms of an
antenuptial contract. The second, more important, issue was whether section 7(3) applied at
all to foreign marriages – after all, our law prescribes that the proprietary consequences of a
marriage are governed by the lex loci domicilii of the husband at the time of the marriage and not
by the lex fori (that is, the law of the forum where the divorce proceedings are taking place).107
The first reported case which dealt with the application of section 7(3) to a foreign marriage
was Milbourn v Milbourn.108 In this case, the parties were married in England, where they were
also domiciled at the time. They did not enter into any form of antenuptial contract. In terms
of English law, this meant that they were married subject to complete separation of property
but that, by virtue of the provisions of the English Matrimonial Causes Act of 1973, the court
could redistribute their assets upon divorce. Coetzee DJP was of the opinion that the “contract” envisaged in section 7(3) could only be a contract relating to the proprietary
________________________
101 Beaumont v Beaumont 1987 (1) SA 967 (A).
102 In ch 6 above it is explained that, prior to its repeal on 2 Dec 1988, s 22(6) of the Black Administration Act
38 of 1927 rendered civil marriages by African persons automatically subject to complete separation of
property, unless the spouses made a joint written declaration before a magistrate, commissioner or marriage officer, within one month prior to the marriage, that they wished to marry in community of property.
103 1987 (3) SA 45 (W).
104 51–52.
105 52I. On the meaning of the term “antenuptial contract”, see further ch 7 above.
106 The amendment was effected by s 2(a) of the Marriage and Matrimonial Property Law Amendment Act 3
of 1988.
107 See ch 6 above.
108 1987 (3) SA 62 (W).
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South African Family Law
consequences of marriage. He did not share Stegmann J’s view that an engagement contract
could be an antenuptial contract. According to Coetzee DJP, even if the view expressed in
Mathabathe v Mathabathe were correct, the engagement contract would have to consist of more
than a mere declaration of the parties’ intention to marry each other. It would also have to
contain terms relating to the proprietary consequences of the marriage. Thus, as there was no
contract regarding the couple’s proprietary rights in the present case, a redistribution order
could not be sought in terms of section 7(3) of the Divorce Act. As the wife did not seek relief
under the rule that the proprietary consequences of a marriage are governed by the lex loci
domicilii of her husband at the time of the marriage, the court also could not apply the redistribution provisions of the English Act.
In Bell v Bell 109 the facts were virtually identical to those in Milbourn. However, here the wife
did not invoke section 7(3) of the Divorce Act. Instead, she relied on the rules of the lex loci
domicilii of her husband at the time of the marriage, namely English law. The court held that
it was bound to give effect to those rules and that the provisions of the Matrimonial Causes Act
had to govern the distribution of the spouses’ property. A similar decision was reached in the
unreported case of Haines v Haines,110 where it was held that, because of the rule that the
proprietary consequences of marriage are governed by the lex loci domicilii of the husband at
the time of the marriage, redistribution should be sought under the Matrimonial Causes Act,
not section 7(3) of our Divorce Act.
In Lagesse v Lagesse 111 the court was again confronted with a foreign marriage. This time the
parties had married in terms of the law of Mauritius. They had not concluded a formal antenuptial contract but at the time of their wedding a note had been made in the margin of their
marriage certificate that they wanted their marriage to be governed by the Status of Married
Women Ordinance of 1949 (Mauritius). In terms of this ordinance, complete separation of
property would operate in the marriage. Kriek J found that the spouses had indeed entered
into an antenuptial contract, albeit only an informal one, and that the wife could therefore
invoke section 7(3) of the Divorce Act. He argued that nothing in the language of section
7(3) suggests that the term “antenuptial contract” should bear the narrow meaning of a
notarially executed and formally registered antenuptial contract. He did not give any consideration to the relationship, if any, between section 7(3) and the rule that the proprietary
consequences of a marriage are governed by the lex loci domicilii of the husband at the time of
the marriage.
In Esterhuizen v Esterhuizen 112 the spouses were domiciled in Namibia when they married.
The chief difference between the facts of this case and the other cases on foreign marriages
was that here the spouses had entered into an antenuptial contract excluding community of
property, community of profit and loss and accrual sharing. Upon their divorce in South
Africa, the wife sought a redistribution order in terms of section 7(3) of the Divorce Act. The
court held that the legislator did not consider foreign marriages either when it inserted
section 7(3) to (6) into the Divorce Act or when it amended section 7(3) in 1988 to include
civil marriages which are subject to section 22(6) of the Black Administration Act. Section
7(3) to (6) was therefore never intended to apply to foreign marriages. The court further
held that the rule that the proprietary consequences of a marriage are governed by the lex loci
domicilii of the husband at the time of the marriage had not been displaced by section 7(3).
Thus, if the lex loci domicilii of the husband at the time of the marriage does not afford a
spouse in a foreign marriage the right to claim redistribution, that spouse does not have a
right to claim redistribution.
________________________
109
110
111
112
1991 (4) SA 195 (W).
Case 1683/1991 (C) (unreported), cited in Esterhuizen v Esterhuizen 1999 (1) SA 492 (C).
1992 (1) SA 173 (D).
1999 (1) SA 492 (C).
Chapter 12: The patrimonial consequences of divorce
141
From our case law it is therefore by no means clear whether or not section 7(3) to (6) of
113
the Divorce Act applies to foreign marriages. In an attempt to remove the uncertainty, the
legislator inserted section 7(9) into the Divorce Act in 1992.114 This section empowers a South
African court which grants a divorce order in respect of a marriage the patrimonial consequences of which are governed by foreign law, to order redistribution of assets if the court of
the foreign state has that power. In other words, if the foreign court has the power to redistribute assets, the South African court also has that power. Thus, the South African court can
apply the provisions of the particular foreign system regarding redistribution. This amendment did not settle the matter once and for all, since it does not answer the question of
whether section 7(3) can also be invoked in respect of a foreign marriage. It is submitted that
the correct interpretation is that section 7(3) is not applicable to foreign marriages, and that
a spouse in a foreign marriage is entitled to redistribution only if the rules of the lex loci
domicilii of the husband at the time of the marriage permit redistribution or if South African
law governs the spouses’ matrimonial property by virtue of the provisions of their antenuptial
contract.115 After the enactment of section 7(9), the court in the unreported case of De Vries v
De Vries 116 apparently accepted that section 7(3) is not available to a spouse in a foreign
marriage. The court relied on section 7(9) and applied German law to the proprietary consequences of a marriage which was concluded in Germany by two persons who were domiciled
in that country. As German law does not empower the court to deviate from the matrimonial
property system chosen by the spouses, the court refused to consider redistribution of assets.117
(c) The constitutionality of the prerequisites in section 7(3)
The first constitutional question arising from the prerequisites for the operation of the
judicial discretion to redistribute assets upon divorce is whether using the wedding date as the
criterion for affording or denying the remedy will withstand a constitutional challenge. When
answering this question it should be borne in mind that antenuptial contracts often exclude
the accrual system and that the exclusion normally occurs at the insistence of the party whose
estate will probably grow most (who is usually the husband).118 Therefore a sizable number of
spouses (mainly women) still run the risk of leaving their marriages virtually empty-handed.
Their factual situation is the same as that of spouses who married with complete separation of
property before the two cut-off dates stipulated in section 7(3) (that is, 1 November 1984 and
2 December 1988). Yet the judicial discretion does not apply to them. Viewed in this light, it
seems that the differentiation between the two groups purely on the ground of their wedding
date infringes the equality clause.119
________________________
113 On the conflicting case law, see also Schulze in Heaton (ed) Law of Divorce and Dissolution of Life Partnerships 654–657.
114 The insertion was effected by the Divorce Amendment Act 44 of 1992.
115 Heaton and Schoeman 2000 THRHR 144. In other words, South African law applies if it is the lex causae
(ie, the foreign law which governs the particular matter) because the spouses expressly selected South African law in their antenuptial contract, because it is indicated as the spouses’ tacit choice, or because it is
the objective proper law of the antenuptial contract: ibid. See also Glover in Clark (ed) Family Law Service
par D8A; Schulze in Heaton (ed) Law of Divorce and Dissolution of Life Partnerships 657; but see Van Schalkwyk 1999 TSAR 378.
116 Case 307/2003, 2541/03, 10 Oct 2007 (C) (unreported).
117 On s 7(9), see further Forsyth 310; Glover in Clark (ed) Family Law Service par D8A; Schulze in Heaton
(ed) Law of Divorce and Dissolution of Life Partnerships 657; Van Niekerk A Practical Guide to Patrimonial Litigation in Divorce Actions pars 8.3 and 8.4; Visser and Potgieter 185 fn 73.
118 On the unequal bargaining positions of prospective spouses and the consequences of the rigid enforcement of antenuptial contracts on divorce despite the parties’ unequal bargaining positions, see eg Dehtloff
in Boele-Woelki, Miles and Scherpe (eds) The Future of Family Property in Europe 85–87; Boshoff 2001 SALJ
317; Bonthuys 2004 SALJ 879, esp 894–897; Heaton 2005 SAJHR 553–556; Barratt 2013 SALJ 695, 696, 698,
703–704.
119 S 9 of the Constitution. See also SB v RB [2015] 2 All SA 232 (ECLD, George); Clark and Goldblatt in
Bonthuys and Albertyn (eds) Gender, Law and Justice 224; Heaton in Bill of Rights Compendium par 3C26;
Sinclair in Van Wyk et al (eds) Rights and Constitutionalism 549–551; Sinclair assisted by Heaton 143–146; Costa
Sept De Rebus 17.
142
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Those who favour retention of only the limited judicial discretion argue that the infringement of the equality clause is justifiable as it respects the couple’s contractual choice of complete separation of property120 and because the introduction of a judicial discretion to redistribute assets in all marriages which are subject to complete separation of property would lead
to unacceptable legal uncertainty about the financial outcome of divorce.121 These arguments
should be rejected, because a degree of uncertainty is preferable to “the rigid, irremediable
harshness acknowledged to derive from complete separation of property”.122 Furthermore, in
view of the Constitutional Court’s decision in Gumede v President of the Republic of South Africa,123
which extended the judicial discretion to redistribute assets to spouses in all customary
marriages, it seems clear that legal uncertainty about the financial outcome of divorce does
not carry much weight and certainly does not trump considerations of gender equality. Nor
does respect for the spouses’ contractual choice of their matrimonial property system outweigh considerations of gender equality.
A second issue is whether affording all spouses in customary marriages the remedy of a
judicial redistribution of assets on divorce while imposing the many restrictions contained in
section 7(3) on spouses in a civil marriage violates the Constitution. The first fundamental
right which comes into play is equality before the law and equal protection and benefit of the
law.124 The test for determining whether a differentiation violates this right is whether there is
a rational connection between the differentiation and the legitimate governmental purpose it
is designed to further.125 Although it is acknowledged that differences may legitimately exist
between customary and civil marriages, and although the Constitutional Court held in Gumede
that “customary marriages should not be seen through the prism of the marital proprietary
regimes under the common law or divorce legislation that regulates civil marriages”126 and
that, unlike the common law, customary law “does not place a premium on the dichotomy
between marriages in and out of community of property”,127 it is doubted whether the difference in the type of marriage (that is, customary versus civil) provides a rational basis for the
vast differentiation that exists between spouses in customary and civil marriages in so far as the
judicial discretion to redistribute assets is concerned. In respect of both types of marriages,
the legitimate governmental purpose of empowering the court to order redistribution is to
enable the court to address financial inequity arising from a strict application of the matrimonial property system. In both customary and civil marriages women usually bear the brunt of
such inequity because of their financial and social inequality with men. It is not rational to
afford the court the power to redistribute assets in all customary marriages, while restricting
the court’s power in civil marriages to those that are subject to complete separation of property and were concluded before the cut-off dates mentioned in section 7(3). Thus the differentiation indeed amounts to inequality before the law and unequal protection and benefit of
the law.
The differentiation may also amount to unfair discrimination based on the listed ground of
128
race. It is unclear whether people who are not African (black) persons may enter into a
________________________
120 The South African Law Commission relied on this argument to justify its refusal to recommend the extension of the judicial discretion to marriages celebrated after the cut-off dates: Report on the Review of the Law
of Divorce ch 3 par 1.3.10.
121 This was another argument the Law Commission advanced for its refusal to extend the judicial discretion:
Report on the Review of the Law of Divorce ch 3 par 1.3.10.
122 Heaton in Bill of Rights Compendium par 3C26; Sinclair in Van Wyk et al (eds) Rights and Constitutionalism
551; Sinclair assisted by Heaton 145.
123 2009 (3) BCLR 24 (CC), 2009 (3) SA 152 (CC), Heaton and Kruger Casebook on Family Law case [66]. On
this decision, see further ch 17 below.
124 S 9(1) of the Constitution. See also SB v RB [2015] 2 All SA 232 (ECLD, George).
125 See eg Prinsloo v Van der Linde 1997 (6) BCLR 759 (CC), 1997 (3) SA 1012 (CC); Harksen v Lane 1997 (11)
BCLR 1489 (CC), 1998 (1) SA 300 (CC); Jooste v Score Supermarket Trading (Pty) Ltd (Minister of Labour intervening) 1999 (2) BCLR 139 (CC), 1999 (2) SA 1 (CC).
126 Par 43; see also par 42.
127 Par 43.
128 S 9(3) of the Constitution. See also Heaton 2009 Annual Survey of South African Law 461.
Chapter 12: The patrimonial consequences of divorce
143
129
customary marriage. If customary marriages are indeed restricted to African persons, the
racial discrimination would be direct, as only African persons would be able to obtain redistribution upon divorce regardless of the matrimonial property system that operates in their
(customary) marriage. Even if customary marriages are open to all races, there would still be
indirect discrimination on the ground of race because customary marriages would remain
largely the preserve of African persons. The effect of the restricted power to redistribute
assets when a civil marriage ends in divorce is that a disproportionate number of white,
coloured and Asian persons are unable to seek redistribution. The restriction of the power in
respect of civil marriages has far-reaching deleterious consequences for the financially weaker
130
spouse (and the spouse’s children if they are placed in his or her care), and affects the
dignity of that spouse (and his or her children). It is submitted that the inequality before the
law and unequal protection and benefit of the law, and the unfair discrimination on the
ground of race are unjustifiable and that the severe restrictions imposed by section 7(3) are
131
unconstitutional.
12.5.3 The requirements for a redistribution order
(a) General
The court may exercise its discretion whether or not to grant a redistribution order only if the
two requirements in section 7(4) of the Divorce Act are met. These requirements are the following:
(1) The spouse who seeks redistribution must have contributed directly or indirectly to the
maintenance or increase of the other spouse’s estate during the subsistence of the marriage.
(2) The court must be satisfied that, by reason of such contribution, it is equitable and just to
make a redistribution order.
In Buttner v Buttner 132 the Supreme Court of Appeal held that the court should not approach
an application for redistribution from the point of view that the absence of a contribution by
the other spouse must be proved; it is the presence of the contribution that must be proved
by the spouse seeking redistribution.
Whether a contribution has been made is a purely factual finding. However, being satisfied
that it would be equitable and just to make a redistribution order involves the exercise of a
discretion by the court. Once it has been determined that the prerequisites of section 7(3)
have been met133 and that the claimant made a contribution to the maintenance or increase
of the respondent’s estate during the subsistence of the marriage, the determination whether
it would be equitable and just to make a redistribution order is left entirely to the discretion
of the court.134
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129 See ch 17 fn 1.
130 Children and their care-giving parent share the same post-divorce economic circumstances and standard
of living: see eg Van Zyl 1992 THRHR 297; Bonthuys 2001 THRHR 192.
131 On the arguments for finding that the restrictions in s 7(3) are unconstitutional, see (apart from the
sources cited in the preceding footnotes) also Barratt (ed) Persons and the Family 351–352; Heaton in Heaton (ed) Law of Divorce and Dissolution of Life Partnerships 107; Heaton 2005 SAJHR 460–462; Robinson and
Horsten 2010 (1) Speculum Juris 113–116; Van Schalkwyk 2010 De Jure 182–88; Barratt 2013 SALJ 691. See
also Van Schalkwyk (2013) 10 LitNet Akademies (Regte) 11 November 2013, http://www.litnet.co.za/Article/
nahuwelikse-onderhandsebuitegeregtelike-verandering-van-die-huweliksgoederebedeling-stante (accessed
22 June 2015).
132 [2006] 1 All SA 429 (SCA), 2006 (3) SA 23 (SCA), Heaton and Kruger Casebook on Family Law case [49].
133 See the discussion under the previous heading.
134 Beaumont v Beaumont 1987 (1) SA 967 (A).
144
South African Family Law
(b) The nature of the contribution to the maintenance or increase of the
other spouse’s estate
In terms of section 7(4), one spouse can contribute to the maintenance or increase of the
other spouse’s estate in the following ways:
(1) By rendering services (for example, by working in the other spouse’s business, without
any compensation or for a low salary).
(2) By saving expenses which would otherwise have been incurred (for example, by being a
homemaker and in this way saving the other spouse various expenses).
(3) In any other manner.
In Beaumont v Beaumont 135 the Appellate Division held that the wording of section 7(4) is sufficiently wide to cover any contribution a spouse makes. Thus the section also covers the
performance of the “ordinary duties” of a wife in respect of looking after the home and
caring for the family, for in performing these duties the wife renders services and saves expenses which necessarily contribute to the maintenance or increase of her husband’s estate.
This approach has been consistently followed in subsequent cases, although the weight
attached to the performance of domestic and child-care responsibilities has varied.136
In Kritzinger v Kritzinger 137 the Appellate Division again considered the nature of the contribution the Act requires. Here, the court was faced with the astereotypical situation in which
the wife was wealthier than the husband and the husband had made the kind of career
sacrifice wives usually make. The wife was the managing director of a large department store
while her husband was a legal adviser to an oil company. During the subsistence of the marriage, the husband was offered a post at the oil company’s headquarters in New York, but he
declined the offer to further his wife’s career and business interests in South Africa. The
marriage ended in divorce and each party claimed transfer of assets from the other. The
husband contended that he had indirectly contributed to the increase or maintenance of his
wife’s estate by not settling in New York and thus forfeiting promotion. He further alleged
that his contribution enabled his wife to obtain more shares in certain business concerns,
which resulted in the increase of her estate. The husband was successful in the court a quo but
an appeal against the decision was upheld. Firstly, the Appellate Division was not satisfied that
the husband could succeed on the facts and, secondly, the court required a causal connection
between the claimant’s conduct and the growth or maintenance of the other spouse’s estate
which, it held, was absent.138 The court further held that normally only a positive act would
constitute a contribution. Merely to refrain from action would therefore not usually qualify as
a contribution to the growth or maintenance of the other spouse’s estate. The court rejected
the husband’s career sacrifice as amounting to simply doing nothing. It further stated that if
the husband indeed had good prospects overseas, which he gave up because of concern for
his wife’s career and business interests, “he simply made a bad error of judgement in deciding
to stay where he was”.139 If, in contrast, his prospects were not really so rosy, he should be
grateful that he refused the overseas posting, as his wife’s career had flourished and he had
enjoyed the benefit of the high standard of living her income had brought them. Fortunately,
the view that the poorer spouse is compensated for his or her contributions by enjoying the
privileges of the affluent lifestyle that the wealthier spouse’s income produces during the
________________________
135 1987 (1) SA 967 (A), Heaton and Kruger Casebook on Family Law case [47].
136 See eg Katz v Katz 1989 (3) SA 1 (A); Van Zummeren v Van Zummeren [1997] 1 All SA 91 (E); Jordaan v
Jordaan 2001 (3) SA 288 (C); Childs v Childs 2003 (3) SA 138 (C); Bezuidenhout v Bezuidenhout [2004] 4 All
SA 487 (SCA), 2005 (2) SA 187 (SCA); Kirkland v Kirkland 2006 (6) SA 144 (C); Badenhorst v Badenhorst
[2006] 2 All SA 363 (SCA), 2006 (2) SA 255 (SCA); Buttner v Buttner [2006] 1 All SA 429 (SCA), 2006 (3)
SA 23 (SCA). On the weight attached to domestic and child-care responsibilities, see further the discussion
of the criterion for establishing the extent of the redistribution below in this chapter.
137 1989 (1) SA 67 (A), Heaton and Kruger Casebook on Family Law case [48].
138 See also Raik v Raik 1993 (2) SA 617 (W).
139 86E.
Chapter 12: The patrimonial consequences of divorce
145
subsistence of the marriage has since been rejected by the Supreme Court of Appeal in
Bezuidenhout v Bezuidenhout.140 It is hoped that the view on career sacrifices will also be rejected
in the future.141
Although there must be a causal connection between the contribution and the growth or
142
maintenance of the other spouse’s estate, a redistribution order is not dependent on proof
of a causal link between the claimant’s contribution and every asset in the other spouse’s
estate.143 Furthermore, a monetary value need not be placed on the contribution before it can
be considered for purposes of a redistribution order.144
12.5.4 Other considerations the court takes into account
(a) General
In addition to the spouse’s contribution to the maintenance or increase of the other spouse’s
estate, the court must also take the following factors into consideration in terms of section
7(5) of the Divorce Act:
(1) The existing means and obligations of the parties, including any obligation which a
husband who entered into a civil marriage while being married to another woman at customary law may have to the latter wife in terms of section 22(7) of the Black Administration Act. Section 22(7) was repealed by the Repeal of the Black Administration Act
and Amendment of Certain Laws Act 28 of 2005,145 but section 7 of the Reform of Customary Law of Succession and Regulation of Related Matters Act 11 of 2009 re-cast the
repealed section. Section 22(7) dealt with the patrimonial rights of a wife in a customary
marriage who was “discarded” as a result of the subsequent civil marriage of her husband
to another woman. Prior to the commencement of the Marriage and Matrimonial Property Law Amendment Act, a man could enter into a civil marriage while being married to
another woman in terms of customary law. The civil marriage automatically dissolved the
customary marriage, thus turning the wife in the customary marriage into a “discarded”
spouse.146 Section 22(7) protected the rights of the “discarded” wife by providing that the
civil marriage did not “in any way affect the material rights” of the spouses in the customary marriage or the children born of the customary marriage. Now, section 7(1) of
the Reform of Customary Law of Succession and Regulation of Related Matters Act provides that a civil marriage does not affect the proprietary rights of any spouse in a customary marriage or any children born of a customary marriage if the civil marriage was
entered into between the date of commencement of sections 22 and 23 of the Black Administration Act and the date of commencement of the Marriage and Matrimonial Property Law Amendment Act (that is, between 1 January 1929 and 2 December 1988) while
the husband was married to another woman at customary law.147
________________________
140 [2004] 4 All SA 487 (SCA), 2005 (2) SA 187 (SCA).
141 Although Kritzinger does not deal with domestic and family-care responsibilities, the decision implies that if
a spouse sacrifices or curtails his or her career out of domestic and/or family-care concerns, his or her
contribution is no greater than it would have been had he or she simply been a homemaker all along. The
decision therefore reinforces the public/private dichotomy by discouraging homemakers from engaging
in paid employment. The decision furthermore implies that the double or triple burden of a spouse who is
active in the labour market while also fulfilling domestic and/or family-care responsibilities is not worthy
of recognition and protection: Heaton 2005 SAJHR 560. On the public/private dichotomy and women’s
double or triple burden, see eg Barratt (ed) Persons and the Family 336; Sinclair assisted by Heaton 16–28,
69–71; Bonthuys 1999 THRHR 551–556; De Jong 1999 THRHR 79–80; Bonthuys 2001 THRHR 193–196;
O’Sullivan 2001 Acta Juridica 71–72; Heaton 2005 SAJHR 549–552.
142 Kritzinger v Kritzinger 1989 (1) SA 67 (A); see also Raik v Raik 1993 (2) SA 617 (W).
143 Bezuidenhout v Bezuidenhout [2004] 4 All SA 487 (SCA), 2005 (2) SA 187 (SCA).
144 Katz v Katz 1989 (3) SA 1 (A); Raik v Raik 1993 (2) SA 617 (W).
145 S 1(4) of the Repeal of the Black Administration Act and Amendment of Certain Laws Act 28 of 2005.
146 Nkambula v Linda 1951 (1) SA 377 (A).
147 S 1(a) and (b) of the Marriage and Matrimonial Property Law Amendment Act amended s 22(1) and (2)
of the Black Administration Act to prohibit a subsequent civil marriage with a woman who is not the
continued
146
South African Family Law
(2) Any donation one spouse made to the other during the subsistence of the marriage, or
which is still owed in terms of the spouses’ antenuptial contract.
(3) Any order for forfeiture of patrimonial benefits in terms of section 9 of the Divorce Act.148
(4) Any other factor which, in the opinion of the court, should be taken into account.
The extremely wide scope of the court’s discretion with regard to redistribution is highlighted
by section 7(5)(d), which permits it to consider “any other factor” in the exercise of its power
to make a redistribution order. Some of the “other” factors that have been taken into account
are considered below.
(b) Misconduct
The legislator expressly made fault or misconduct a relevant factor for purposes of assessing
maintenance under section 7(2) of the Divorce Act.149 Although there is no corresponding
provision in relation to a redistribution order, misconduct can be taken into account under
the wide terms of section 7(5)(d). However, in Beaumont v Beaumont 150 the Appellate Division
stated that “our Courts will adopt a conservative approach in assessing a party’s misconduct as
a relevant factor, whether under ss (2) or ss (3)”. Misconduct will not be considered “where
there is no conspicuous disparity between the conduct of the one party and that of the other”.151 In this way the advantages of the no-fault divorce system are not jeopardised. The most
important characteristic of our legislation is that justice must be done between the spouses,
irrespective of whether or not an order is made in terms of section 7(2) or section 7(3).
Therefore, if the marriage breakdown resulted from the misconduct of only one party, this is
a factor which may be taken into account in order to achieve justice, especially if the misconduct is found to have been “gross and prolonged”.152 In Buttner v Buttner 153 the Supreme Court
of Appeal confirmed this approach to misconduct. It further held that if both parties are
blameworthy, the court will not take misconduct into account unless there is an imbalance in
the parties’ conduct that would make it inequitable to ignore their respective degrees of
blameworthiness.
(c) The interrelationship between section 7(2) and section 7(3) of the Divorce Act 70 of
1979, and the clean-break principle
As far as the interrelationship between section 7(2) and section 7(3) of the Divorce Act is concerned, it was held in Beaumont v Beaumont 154 that, just like a redistribution order under
section 7(3) is taken into account when a maintenance order in terms of section 7(2) is
considered, a maintenance order can be taken into account when a redistribution order is
considered.155 The approach the court should adopt is to take
________________________
148
149
150
151
152
153
154
155
husband’s existing customary wife. S 22(1) and (2) of the Black Administration Act was repealed by the
schedule of the Recognition of Customary Marriages Act 120 of 1998. S 10(1) read with s 3(2) of the latter
Act now provides that a husband in an existing customary marriage may not enter into a civil marriage, unless the civil marriage is with one of his customary wives. If he is a party to more than one customary marriage, the other customary marriages must be dissolved before he may enter into the civil marriage with his
remaining customary wife. See further ch 17 below.
Forfeiture of benefits is discussed above in this chapter.
See ch 13 below.
1987 (1) SA 967 (A) 994E; see also Kritzinger v Kritzinger 1989 (1) SA 67 (A); Kretschmer v Kretschmer 1989
(1) SA 566 (W); Archer v Archer 1989 (2) SA 885 (E).
994I.
Beaumont v Beaumont 1987 (1) SA 967 (A) 994–995; see also Kritzinger v Kritzinger 1989 (1) SA 67 (A);
Kretschmer v Kretschmer 1989 (1) SA 566 (W); Archer v Archer 1989 (2) SA 885 (E); Buttner v Buttner 2006 (3)
SA 23 (SCA); CC v MVC [2013] 4 All SA 327 (GSJ), 2014 (2) SA 430 (GJ).
[2006] 1 All SA 429 (SCA), 2006 (3) SA 23 (SCA).
1987 (1) SA 967 (A).
The Act mentions an order in terms of s 7(3) as one of the factors to be taken into account when the court
makes an order under s 7(2). S 7(3), however, does not contain a corresponding provision in terms of
which an order under s 7(2) may be taken into account when an order is made under s 7(3). According to
continued
Chapter 12: The patrimonial consequences of divorce
147
an overall view, from the outset, of how justice could best be achieved between the parties in the
light of possible orders under either ss (2) or ss (3) or both subsections, in relation to the means
and obligations, and the needs of the parties, and all the other relevant factors.156
The Appellate Division further referred to the clean-break principle, which dictates that the
financial obligations between the spouses should terminate as soon as possible after divorce.
A clean break can be achieved by making only a redistribution order in terms of section 7(3)
and no maintenance order under section 7(2).157 The court mentioned that in terms of
English legislation, the clean-break principle is applied in appropriate cases. Although our
legislation does not contain a corresponding provision, the Appellate Division did not regard
the concept underlying the clean-break principle as foreign to our law. It held that, because
of the obvious advantages the principle entails, our courts will consider the possibility of using
their powers in such a way as to achieve a complete termination of the financial dependence
of the one party on the other, if circumstances permit. The latter qualification is very important. The clean-break principle can be applied only if its application will not lead to
unfairness between the parties. In many cases the clean-break principle is not feasible, as the
amount required to achieve a clean break is too large and consequently places too heavy a
burden on the party who has to pay it, or is too small to provide for the needs of the recipient.158 Whether the clean-break principle is to be applied therefore depends on the circumstances of every case.159 In practice, the clean-break principle is increasingly being applied in
our law – unfortunately sometimes without proper consideration being given to whether it
causes injustice and results in substantive gender inequality.160
(d) Various other factors the courts have taken into account
Other factors the courts have taken into account include exchange-rate variations between
the date of valuation of the spouses’ foreign properties and the date of the court’s order;161 a
material unforeseen deviation from the value the spouses had agreed upon in respect of certain assets;162 the need for finality in litigation;163 the need not to jeopardise the financial survival of the businesses which constitute a large part of the wealth of one of the spouses;164 the
fiscal implications of compelling a spouse to sell particular assets in order to be able to pay an
amount to his or her spouse in terms of the redistribution order;165 and the implications of
selling property which serves as security for credit facilities granted to the spouse who has to
transfer assets or money in terms of the redistribution order.166 It has also been held that
section 7(5)(d) is wide enough to allow the trial court to decide whether or not evidence
relating to a previous marriage between the same parties can be taken into account when
167
their second marriage is dissolved by divorce.
________________________
156
157
158
159
160
161
162
163
164
165
166
167
the Appellate Division, an order in terms of s 7(2) can be taken into account under the wide terms of
s 7(5)(d), when an order is considered under s 7(3).
Beaumont v Beaumont 1987 (1) SA 967 (A) 992F.
The clean-break principle is not restricted to marriages in which the court has the power to order redistribution of assets. In other marriages a clean break can be achieved simply by not making a maintenance
order.
See also Katz v Katz 1989 (3) SA 1 (A).
Beaumont v Beaumont 1987 (1) SA 967 (A).
See further ch 13 below, where the movement away from permanent maintenance awards is discussed.
Kirkland v Kirkland 2006 (6) SA 144 (C).
Ibid.
Ibid.
Bezuidenhout v Bezuidenhout [2004] 4 All SA 487 (SCA), 2005 (2) SA 187 (SCA).
Ibid.
Ibid. The court should also take into account factors such as the cost of repatriating foreign assets, the
profit potential of a particular asset, the upkeep and maintenance it requires, the financial risk associated
with owning it, and the issue of whether the post-divorce situation of the spouse who will acquire or keep
the particular asset will realistically enable him or her to retain it: see further Heaton 2005 SAJHR 566.
Webster v Webster 1992 (3) SA 729 (E).
148
South African Family Law
12.5.5 Assets which can be considered for purposes of a redistribution order
All the assets which fall into a spouse’s estate can be taken into account for the purposes of a
redistribution order. This includes assets a spouse inherited or received as donations during
the subsistence of the marriage.168
In Kirkland v Kirkland 169 the capitalised value of a husband’s interests in a retirement annuity from which he derived a monthly income was taken into account for the purposes of a
redistribution order. The court stated that it did not consider the issue to be one of whether
those interests “are technically to be regarded as assets”.170 It simply took the capitalised value
into account in exercising its statutory discretion to redistribute the spouses’ assets. It adopted
the same approach in respect of the capitalised value of the husband’s interests in a trust
from which he was receiving income. In Kirkland the court also held that a loan a spouse
made to his or her child and intends never to recover from the child is not an asset in the
spouse’s estate.
Whether the assets of an inter vivos discretionary trust which was created during the subsistence of the marriage may be taken into account is a complicated matter. The starting point is
171
that the property of a trust vests in the trustees in their official capacity as trustees. Therefore, if a spouse has transferred assets to a trust, those assets no longer belong to the spouse.
(If the trust is invalid, the supposed trust assets obviously still fall into the transferor’s estate as
there was, in truth, no trust the assets could be transferred to.) In Badenhorst v Badenhorst 172
the Supreme Court of Appeal held that the fact that assets which have been transferred to a
trust vest in the trustees and do not form part of the spouse’s estate “does not per se exclude
them from consideration when determining what must be taken into account when making a
redistribution order”. The court held that the value of trust assets may be taken into account
to determine the value of the estate of one of the spouses if the trust is merely the alter ego of
the particular spouse. This will be done only if there is
evidence that such party controlled the trust and but for the trust would have acquired and
owned the assets in his own name. Control must be de facto and not necessarily de iure… De
iure control of a trust is in the hands of the trustees but very often the founder in business or
family trusts appoints close relatives or friends who are either supine or do the bidding of their
appointer. De facto the founder controls the trust. To determine whether a party has such control it is necessary to first have regard to the terms of the trust deed, and secondly to consider
the evidence of how the affairs of the trust were conducted during the marriage.173
In Badenhorst the husband had full control of the trust assets and used the trust as a vehicle
for his business activities. The Supreme Court of Appeal concluded that, “but for the trust,
ownership in all the assets would have vested in the respondent”.174 The court added the value
of the trust assets to the value of the husband’s estate in calculating the amount to be transferred to the wife. The High Court had earlier adopted the same approach in Jordaan v
Jordaan.175 In neither of these cases did the court find that the particular trusts were invalid
________________________
168 Van Zummeren v Van Zummeren [1997] 1 All SA 91 (E); Jordaan v Jordaan 2001 (3) SA 288 (C); Buttner v
Buttner [2006] 1 All SA 429 (SCA), 2006 (3) SA 23 (SCA); Kirkland v Kirkland 2006 (6) SA 144 (C); but see
Beira v Beira 1990 (3) SA 802 (W).
169 2006 (6) SA 144 (C).
170 Par 83.
171 See eg Land and Agricultural Bank of South Africa v Parker 2005 (2) SA 77 (SCA); RP v DP 2014 (6) SA 243
(ECP), Heaton and Kruger Casebook on Family Law case [51].
172 [2006] 2 All SA 363 (SCA), 2006 (2) SA 255 (SCA) par 9, Heaton and Kruger Casebook on Family Law case
[50].
173 Par 9; see also Joffe Jan/Feb 2007 De Rebus 26.
174 Par 11.
175 2001 (3) SA 288 (C). See also Grobbelaar v Grobbelaar Case 26600/98 (T) (unreported) cited in Badenhorst v
Badenhorst [2006] 2 All SA 363 (SCA), 2006 (2) SA 255 (SCA). In the latter case the court apparently took
trust assets (and not only their value) into account even though the court did not find that the trust was a
sham. And see Brunette v Brunette 2009 (5) SA 81 (SE) where the court ordered the joinder of the
continued
Chapter 12: The patrimonial consequences of divorce
149
and that the trust assets therefore still vested in the estate of the spouse who had transferred
them to the trust.
It is clear that the broad discretion that has been conferred on the court in respect of redistribution orders (including the power to consider any factor in making its order), empowers
the court to take into account the value of the assets of a trust that has been used as the alter
ego of one of the spouses. What is unclear, however, is whether the court may take the value of
assets of an alter ego trust into account only if a redistribution order is at issue or whether it
may also do so in marriages which are subject to the accrual system or community of property.
176
In BC v CC the court extended the approach of taking the value of trust assets into account when making a redistribution order to a marriage subject to the accrual system. Dambuza J held that the legislature did not intend that the value of trust assets should be excluded
for purposes of calculating the accrual in a spouse’s estate because exclusion would lead to
abuse of the trust form. Referring to Jordaan, Badenhorst, and the unreported decision in Smith
177
v Smith, the judge pointed out that the courts have been willing to take the value of trust
assets into account in cases dealing with redistribution of assets. She held that determining
which assets must be considered in calculating the value of a spouse’s estate on divorce is “the
178
same in both the Matrimonial Property Act and the Divorce Act”. Therefore, the value of
trust assets can be taken into account regardless of whether a redistribution order or division
of accrual is at issue.
179
This view was rejected in MM v JM. The court held that there is a fundamental difference
between a redistribution order and adjudicating an accrual claim. This difference is that the
Divorce Act specifically empowers the court to order that such assets or part of the assets of
one spouse “as the court may deem just” must be transferred to the other spouse, while in the
case of an accrual claim “the court is not required to make an assessment of what it deems to
180
be ‘just’”. In the case of the accrual system, the court simply determines the amount that is
equal to half the difference between the accrual of the spouses’ respective estates on a factual,
mathematical basis. When doing so, the court must take only the personal property of the
spouses into account, because the Matrimonial Property Act does not permit it to exercise a
discretion to take the value of trust property into account.
181
In an obiter dictum in RP v DP Alkema J agreed with the finding in MM v JM that the accrual claim is calculated on a factual, mathematical basis and that the Matrimonial Property
Act does not confer a discretion on the court to take into account assets which do not fall into
the personal estates of the spouses. However, he found that the issue of taking trust assets into
account should be approached in a different way. He held that if the trust form is abused and
182
a trustee treats the trust as his or her alter ego, the court may pierce the trust veil. If the court
pierces the trust veil, it looks behind transactions relating to the trust in order to decide
________________________
176
177
178
179
180
181
182
claimant’s husband in his capacity as trustee as the second respondent in a contested divorce action in
which the wife sought a redistribution order. The wife wanted the trial court upon divorce to regard the
trust assets as the assets of businesses the spouses conducted as partners. She alleged that the spouses conducted the businesses without distinguishing between the assets of their partnership and those of the
trusts. The court found that the wife had made a prima facie case that the trust assets were regarded as
assets of the spouses’ partnership inter alia because the balance sheets of the trusts reflected a profit distribution to the spouses. To determine whether the wife’s contentions that the trust assets were treated as
partnership assets were correct, the trial court would have to consider the manner in which the trusts had
been administered in the past. To enable the trial court to do so, the husband had to be joined in his
capacity as trustee.
2012 (5) SA 562 (ECP).
Case 619/2006 (SECLD) (unreported).
BC v CC 2012 (5) SA 562 (ECP) par 9.
2014 (4) SA 384 (KZP).
Par 12; see also par 19.
2014 (6) SA 243 (ECP), Heaton and Kruger Casebook on Family Law case [51].
See also Rees v Harris 2012 (1) SA 583 (GSJ); VZ v VZ (2011/5122) [2014] ZAGPJHC 42, 14 February 2014;
Van Zyl v Kaye 2014 (4) SA 452 (WCC).
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South African Family Law
whether or not they involve assets which were truly separate from the trustee’s personal assets,
or whether “the separateness of trust assets was simulated to hide the personal assets of the
183
trustee”. In deciding whether particular assets are in truth trust or personal assets, the court
considers the terms of the trust deed; the extent of de facto control by the trustee over the
trust; the nature of the assets; the liabilities of the trust; and the management of the affairs of
the trust. Application of these principles implies that when the court pierces the trust veil, it
does so by virtue of a common-law power and it exercises a function that is distinct from the
discretion afforded to it by section 7(3) to (6) of the Divorce Act. This common-law function
is also distinct from calculating the accrual in terms of the Matrimonial Property Act. Therefore, the fact that the Divorce Act affords a broad discretion to the court while the provisions
of the Matrimonial Property Act relating to calculation of the accrual do not afford a discre184
tion to the court, is irrelevant in respect of this function. It is only after this function has
been performed, that the second function, namely calculating the amount that is to be
redistributed in terms of the Divorce Act or calculating the amount of the accrual claim in
terms of the Matrimonial Property Act, comes into play.
It is hoped that the approach in RP v DP will be followed and that the value of trust assets
will be taken into consideration if the assets are in truth being controlled and used as if they
were the personal property of a particular spouse. This should be the position regardless of
185
the matrimonial property system. However, in view of the recent judgment of the Supreme
186
Court of Appeal in WT v KT a note of caution should be added. In this case the court stated
that the mere fact that a trust is the alter ego of a trustee is insufficient justification for piercing
the trust veil. In addition, the trustee who is using the trust as his or her alter ego must have a
fiduciary duty towards the person who is asking the court to pierce the trust veil. A fiduciary
duty would exist if the person was a beneficiary of the trust or a third party who had transacted
with the trust. Therefore a spouse who has never been a beneficiary of the trust and has never
entered into any transaction with the trust does not have standing to seek an order piercing
the trust veil. Application of this view will reduce the number of situations where courts can
take the value of the assets of an alter ego trust into account in marriages subject to the accrual
system or community of property.
In Beira v Beira 187 the position regarding the trust of which the wife was a beneficiary was
different to the alter ego trust issue that arose in the cases discussed above. Here, a husband
wanted the court that was asked to make a redistribution order to take into account the fact
that his wife would own substantial assets from a trust when the founders of the trust (the
wife’s parents) died. His argument was based on section 7(5)(d). The court held that something fortuitous such as an unexpected inheritance or trust benefits which have not yet vested
in a spouse cannot be taken into account. It must be emphasised that in this case the wife did
not have de facto control of the trust and she had not yet acquired any assets from the trust.
A redistribution order cannot be made against a party who is insolvent.188
In Petty v Petty 189 the court stated in an obiter dictum that the claimant bears “the onus of
proof in the identification of assets… that must be redistributed under the provisions of section 7 of the Divorce Act”. It is not entirely clear what this means. If the statement merely
relates to proving which assets are to be considered for purposes of a redistribution order (for
example, which assets form part of the respondent’s estate) it is acceptable. However, if it is
________________________
183 Par 24.
184 Alkema J referred with approval to a similar finding in Smith v Smith Case 619/2006 (SECLD) (unreported).
185 See also Heaton in Atkin (ed) 2015 International Survey of Family Law 324; Heaton 2014 Annual Survey of
South African Law (forthcoming).
186 2015 (3) SA 574 (SCA).
187 1990 (3) SA 802 (W).
188 Redgard v Redgard 1989 (1) SA 113 (E).
189 [2002] 2 All SA 193 (T) 197c–d.
Chapter 12: The patrimonial consequences of divorce
151
meant to convey that the court’s discretion to redistribute assets is restricted to those assets
the claimant identifies, it is incorrect, for the provisions of the Act do not indicate any such
limitation.
The claimant need not have made a contribution to specific assets for those assets to be
taken into account for purposes of a redistribution order. The fact that the claimant made a
contribution to the respondent’s estate is sufficient.190
12.5.6 The date on which the value of a spouse’s estate is to be calculated
191
In Katz v Katz the Appellate Division stated in an obiter dictum that, for purposes of a redistribution order, the value of the spouses’ estates must “so far as that is practicable” be calculated as of the date of the court order, for otherwise “it could give rise to highly anomalous
192
consequences”. The court did not indicate what these consequences would be. Subsequent193
ly, in CC v CM the Gauteng Local Division of the High Court, Johannesburg used the
194
analogy of case law relating to the accrual system to hold that a party who has instituted a
195
claim for redistribution merely has a contingent right to redistribution until the divorce is
granted. Therefore, it held, discovery which has the object of establishing the value of a
spouse’s estate for purposes of a redistribution order can be pursued after divorce. This
dictum suggests that the court was of the view that the value of a spouse’s estate must be
calculated on or after divorce because the right to claim redistribution arises only on divorce.
196
However, it is submitted that, as is the case in respect of an accrual claim, the date on which
the values of the spouses’ respective estates should be determined should be distinguished
from the date on which the successful claimant acquires his or her claim for redistribution.
Litis contestatio should be used as the date on which the values of the respective estates are to
197
be determined.
12.5.7 The criterion for establishing the extent of the redistribution
When the judicial discretion to redistribute assets was introduced into our law, some South
African courts adopted the guideline that one-third of the total value of the spouses’ assets
should be allocated to the spouse who owns fewer assets.198 This approach was in line with the
starting point which operated in English law at that stage.
In Beaumont v Beaumont 199 the Appellate Division rejected the one-third starting point and
all others. It held that the most important feature of our legislation which the court must take
into account when exercising its discretion, is its assessment of what is just having regard to
the factors specifically mentioned in the Divorce Act and “any other factor which should in
the opinion of the court be taken into account”.200 The Appellate Division required that the
court should start “with a clean slate” and then fill in “the void by looking at all the relevant
facts and working through all the relevant considerations, and finally exercising a discretion
as to what would be just, completely unfettered by any starting point”.201 In Beaumont the trial
________________________
190
191
192
193
194
195
196
197
198
199
200
201
Jordaan v Jordaan 2001 (3) SA 288 (C); see also Van Zummeren v Van Zummeren [1997] 1 All SA 91 (E).
1989 (3) SA 1 (A).
Par 6.
2014 (2) SA 430 (GJ).
The cases are Reeder v Softline [2000] 4 All SA 105 (W), 2001 (2) SA 844 (W); Le Roux v Le Roux [2010] JOL
26003 (NCK). The court also cited Willemse v Willemse Case 3600/2004, 12 September 2006 (FS) (unreported).
Which the court called “a continuant right”: par 49.
See ch 7 above.
See also Heaton in Heaton (ed) Law of Divorce and Dissolution of Life Partnerships 101.
Beaumont v Beaumont 1985 (4) SA 171 (W); Van Gysen v Van Gysen 1986 (1) SA 56 (C); MacGregor v MacGregor 1986 (3) SA 644 (C).
1987 (1) SA 967 (A).
991F.
998F–G.
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South African Family Law
court had awarded one-third of the combined value of the spouses’ assets to the wife. On
appeal, the Appellate Division had to decide whether the trial court had properly exercised its
discretionary power in making this award. As the Appellate Division found that the trial court
had not misdirected itself in any way and had not exercised its discretion improperly, it
confirmed the one-third award.
In Bezuidenhout v Bezuidenhout 202 the Supreme Court of Appeal subsequently reiterated that
the court must start with a clean slate and not use guidelines or starting points. It specifically
rejected the approach that equality should be the yardstick and that spouses’ estates should
be divided equally unless there is good reason for not doing so. The latter approach had been
adopted by the Cape Provincial Division of the High Court (now the Western Cape Division
203
of the High Court, Cape Town) in Childs v Childs. The Supreme Court of Appeal held that
“our courts are not entitled as a matter of course to ‘divide the joint net assets of the parties
204
equally, regardless of their respective known and unequal contributions’”. In Bezuidenhout
the wife inter alia performed domestic duties, worked for a third party, entertained her husband’s friends and customers, and assisted her husband in his business. She later worked in
his business full time. The Supreme Court of Appeal expressed its agreement with the view
that the traditional role of housewife, mother and homemaker should not be undervalued
simply because it is not measurable in terms of money, and stated that it would take this role
into account. However, when it came to making an award in favour of the wife, the court solely
considered the wife’s participation in the family business. Thus she was, in effect, penalised for
bearing the double burden of being a homemaker and a businesswoman.205 As her contribution to the business was adjudged to be less than that of her husband because he was said to
have been “much more influential” in making the business a success, the court awarded only
40 percent of the combined value of the spouses’ assets to the wife.
In a subsequent decision, Kirkland v Kirkland,206 the Cape Provincial Division of the High
Court made an equal division of the spouses’ combined assets and ordered the wife to transfer money to the husband to achieve this division. It held that the principle of equality,
coupled with the spouses’ intention that all assets should belong to both of them together
and the fact that the husband had made the major financial contribution to the growth and
maintenance of the spouses’ assets dictated that he should be entitled to half the assets. The
court did not view the decision in Bezuidenhout as a rejection of “the principle of equality as
such”. It stated that the Supreme Court of Appeal had merely found that the principle of
equality did not fit the facts in Bezuidenhout.
Despite judicial statements regarding the courts’ supposed recognition of domestic and
child-care responsibilities, it seems that the one-third/two-thirds division is still popular. In
Joubert v Joubert 207 the wife had not only performed domestic services and made financial contributions towards the purchase of the couple’s two matrimonial homes, but had also given up
her job after the birth of the couple’s first child because her husband no longer wanted her
to pursue her career. In the trial court, the wife was awarded a third of the spouses’ assets. On
appeal, it was held that the trial court had made its one-third/two-thirds award after fully and
precisely considering all the facts of the case and had therefore not exercised its judicial discretion improperly. The award was accordingly not set aside. In Badenhorst v Badenhorst 208 the
Supreme Court of Appeal also reverted to a division of roughly one third/two thirds. In this
case, the wife had “performed the traditional role of mother”209 and also assisted her husband
________________________
202
203
204
205
206
207
208
209
[2004] 4 All SA 487 (SCA), 2005 (2) SA 187 (SCA).
2003 (3) SA 138 (C).
Par 20, quoting Kritzinger v Kritzinger 1989 (1) SA 67 (A) 77F–G.
See also Heaton 2005 SAJHR 561; Van Schalkwyk 2006 De Jure 639.
2006 (6) SA 144 (C).
[2004] 1 All SA 426 (C).
[2006] 2 All SA 363 (SCA), 2006 (2) SA 255 (SCA).
Par 4.
Chapter 12: The patrimonial consequences of divorce
153
on their farm. She later became a successful estate agent. The court explained the way in
which it arrived at the amount to be awarded to the wife as follows:
This amount is arrived at by taking the total of the nett asset value of the parties’ estates and that
of the trust, calculating a percentage which is considered just and equitable for appellant’s contribution and deducting what she already stands possessed of.210
The “just and equitable” percentage the court used was 34,79, which is suspiciously close to
one third. In view of the constitutional objective of substantive gender equality, the courts’
preference for the one-third/two-thirds division is unacceptable, as it suggests that even
though a homemaker and child-carer’s services qualify as a contribution, financial and business contributions are more valuable.211 The one-third/two-thirds division is even more objectionable in the case of wives who have not only fulfilled domestic and child-care responsibil212
ities but have also been occupied in the labour market.
Buttner v Buttner 213 offers a ray of hope in this regard. In this case, the Supreme Court of
Appeal ordered a husband to pay 50 percent of the amount that was left of the net proceeds
of the sale of the spouse’s matrimonial home to his wife.214 The husband was a quantity surveyor and businessman, while the wife primarily took care of the domestic and child-care
responsibilities. When the couple’s first child was born, the wife resigned from her employment in order to raise the child. The decision that she should resign was taken by agreement
between the spouses. After the second child’s birth, the wife was at times employed as a parttime travel agent and part-time estate agent. During their marriage, the parties pooled their
income and regarded the assets acquired through their joint efforts as joint assets. They registered some assets in the husband’s name and others in the wife’s. In making the redistribution award, Van Heerden JA held that
there is nothing to indicate that either party regarded the contributions made by the respondent [that is, the wife] primarily as housewife and mother, as being less valuable than those made
by the appellant [that is, the husband], nor that the respondent’s contributions were any less instrumental than those of the appellant in the acquisition of assets by the parties.215
She further held that the division of labour between the spouses “was a conscious choice
made by both of them”.216 She concluded that “in these circumstances, fairness demands that
effect be given, on divorce, to the principle of equal sharing which the parties consciously
applied throughout their married life”.217
12.5.8 The form a redistribution order may take
The court has a very wide discretion in so far as the form of the redistribution order is concerned.218 However, as the wording of the Act does not permit this, the court may not order
the party in whose favour the redistribution order operates to transfer some of his or her own
assets to the party against whom the redistribution order operates.219
________________________
210 Par 16.
211 See also Heaton in Heaton (ed) Law of Divorce and Dissolution of Life Partnerships 106; Costa Sept 2005 De
Rebus 20; Heaton 2005 SAJHR 562.
212 See also Heaton in Heaton (ed) Law of Divorce and Dissolution of Life Partnerships 106.
213 [2006] 1 All SA 429 (SCA), 2006 (3) SA 23 (SCA).
214 This amount was less than 50 percent of the value of the assets which had not yet been divided between
the spouses. However, as this was all the wife claimed at the trial, it was all that was awarded to her. When
reading the judgment (esp the statement that in the circumstances of the marriage “fairness demands that
effect be given, on divorce, to the principle of equal sharing which the parties consciously applied
throughout their married life”: par 25) one gets the impression that the court would have awarded a larger
amount to the wife had she asked for it.
215 Par 25.
216 Ibid.
217 Ibid.
218 Beaumont v Beaumont 1987 (1) SA 967 (A); Childs v Childs 2003 (3) SA 138 (C).
219 Bezuidenhout v Bezuidenhout [2003] 3 All SA 82 (C), 2003 (6) SA 691 (C). This part of the decision of the
trial court was not overruled on appeal in Bezuidenhout v Bezuidenhout [2004] 4 All SA 487 (SCA), 2005 (2)
SA 187 (SCA).
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South African Family Law
The court is not bound to order the transfer of a specific asset or assets to the successful
claimant – it may order that a sum of money be transferred instead.220 If the court orders one
of the spouses to transfer assets or a sum of money in lieu of assets to the other spouse, it may
impose such conditions as it deems just for the satisfaction of its order. These conditions may,
for example, be the furnishing of security, payment of interest,221 or payment by means of
instalments.222
In Kritzinger v Kritzinger 223 the Appellate Division held that a redistribution order may not be
used to award a spouse damages for the loss of the other spouse’s contribution to their combined earning power if the other spouse caused the breakdown of the marriage.
12.5.9 Consideration of a claim and a counter-claim for redistribution
In Kritzinger v Kritzinger 224 the Appellate Division held that a claim and a counterclaim for redistribution should generally not be considered by means of a “globular” approach. The
claim and counterclaim should be considered separately to ensure that each gets the attention it deserves. However, in Buttner v Buttner 225 the same court subsequently indicated in an
obiter dictum that the view that the overall or globular approach should not be applied, is too
inflexible and may have to be reconsidered.
12.5.10 The nature of the discretion the court exercises
The issue of whether the court exercises a discretion in the broad or the narrow sense when it
decides whether to order redistribution of assets and, if so, what the scope of the redistribution should be, is the subject of some uncertainty. In Beaumont v Beaumont 226 the Appellate
Division held that the discretion is very wide and that an appeal court may interfere with the
discretion of the trial court only if the trial court misdirected itself with regard to the law or a
material finding of fact or otherwise failed to exercise its discretion properly. In Bezuidenhout v
Bezuidenhout 227 it was argued that this part of the decision in Beaumont has been overtaken by
later judgments of the Appellate Division which draw a distinction between a discretion in the
narrow or strict sense and a discretion in the broad sense.228 A discretion in the narrow sense
“involves a choice between two or more different, but equally permissible, alternatives”, while
a discretion in the broad sense refers to “a mandate to have regard to a number of disparate
and incommensurable features in arriving at a conclusion”.229 It is only in respect of a discretion in the narrow sense that an appeal court’s powers of interference are limited. In the
case of a discretion in the broad sense, an appeal court may “substitute its own discretion for
that of the trial court if it differs from such court on the merits and may make the order which
it deems just”.230 In Bezuidenhout the Supreme Court of Appeal assumed, without deciding the
issue, that an appeal court can interfere with the trial court’s discretion only if the trial court
misdirected itself; in other words, it assumed that the discretion the trial court exercises in
terms of section 7(3) to (6) of the Divorce Act is a narrow one. Subsequently, in Buttner v
Buttner 231 the Supreme Court of Appeal again found it unnecessary to decide whether section
________________________
220 Archer v Archer 1989 (2) SA 885 (E); Bezuidenhout v Bezuidenhout [2004] 4 All SA 487 (SCA), 2005 (2) SA
187 (SCA).
221 An appeal court may order the party against whom it makes a redistribution order to pay interest as from
the date of the judgment of the trial court: Kirkland v Kirkland 2006 (6) SA 144 (C).
222 S 7(6).
223 1989 (1) SA 67 (A); see also Kretschmer v Kretschmer 1989 (1) SA 566 (W).
224 1989 (1) SA 67 (A).
225 [2006] 1 All SA 429 (SCA), 2006 (3) SA 23 (SCA) par 24.
226 1987 (1) SA 967 (A).
227 [2004] 4 All SA 487 (SCA), 2005 (2) SA 187 (SCA).
228 See eg Media Workers Association of South Africa v Press Corporation of South Africa Ltd (“Perskor”) 1992 (4) SA
791 (A); Knox D’Arcy Ltd v Jamieson 1996 (4) SA 348 (A).
229 Bezuidenhout v Bezuidenhout [2004] 4 All SA 487 (SCA), 2005 (2) SA 187 (SCA) par 17.
230 Buttner v Buttner [2006] 1 All SA 429 (SCA), 2006 (3) SA 23 (SCA) par 20.
231 [2006] 1 All SA 429 (SCA), 2006 (3) SA 23 (SCA).
Chapter 12: The patrimonial consequences of divorce
155
7(3) to (6) confers a discretion in the broad or the narrow sense on the trial court. In both
Bezuidenhout and Buttner the court was satisfied that the trial court had indeed misdirected itself
and that it could therefore interfere even if the discretion of the trial court were a narrow
one.232
________________________
232 See also Kirkland v Kirkland 2006 (6) SA 144 (C).
13
MAINTENANCE OF A SPOUSE AFTER DIVORCE
13.1 General
The common-law duty of support between spouses comes to an end when the marriage is
1
terminated. However, a new duty of support may arise upon divorce, in one of two ways.
Firstly, the couple may agree that one of them will pay maintenance to the other. This agreement creates a contractual duty of support between the parties. In terms of section 7(1) of the
Divorce Act 70 of 1979, the court may make an order in accordance with the terms of the
parties’ settlement agreement, thereby conferring the additional force of an order of court
on the terms of the agreement.2 Secondly, if the spouses have not entered into a settlement
agreement, if the court does not deem it fit to make an order in accordance with the spouses’
settlement agreement, or if the parties do not request the court to make an order in accordance with their settlement agreement, the court may make a maintenance order in terms of
section 7(2) of the Act. In the latter case, the foundation of the duty of support is the order
3
the court makes by virtue of the power section 7(2) confers on it. Thus, the duty of support
which flows from this order has a statutory foundation. It too is not merely an extension of
the common-law duty of support.4
13.2 Maintenance orders in terms of section 7(2) of the
Divorce Act 70 of 1979
13.2.1 General
Section 7(2) of the Divorce Act empowers the court which orders a divorce to make an order
it finds just in respect of the payment of maintenance by one party to the other for any period
until the death or remarriage of the party in whose favour the order operates. Either spouse
can be ordered to pay maintenance to the other. As section 7(2) couples a maintenance
order with a decree of divorce, a maintenance order cannot be granted in favour of a former
5
spouse after the marriage has been dissolved.
________________________
1
2
3
4
See ch 5 above, cases such as EH v SH 2012 (4) SA 164 (SCA), and the sources cited in fn 4 below.
See ch 12 above.
See also De Jong and Heaton in Heaton (ed) Law of Divorce and Dissolution of Life Partnerships 126.
See eg Santam Bpk v Henery 1999 (3) SA 421 (SCA); Khan v Khan 2005 (2) SA 272 (T); Welgemoed v Mennell
[2007] 3 All SA 304 (SE), 2007 (4) SA 446 (SE); Botha v Botha 2009 (3) SA 89 (W). But see Zwiegelaar v
Zwiegelaar [2001] 1 All SA 261 (A), 2001 (1) SA 1208 (SCA) par 12 where the Supreme Court of Appeal
stated in an obiter dictum that the common-law duty of support normally ceases upon the dissolution of the
marriage but may be “extended after divorce if the court is satisfied having regard to the jurisdictional requirements laid down in s 7(2) of the Act that it is just to do so” (emphasis in the original). On the foundation of post-divorce spousal maintenance, see further De Jong and Heaton in Heaton (ed) Law of Divorce
and Dissolution of Life Partnerships 122–123; Heaton 2007 THRHR 642–643.
5 See eg Schutte v Schutte 1986 (1) SA 872 (A). See also Barratt (ed) Persons and the Family 357; De Jong and
Heaton in Heaton (ed) Law of Divorce and Dissolution of Life Partnerships 123.
157
158
South African Family Law
Neither spouse has a right to post-divorce maintenance, because the court has a discretion
to make a maintenance order.6 A maintenance order will be made only if the spouse who
7
seeks maintenance needs it and provides a factual basis for the making of the order. In EH v
8
SH the Supreme Court of Appeal held that in the absence of proof of need, “it would not be
‘just’ as required by this section for a maintenance order to be issued”. In other words, proving a need for maintenance is vital for obtaining a maintenance order in terms of section
7(2). The Supreme Court of Appeal further held that the mere fact that the spouse who is
seeking maintenance is living with another person in a life partnership does not disentitle
him or her to post-divorce maintenance. However, if he or she is being fully maintained by
the person with whom he or she is living, he or she does not need maintenance from his or
her former spouse. In these circumstances, post-divorce maintenance will not be awarded.
The court’s discretion is exercised with due regard to the factors that are listed in section
7(2). The requirement in section 7(2) that the court must make the order it finds just, demands that no single factor should always predominate in deciding whether maintenance is
to be awarded and/or how much is to be awarded.9 The court’s approach thus is to consider
each case on its own merits in the light of all the facts and circumstances peculiar to it, and to
decide what is just.10
In Buttner v Buttner 11 the Supreme Court of Appeal held that justice must be effected
between the parties; in other words, a just maintenance order is one that effects justice
between the parties. In Botha v Botha 12 the Witwatersrand Local Division of the High Court
(now the Gauteng Local Division of the High Court, Johannesburg) held that a just maintenance order contains “a moral component of what is thought to be ‘right’ and ‘fair’”. The
order must be “‘appropriate’ as between the parties” in the sense of being deserved and fair
when measured against the factors listed in section 7(2).13 Furthermore, the interests of both
spouses and the impact the order will have on each spouse must be considered.
Although the court must make a just maintenance order, it need not establish financial
equality between the parties, since any one or more of the factors the court must take into
account in terms of section 7(2) may justify a disparity of income between the parties.14
13.2.2 Factors the court must take into account15
Section 7(2) provides that the following factors must be taken into account when the court
makes its order:
(1) The spouses’ existing or prospective means.
(2) The spouses’ respective earning capacities.
(3) The spouses’ financial needs and obligations.
(4) Each spouse’s age.
(5) The duration of the marriage.
(6) The spouses’ standard of living during the marriage.
________________________
6 See eg Botha v Botha 2009 (3) SA 89 (W); AV v CV 2011 (6) SA 189 (KZP).
7 See eg Botha v Botha 2009 (3) SA 89 (W); AV v CV 2011 (6) SA 189 (KZP); EH v SH 2012 (4) SA 164 (SCA).
On calculating the amount of a spouse’s maintenance needs and the amount of a maintenance award, see
De Jong and Heaton in Heaton (ed) Law of Divorce and Dissolution of Life Partnerships 141–143, 166–169.
8 2012 (4) SA 164 (SCA) par 13.
9 Grasso v Grasso 1987 (1) SA 48 (C).
10 See eg Swart v Swart 1980 (4) SA 364 (O); Grasso v Grasso 1987 (1) SA 48 (C); Beaumont v Beaumont 1987 (1)
SA 967 (A).
11 [2006] 1 All SA 429 (SCA), 2006 (3) SA 23 (SCA), Heaton and Kruger Casebook on Family Law case [49].
12 2009 (3) SA 89 (W) par 46.
13 Ibid.
14 Reid v Reid 1992 (1) SA 443 (E).
15 For a more detailed discussion of the factors, see De Jong and Heaton in Heaton (ed) Law of Divorce and
Dissolution of Life Partnerships 128–134; Van Zyl in Clark (ed) Family Law Service pars C27–C33.
Chapter 13: Maintenance of a spouse after divorce
159
(7) Each spouse’s conduct in so far as it may be relevant to the breakdown of the marriage.
(8) Any redistribution order in terms of section 7(3) of the Divorce Act.16
(9) Any other factor which, in the court’s opinion, should be taken into account.
In so far as the financial needs and obligations of the parties are concerned, the courts have
adopted conflicting views on whether expenses that extend beyond those of the claimant may
17
be taken into account. In Butcher v Butcher the court stated that in having to use the household budget to run the family home and provide groceries for a three-member household
consisting of the wife and the spouses’ two adult children, the wife incurred an obligation as
envisaged by section 7(2), even though the children have an independent right to claim
18
19
maintenance from their father. In MB v NB the court stated that in the process of determining a party’s maintenance claim on divorce “due allowance has to be made for much
more than just the party’s personal expenditure: for instance, the cost of providing for dependants has to be brought into account, and this may range beyond those with a legal claim,
20
and embrace moral claims by siblings, parents and even friends”. However, in Botha v Botha,
which was decided in the same division of the High Court as MB v NB, the court disapproved
of the inclusion of amounts relating to an adult child from a previous relationship, colleagues
and friends. It is submitted that the view in MB v NB is too lenient. It seems just to include
expenses relating to the parties’ adult dependent children, but the same cannot be said of
21
expenses relating to colleagues or friends or moral claims (as opposed to legal claims).
In respect of the spouses’ standard of living, the courts no longer seem to favour the view
that was adopted in cases like Grasso v Grasso 22 and Pommerel v Pommerel 23 namely, that if one of
the parties is wealthy, there is no reason why the other party should have to drop his or her
standard of living after divorce or enter the labour market. Thus, for example, it was held in
Botha v Botha 24 that merely establishing that the poorer spouse’s income is insufficient to
enable her to sustain the standard of living the spouses enjoyed during the subsistence of the
marriage and that the other spouse can afford to pay maintenance does not comply with
section 7(2) and does not achieve justice as between the parties. Regardless of whether or not
one approves of the approach that is evident from cases like Botha, the reality for most divorcing couples is that neither spouse is wealthy enough to be able to support two households at
the same standard of living the spouses enjoyed while they were married. Accordingly, the
courts normally accept that both spouses have to adopt a lower standard of living after divorce.
In reality, however, it is usually the former wife whose standard of living drops most. Wives are
usually at least partly financially dependent on their husbands. As is indicated below in this
chapter, the courts have become loath to make permanent maintenance awards. Nowadays
they tend to favour the clean break and award rehabilitative maintenance or no maintenance
25
at all. Another reason for the drop in a woman’s standard of living after divorce is that even
if maintenance is awarded to a wife upon divorce, she often struggles to enforce the mainte27
nance order.26 Furthermore, the amount that is awarded as maintenance is usually low.
________________________
16
17
18
19
20
21
22
23
24
25
On redistribution orders, see ch 12 above.
2009 (2) SA 421 (C), Heaton and Kruger Casebook on Family Law case [62] par 17.
On maintenance for adult, dependent children, see ch 23 below.
2010 (3) SA 220 (SGJ), Heaton and Kruger Casebook on Family Law case [88] 231C.
2009 (3) SA 89 (W).
See also De Jong and Heaton in Heaton (ed) Law of Divorce and Dissolution of Life Partnerships 131.
1987 (1) SA 48 (C).
1990 (1) SA 998 (E), Heaton and Kruger Casebook on Family Law case [53].
2009 (3) SA 89 (W).
In Pillay v Pillay 2004 (4) SA 81 (SEC) the court summarised the circumstances where the courts are
inclined to award little or no maintenance: the spouse who seeks maintenance is young or relatively young,
is well qualified, has no (young) children he or she needs to look after, has worked throughout the marriage and/or is working at the time when he or she applies for maintenance and/or is in good health,
and/or the marriage was of short duration.
26 See ch 5 above on the enforcement of maintenance orders.
27 See further De Jong and Heaton in Heaton (ed) Law of Divorce and Dissolution of Life Partnerships 119–122.
160
South African Family Law
A spouse’s misconduct may be taken into account when a maintenance order is made, but
not at the expense of fairness.28 Furthermore, only misconduct which has a bearing on the
breakdown of the marriage is relevant.29 Fault assumes greater relevance if the misconduct of
one of the parties was gross,30 especially if the other party was prepared to attempt a reconciliation.31 Domestic violence which contributed to the breakdown of the marriage should also to
32
be taken into account as gross misconduct.
Some of the “other” factors the courts have taken into account in respect of maintenance
for a spouse after divorce are the child-care responsibilities of the spouse who is claiming
maintenance;33 the best interests of the spouses’ children;34 the inflation rate;35 the frankness
with which each party conveyed their financial position and needs;36 and the patriarchal nature
of the spouses’ marriage.37 It has been suggested that the courts should also consider the
38
economic advantages and disadvantages arising from the marriage. The income tax implica39
tions of maintenance payments should also be taken into account.
13.2.3 The movement towards rehabilitative maintenance or no maintenance
at all
In the past, women were usually financially dependent on their husbands, and it was generally
accepted that a husband had to maintain his former wife until her death or remarriage –
especially if the dissolution of the marriage was his fault. This position has changed. Women
who are in paid employment are increasingly denied maintenance, because they are assumed
to be able to meet their own maintenance needs even if they have a much lower earning
capacity than their husband.
The courts also increasingly expect of women who are not engaged in paid employment at
all or who are engaged in only limited paid employment to take up or to increase their
participation in such employment after divorce, and grant employable women rehabilitative
maintenance only.40 In other words, women who have an earning capacity are awarded
maintenance only for a limited, fixed period, sufficient to tide them over while they are being
trained or retrained to take up paid employment or to increase their participation in such
employment, while assets are being transferred, or while therapy is being provided.41 In Botha
________________________
28
29
30
31
32
33
34
35
36
37
38
39
40
41
Swart v Swart 1980 (4) SA 364 (O).
Ibid.
Beaumont v Beaumont 1987 (1) SA 967 (A); Buttner v Buttner [2006] 1 All SA 429 (SCA), 2006 (3) SA 23 (SCA).
Grasso v Grasso 1987 (1) SA 48 (C).
See also Bonthuys in Heaton (ed) Law of Divorce and Dissolution of Life Partnerships 490; De Jong and Heaton
in Heaton (ed) Law of Divorce and Dissolution of Life Partnerships 134.
See eg Kroon v Kroon 1986 (4) SA 616 (E), Heaton and Kruger Casebook on Family Law case [52]; Grasso v
Grasso 1987 (1) SA 48 (C); Buttner v Buttner [2006] 1 All SA 429 (SCA), 2006 (3) SA 23 (SCA); Kooverjee v
Kooverjee [2006] 4 All SA 369 (C), 2006 (6) SA 127 (C).
See eg Grasso v Grasso 1987 (1) SA 48 (C); Kooverjee v Kooverjee [2006] 4 All SA 369 (C), 2006 (6) SA 127 (C).
S 28(2) of the Constitution and ss 6(2) and 9 of the Children’s Act 38 of 2005 afford paramountcy to the
child’s best interests.
Vedovato v Vedovato 1980 (1) SA 772 (T); Brink v Brink 1983 (3) SA 217 (D); Grasso v Grasso 1987 (1) SA 48
(C); Osman v Osman 1992 (1) SA 751 (W).
Kooverjee v Kooverjee [2006] 4 All SA 369 (C), 2006 (6) SA 127 (C).
Ibid.
De Jong 1999 THRHR 84.
See further De Jong and Heaton in Heaton (ed) Law of Divorce and Dissolution of Life Partnerships 142–143;
De Matos Ala 2011 SALJ 17.
Rehabilitative maintenance is simply a type of maintenance and not “an animal of its own”: Kruger v Goss
[2010] 1 All SA 422 (SCA), 2010 (2) SA 507 (SCA).
See eg Singh v Singh 1983 (1) SA 781 (C); Kroon v Kroon 1986 (4) SA 616 (E); Grasso v Grasso 1987 (1) SA 48
(C); V v V 1998 (4) SA 169 (C); Joubert v Joubert [2004] 1 All SA 426 (C); Pillay v Pillay 2004 (4) SA 81 (SE);
Kooverjee v Kooverjee [2006] 4 All SA 369 (C), 2006 (6) SA 127 (C); Botha v Botha 2009 (3) SA 89 (W); MB v
NB 2010 (3) SA 220 (GSJ); AV v CV 2011 (6) SA 189 (KZP). See also De Jong 1999 THRHR 77 who undertook an empirical study in the Transvaal Provincial Division of the High Court (now the Gauteng Division
of the High Court, Pretoria) which showed that this trend was already evident in this court in 1997.
Chapter 13: Maintenance of a spouse after divorce
161
v Botha 42 the court described the purpose of rehabilitative maintenance as enabling the
spouse who
has been disadvantaged or disabled in some way by the marriage . . . through training or therapy
or opportunity, to be restored either to the economic position vis-à-vis employment which she
occupied prior to the marriage, or to be reintroduced to the ability to participate effectively and
profitably in normal economic life.
The court thus expressly required a causal connection between the marriage and the spouse’s
inability to be self-supporting. In the circumstances of Botha, the court concluded that the
wife did not need rehabilitative maintenance as there was no evidence that she was “less able
to support herself or has suffered in her ability to support herself by reason of the marriage”,
that she earned less than she would have earned if she had not married her husband, that her
employment was less secure, or that rehabilitative maintenance would enable her to support
herself at a higher standard of living from her own income.43 The wife was therefore not
awarded any maintenance at all.
In Kooverjee v Kooverjee 44 the court held that although the courts frequently limit rehabilita45
tive maintenance to periods ranging from six to 18 months, “a proper analysis of the
rationale behind the awarding of rehabilitative maintenance will conclude that an arbitrary
period for the payment of rehabilitative maintenance will not address the ultimate achievement of self-sufficiency”. This dictum is most welcome and it is hoped that the courts will in
future adopt a more realistic approach towards the period it takes for the spouse who has the
lower earning capacity to become financially self-sufficient. In Kooverjee the court referred to
the high standard of living the spouses had enjoyed during the subsistence of the marriage,
the husband’s ability to maintain that standard of living, and the fact that continued care of the
couple’s children by their mother would be in their best interests. The court was of the view
that in the circumstances of this case it was possible for both parties to maintain their standard
of living after the divorce while simultaneously enabling the wife to become self-supporting.
The court made a tapered award for rehabilitative maintenance, which took account of the
wife’s decreasing need to devote time to child-care as her children grew older. The maintenance decreased every two years and was payable until the children completed their tertiary
education or became self-supporting, or for a period of ten years, whichever event occurred
first. In addition, the husband was ordered to pay the wife’s medical expenses as well as
expenses relating to her moving to a different house and relating to the installation of a
telephone and electricity in that house.
If it is alleged that a wife should be able to support herself by entering the labour market
but she does not want to do so, the court must consider whether her decision not to enter the
labour market is reasonable in the circumstances of the particular case.46 The mere fact that
she is able to earn an income does not in itself disentitle her to maintenance.47 Furthermore,
no notional earning capacity will be attributed to a woman who does not have the necessary
skills to enable her to be trained or retrained for a job, occupation or profession after divorce.48 The factors the court takes into account to determine whether the wife should enter
the labour market include her age and health; the duration of the marriage; the parties’ standard of living during the marriage; the length of the wife’s absence from the labour market;
whether she has any marketable skills; and her child-care commitments.49
________________________
42 2009 (3) SA 89 (W) par 106.
43 Par 107.
44 [2006] 4 All SA 369 (C), 2006 (6) SA 127 (C) par 11.2.12(ix), Heaton and Kruger Casebook on Family Law case
[54].
45 See eg V v V 1998 (4) SA 169 (C); Joubert v Joubert [2004] 1 All SA 426 (C); Pillay v Pillay 2004 (4) SA 81 (SEC).
46 Pommerel v Pommerel 1990 (1) SA 998 (E).
47 Ibid.
48 Kroon v Kroon 1986 (4) SA 616 (E).
49 Ibid; Pommerel v Pommerel 1990 (1) SA 998 (E).
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South African Family Law
The movement away from permanent maintenance orders is in keeping with the cleanbreak principle, which seeks to make spouses economically independent from each other as
soon as possible after divorce.50 Unfortunately, the clean-break principle is all too frequently
applied in a way that ignores or underplays the long-term consequences of the domestic and
child-care responsibilities women bear both during the subsistence of the marriage and after
its dissolution and the career sacrifices many of them make. Thus it is falsely assumed that “a
woman who has in the past not invested as much in her career as her husband, can merely
resume a full-time job and quickly advance to a state of equal economic independence”.51 The
result is that women and the children in their care predominantly bear the financial costs of
divorce.52 The courts should attach proper weight to the domestic and child-care responsibilities women bear and the career sacrifices they make which render true financial selfsufficiency illusory for many of them. The decision in Kooverjee v Kooverjee 53 is encouraging in
this regard. The court stressed that the de facto roles of women in society must not be ignored
and that “forcing a model of formal equality onto our society, may just reinforce the existing
unequal roles and hamper the achievement of true and substantive equality”.54 Ignoring past
inequalities contributes to continued discrimination against women. In respect of the earning
capacity of spouses, the court must therefore take into account “that the division of roles in
families, influence[s] not only the past earning capacity of the parties, but also their future
earning capacities”.55
13.2.4 Lump-sum maintenance
In the past, the courts have held that section 7(2) does not empower them to order that
maintenance must be paid by way of a lump sum (that is, by way of a single amount instead of
periodic payments).56 They argued that, as section 7(2) provides that the court must make a
maintenance order “for any period” until the death or remarriage of the party in whose
favour the order operates, the legislator clearly had periodic payments in mind. They further
relied on the analogy provided by section 1 of the Maintenance Act 23 of 1963, which defined
a maintenance order as “any order for the periodical payment of sums of money towards the
maintenance of any person”. The latter argument fell away when the Maintenance Act 99 of
1998 came into operation, as section 1 of this Act empowers the Maintenance Court to make
an order for the payment of maintenance by way of a lump sum.
In Zwiegelaar v Zwiegelaar 57 the Supreme Court of Appeal took the first step towards lumpsum maintenance awards by holding that a spouse may be ordered to pay monthly maintenance as well as a lump sum for household necessaries (that is, a so-called “resettlement
________________________
50 See eg Beaumont v Beaumont 1987 (1) SA 967 (A), Heaton and Kruger Casebook on Family Law case [47];
Archer v Archer 1989 (2) SA 885 (E); Katz v Katz 1989 (3) SA 1 (A); Pillay v Pillay 2004 (4) SA 81 (SE); Kooverjee v Kooverjee [2006] 4 All SA 369 (C), 2006 (6) SA 127 (C); Botha v Botha 2009 (3) SA 89 (W); AV v CV 2011
(6) SA 189 (KZP). On the clean-break principle, see further ch 12 above.
51 Clark and Goldblatt in Bonthuys and Albertyn (eds) Gender, Law and Justice 220.
52 See eg De Jong and Heaton in Heaton (ed) Law of Divorce and Dissolution of Life Partnerships 119–121; De
Jong 1999 THRHR 75. See further Bonthuys 2001 THRHR 192 who analyses the interrelationship between
care, property division and post-divorce maintenance and shows that the rules regarding property division
and maintenance favour men at the expense of their ex-wives and children.
53 [2006] 4 All SA 369 (C), 2006 (6) SA 127 (C).
54 Par 11.2.6.
55 Par 11.2.11.
56 Purnell v Purnell 1989 (2) SA 795 (W); Zwiegelaar v Zwiegelaar [1998] 4 All SA 151 (C), 1999 (1) SA 1182 (C).
See also Schmidt v Schmidt 1996 (2) SA 211 (W) and Martin v Martin 1997 (1) SA 491 (N), which dealt with
the meaning of the comparable phrase “periodical payment” in s 1 of the Maintenance Act 23 of 1963, and
Greenspan v Greenspan 2000 (2) SA 283 (C) where the court held that it does not have the power to make a
lump-sum award for interim maintenance in terms of rule 43 of the Uniform Rules of Court. On rule 43,
see ch 15 below.
57 [2001] 1 All SA 261 (A), 2001 (1) SA 1208 (SCA) par 16, Heaton and Kruger Casebook on Family Law case
[55].
Chapter 13: Maintenance of a spouse after divorce
163
allowance”). The court found that the periodic maintenance payments section 7(2) envisages
need not all be equal in size, and that
[i]n principle there can be no objection to an order which in effect makes provision for fixed
monthly payments but in respect of one or more months makes provision for the payment of an
increased amount, or provides for recurring, unquantified future amounts such as medical expenses or school fees.58
59
In view of the subsequent decision of the Supreme Court of Appeal in Oshry v Feldman it
60
should be clear that the court may make lump-sum awards. In this case, it was held that the
court may award lump-sum maintenance in terms of the Maintenance of Surviving Spouses
61
Act 27 of 1990. Although the facts of the decision limit the judgment to lump-sum maintenance for a surviving spouse, some of the dicta are framed in broad terms and are equally
62
applicable to lump-sum post-divorce maintenance. The court held that the earlier cases in
which the view had been adopted that maintenance excludes a lump-sum amount were no
longer applicable as they were either based on the 1963 Maintenance Act or failed to take
into account that the definition of “maintenance order” in the 1963 Act was no longer in
operation. Section 1 of the 1998 Maintenance Act defines a maintenance order as “any order
for the payment, including the periodical payment, of sums of money towards the maintenance of any person issued by any court in the Republic”. The 1998 Act therefore does not
exclude the payment of maintenance in the form of a lump sum.
13.2.5 Token or nominal maintenance
If there is no reason to make a maintenance order at the time of the divorce, but it is foreseen
that one of the spouses may need maintenance at some future stage and/or that the maintenance debtor will be able to meet the claimant’s existing maintenance needs at some stage in
63
the future, the court may make an order for token or nominal maintenance (that is, a small
monthly amount, such as R1 or R10). The nominal maintenance award can later be varied to
a more meaningful amount if this becomes necessary.64 The reason why courts make orders
for token maintenance is that if a spouse does not get a maintenance order upon divorce, he
65
or she can never get one.
In the past, some courts granted orders for token maintenance more or less as a matter of
course without properly considering the factors in section 7(2) of the Divorce Act.66 This
approach provided the claimant spouse with a free policy against the normal risks of life with
67
the maintenance debtor as the insurer, so to speak. Other courts adopted a stricter
68
approach. For example, in Qoza v Qoza the court held that the factors in section 7(2) must
be taken into account in order to decide, firstly, whether there is a need for maintenance to
be paid and, if so, by whom to whom. The factors must further be taken into account in order
________________________
58 See also the order the court made in Kooverjee v Kooverjee [2006] 4 All SA 369 (C), 2006 (6) SA 127 (C).
59 2010 (6) SA 1 (SCA), Heaton and Kruger Casebook on Family Law case [40].
60 But see M v M (2011/12734) [2011] ZAGPJHC 176, 23 November 2011, where the court in an obiter dictum
doubted whether a lump-sum award is competent.
61 On maintenance in terms of the Maintenance of Surviving Spouses Act, see ch 10 above.
62 See also De Jong and Heaton in Heaton (ed) Law of Divorce and Dissolution of Life Partnerships 138–139;
Heaton 2010 Annual Survey of South African Law 483.
63 See eg Caesar v Caesar 1973 (2) SA 760 (R); Nel v Nel 1977 (3) SA 288 (O); Hurn v Hurn 1978 (3) SA 252
(E); Zeeman v Zeeman 1979 (2) SA 222 (C); Swart v Swart 1980 (4) SA 364 (O); Brink v Brink 1983 (3) SA 217
(D); Buttner v Buttner 2006 (3) SA 23 (SCA); MG v RG 2012 (2) SA 461 (KZP).
64 Variation can be sought in terms of s 8 of the Divorce Act or s 16 of the 1998 Maintenance Act.
65 See above in this chapter.
66 See eg Nel v Nel 1977 (3) SA 288 (O); Portinho v Portinho 1981 (2) SA 595 (T).
67 See eg Ford v Ford 1965 (1) SA 264 (D); Hurn v Hurn 1978 (3) SA 252 (E); Brink v Brink 1983 (3) SA 217
(D); Swart v Swart 1980 (4) SA 364 (O).
68 1989 (4) SA 838 (Ck); see also Lincesso v Lincesso 1966 (1) SA 747 (W); Portinho v Portinho 1981 (2) SA 595
(T); Schutte v Schutte 1986 (1) SA 872 (A).
164
South African Family Law
to decide the amount that has to be paid and the period for which it is to be paid.69 An order
for token maintenance should therefore not be made unless it is shown that the order is
needed. The latter approach was approved and adopted by the Supreme Court of Appeal in
Buttner v Buttner.70 Thus a nominal maintenance award may no longer be made as a matter of
course. It may be made only if application of the factors in section 7(2) to the facts and
71
circumstances of the particular case indicates that such an award is just.
13.3 Rescission, suspension and variation of a maintenance order
13.3.1 General
A maintenance order which was made in terms of the Divorce Act may be rescinded, suspended or varied in terms of section 8(1) of the Act72 if there is sufficient reason for doing so.73
In Cohen v Cohen 74 the Supreme Court of Appeal held that if a Maintenance Court simply
varies the amount of maintenance which is payable in terms of an existing High Court order
and does not expressly or by necessary implication deal with other aspects of the order, those
other aspects remain in force. Thus, for example, a dum casta clause (that is, a clause which
provides that the maintenance recipient will forfeit maintenance if he or she leads an unchaste
life) does not cease to be of force if a Maintenance Court varies the amount of maintenance
that is payable and fails to repeat the dum casta clause in its order.75 The Maintenance Act was
76
subsequently amended in keeping with the decision in Cohen.
________________________
69 But see Ford v Ford 1965 (1) SA 264 (D); Brink v Brink 1983 (3) SA 217 (D). In Brink the court intimated
that inflation constitutes a strongly persuasive factor when a nominal maintenance order is being considered.
70 [2006] 1 All SA 429 (SCA), 2006 (3) SA 23 (SCA).
71 But see MG v RG 2012 (2) SA 461 (KZP), where the court held that making a token maintenance order in
favour of an indigent woman, whose husband did not oppose the divorce action, would be in keeping with
the judgments of the Constitutional Court which require judicial awareness of the vulnerability of women
as a group and with the court’s duty to ensure that the rights in the Bill of Rights are protected, “particularly in cases where because of particular vulnerability those who approach courts for relief might not fully
understand their rights or court processes”: par 24. The court further stated that failing to order token
maintenance would mean that the wife could never claim maintenance even if her circumstances changed
and that “[t]he consequences in such scenario are self-evidently disastrous for the appellant”. These dicta
create the unfortunate impression that women from poor, uneducated backgrounds are more or less entitled to token maintenance. Such an approach to granting token maintenance to any category of women is
not in keeping with Buttner v Buttner [2006] 1 All SA 429 (SCA), 2006 (3) SA 23 (SCA) and is not supported. See also Heaton 2012 Annual Survey of South African Law 356.
72 If an order that was made upon divorce deals only with medical expenses and not with other aspects of
maintenance, the order still qualifies as one dealing with maintenance. It can therefore be amended in
terms of s 8: Van Aswegen v Van Aswegen 2006 (5) SA 221 (SE).
73 But see Botha v Botha 2005 (5) SA 228 (W) where the court, clearly incorrectly, held that s 8 relates only to
variation of orders made in respect of children. Our courts regularly rely on s 8 as empowering them to
vary a maintenance order made in favour of a former spouse: see eg Purnell v Purnell 1989 (2) SA 795 (W);
Reid v Reid 1992 (1) SA 443 (E); Rubenstein v Rubenstein 1992 (2) SA 709 (T); Van Aswegen v Van Aswegen
2006 (5) SA 221 (SE); Georghiades v Janse van Rensburg 2007 (3) SA 18 (C); Welgemoed v Mennell [2007] 3 All
SA 304 (SE), 2007 (4) SA 446 (SE); Bond v Bond [2009] JOL 23915 (C). For criticism of the decision in
Botha, see Van Schalkwyk 2007 De Jure 425. For a discussion of the conflicting case law on the appropriate
forum in respect of the application for rescission, suspension or variation, see De Jong and Heaton in
Heaton (ed) Law of Divorce and Dissolution of Life Partnerships 145–147.
74 2003 (3) SA 337 (SCA).
75 See also Botha v Botha 2005 (5) SA 228 (W).
76 S 22 of the Maintenance Act.
Chapter 13: Maintenance of a spouse after divorce
165
13.3.2 The meaning of “sufficient reason” for purposes of section 8(1) of the
Divorce Act 70 of 1979
The expression “sufficient reason” that is used in section 8(1) of the Divorce Act is not definable. Whether sufficient reason is present is a factual question which must be answered in
view of the circumstances of each case. The applicant bears the burden of proving that sufficient reason exists.77
Although some courts have held that the circumstances which prevailed when the maintenance order was granted must have changed substantially before section 8(1) can be successfully invoked,78 others have not required proof of a change in circumstances.79 As a general
rule, sufficient reason will be absent unless the circumstances have changed materially.
However, changed circumstances are not a statutory prerequisite and there may be situations
in which sufficient reason is present without a material change of circumstances having taken
place.80
The courts are generally unwilling to vary maintenance which was agreed on in a settlement agreement, firstly, because settlement agreements usually reflect a “package deal” and
the courts do not want to rewrite settlement agreements and, secondly, because the courts
support the principle of pacta sunt servanda (that is, agreements must be complied with).81
A maintenance order will not be varied merely because one party is dissatisfied with it.82
Nor will a maintenance order be varied simply because the applicant agreed to an unjust
settlement on divorce.83 Special circumstances must be proved before the court will permit a
party to question the justness of the existing maintenance order. Thus, when the existing
order results in a disparity of income between the parties, such disparity should generally
continue as it is not the function of the court which varies an existing maintenance order to
bring about parity between the parties.84 However, fraudulent non-disclosure of information
which, if disclosed, would have led to a lesser amount being awarded as maintenance or no
amount being awarded at all, does constitute sufficient reason for variation or rescission.85
The party who alleges that the order should be varied or rescinded on the ground of such
non-disclosure bears the onus of proving the extent to which the maintenance would have
been less had the truth been told or proving that no maintenance would have been awarded
at all.86
The remarriage of the party who must pay maintenance is usually not considered sufficient
reason for variation of the maintenance order87 as the courts are reluctant to vary an order
when a person’s difficulty in meeting his or her obligations results from his or her own voluntary undertaking of extra responsibilities. In Davis v Davis 88 it was held that this rule should
also apply in reverse. In this case, the court refused to take the added expenditure caused by a
________________________
77 Reid v Reid 1992 (1) SA 443 (E); Van Aswegen v Van Aswegen 2006 (5) SA 221 (SE).
78 See eg Roos v Roos 1945 TPD 84; Hancock v Hancock 1957 (2) SA 500 (C); Pieterse v Pieterse 1965 (4) SA 344
(T); Reid v Reid 1992 (1) SA 443 (E); Sparks v Sparks 1998 (4) SA 714 (W).
79 Havenga v Havenga 1988 (2) SA 438 (T); Beukes v Beukes 1995 (4) SA 429 (O); Douglas v Douglas [1996] 2 All
SA 1 (A); Van Aswegen v Van Aswegen 2006 (5) SA 221 (SE).
80 Ibid.
81 See eg Reid v Reid 1992 (1) SA 443 (E); Botha v Botha 2005 (5) SA 228 (W); Van Aswegen v Van Aswegen 2006
(5) SA 221 (SE); Georghiades v Janse van Rensburg 2007 (3) SA 18 (C); Bond v Bond [2009] JOL 23915 (C).
82 Sparks v Sparks 1998 (4) SA 714 (W).
83 Reid v Reid 1992 (1) SA 443 (E).
84 Ibid.
85 Hotz v Hotz 2002 (1) SA 333 (W).
86 Ibid.
87 Hancock v Hancock 1957 (2) SA 500 (C); Van der Walt v Van der Walt 1961 (4) SA 854 (O); Heinrich v Heinrich
1968 (2) PH B9 (SWA); Dawe v Dawe 1980 (1) SA 141 (Z); Reid v Reid 1992 (1) SA 443 (E); but see also Chizengeni v Chizengeni 1989 (1) SA 454 (Z). Van Schalkwyk 2002 De Jure 155 supports the decision in Chizengeni. He argues that failing to recognise the liable party’s remarriage as sufficient reason for variation
amounts to unfair discrimination against the liable party’s new spouse.
88 1993 (1) SA 293 (SE).
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woman’s voluntary emigration to England into account as a factor justifying an increase in
maintenance.
The mere fact that the party in whose favour the maintenance order operates lives with
another person does not constitute sufficient reason for rescission of the maintenance order,
unless the maintenance order expressly includes a dum casta clause.89 As indicated above, a
dum casta clause provides that the maintenance recipient will forfeit maintenance if he or she
leads an unchaste life. Nowadays the clause is usually limited to living with another person in
a life partnership.90 In the absence of a dum casta clause, the fact that the person is being
maintained by his or her life partner can be taken into account in determining his or her
need for maintenance if a variation of the maintenance order is sought. However, in view of
91
the decision of the Supreme Court of Appeal in EH v SH logic dictates that the mere fact
that the maintenance recipient is a party to a life partnership does not justify rescission of the
maintenance order.
On its own, inflation does not constitute sufficient reason to justify an increase in maintenance. However, it is one of the factors which are taken into account when variation of a maintenance order is sought, especially in respect of evaluating the ability of the party against whom
the order operates to pay more and the other party’s need for more maintenance.92
13.3.3 Waiver of the right to claim rescission, suspension or variation of a
maintenance order
Prior to the then Appellate Division’s decision in Schutte v Schutte 93 it was unclear whether the
parties to a divorce action could renounce their right to approach the court for rescission,
variation or suspension of a maintenance order. In Schutte a divorcing couple concluded a
settlement agreement in terms of which the husband undertook to pay a specific amount of
maintenance to the wife. This obligation was made subject to the provision that the maintenance would not be increased or reduced. The Appellate Division held that this provision was
valid and that a settlement agreement containing such a clause could be made an order of
court in terms of section 7(1) of the Divorce Act. It should be noted that in this case the
provision bound both parties in the sense that the agreed maintenance was subject to neither
increase nor reduction. The court did not express a view on whether or not a unilateral
waiver of the right to approach the court (for example, if only the right to seek an increase
were excluded) would be valid.
In Polliack v Polliack 94 the question of unilateral waiver did not arise, but Roux J asked the
following question in an obiter dictum:
[I]f it is competent, not unlawful and contra bonos mores for two persons to contract out of and
not rely upon . . . s 8(1) [of the Divorce Act], why should it be incompetent, unlawful and contra
bonos mores for one or three persons to do exactly the same thing?
It is submitted that there is no reason why a unilateral waiver should not be allowed.95 Our
courts seem to have adopted this view too, for today they deal with unilateral waivers without
questioning their validity.96 However, our courts do not lightly find that a party has waived his
________________________
89 Watson v Watson 1959 (1) SA 185 (N); Hughes v The Master 1960 (4) SA 936 (C); Schlesinger v Schlesinger 1968
(1) SA 699 (W); Drummond v Drummond 1979 (1) SA 161 (A).
90 As a dum casta clause imposes a one-sided sanction on the maintenance recipient, who is usually the wife,
and thus provides the maintenance debtor with a means of controlling the life and sexuality of the maintenance recipient, it allows an ex-husband to use money to retain control over his ex-wife, which constitutes
unjustifiable sex and gender inequality in violation of s 9(3) of the Constitution: Heaton Bill of Rights Compendium par 3C27.
91 2012 (4) SA 164 (SCA).
92 Kommissaris van Binnelandse Inkomste v Steyn 1992 (1) SA 110 (A).
93 1986 (1) SA 872 (A). In Girdwood v Girdwood 1995 (4) SA 698 (C), Van Zyl J criticised the decision in Schutte.
See also Davis v Davis 1993 (1) SA 621 (C); Luttig v Luttig 1994 (1) SA 523 (O).
94 1988 (4) SA 161 (W); see also Luttig v Luttig 1994 (1) SA 523 (O).
95 See also Hahlo, 5th edn, 369; Visser and Potgieter 196.
96 See eg Van Aswegen v Van Aswegen 2006 (5) SA 221 (SE); Georghiades v Janse van Rensburg 2007 (3) SA 18 (C).
Chapter 13: Maintenance of a spouse after divorce
167
or her right to seek variation of a maintenance order, and they are by no means in agreement
on what constitutes a waiver.97
13.4 Termination of a maintenance order
13.4.1 General
A maintenance order is terminated if a court rescinds it. Insolvency does not terminate a
maintenance order.98 Nor does the maintenance debtor’s remarriage terminate his or her
duty to pay maintenance to his or her former spouse.
13.4.2 An order in terms of section 7(1) of the Divorce Act 70 of 1979
If the court makes an order in terms of section 7(1) of the Divorce Act in accordance with the
terms of a settlement agreement that provides for payment of maintenance, the provisions of
the agreement determine when the maintenance obligation comes to an end. Thus, the duty
to pay maintenance terminates on the death of the maintenance debtor if the agreement so
provides. If the agreement is silent on or gives rise to doubt as to whether the obligation
continues after the maintenance debtor’s death, the courts favour continuation.99
As the entitlement to maintenance vests in a particular natural person, an order made in
terms of section 7(1) comes to an end when the maintenance recipient dies, regardless of
what the settlement agreement may provide.100
If the settlement agreement contains an express agreement that the maintenance debtor
will continue paying maintenance after the maintenance recipient has remarried,101 the order
is not terminated by the maintenance recipient’s remarriage. The issue of whether the duty
continues if the settlement agreement is silent regarding the maintenance recipient’s remarriage has been the subject of a number of conflicting decisions. Two conflicting approaches
have been adopted: one is that the duty terminates upon the recipient’s remarriage102 and the
other is that it does not.103
In Odgers v De Gersigny 104 the Supreme Court of Appeal dealt with the issue in the context of
a settlement agreement that was never made an order of court. The agreement provided that
the husband would pay maintenance to his wife for 24 months and included a non-variation
clause. Two months after their divorce, the wife remarried. Maya JA held that, in view of the
provision in the settlement agreement, the husband had to continue paying maintenance for
the remainder of the 24 months, despite his former wife’s remarriage. She held that regardless of whether or not a settlement agreement is made an order of court in terms of section
7(1), the terms of the agreement must be interpreted to determine when the duty to pay
maintenance comes to an end. She approved of the approach to the interpretation of
________________________
97 On the case law dealing with the interpretation of clauses relating to alleged waivers, see De Jong and
Heaton in Heaton (ed) Law of Divorce and Dissolution of Life Partnerships 153–155.
98 Weinberg v Weinberg 1958 (2) SA 618 (C).
99 See eg Colly v Colly’s Estate 1946 WLD 83; Owens v Stoffberg 1946 CPD 226; Hughes v The Master 1960 (4) SA
936 (C); Kruger v Goss 2010 (2) SA 507 (SCA).
100 De Jong and Heaton in Heaton (ed) Law of Divorce and Dissolution of Life Partnerships 164; Heaton 2007
THRHR 644. See also Hodges v Coubrough 1991 (3) SA 58 (D); Odgers v De Gersigny 2007 (2) SA 305 (SCA);
Van Schalkwyk 2002 De Jure 144; Sonnekus 2007 TSAR 360. But see the incorrect remark in Welgemoed v
Menell [2007] 3 All SA 304 (SE), 2007 (4) SA 446 (SE) that the parties can agree that maintenance will
be payable beyond the death of the maintenance recipient.
101 Such a clause is valid: Hahlo, 5th edn, 356; Hahlo 1981 SALJ 334; Van Schalkwyk 2002 De Jure 148;
Heaton 2007 THRHR 644.
102 Geldenhuys v Meyers Case 556/96, 19 July 1996 (SEC) (unreported); Van der Vyver v Du Toit 2004 (4) SA
420 (T).
103 Smit v Pienaar Case 13829/94, 20 Nov 1997 (C) (unreported); Welgemoed v Mennell [2007] 3 All SA 304
(SE), 2007 (4) SA 446 (SE).
104 2007 (2) SA 305 (SCA), Heaton and Kruger Casebook on Family Law case [56].
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settlement agreements which had been adopted in Hodges v Coubrough.105 In Hodges the court
had held, inter alia, that the field of interpretation of contracts is very different from the field
of interpretation of statutes. In the case of interpretation of a statute, the intention to be
ascertained is that of the legislator, who is legislating in general terms and with general effect.
In the case of interpretation of a contract, “it is the intention of private individuals, minding
their own business and dealing solely with that” which is at issue.106 Thus, the parties may in
their settlement agreement agree on continuation of the duty to pay maintenance in circumstances in which section 7(2) does not allow continuation. In the present case, the wording of
the settlement agreement was such that Maya JA concluded that the agreement expressly
permitted continuation of the duty to pay maintenance after the maintenance recipient’s
remarriage.
It is submitted that the decision in Odgers is correct. The decisions in which the courts
adopted the view that the maintenance recipient’s remarriage terminates the maintenance
debtor’s duty to pay maintenance unless the agreement expressly provides that the duty continues, applied principles relating to section 7(2) of the Divorce Act to settlement agreements. At the beginning of this chapter it is indicated that the duty of support which arises
from a settlement agreement is governed by the terms of the agreement, while the duty of
support that results from an order in terms of section 7(2) has a statutory foundation. As the
basis of the duty of support arising from a settlement agreement differs completely from the
basis of the duty to which section 7(2) applies, there is no justification for importing the
limitations contained in section 7(2) with regard to the duration of the duty of support into
the interpretation of settlement agreements. There is also no indication that the legislator
intended such importation.107
13.4.3 An order in terms of section 7(2) of the Divorce Act 70 of 1979
If the order is made in terms of section 7(2) of the Divorce Act, the duty to pay maintenance
comes to an end at the time stipulated in the order or upon the death or remarriage of the
party in whose favour the order operates, whichever event occurs first.
Prior to the decision of the Supreme Court of Appeal in Kruger v Goss,108 it was unclear
whether the duty continued after the death of the maintenance debtor. In Copelowitz v Copelowitz 109 the High Court had stated in an obiter dictum, in respect of the predecessor to section
7(2),110 that the duty to pay post-divorce maintenance to a spouse was not terminated by the
death of the liable party and that the party in whose favour the order operated had a claim
for maintenance against the deceased estate of the liable party. In Hodges v Coubrough,111 by
contrast, it had been held that section 7(2) does not empower the court to grant an order for
the payment of maintenance that survives the death of the liable party and binds his or her
deceased estate.
Kruger v Goss 112 settled the issue by holding that an order that was made in terms of section
7(2) cannot be enforced against the deceased estate of the maintenance debtor. The
________________________
105 1991 (3) SA 58 (D).
106 66F.
107 See further Heaton 2007 THRHR 649–650; Heaton 2007 Annual Survey of South African Law 944–945; see
also De Jong and Heaton in Heaton (ed) Law of Divorce and Dissolution of Life Partnerships 164. But see Van
Schalkwyk 2002 De Jure 144 and Sonnekus 2001 TSAR 800, May 2002 De Rebus 26, 2007 TSAR 351 and 2008
De Jure 215 who prefer the view that the maintenance recipient’s remarriage terminates the duty of support unless the settlement agreement expressly provides for continuation.
108 [2010] 1 All SA 422 (SCA), 2010 (2) SA 507 (SCA), Heaton and Kruger Casebook on Family Law case [57].
109 1969 (4) SA 64 (C). In Kommissaris van Binnelandse Inkomste v Steyn 1992 (1) SA 110 (A) the Appellate
Division accepted that the party in whose favour a maintenance order made under s 7(2) operates has a
claim for maintenance against the deceased estate of the liable party. However, the matter was not argued
before the court.
110 Ie, s 10(1)(a) of the Matrimonial Affairs Act 37 of 1953.
111 1991 (3) SA 58 (D).
112 [2010] 1 All SA 422 (SCA), 2010 (2) SA 507 (SCA).
Chapter 13: Maintenance of a spouse after divorce
169
Supreme Court of Appeal held that section 7(2) must be viewed against its common-law
background. In terms of the common law, the spousal duty of support terminates on termination of the marriage. Although the legislator enacted the Maintenance of Surviving Spouses
Act, which provides a surviving spouse with a claim against the estate of his or her deceased
spouse if he or she is unable to provide for his or her reasonable maintenance needs from his
or her own means and earnings,113 the common law has “remained otherwise untouched”.114
The Supreme Court of Appeal supported the conclusion of the court in Hodges v Coubrough
that section 7(2) did not alter the common law by permitting enforcement of a maintenance
order against the deceased estate of the liable party. The Supreme Court of Appeal held that
although a spouse may bind his or her deceased estate for payment of post-divorce maintenance in a settlement agreement, section 7(2) does not empower the court to do so. This
decision strikes one as most unjust. It creates a differentiation between maintenance recipients under section 7(1) and section 7(2) and deprives maintenance recipients of their
maintenance claims only if they acquired these claims by virtue of an order in terms of section
115
7(2). The decision is not only at odds with the right to and the value of equality, but also
fails to protect and promote the right to and the value of dignity because it denies some
maintenance recipients whose former spouses die their court-awarded maintenance without
any regard to their possible vulnerability, even though the courts have repeatedly emphasised
116
the duty to protect the vulnerable.
________________________
113 The Maintenance of Surviving Spouses Act is discussed in ch 10 above.
114 Par 11.
115 If a settlement agreement that has been made an order of court in terms of s 7(1) is silent on whether the
maintenance recipient’s claim survives the death of the maintenance debtor, the courts favour continuation of the claim: see above in this chapter.
116 See eg Gumede v President of the Republic of South Africa 2009 (3) SA 152 (CC); Hassam v Jacobs 2009 (5) SA
572 (CC); Oshry v Feldman 2010 (6) SA 19 (SCA). For further criticism of the decision in Kruger v Goss, see
Heaton 2010 Annual Survey of South African Law 473; Sonnekus 2010 TSAR 635, 637; De Jong and Heaton
2011 SALJ 211; Van Schalkwyk 2011 De Jure. See also De Jong and Heaton in Heaton (ed) Law of Divorce
and Dissolution of Life Partnerships 165.
14
THE INTERESTS OF THE CHILDREN OF
DIVORCING PARENTS
14.1 Introduction
That the best interests of the child are the most important issue with regard to the legal position of the child of a divorcing couple is well known. The discussion in this chapter starts with
an exposition of the child’s best interests. Then the Mediation in Certain Divorce Matters Act
24 of 1987 and section 6 of the Divorce Act 70 of 1979 are discussed. This is followed by an
examination of the aspects regarding the legal position of the child which the court may regulate upon divorce. The enforcement of those aspects is discussed next. Finally, rescission, suspension and variation of an order that was made upon divorce are dealt with.
14.2 The best interests of the child
Section 28(2) of the Constitution of the Republic of South Africa, 1996 provides that a child’s
best interests are of paramount importance in every matter concerning the child.1 Section 6
of the Children’s Act 38 of 2005 furthermore sets out general principles which must guide the
implementation of legislation and guide proceedings, actions and decisions by organs of state
relating to a specific child or children in general.2 Included among these is the principle that
– subject to lawful limitation – all proceedings, actions or decisions in a matter concerning a
child must respect, protect, promote and fulfil the rights the child has in terms of the Bill of
Rights (that is, chapter 2 of the Constitution) and the best interests of the child standard as
set out in section 7 of the Children’s Act.3 In addition, section 9 of the Children’s Act requires
that the paramountcy of the child’s best interests must apply in all matters concerning a
child’s care, protection and well-being. The Convention on the Elimination of All Forms of
Discrimination Against Women also provides that the child’s best interests are paramount.4
The Convention on the Rights of the Child requires that the child’s best interests must be “a
5
primary consideration” in all actions concerning the child, while the African Charter on the
Rights and Welfare of the Child requires that the child’s best interests must be “the primary
consideration” in all actions concerning the child.6 Being a state party to these international
instruments, South Africa is obliged to comply with the duties the instruments impose. It is
therefore clear that the child’s best interests must be the yardstick in respect of the legal
position of a child of divorcing parents.7
________________________
1
2
3
4
5
6
7
On s 28(2), see further ch 22 below.
S 6(1).
S 6(2)(a).
Art 16(1)(d). South Africa acceded to the Convention on 15 Dec 1995.
Art 3(1). South Africa ratified the Convention on 16 June 1995.
Art 4. South Africa ratified the Charter on 7 Jan 2000.
On the protection of the child’s best interests by the Constitution of the Republic of South Africa, 1996,
Convention on the Rights of the Child, African Charter on the Rights and Welfare of the Child and Children’s Act 38 of 2005, see further ch 22 below.
171
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South African Family Law
What is in a child’s best interests is obviously an issue which is determined by the facts and
context of each case.8 In terms of section 7(1) of the Children’s Act, the following factors
must be taken into consideration when they are relevant:9
(1) The nature of the personal relationship between the child and his or her parents, or
any specific parent, and between the child and any other care-giver or relevant person.
(2) The attitude of the parents, or any specific parent, towards the child and the exercise of
parental responsibilities or rights in respect of the child.
(3) The capacity of the parents, any specific parent, or any other care-giver or person, to
provide for the child’s needs, including his or her emotional and intellectual needs.10
(4) The likely effect any change in the child’s circumstances would have on the child,
including the likely effect of the child’s separation from either parent or both parents,
a sibling, another child, or any other care-giver or person with whom the child has been
living.
(5) The practical difficulty and expense of the child having contact with his or her parents,
or a specific parent, and whether that difficulty or expense would substantially affect
the child’s right to maintain personal relations and direct contact with that parent on a
regular basis.
(6) The child’s need to remain in the care of his or her parent, family and extended family,
and to maintain a connection with his or her family, extended family, tribe, culture or
tradition.
________________________
8 The concept of “the best interests of the child” is frequently criticised as being too indeterminate to be a
useful tool, engendering conflict and litigation, and entrenching the rights of parents rather than children.
On the problems encountered when applying the concept, and the arguments for and against its application, see eg B v M [2006] 3 All SA 109 (W), 2006 (9) BCLR 1034 (W); M v S (Centre for Child Law, Amicus
Curiae) 2007 (12) BCLR 1312 (CC) (also reported as S v M (Centre for Child Law as Amicus Curiae) 2008 (3)
SA 232 (CC), 2007 (2) SACR 539 (CC)); Barratt (ed) Persons and the Family 181; Boezaart in Heaton (ed)
Law of Divorce and Dissolution of Life Partnerships 175–176; Davel in Davel and Skelton (eds) Commentary on the
Children’s Act 2–7; Schäfer Child Law in South Africa 154–155; Van Heerden in Van Heerden et al (eds) Boberg’s Law of Persons and the Family 502–504; Van Zyl Divorce Mediation and the Best Interests of the Child 5–12;
Schäfer 1987 SALJ 153–154; Heaton 1990 THRHR 95; Fick 1991 Koers 40–44; Clark 1992 SALJ 394–395;
Bonthuys 1997 SAJHR 623–624, 636–637; Ramolotja 1999 (1) Codicillus 10; Bonthuys 2000 SAJHR 499–501;
Clark 2000 Stell LR 15, 18–19; Labuschagne 2000 CILSA 338; Pieterse 2000 Stell LR 340–341; Davel and De
Kock 2001 De Jure 274 fn 11; Norrie 2002 SALJ 624–625; Davel and Boniface 2003 THRHR 143–144; Ferreira
2010 THRHR 201. On the Western/European, African and Islamic perspectives on the best interests of the
child, see Goolam in Eekelaar and Nhlapo (eds) The Changing Family 369; Ngidi in Boezaart (ed) Child Law
in South Africa ch 9; Bennett 1999 Obiter 145; Knoetze 1999 Obiter 207; Maithufi 1999 Obiter 198; Vahed 1999
CILSA 364; Pieterse op cit 341–342; Bekker and Van Zyl 2002 Obiter 116; Knoetze 2002 Obiter 348; Goolam
2005 PELJ 1; Bekker 2008 Obiter 395; Olowu 2008 Law, Democracy and Development 62; Moyo 2012 African
Human Rights Law Journal 142. On the role of culture and religion in determining the child’s best interests,
see further Heaton 2009 (2) Journal for Juridical Science 10–15.
9 Although a list such as the one in s 7(1) is undoubtedly of great assistance to all bodies and persons who have
to apply the concept of “the best interests of the child”, no list of factors can ever remove the risk of the
concept being manipulated to reflect the subjective views or values of the body or person who has to apply
the concept: see eg Boezaart in Heaton (ed) Law of Divorce and Dissolution of Life Partnerships 175; Van
Heerden in Van Heerden et al (eds) Boberg’s Law of Persons and the Family 503, 543, 544; Davel and De Kock
2001 De Jure 288; Malherbe 2008 TSAR 284. A related difficulty is that historical, political, social, economic
and other factors can be incorporated into the determination of the child’s best interests: see eg B v M
[2006] 3 All SA 109 (W), 2006 (9) BCLR 1034 (W); Boezaart in Heaton (ed) op cit 176; Van Heerden op cit
503; Davel in Davel and Skelton (eds) Commentary on the Children’s Act 2-7; Mosikatsana 1998 Michigan Journal of Race and Law 391; Bonthuys 2001 SALJ 342. These criticisms can be properly addressed only if each
body or person who has to determine the child’s best interests evaluates each individual case or situation in
the light of the individual child’s position and the effect that the individual child’s circumstances are having or will probably have on the child: Heaton 2009 (2) Journal for Juridical Science 9.
10 A parent’s guilt in respect of the breakdown of the marriage is relevant only in so far as it may be indicative
of his or her suitability and ability to exercise parental responsibilities and rights in the best interests of the
child: Fletcher v Fletcher 1984 (1) SA 130 (A); Ex parte Critchfield [1999] 1 All SA 319 (W), 1999 (3) SA 132
(W); B v M [2006] 3 All SA 109 (W), 2006 (9) BCLR 1034 (W).
Chapter 14: The interests of the children of divorcing parents
173
(7)
The age, maturity, stage of development, gender, background and any other relevant
characteristic of the child.
(8) The child’s physical and emotional security and his or her intellectual, emotional,
social and cultural development.
(9) Any disability the child may have.
(10) Any chronic illness from which the child may suffer.
(11) The child’s need to be brought up in a stable family environment or, if this cannot be
achieved, in an environment resembling a family environment as closely as possible.
(12) The need to protect the child from any physical or psychological harm which may be
caused by subjecting him or her to maltreatment, abuse, neglect, exploitation or degradation, exposing him or her to violence, exploitation or other harmful behaviour, or
exposing him or her to maltreatment, abuse, degradation, ill-treatment, violence, or
harmful behaviour towards another person.
(13) Any family violence involving the child or a family member of the child.
(14) Which action or decision would avoid or minimise further legal or administrative proceedings regarding the child.
A major objection to this list is that it is closed; in other words, the factors are supposedly
exhaustive of what could be relevant in determining the best interests of the child. However,
it is unthinkable that a court would refuse to take any other factor into account if it were
relevant in a particular case. Such a refusal would, in any event, be likely to contravene section 28(2) of the Constitution, as it would not render the child’s best interests of paramount
importance, and the presiding officer would be extremely hard-pressed to find a constitutionally justifiable reason for excluding the factor.11
The court must attach such weight to each of the relevant factors as it considers fit and,
ultimately, reach a conclusion based on a value judgement regarding what is in the child’s best
interests in the particular case.12 A child-centred approach must be used. This approach requires “a close and individualised examination of the precise real-life situation of the particular child involved”.13 However, the court must also consider the rights of the child’s parent(s),
for rendering the child’s best interests paramount does not mean that all other constitutional
rights may simply be ignored, or that limitations of the child’s best interests are impermissible.14 The child’s best interests must be applied “in a meaningful way without unduly obliterating other valuable and constitutionally protected interests”.15 Thus, for example, if a
seriously disabled parent sought post-divorce care of his or her child, the court would have to
________________________
11 See also Heaton 2009 (2) Journal for Juridical Science 8. Bonthuys 2001 THRHR 192 points out that division
of assets and post-divorce spousal maintenance shape the economic circumstances of children and their
care-giving parent after the divorce. She therefore pleads for the integration of the child’s best interests
with property division and maintenance. See also Bonthuys 2008 THRHR 200–203. On the use of the term
“care-giving parent”, see below in this chapter.
12 See eg K v M [2007] 4 All SA 883 (E); P v P [2007] 3 All SA 9 (SCA), 2007 (5) SA 94 (SCA).
13 M v S (Centre for Child Law, Amicus Curiae) 2007 (12) BCLR 1312 (CC) (also reported as S v M (Centre for
Child Law as Amicus Curiae) 2008 (3) SA 232 (CC), 2007 (2) SACR 539 (CC)) par 24. See also J v National
Director of Public Prosecutions (Childline South Africa and others as Amici Curiae) 2014 (7) BCLR 764 (CC) par
38. For a discussion of the implications of an individualised, contextualised, child-centred approach, see
Heaton 2009 (2) Journal for Juridical Science 1.
14 Minister of Welfare and Population Development v Fitzpatrick 2000 (7) BCLR 713 (CC), 2000 (3) SA 422 (CC);
LS v AT 2001 (2) BCLR 152 (CC) (also reported as Sonderup v Tondelli 2001 (1) SA 1171 (CC)); M v S (Centre for Child Law, Amicus Curiae) 2007 (12) BCLR 1312 (CC) (also reported as S v M (Centre for Child Law as
Amicus Curiae) 2008 (3) SA 232 (CC), 2007 (2) SACR 539 (CC)). See also De Reuck v Director of Public Prosecutions (Witwatersrand Local Division) 2003 (12) BCLR 1333 (CC), 2004 (1) SA 406 (CC), 2003 (2) SACR 445
(CC) par 55 (obiter). For a discussion on how to deal with conflict of interests between parents and children, see Robinson 2013 THRHR 400.
15 M v S (Centre for Child Law, Amicus Curiae) 2007 (12) BCLR 1312 (CC) (also reported as S v M (Centre for
Child Law as Amicus Curiae) 2008 (3) SA 232 (CC), 2007 (2) SACR 539 (CC)) par 25.
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take the parent’s right to be free from unfair discrimination on the ground of disability16 and
the child’s right to have paramountcy afforded to his or her best interests into account. The
competing interests would have to be weighed up and a proportionality assessment made to
determine whether the court should award care to the disabled parent.17
14.3 The Mediation in Certain Divorce Matters Act 24 of 1987
18
After the institution of a divorce action19 or an application for the variation, rescission or suspension of an order regarding guardianship, care or contact that was made in terms of the
Divorce Act,20 a Family Advocate may be requested to institute an enquiry in terms of the Mediation in Certain Divorce Matters Act.21 The request may be made by the court or a party to the
proceedings.22 If the Family Advocate deems it in the child’s interests, he or she may also of
his or her own accord ask the court to authorise an enquiry.23 In Van Vuuren v Van Vuuren 24
the court indicated that a Family Advocate ought to apply for an order authorising an enquiry
if one of the following situations was envisaged:
(1) Care of a young child will not be awarded to the child’s mother.
(2) Siblings will be separated.
________________________
16 S 9(3) of the Constitution.
17 See further ch 22 below.
18 Although the title and preamble of this Act suggest that the Act provides for mediation, this is not so: see
ch 15 below.
19 S 4(1)(a) of the Mediation in Certain Divorce Matters Act 24 of 1987. A divorce action includes an application in terms of rule 43 of the Uniform Rules of Court: Terblanche v Terblanche 1992 (1) SA 501 (W). In Terblanche the court correctly rejected the decision in Davids v Davids 1991 (4) SA 191 (W) in which it had been
held that the Act does not apply to applications in terms of rule 43. Rule 43 is discussed in ch 15 below.
20 S 4(1)(b) of the Mediation in Certain Divorce Matters Act. But see K v K 2008 (5) SA 431 (W) in which the
court, immediately after granting a divorce order, ordered the Family Advocate to institute an enquiry in
terms of s 4(1)(b). As no application for the variation, rescission or suspension of an order with regard to
guardianship, care or contact had been launched, because the divorce order had only just been granted,
the court’s order requesting the Family Advocate to institute an enquiry in terms of s 4(1)(b) was without a
statutory foundation.
21 S 4(1) of the Mediation in Certain Divorce Matters Act. The Family Advocate may also launch an enquiry
regarding a child born from a customary marriage or from unmarried parents, a child in maintenance proceedings under the Maintenance Act 99 of 1998 and a child in domestic violence proceedings under the
Domestic Violence Act 116 of 1998: s 8(3) of the Recognition of Customary Marriages Act 120 of 1998; s 21
of the Children’s Act; s 10(1A) of the Maintenance Act; s 5(1A) of the Domestic Violence Act. Since the
coming into operation of the Jurisdiction of Regional Courts Amendment Act 31 of 2008 on 9 August 2010,
Family Advocates have also had the power to launch enquiries in divorce and nullity proceedings and related matters in the Regional Divisions of the Magistrate’s Court: see the insertion of s 29(1B)(d) into the
Magistrates Courts Act 32 of 1944 by s 7 of the Jurisdiction of Regional Courts Amendment Act. The Children’s Act extends the Family Advocate’s powers to an even bigger range of matters: ss 22(4)–(6), 23(3),
28(3)(e), 29(5)(a), 33(5), 34(1)(b), 34(3)(b)(ii)(aa), 34(4), 49(1)(a) and 62 of the Children’s Act. As the
Family Advocate is a creature of statute and the Mediation in Certain Divorce Matters Act does not empower the Family Advocate to investigate and report on the child’s welfare after the court has made its order,
the court may not instruct the Family Advocate to “investigate the progress” of, eg, the joint care it orders:
Ex parte Critchfield [1999] 1 All SA 319 (W), 1999 (3) SA 132 (W). See further Van Schalkwyk 2001 De Jure
204–205.
22 S 4(1).
23 S 4(2). In terms of reg 2 of the regulations issued under the Act, the plaintiff in a divorce action in which
any relief regarding guardianship, care or contact is claimed, or an applicant in a subsequent application
for variation, rescission or suspension of an order regarding guardianship, care or contact must complete a
sworn or affirmed form corresponding substantially to Annexure A of the regulations. By perusing the completed form, the Family Advocate can evaluate the need for an enquiry.
24 1993 (1) SA 163 (T), Heaton and Kruger Casebook on Family Law case [58]. In this case, the judge further
warned legal representatives to guard against concessions in respect of children being made by the financially weaker party in order to get a better financial settlement. He failed to mention that the opposite often occurs, ie the financially stronger party claims or threatens to claim care in order to induce the other
party to accept a financially inferior settlement. On the latter point, see further fn 72 below and Heaton
2005 SAJHR 567.
Chapter 14: The interests of the children of divorcing parents
175
(3)
(4)
Care will be awarded to a person other than the child’s parent.
An arrangement regarding care or contact will be made which is prima facie (that is, on
the face of it) not in the child’s interests.
The purpose of the enquiry is to enable the Family Advocate to furnish the court with a
report and recommendations on any matter concerning the welfare of the minor or dependent children born of the marriage.25 A family counsellor assists the Family Advocate in the
enquiry.26 The Family Advocate must help the court by putting information before it, must
refrain from bias and make balanced recommendations.27 The court is not obliged to accept
the Family Advocate’s report and/or recommendations. It may reject them completely or in
part, or accept the Family Advocate’s factual findings but make an order that differs from the
Family Advocate’s recommendations.28
A Family Advocate may also, if he or she deems it in the child’s interests, appear at the trial
of a divorce action or the hearing of an application. If a court requests the Family Advocate to
appear, the Family Advocate must do so. The Family Advocate may adduce any available
relevant evidence and cross-examine witnesses.29
14.4 The Divorce Act 70 of 1979
Section 6 of the Divorce Act specifically regulates the position of minor or dependent children born of the divorcing couple. The section does not apply to stepchildren. Thus, for
example, section 6 does not empower the court to award care of a wife’s child from a previous
marriage to the husband she is currently divorcing or to allow him contact with her child. The
High Court may, however, in its capacity as upper guardian of all minors make any order it
deems in the best interests of the child.30 In this capacity it may, for example, grant contact to
the husband in the above example.
In terms of section 6(1)(a), the court may not grant a decree of divorce until it is satisfied
that the arrangements made or contemplated with regard to the welfare of any minor or
dependent child of the marriage are satisfactory or the best that can be achieved in the
________________________
25 S 4(1).
26 S 3. A family counsellor is usually a social worker, while a Family Advocate is a lawyer who is qualified to be
admitted as an advocate and is fit for appointment as a Family Advocate because of his or her experience in
the adjudication or settlement of family matters: s 2(2).
27 See eg Whitehead v Whitehead 1993 (3) SA 72 (SEC); Van den Berg v Le Roux [2003] 3 All SA 599 (NC).
28 Van den Berg v Le Roux [2003] 3 All SA 599 (NC).
29 S 4(3). The same Family Advocate who conducted the enquiry may appear as counsel at the trial: Van den
Berg v Le Roux [2003] 3 All SA 599 (NC). On the role and functions of the Family Advocate, and the composition, successes and failures of the office of the Family Advocate, see Van den Berg v Le Roux; Terblanche v
Terblanche 1992 (1) SA 501 (W); Whitehead v Whitehead 1993 (3) SA 72 (SEC); Soller v G 2003 (5) SA 430 (W);
Brown v Abrahams [2004] 1 All SA 401 (C), 2004 (4) BCLR 349 (C); Pennello v Pennello [2004] 1 All SA 32
(SCA), 2004 (3) BCLR 243 (SCA) (also reported as Pennello v Pennello (Chief Family Advocate as Amicus Curiae) 2004 (3) SA 117 (SCA)); Barratt (ed) Persons and the Family 369–370; Boezaart in Heaton (ed) Law of
Divorce and Dissolution of Life Partnerships 183–186; Bosman and Van Zyl in Robinson (ed) Law of Children and
Young Persons 64–65; Bosman-Swanepoel et al 34–39; Church and Church in Church (ed) LAWSA Marriage
par 147; De Jong Egskeidingsbemiddeling in Suid-Afrika 54–93; De Jong in Boezaart (ed) Child Law in South
Africa 118–119; Glasser in Burman (ed) The Fate of the Child ch 5; Kaganas and Budlender 3–6, 10–18; Kassan
in Sloth-Nielsen and Du Toit (eds) Trials and Tribulations, Trends and Triumphs 235; Kruger in Clark (ed)
Family Law Service par F57A; Schäfer in Bainham et al (eds) Frontiers of Family Law 30 et seq; Skelton in SlothNielsen and Du Toit (eds) Trials and Tribulations, Trends and Triumphs 220–221; Skelton and Carnelley
(eds) Family Law 141–142; Van Heerden in Van Heerden et al (eds) Boberg’s Law of Persons and the Family
517–524; Van Zyl Divorce Mediation and the Best Interests of the Child 112–121, 123–126; Van Zyl 2000 Obiter
372; Berman et al 2000 SAJHR 535; Clark 2000 Stell LR 6–9; Van Schalkwyk 2001 De Jure 203; Whittle Oct
2001 De Rebus 22; Barratt 2002 THRHR 571–573; Glasser 2002 De Jure 223, 2002 THRHR 74; De Ru 2008
THRHR 702–705; Marumoagae May 2012 De Rebus 40.
30 See ch 23 below on the court’s powers as upper guardian.
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circumstances.31 Furthermore, section 6(1)(b) requires that if the Family Advocate has instituted an enquiry, the court must consider the Family Advocate’s report and recommendations before granting the divorce.
As section 10 of the Children’s Act affords every child who is of such an age, maturity and
stage of development as to be able to participate in any matter concerning him or her the
right to participate in an appropriate way and to have due consideration given to his or her
32
views, the court must also establish whether this section has been complied with. It is very
33
rare for the child to appear in court in person to present his or her views. In divorce proceedings, the court usually relies on the Family Advocate to enquire as to the child’s views and
to include those views in his or her report. However, several authors have expressed concerns
about the Family Advocate’s frequent failure to establish the child’s views and the inaccuracy
with which the child’s views are sometimes conveyed.34 Furthermore, it must be borne in
mind that the Family Advocate does not act as the child’s legal representative. The Family
Advocate acts as an advisor to the court and “a professional and neutral channel of communication between the conflicting parents (and perhaps the child) and the judicial officer”.35
Section 6(2) of the Divorce Act empowers the court to cause any investigation it deems
necessary to be carried out and to order any person to appear before it. Thus the court may,
for example, make an order that the child must be interviewed by an expert, such as a psychologist, and that the expert’s report must be submitted to the court and/or that the expert
must appear in court to give evidence. The expert’s report and evidence can include the
child’s views. Either parent, or both parents, may be ordered to pay the costs of the expert
investigation and appearance.36 Parents may, of course, also appoint their own expert(s), and
frequently do so.37
Another way in which the child’s views can be conveyed is by having a legal representative
appointed for the child in terms of section 6(4) of the Divorce Act and having the parents, or
either of them, pay the costs of such legal representation if necessary. However, the court
38
apparently rarely exercises the power section 6(4) confers on it. Section 28(1)(h) of the
________________________
31 In K v K 2008 (5) SA 431 (W) the court made a divorce order even though contact still needed to be
investigated and resolved. Immediately after granting the divorce order, the court made another order in
which it requested the Family Advocate to enquire into and report on the father’s contact with the child:
see fn 20 above. Solely on the basis of the arrangements that had been made in respect of care, the court
concluded that the provisions made with regard to the welfare of the child were satisfactory. The court was
apparently motivated to make the two orders it did because it wanted to save the parties legal expenses
since they had “limited resources”: par 1. Laudable as this objective may be, the court’s approach unfortunately fails to put the child’s best interests in the paramount position that s 28(2) of the Constitution and
s 6 of the Children’s Act demand, because it isolates contact from the other issues relating to the child’s
welfare. See further De Jong and Kruger 2010 THRHR 153.
32 Barrie 2013 TSAR 124 suggests a progressive interpretation of s 10, with reference to the approach of
Australian courts.
33 Kassan in Sloth-Nielsen and Du Toit (eds) Trials and Tribulations, Trends and Triumphs 232; Palmer in
Keightley (ed) Children’s Rights 112; Kassan 2003 De Jure 169–170; Pillay and Zaal 2005 SALJ 687; SlothNielsen 2008 SAJHR 503; Mahlobogwane 2010 Obiter 241–242.
34 See eg Africa et al in Burman (ed) The Fate of the Child ch 6; Pillay and Zaal 2005 SALJ 687–689. Pillay and
Zaal op cit suggest that making a confidential video-recording of the family counsellor’s interview with the
child for the presiding officer to view might be a better avenue to convey the child’s views.
35 Soller v G 2003 (5) SA 430 (W) par 27.
36 S 6(2).
37 On the escalating use of experts, the problems occasioned by the interaction between legal and child welfare experts and the question of the usefulness of expert evidence in care disputes, see Bonthuys 2001 SALJ
329. On the proper role and approach of experts, see further Stock v Stock 1981 (3) SA 1280 (A); Jackson v
Jackson 2002 (2) SA 303 (SCA); P v P [2007] 3 All SA 9 (SCA), 2007 (5) SA 94 (SCA); Boezaart in Heaton
(ed) Law of Divorce and Dissolution of Life Partnerships 187–188; Lambiase and Kumes 1987 SALJ 704; De Ru
2008 THRHR 704; Lerm May 2015 De Rebus 36.
38 See eg SJ v CJ 2013 (4) SA 350 (GSJ), where the amount each of the parties should contribute to the
maintenance of their adult dependent daughter, who was physically and mentally handicapped, was in dispute. The court found it unnecessary to appoint anyone to care for the interests of the child, as there was,
continued
Chapter 14: The interests of the children of divorcing parents
177
Constitution further entitles the child to legal representation in civil proceedings if absence
of such representation would result in substantial injustice. The legal representation is provided by the state, at state expense. Thus, even if a child’s parents cannot pay for legal representation for the child in divorce proceedings, a legal representative must be appointed for
the child if substantial injustice would otherwise result.39
Section 6(3) of the Divorce Act provides that once the court has considered the family advocate’s report and recommendations and is satisfied that the arrangements made or contemplated with regard to the welfare of the child are satisfactory or the best that can be
achieved in the circumstances, it may make any order it deems fit with regard to the child’s
guardianship, custody, access and maintenance.40 As the Children’s Act requires that, having
regard to his or her age, maturity and stage of development, the child must be informed of any
action or decision taken in a matter which significantly affects him or her,41 the child must be
informed of the order the court has made. The Act does not specify who must inform the
child; presumably it would usually be the child’s parent or the legal representative of one of
the parents or of the child.
14.5 Aspects the court may regulate
14.5.1 General
Section 6(3) of the Divorce Act provides that the court which makes a divorce order may
make any order it deems fit in respect of the “maintenance of a dependent child of the
marriage” or the “custody or guardianship of, or access to, a minor child of the marriage”. In
respect of the part of the section which refers to custody, guardianship and access, it should
be noted, firstly, that “custody” refers to all parts of the concept of “care” as defined in the
Children’s Act except maintenance and contact, while “access” is the common-law equivalent
of the concept of “contact” as defined in the Children’s Act.42 The Children’s Act did not
repeal the terms or the concepts of “custody” and “access”.43 The Act provides that “[i]n
addition to the meaning assigned to the terms ‘custody’ and ‘access’ in any law, and the
common law, the terms ‘custody’ and ‘access’ must be construed to also mean ‘care’ and
‘contact’ as defined in [the Children’s] Act”.44
Various terms and phrases are now used in practice for what are called “custody” and
“access” at common law. They include “care”, “custody”, and “care and custody” for “custody”.
“Residency”, “permanent residency”, “primary residence”, or appointing the parent as “the
primary caregiver” are sometimes used for those elements of “care” which refer to the child’s
________________________
39
40
41
42
43
44
in the court’s view, no conflict between the interests pursued by the plaintiff and those of her dependent
daughter.
On legal representation for a child in divorce proceedings, see further Boezaart in Heaton (ed) Law of
Divorce and Dissolution of Life Partnerships 189, 191–201; Kassan in Sloth-Nielsen and Du Toit (eds) Trials and
Tribulations, Trends and Triumphs 227; Barratt 2002 THRHR 569–570; Kassan 2003 De Jure 169–171, 174;
Sloth-Nielsen 2008 SAJHR 502–503; Bekink and Bekink 2009 (2) Speculum Juris 95, 103; Carnelley 2010
Obiter 638. On s 28(1)(h) of the Constitution, see further ch 22 below.
On this provision, see further below in this chapter.
S 6(5).
In terms of the common law, parental authority/parental power consists of guardianship, custody and access.
S 1(1) of the Children’s Act uses the term “parental responsibilities and rights” instead of “parental power”
or “parental authority”. In terms of s 1(1) of the Act, “parental responsibilities and rights” refer to the responsibilities and rights cited in s 18. S 18(2) defines these responsibilities and rights non-exhaustively to
include caring for the child, maintaining contact with the child, acting as the child’s guardian, and contributing to the child’s maintenance. The first three elements roughly match the components of commonlaw parental authority. At common law, the fourth component of what is now called “parental responsibilities and rights”, namely contributing to the child’s maintenance, exists quite independently of parental
authority. The definition of “care” in s 1(1) of the Children’s Act, however, includes the duty of support:
see par (a)(iii) of the definition. On parental responsibilities and rights, see further ch 23 below.
Wheeler v Wheeler [2011] 2 All SA 459 (KZP) (also reported as WW v EW 2011 (6) SA 53 (KZP)).
S 1(2). The meaning of the terms “care” and “contact” are explained in more detail below in this chapter.
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South African Family Law
45
living with a parent. “Contact”, “access” and “contact and access” are used for “access”.46 In
Wheeler v Wheeler,47 the Pietermaritzburg court came to the conclusion that it would be preferable if the terminology in the Children’s Act were consistently used in divorce proceedings.
The court stated that when one parent is to have what is called “custody” at common law
while the other parent is to have what is called “access” at common law,48 the court should
make an order that both parents will have full parental responsibilities and rights but that the
child “shall reside with” a particular parent and that the specified parent will have “the
responsibility and right to care for” the child while the other parent will have “the responsibility and right to maintain contact with” the child. The court held that the terms “primary
caregiver” and “primary residence” should be used only to qualify joint care.49 However, it is
submitted that the term “care-giver” ought to be avoided in the context of parents and guardians because the Children’s Act ascribes a particular meaning to “care-giver” which excludes a
parent and guardian.50 For this reason, the terms “care-giving parent” and “non-care-giving
parent” are used in this book in preference to “care-giver” or “care-giver parent” and “noncare-giver” or “non-care-giver parent”.
In respect of section 6(3) of the Divorce Act, it should be noted that the court’s power to
make an order relating to guardianship, custody/care and access/contact is limited to minor
children. The reason for this limitation is that parents cease to have guardianship, care and
contact when their child becomes a major.51 The part of the section which refers to maintenance is not subject to the same limitation, because a parent’s duty of support continues until
his or her child becomes self-supporting, regardless of whether this happens before or after
the child attains majority.52 Thus, the court which grants the divorce may make an order regarding the maintenance of a minor child born of the marriage as well as an adult child born
of the marriage if the child is still dependent on his or her parents for maintenance.
As section 6(3) of the Divorce Act expressly distinguishes between guardianship, custody,
access and maintenance, each of these elements of parental responsibilities and rights is discussed separately below. However, instead of using the terms “custody” and “access”, the
terms “care” and “contact” are used because they are in keeping with the terminology used in
the Children’s Act.
14.5.2 Guardianship
(a) The meaning of “guardianship”
At common law, “guardianship” has a wide and a narrow meaning. In the narrow sense, it
refers to the capacity to administer a minor’s estate on his or her behalf, and to assist the
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45 Schäfer in Clark (ed) Family Law Service par E49 submits that divorce pleadings should refer simply to
“care”.
46 See eg Wheeler v Wheeler [2011] 2 All SA 459 (KZP) (also reported as WW v EW 2011 (6) SA 53 (KZP)).
47 [2011] 2 All SA 459 (KZP) (also reported as WW v EW 2011 (6) SA 53 (KZP)). See also Zaal and Couzens
2012 TSAR 188.
48 On “access”, see below in this chapter.
49 On the meaning of “joint care”, see below in this chapter.
50 See also Schäfer Child Law in South Africa 220. S 1(1) of the Act defines “care-giver” as “any person other
than a parent or guardian, who factually cares for a child and includes –
(a) a foster parent;
(b) a person who cares for a child with the implied or express consent of a parent or guardian of the child;
(c) a person who cares for a child whilst the child is in temporary safe care;
(d) the person at the head of a child and youth care centre where a child has been placed;
(e) the person at the head of a shelter;
(f) a child and youth care worker who cares for a child who is without appropriate family care in the community; and
(g) the child at the head of a child-headed household”.
51 In terms of s 17 of the Children’s Act, a minor attains majority at the age of 18 years. On termination of
minority, see further Heaton Persons 112–116.
52 See ch 23 below.
Chapter 14: The interests of the children of divorcing parents
179
minor in legal proceedings and the performance of juristic acts. In the wide sense, it also
includes care. The Children’s Act limits the meaning of “guardianship” to the narrow sense of
the term.53 In terms of section 18(3) of the Act, “guardianship” refers to administering and
safeguarding a child’s property and property interests, assisting or representing the child in
administrative, contractual and other legal matters, and giving or refusing any consent that is
legally required in respect of the child (such as consent to the child’s marriage or adoption).54
(b) The order the court may make in respect of guardianship
As indicated above, the court which orders a divorce may make any order it deems fit regarding guardianship. In terms of the Children’s Act,55 both parents of a child born of married
parents are the child’s guardians. As a general rule, either parent may exercise any aspect of
guardianship independently. This general rule is subject to the exception that the consent of
both parents is needed for the minor’s marriage, adoption, or departure or removal from
South Africa, for the minor’s application for a passport, and for the alienation or encumbrance of the minor’s immovable property. The consent of both parents is also necessary
when any legal rule or court order requires it.56
Usually the parents continue to exercise equal, concurrent guardianship (also sometimes
called joint guardianship) after divorce. If the court deviates from the usual position and
awards guardianship to one of the parents, that parent exercises guardianship alone, but the
other parent’s consent to the child’s marriage and adoption is still required.57 The parent to
whom guardianship is awarded may also not appoint a successor to the exclusion of the other
parent.58 This type of guardianship is sometimes called guardianship simpliciter or single
guardianship. If the court awards “guardianship” to one of the parents, this does not mean
that that parent obtains sole guardianship, for an order awarding sole guardianship must be
made in express terms.59
If the court awards sole guardianship to one of the parents, that parent becomes the child’s
only guardian to the exclusion of the other parent. Sole guardianship means that, apart from
the child’s adoption,60 the sole guardian is the only parent whose consent needs to be
obtained for those acts in respect of which both parents’ consent is normally required. Sole
guardianship is not readily awarded. It may, for example, be awarded when the other parent’s
whereabouts are unknown or when he or she has shown no interest in the child or in
________________________
53
54
55
56
57
Wheeler v Wheeler [2011] 2 All SA 459 (KZP) (also reported as WW v EW 2011 (6) SA 53 (KZP)).
Ss 1(1) and 18(3) of the Children’s Act.
Ss 19(1) and 20.
S 18(3)(c), (4) and (5) of the Children’s Act.
S 233(1)(a) of the Children’s Act expressly requires both parents’ consent to the adoption of their child
regardless of whether the child was born of married or unmarried parents. As regards consent to marry,
s 6(3) of the Divorce Act and s 5(1) of the Matrimonial Affairs Act 37 of 1953 draw a distinction between
guardianship and sole guardianship and refer to “the power to consent to the marriage of the child” only
in the context of sole guardianship. This distinction suggests that a parent of a child born of married parents only has the sole power to consent to the minor’s marriage if he or she has been awarded sole guardianship. On adoption, see further ch 23 below and on consent to a minor’s marriage, see ch 3 above.
58 This is implicit in the wording of s 6(3) of the Divorce Act and s 27(1)(a) of the Children’s Act.
59 The only differences between guardianship simpliciter and sole guardianship seem to be that guardianship
simpliciter does not empower the guardian to appoint a successor to the exclusion of the other parent, and
that both parents’ consent to their minor child’s marriage and adoption is required in the case of guardianship simpliciter. Louw 2003 De Jure 122 fn 48 submits that, apart from the difference regarding appointment of a successor, sole guardianship has the same effect as guardianship simpliciter.
60 S 233(1)(a) of the Children’s Act expressly requires both parents’ consent to their child’s adoption, but
s 236(1)(e) provides that a parent’s consent is not required if a court has divested the parent of the right to
consent to the adoption of his or her child. It is arguable that an order awarding sole guardianship to one
of the parents amounts to an order divesting the other parent of the right to consent to the adoption of his
or her child.
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performing his or her duties as guardian. In terms of section 6(3) of the Divorce Act, a court
which awards sole guardianship to one of the parents upon divorce may order that, on the
predecease of that parent, someone other than the surviving parent will become the child’s
legal guardian, either jointly with, or to the exclusion of the surviving parent. The Children’s
Act further empowers the sole guardian to appoint his or her successor as sole guardian in his
or her will.61 However, before making such an appointment the sole guardian must give due
consideration to any views and wishes the child expresses, bearing in mind the child’s age,
maturity and stage of development.62
14.5.3 Care
(a) The meaning of “care”
Section 1(1) of the Children’s Act defines “care” as encompassing the following:
(1) Within available means, providing the child with a suitable place to live, living conditions that are conducive to the child’s health, well-being and development, and the
necessary financial support.
(2) Safeguarding and promoting the child’s well-being.
(3) Protecting the child from maltreatment, abuse, neglect, degradation, discrimination,
exploitation, and any other physical and moral harm or hazards.
(4) Respecting, protecting, promoting and securing the fulfilment of, and guarding against
any infringement of the child’s constitutional rights and the rights set out in the Children’s Act.
(5) Guiding and directing the child’s education and upbringing in a manner which is
appropriate to the child’s age, maturity and stage of development.
(6) Guiding, advising and assisting the child in decisions he or she has to take, bearing in
mind the child’s age, maturity and stage of development.
(7) Guiding the child’s behaviour in a humane manner.
(8) Maintaining a sound relationship with the child.
(9) Accommodating any special needs the child may have.
(10) Generally ensuring that the child’s best interests are the paramount concern in all matters affecting the child.
Most of the elements of care are also part of the common-law concept of “custody”.63 In terms
of the common law, “custody” refers to a person’s capacity physically to have the child with
him or her and to control and supervise the child’s daily life. Items (1) and (8) above, however, respectively relate to maintenance and contact, which are, at common law, separate from
custody.
(b) The order the court may make in respect of care
During the subsistence of their marriage, both parents have care of the children born of the
marriage. Upon the parents’ divorce, the court may make any order regarding care it deems
in the child’s best interests.64
In the past, care was normally awarded to one of the parents, with mothers being preferred
because it was simply assumed that they make better care-giving parents (especially of young
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61
62
63
64
S 27(1)(a).
S 31(1)(a) and (b)(iii) of the Children’s Act.
Wheeler v Wheeler [2011] 2 All SA 459 (KZP) (also reported as WW v EW 2011 (6) SA 53 (KZP)).
For overviews of some of the cases in which the concept “the best interests of the child” was applied in the
context of care disputes, see Hoffman and Pincus 18–53 and Palmer in Keightley (ed) Children’s Rights 98.
For a comparative survey of the procedural mechanisms for determining the child’s best interests in care
disputes, see Barratt and Burman 2001 SALJ 556.
Chapter 14: The interests of the children of divorcing parents
181
or handicapped children and daughters of whatever age).65 In Van der Linde v Van der Linde 66
the court declared that mothers are not necessarily better able to be good parents on a day-today basis. Hattingh J held that “mothering” refers to caring for a child’s physical and emotional well-being and that mothering is not only a component of a mother but also forms part
of a father’s being. The court emphasised that the quality of a parent’s role is not simply
determined by gender. Consequently, a father can be just as good a “mother” as the child’s
biological mother, and, conversely, a mother can be just as good a “father” as the child’s biological father. The maternal preference has subsequently been rejected in several cases. The
generally accepted view now seems to be that maternity may not, on its own, be used to determine which parent should be awarded care/residency. However, acknowledging the “facts of
the dynamics of pregnancy”67 and “the fact that there is often no one who can quite take the
place of a child’s mother or whose presence and natural affection can give a child the sense
of security and comfort that a child derives from its own mother”68 does not amount to unfair
discrimination on the ground of gender. The best interests of the child remain the paramount consideration. In considering those interests, the court may have regard to maternity,
but may not afford undue weight to it or turn it into the only consideration.69
The rejection of the assumption that mothers make better care-giving parents is undoubtedly in accordance with the equality clause of the Constitution.70 It is also in keeping with section 28(1)(b) of the Constitution, which affords all children the right to parental care, and
not only maternal care. Furthermore, the Convention on the Elimination of All Forms of Discrimination Against Women and the Convention on the Rights of the Child require recognition of the common responsibilities of parents for the upbringing and development of their
children, and the African Charter on the Rights and Welfare of the Child requires state parties to ensure that spouses have equal responsibilities and rights with regard to their children
during the subsistence of their marriage as well as upon its dissolution.71 It should be remembered though, that gender equality claims should never, on their own, determine the outcome of a care dispute, for the child’s interests must be the paramount concern.72
Partly because of considerations of gender equality, joint care is increasingly being awarded.
The term “joint care” is used for joint legal care and joint physical care/joint residency. In the
case of joint legal care, the joint care is limited to joint decision-making about important
________________________
65 The preference afforded to mothers of young children is called the tender-years rule or tender-years doctrine.
66 1996 (3) SA 509 (O), Heaton and Kruger Casebook on Family Law case [59].
67 Ex parte Critchfield [1999] 1 All SA 319 (W), 1999 (3) SA 132 (W) 143B.
68 K v M [2007] 4 All SA 883 (E) 892e–g.
69 Madiehe (born Ratlhogo) v Madiehe [1997] 2 All SA 153 (B); Van Pletzen v Van Pletzen 1998 (4) SA 95 (O); Ex
parte Critchfield [1999] 1 All SA 319 (W), 1999 (3) SA 132 (W); K v M [2007] 4 All SA 883 (E).
70 S 9. See also the prohibition on unfair discrimination on the grounds of sex and gender in s 6(a) read with
the “prohibited grounds” in s 1(1) of the Promotion of Equality and Prevention of Unfair Discrimination
Act 4 of 2000. See further P v P [2007] 3 All SA 9 (SCA), 2007 (5) SA 94 (SCA).
71 Art 15(3)(d) of the Convention on the Elimination of All Forms of Discrimination Against Women; art 18(1)
of the Convention on the Rights of the Child; art 18(2) of the African Charter on the Rights and Welfare of
the Child.
72 Bonthuys 2001 THRHR 192 points out (209) that, having invested more emotional and physical energy in
child-care, women are still more eager than men to retain care. This fact is often used as a bargaining tool
by husbands who sue, or threaten to sue, for care to convince their wives to accept financially inferior settlements. She warns that the movement away from the maternal preference reduces women’s bargaining
power both during marriage and upon divorce. She further shows that there is an interrelationship between care, property division and maintenance that favours men. Because the post-divorce financial position of the care-giving parent is intimately linked to that of the children in the parent’s care, the present
distribution of property upon divorce and the allocation of financial resources after divorce by way of
maintenance operate to the disadvantage, not only of women but also the children in their care. See also
Bonthuys in Heaton (ed) Law of Divorce and Dissolution of Life Partnerships 480; Bonthuys 2000 SAJHR 504–
505. See further Bonthuys in Heaton (ed) Law of Divorce and Dissolution of Life Partnerships 479–481; Bonthuys 1999 THRHR 547; Du Toit 2001 De Jure 459, 2002 TSAR 46, 526.
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issues, such as whether an operation should be performed on the child, where the child
should be educated, and in which language and religion the child should be brought up. The
child usually resides with only one parent, and decisions which are taken on a day-to-day basis,
such as whether the child may watch certain television programmes, whether he or she may
stay over at a friend’s house, and so forth, are left to that parent. In contrast, joint physical
care/joint residency entails that the child spends substantial amounts of time, such as part of
each week, or alternate weeks, with each parent.73
One of the reasons why the courts used to be hesitant to make joint care awards74 was
because it was believed that one parent should control the child’s life, so that the child would
know where he or she stands. The risk of parental conflict and disagreement was also frequently used as an argument against joint care. An objection to joint legal care was that,
because it does not involve sharing of day-to-day care of the child, joint legal care “puts the
care-taking parent in a position of responsibility without power whilst giving the non-caretaker parent (usually the father) power without responsibility”.75 In the case of joint physical
care/joint residency, logistical difficulties may arise unless the parents live reasonably near
one another. Of course, joint physical care is not feasible when the parents live in different
parts of the country.76 It was also argued that the danger of the instability caused by frequent
moves and inconsistency in living arrangements renders joint care undesirable.
The supporters of joint care argue that it ensures a continuing personal relationship between the child and both parents and prevents situations in which one parent assumes the
dominant role in the child’s life, with the other parent becoming an “absent” parent. Furthermore, joint care avoids a “winner-takes-all” situation, which is said to exacerbate hostility and
conflict between parents, which, in turn, harms the child. It is further claimed that joint care
reduces or even eliminates child abduction. Joint care also counteracts sex and gender stereotypes and alleviates the burden of the primary caretaker (usually the mother) who often has
to enter the job-market after divorce.77
In the most recent reported decision on joint care, namely Krugel v Krugel,78 De Vos J rejected the arguments against joint care on the ground that they do not serve the child’s best
interests. She stated that a more liberal approach to granting joint care might be appropriate
in view of the changing roles and responsibilities of parents and the concept of children’s
rights. She specifically rejected hostility between the parents as a bar to joint care. She held
that, as long as both parents are fit and proper persons, they should have equal say in their
child’s upbringing. In deciding whether or not to order joint care, the court has to consider
________________________
73 On the distinction between joint legal and joint physical care/joint residency, see further Krugel v Krugel
2003 (6) SA 220 (T); Boezaart in Heaton (ed) Law of Divorce and Dissolution of Life Partnerships 206–207; Van
Heerden in Van Heerden et al (eds) Boberg’s Law of Persons and the Family 551–552.
74 In Kastan v Kastan 1985 (3) SA 235 (C); Venton v Venton 1993 (1) SA 763 (D); Corris v Corris 1997 (2) SA 930
(W); V v V 1998 (4) SA 169 (C) and Krugel v Krugel 2003 (6) SA 220 (T), orders for joint care were granted,
while they were denied in Schlebusch v Schlebusch 1988 (4) SA 548 (E) and Pinion v Pinion 1994 (2) SA 725
(D).
75 Clark and Van Heerden 1995 SALJ 323.
76 See eg B v M [2006] 3 All SA 109 (W), 2006 (9) BCLR 1034 (W).
77 On the advantages and disadvantages of, and the courts’ approach to joint care, see further Boezaart in
Heaton (ed) Law of Divorce and Dissolution of Life Partnerships 207; Bosman and Van Zyl in Robinson (ed)
Law of Children and Young Persons 61–62; Clark and Goldblatt in Bonthuys and Albertyn (eds) Gender, Law
and Justice 236–240; Hoffman and Pincus 53–56; Kaganas in Murray (ed) Gender and the New South African
Legal Order 169; Palmer in Keightley (ed) Children’s Rights 108–111; Schäfer in Clark (ed) Family Law Service
par E51; Van Heerden in Van Heerden et al (eds) Boberg’s Law of Persons and the Family 551–558; Van Zyl
Divorce Mediation and the Best Interests of the Child 72–76; Joubert 1986 De Jure 353; Schäfer 1987 SALJ 149;
Schoeman 1989 THRHR 462; Meintjes-Van der Walt 1991 De Rebus 462; Schäfer 1994 THRHR 671; Clark
and Van Heerden 1995 SALJ 315; Van Westing 1995 TSAR 605; Bonthuys 2006 Stell LR 491–493.
78 2003 (6) SA 220 (T), Heaton and Kruger Casebook on Family Law case [61].
Chapter 14: The interests of the children of divorcing parents
183
whether input from both parents, “even if that input is at times disharmonious”, is not preferable to an uninvolved parent.79 She held that
[u]nless the disagreement is of such a nature that the child is put at risk either physically or
emotionally, it still seems preferable for the child to learn to deal with the ups and downs of two
involved parents, than to lose half of his or her rightful parental input.80
De Vos J concluded that joint care promotes the rights of children and also helps to establish
sex equality by reshaping gender roles within parenthood.
Although, in principle, joint care is supported, it is submitted that the court should, as a
rule, not make an order for joint care if one of the parents has committed or threatened to
commit domestic violence against the other parent. Research has abundantly shown that
violence against a child’s care-giving parent harms the child.81 Furthermore, it must be borne
in mind that the perpetrator of domestic violence may use future instances of contact between the parents as opportunities to inflict further violence. Fortunately, section 7(1) of the
Children’s Act recognises these facts. It specifically requires that the child’s best interests must
be determined by taking into account the need to protect the child from any physical or
psychological harm that may be caused by exposing him or her to maltreatment, abuse, degradation, ill-treatment, violence, or harmful behaviour towards another person and any family
82
violence involving the child or a family member of the child.
The court may impose limitations on a parent’s right of care/residency,83 such as that he or
she may not remove the child from the court’s area of jurisdiction without the other parent’s
consent.84 Such a limitation entails that, quite apart from the requirement in the Children’s
Act that both parents must consent to their child’s departure or removal from South Africa,85
the care-giving parent may not freely relocate with the child within South Africa; nor may he
or she take the child on holiday to another area of jurisdiction without the other parent’s permission. Such an order is sometimes made when it is feared that the care-giving parent will
run away with the child. Awarding contact to the non-care-giving parent does not mean that
the care-giving parent may not remove the child from the court’s area of jurisdiction.86
The court further has the power to award deferred or postponed care/residency to a parent. This means that the parent will get care of the child at a later stage only, for example,
once the child has been returned to the area of jurisdiction of the court, or after the parent
has satisfied the court that adequate arrangements have been made to receive the child into
his or her care.
The court may award split or divided care/residency to the parents. Split or divided care
refers to one parent having care of some children and the other parent having care of the
other children. Such an order is not granted lightly, as the courts are loath to separate siblings. Split or divided care is normally awarded only if the care-giving parent neglects some of
the children, or if the change will bring about a substantial improvement in a specific child’s
position.87 Split or divided care also refers to giving care first to one parent and then to the
________________________
79 Par 22.
80 Ibid.
81 On the effects of domestic violence on children, see Bonthuys 1999 SAJHR 312–314, 317–319, 325–326. On
domestic violence, see further ch 21 below.
82 See also Boezaart in Heaton (ed) Law of Divorce and Dissolution of Life Partnerships 207. See further Bonthuys
in Heaton (ed) Law of Divorce and Dissolution of Life Partnerships 485–489.
83 In Soller v G 2003 (5) SA 430 (W) the court confirmed a care award in favour of a child’s mother but restricted the mother’s care by allowing the child to live with his father. The child was ordered, however, to
spend specified periods with his mother and to phone her at least twice a week. This limitation on the
mother’s right of care is similar to awarding care to the father and contact to the mother.
84 See eg Di Bona v Di Bona 1993 (2) SA 682 (C).
85 S 18(3)(c)(iii). On this requirement, see further above in this chapter and ch 23 below.
86 See eg Theron v Theron 1939 WLD 355; Stock v Stock 1981 (3) SA 1280 (A). On contact, see below in this
chapter.
87 Van der Linde v Van der Linde 1996 (3) SA 509 (O).
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other parent. For example, a boy’s mother may have care while the child is young, with the
father gaining care when the child reaches a specified age.
The court also has the power to award sole care to either parent. This may happen, for
example, if one of the parents has abused the child. In exceptional cases the court may deprive both parents of care and award it to a third party.88
14.5.4 Contact
(a) The meaning of “contact”
As indicated above in this chapter, “contact” is the statutory equivalent of the common-law
right of access. It refers to maintaining a personal relationship with the child and communicating with the child on a regular basis if the child lives with someone else. The communication may take place in person (for example, by visiting the child or being visited by the child)
or in any other way (for example, via telephone calls, telefaxes, letters, videos, video calls,
electronic mail and mobile phone text messages).89
(b) The order the court may make in respect of contact
Parents who are getting divorced may agree on how contact should occur. The agreement
may be in general terms, such as that the non-care-giving parent will have reasonable contact,
or it may be very specific as to the frequency of contact, the times during which and the
places where contact may be exercised, and so forth. In other words, the parties may agree on
structured or defined contact.
If the parties do not enter into an agreement or if the court does not make an order in
accordance with the terms of their agreement,90 the court may make whatever order it deems
fit regarding contact. The court may order structured or defined contact or make an order in
general terms, such as that the non-care-giving parent is awarded reasonable contact. An
award of reasonable contact means that the non-care-giving parent may have contact with the
child at reasonable times, places and intervals. The parents usually reach agreement on what
is reasonable in their particular circumstances. By virtue of having been entrusted with the
child’s care, the care-giving parent has the final say in the case of a dispute, but he or she may
not impose unreasonable restrictions or conditions negating contact.91 The care-giving parent
may, for example, usually not insist that contact take place at his or her home or in his or her
presence.92 Nor may he or she refuse to allow the other parent to introduce the child to his or
her new spouse, civil union partner, life partner or companion, unless contact with that person is not in the child’s best interests.93 If the parents are unable to agree on what constitutes
reasonable contact, either of them may approach the court for an order structuring contact as
it sees fit.94
The court may impose any conditions and/or restrictions on contact that it deems in the
best interests of the child. For example, if siblings are not in the same parent’s care, the court
may order that contact be exercised in such a way that the children spend weekends together.95 If the relationship between the non-care-giving parent and the child is very poor, the
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88 Edge v Murray 1962 (3) SA 603 (W); see also Hoyi v Hoyi 1994 (1) SA 89 (E). For criticism of the courts’ “uncritical preference for biological parents in custody disputes” (337), see Pieterse 2000 Stell LR 324.
89 S 1(1) of the Children’s Act. On so-called “virtual visits” by means of electronic communication tools such
as e-mail, instant messages, video conferences and video calls, see Bregman June 2007 De Rebus 34; Knoetze
Nov 2013 De Rebus 24.
90 On the court’s power to make an order in accordance with the terms of a settlement agreement, see ch 12
above.
91 See eg Vucinovich v Vucinovich 1944 TPD 143; Marais v Marais 1960 (1) SA 844 (C); Du Preez v Du Preez 1969
(3) SA 529 (D).
92 See eg Mitchell v Mitchell 1904 TS 128; Hodgkinson v Hodgkinson 1949 (1) SA 51 (E).
93 See eg Wolfson v Wolfson 1962 (1) SA 34 (SR).
94 Marais v Marais 1960 (1) SA 844 (C); Bongers v Bongers 1965 (2) SA 82 (O).
95 Van Rooyen v Van Rooyen [2001] 2 All SA 37 (T). On the benefits of contact between siblings, see Labuschagne and Van der Linde 2003 De Jure 349–351. On split or divided care, see above in this chapter.
Chapter 14: The interests of the children of divorcing parents
185
court may order phased-in contact. In other words, the court may order that initially contact
is to occur only occasionally, and that contact should become more regular as the re96
lationship improves. The court may also postpone contact until the non-care-giving parent
has, for example, successfully undergone treatment for alcoholism, drug-dependency or
abusive behaviour. A parent’s contact may also be suspended pending a psychological or psychiatric evaluation to determine whether contact is in the child’s best interests and/or pending the parent’s undergoing psychological or psychiatric treatment or therapy.97
The court may also order supervised contact. This entails that a specified person, such as
the care-giving parent or his or her representative, a social worker, psychologist, psychiatrist
or an independent person nominated by the Family Advocate must be present when the noncare-giving parent exercises his or her right of contact.98 An order for supervised contact is
normally made only if contact entails a clear risk to the child, such as abuse or abduction, or
if a long period of time has elapsed since the child last had contact with the parent.
Other restrictions the court may impose include prohibiting physical contact. The parent
may be prohibited from seeing or visiting the child in person but may be allowed to communicate with the child by means of telephone calls, telefaxes, letters, videos, video calls,
electronic mail, mobile phone text messages and so forth.99
If the divorce order is silent on contact, the non-care-giving parent is still entitled to have
contact with the child. The court will deny the non-care-giving parent contact only if this is in
the child’s best interests.100 Extreme antipathy by the care-giving parent towards the non-caregiving parent is an insufficient ground for denying the non-care-giving parent contact.101 Likewise, the mere fact that the child is opposed to contact does not invariably mean that the noncare-giving parent must be denied contact. The child’s views and the reasons for his or her
opposition to contact must be considered with due regard to his or her age, maturity and
stage of development.102 For example, if teenagers are vehemently opposed to contact by their
father because he committed domestic violence against their mother and has had only irregular contact with them for some time, the court may well deny the father contact, as the court
did in I v S.103 If the court is convinced that this is in the child’s best interests, it may award
contact to a third party who does not have an inherent right of contact, such as a sibling,
grandparent, or step-parent, but then it does so in its capacity as upper guardian of all
minors.104
The court should be careful how it formulates its judgment about the reasons why conditions are being imposed on contact or why contact is being denied. In Van Rooyen v Van
Rooyen 105 a lesbian mother sought an order defining her contact rights to her two children, a
________________________
96 See eg Redelinghuys v Redelinghuys [2010] ZAECPEHC 68 (22 October 2010).
97 R v H [2006] 4 All SA 199 (C), 2005 (6) SA 535 (C).
98 See eg Clutton v Clutton 1929 EDL 174; LS v AT 2001 (2) BCLR 152 (CC) (also reported as Sonderup v
Tondelli 2001 (1) SA 1171 (CC)); Duncan v Coetzee [2012] ZAECPEHC 71 (25 September 2012).
99 On the different types of contact, see further Boezaart in Heaton (ed) Law of Divorce and Dissolution of Life
Partnerships 211; Bosman and Van Zyl in Robinson (ed) Law of Children and Young Persons 62–63; Schäfer
The Law of Access to Children ch 9. On defined or structured contact, see also Schäfer in Clark (ed) Family
Law Service par E61.
100 See eg Van den Berg v Van den Berg 1959 (4) SA 259 (W); Dawn v Dawn 1968 (1) PH B3 (D).
101 Kougianos v Kougianos Case AR926/94 (N) (unreported), discussed by Singh 1996 SALJ 701. The court
overturned the decision of the court a quo (Kougianos v Kougianos Case 957/93 (D) (unreported), discussed by Singh 1996 SALJ 170) in which the father had been denied contact because of the intense aversion of the mother to his having contact.
102 S 10 of the Children’s Act.
103 2000 (2) SA 993 (C). Although this case concerned the position of children born of unmarried parents, a
court would surely reach the same conclusion in respect of children born of married parents who are getting divorced. On the ways in which domestic violence is relevant with regard to contact, and the effect of
domestic violence on children, see Bonthuys 1999 SAJHR 312–314, 317–319, 325–326.
104 On the High Court’s upper guardianship of all minors, see ch 23 below.
105 1994 (2) SA 325 (W).
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boy aged 11½ and a girl aged 9½. Her fitness as a mother was never in dispute. In a decision
replete with judgemental remarks about the abnormality and unacceptability of homosexual
relationships, Flemming DJP held that although the mother had the freedom to choose her
own lifestyle her children’s best interests could not be served by allowing them to be exposed
to their mother’s lesbian relationship. He granted the mother contact but imposed several
conditions under which she had to exercise it. He required, inter alia, that her female partner
be excluded from her bedroom when the children slept over during weekends and be altogether excluded from the house when the children spent school holidays with their mother.
She was further ordered to take all reasonable steps to prevent exposing the children to
lesbianism or articles such as videos or photographs which might connote homosexuality or
approval of lesbianism. Van Rooyen was decided prior to the coming into operation of the Bill
of Rights.
After the coming into operation of the Bill of Rights, Foxcroft J in V v V 106 criticised Flemming DJP’s remarks in Van Rooyen and held that, in view of the equality clause,107 it is legally
wrong to describe homosexual orientation as abnormal. He pointed out, however, that
because the child’s rights are paramount, “situations may well arise when the best interests of
the child require that action is taken for the benefit of the child which effectively cuts across
the parents’ rights”.108 In V the parents had for approximately two years before their divorce
by arrangement exercised joint care. At the time of the divorce, the father asked the court to
award sole care to him and to allow the mother, who was a lesbian, only supervised contact
and only in his home. The court held that the mother was a good and fit mother and that it
would be unfair to her and the children to force her to exercise contact in the position of a
visitor to her ex-husband’s home. The court concluded that joint care should continue.109
In a sequel to the Van Rooyen decision referred to above, the court subsequently granted
the mother interim care of her daughter after a rift developed between father and daughter.110 The father had read his daughter’s diary and had been incensed by learning that she
had entered into an intimate relationship with her boyfriend and had once taken Ecstasy. He
became emotionally abusive and terrified his daughter. In his judgment, Bertelsmann J supported Foxcroft J’s view in V that describing homosexuality as abnormal violated the equality
clause. He held that there is no justification for regarding a lesbian home as per se less suitable
than one in which another sexual orientation prevails. He further held that Flemming DJP’s
order in the original Van Rooyen case was
clearly constitutionally untenable as it prevents the applicant and her partner from living a normal life as partners, sharing a bedroom, displaying affection for one another and using whatever
household and personal items they would normally do in their home in the presence of the children.111
________________________
106
107
108
109
1998 (4) SA 169 (C) 189B, Heaton and Kruger Casebook on Family Law case [60].
S 9 of the Constitution.
189B–C.
In Greyling v Minister of Welfare and Population Development Case 98/08197 (W) (unreported), the removal of
a woman’s child from her care on the ground of her lesbianism was also set aside: Jordaan 1998 De Jure
303.
110 Van Rooyen v Van Rooyen [2001] 2 All SA 37 (T).
111 41b. On the constitutional arguments regarding the position of a homosexual parent, see further De Vos
Bill of Rights Compendium pars 3J51–3J52; Heaton Bill of Rights Compendium par 3C30; Van Heerden in Van
Heerden et al (eds) Boberg’s Law of Persons and the Family 545–546; Visser and Potgieter 170 fn 108; Bonthuys 1994 Stell LR 298; Brits 1994 THRHR 710; De Vos 1994 SALJ 687; Lind 1995 SALJ 488–489; Singh
1995 SAJHR 571; Viljoen 1995 Stell LR 232; Pantazis 1996 SAJHR 291; Clark 1998 CILSA 288; Jordaan 1998
De Jure 302; Labuschagne 1999 SALJ 492–493; Ramolotja 1999 (1) Codicillus 13–14; Clark 2000 Stell LR 16–
17; Van Schalkwyk 2000 THRHR 296–297; Robinson 2005 Journal for Juridical Science 107. On the various
approaches the courts adopt in determining the child’s best interests if the child’s parent is lesbian or gay,
see Bonthuys op cit 310 et seq; Clark 1998 CILSA 288; Jordaan op cit. See further Bonthuys 1999 THRHR
561–564. Pantazis 2000 SALJ 51 points out that courts invariably assume that children are heterosexual.
continued
Chapter 14: The interests of the children of divorcing parents
187
14.5.5 Maintenance
(a) The meaning of “maintenance”
Maintenance is not defined in the Children’s Act and thus retains its common-law meaning of
encompassing items like food, clothing, accommodation, medical care and a suitable education.112
(b) The order the court may make in respect of maintenance
After their divorce, both parents remain obliged to support their children in accordance with
their respective means.113 Normally, the non-care-giving parent is ordered to pay the caregiving parent a specified amount of maintenance for the children on a weekly or monthly
basis. However, the parent with whom an adult114 but dependent child lives may not claim
maintenance on behalf of the adult child, because only the adult child has locus standi to sue
for his or her maintenance.115 The adult child need not, however, institute separate proceedings to claim maintenance. He or she may be joined as a party in the divorce proceedings and
claim maintenance in his or her own name in those proceedings because section 6(3) of the
Divorce Act empowers the court which grants a divorce to make any order it deems fit in
regard to the maintenance “of a dependent child of the marriage”.116
This position, which is a direct result of the lowering of the age of majority to 18 years,
places many dependent young adults in a prejudicial position, for the following reasons.
Firstly, it is generally accepted that it is undesirable for children to become involved in the
conflict between their divorcing parents by being joined as parties in divorce proceedings.
Secondly, the adversarial system of litigation still forms part of the divorce process. Although
our courts permit a relaxation of the adversarial approach in cases involving children, this
approach does not benefit young adults as they are no longer children. Thirdly, it may be very
awkward for the parent with whom the child lives to expect the adult child to pay over some
of the maintenance received as a contribution to the child’s living costs. Further, some adult
dependent children refuse to institute their own maintenance claims, thereby placing an even
heavier burden on the parent with whom they reside, who is usually the mother. This further
117
exacerbates the already vulnerable position many women find themselves in after divorce.
In two recent cases our courts have come to the aid of mothers and adult dependent chil118
dren who resided with them after divorce, albeit in very different ways. In Butcher v Butcher a
mother applied for maintenance for herself and her two daughters aged 18 and 21 who lived
with her, in terms of rule 43 of the Uniform Rules of Court, pending divorce litigation. She
applied for maintenance in the form of a specified monthly amount for herself, as well as
certain expenses related to the household and the daughters’ clothing, pocket money, cell
phone accounts and the maintenance of their motor vehicles. The court confirmed that only
an adult child has locus standi to sue the other parent for maintenance, as neither the Divorce
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112
113
114
115
116
117
118
He indicates that if a child is homosexual, the child’s parent(s) may discriminate against him or her and
not act in his or her best interests: 64.
Wheeler v Wheeler [2011] 2 All SA 459 (KZP) (also reported as WW v EW 2011 (6) SA 53 (KZP)); Heaton in
Davel and Skelton (eds) Commentary on the Children’s Act 3-5. For a more detailed description of the content of maintenance, see ch 23 below.
S 15(3)(a)(i) and (ii) of the Maintenance Act; s 21(2) of the Children’s Act; Herfst v Herfst 1964 (4) SA
127 (W); Zimelka v Zimelka 1990 (4) SA 303 (W); Osman v Osman 1992 (1) SA 751 (W); B v B [1999] 2 All
SA 289 (SCA) (also reported as Bursey v Bursey 1999 (3) SA 33 (SCA)). On the duty of support in respect
of a child, see further ch 23 below.
In terms of s 17 of the Children’s Act, a minor attains majority (ie, becomes an adult) at the age of 18
years.
Smit v Smit 1980 (3) SA 1010 (O); Butcher v Butcher 2009 (2) SA 421 (C), Heaton and Kruger Casebook on
Family Law case [62].
Butcher v Butcher 2009 (2) SA 421 (C). See also above in this chapter.
See in general De Jong 2013 THRHR 654.
2009 (2) SA 421 (C), Heaton and Kruger Casebook on Family Law case [62].
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South African Family Law
Act nor the Children’s Act expressly authorises one parent to claim maintenance from the
other parent on behalf of the child. The court consequently dismissed the claim for specific
individual expenses in respect of the adult children such as their pocket money, cell phone
accounts, clothing and motor vehicle expenses, finding that these expenses must be claimed
as maintenance by the child. However, the court held that the parent with whom the adult
dependent child lives may include amounts relating to the child’s general expenses, such as
the child’s food and groceries and other general household expenses which may also relate to
the child, in her claim for interim maintenance. One of the reasons for this finding is that, in
terms of section 7(2) of the Divorce Act, one of the considerations the court must take into
account when deciding a claim for spousal maintenance is the parties’ respective financial
needs and obligations. If an adult dependent child lives with a parent, that parent has to “use
her household budget to run the family home and provide groceries for a three-member
119
household”. In this way she incurs an “obligation” within the meaning of section 7(2). This
obligation was taken into account in determining the amount of the interim maintenance to
120
which the mother was entitled.
121
In a case with a very similar set of facts, a different approach was followed. In JG v CG the
parent with whom the child was living also claimed maintenance for herself in terms of rule
43. She not only claimed for her own expenses but also for expenses relating to general
household items in which the child shared (such as groceries consumed, in part, by the child)
and expenses relating specifically to the child (such as his clothing, cell phone, pocket money, haircuts, studies and recreational expenses). Advocating a proper and purposive interpretation of rule 43 read with sections 6 and 7(2) of the Divorce Act and the common law, the
court rejected the decision in Butcher, and allowed the parent to claim not only shared or
general expenses, but also specific individual expenses in respect of an adult dependent child
who had not been joined in the proceedings. The court emphasised that this type of award
would not be appropriate in every case, but that the facts and circumstances of each case must
determine whether the court should make the order requested.
Although the approach in JG v CG is simpler, more convenient, and more practical than
the approach adopted in Butcher, it remains to be seen which of these decisions will be followed in future. The legislature ought to address this problem by enacting legislation that
expressly confers locus standi on a parent with whom a dependent adult child lives to sue the
other parent for maintenance on the child’s behalf. This legislation should not limit the adult
122
dependent child’s locus standi in any way.
De Jong is of the view that, generally, adult dependent children should not be joined as
parties in divorce proceedings to institute their own maintenance claims. She advocates an
expansive interpretation of the Children’s Act to include adult dependent children in respect
of their maintenance claims upon their parents’ divorce, recommending that these claims
123
should be dealt with by their parents in parenting plans together with minor siblings’
maintenance claims and arrangements regarding the minor children’s guardianship, care
and contact. If the divorcing parents no longer have any minor children, or where they do
not conclude a parenting plan, the maintenance claims of adult dependent children could be
dealt with in the spouses’ settlement agreement. If the parents cannot agree on a parenting
plan or settlement agreement, the parent with whom the adult dependent child resides
124
should be able to institute a maintenance claim on behalf of the child.
________________________
119
120
121
122
123
124
Par 17.
Ibid.
2012 (3) SA 103 (GSJ), Heaton and Kruger Casebook on Family Law case [63].
See Heaton 2009 Annual Survey of South African Law 480; 2012 Annual Survey of South African Law 349.
In terms of ss 33–35 of the Children’s Act. On parenting plans, see ch 23 below.
De Jong 2013 THRHR 661–665.
Chapter 14: The interests of the children of divorcing parents
189
The care-giving parent cannot claim maintenance from the other parent if the latter does
not have the means to support the child. In Zimelka v Zimelka 125 the court emphasised that a
maintenance order is ancillary to the duty of support.126 It does not follow that because there
is a duty of support, there must be an award against the non-care-giving parent. The practical
incidence of the duty of support depends on the facts of each case and the parent’s ability to
contribute to the child’s maintenance at the particular time. In this case, the original divorce
order provided that care was awarded to the father and that he would maintain the children
without a contribution from their mother. The father subsequently applied for an order compelling the mother to contribute to the children’s maintenance. The court found that the
mother could not afford to pay maintenance and that she did in fact make a substantial contribution to the children’s maintenance, as they spent part of the year with her.127 Consequently, the court refused to vary the original order.
The care-giving parent may not claim so much maintenance for the child that the non-caregiving parent retains no income. In Baart v Malan 128 the parties entered into a settlement
agreement which was incorporated into the divorce order.129 They agreed that the children
would be placed in their father’s care. As her contribution to the children’s maintenance, the
mother undertook to pay her gross salary each month, as well as her annual bonus, to the
children’s father. She assumed this burden for a period of 20 years. After honouring her
obligations for 17 months, she sought an order varying the agreement. The court found that
the effect of the agreement was that the mother was required to pay more than she earned
each month as her monthly income tax payments were deducted from her salary before she
received it. This meant that the agreement deprived her of any material benefit from her
employment. The court concluded that the clause was unconscionable and contrary to public
policy and struck it from the deed of settlement.
14.6 Enforcement of guardianship, care and contact
14.6.1 Introduction
The various elements of parental responsibilities and rights can be enforced by way of civil
and criminal remedies. The enforcement of maintenance is discussed in chapter 5 above. The
discussion below deals only with the enforcement of guardianship, care and contact.
14.6.2 Interdict
Anyone who threatens to interfere with the legitimate and proper exercise of any element of
guardianship, care or contact can be interdicted from doing so.130 For example, if the noncare-giving parent threatens to remove the child from the school in which the care-giving
parent has, in the proper exercise of his or her responsibility and right of care, placed the
child, an interdict can be issued against the non-care-giving parent. If interference has already
occurred, the person can also be instructed to restore the status quo ante (that is, the previous
position) and/or be interdicted from engaging in further interference. For example, if one
parent removes the child from the other parent’s lawful care, he or she can be ordered to
________________________
125 1990 (4) SA 303 (W); see also Kemp v Kemp 1958 (3) SA 736 (D); B v B [1999] 2 All SA 289 (SCA) (also
reported as Bursey v Bursey 1999 (3) SA 33 (SCA)).
126 S 15(1) of the Maintenance Act also recognises that a maintenance order is ancillary to the duty of support. This section provides that a maintenance order in respect of a child is directed at the enforcement
of the common-law duty of support as it exists at the time of making the order and is expected to continue. On the Maintenance Act, see ch 5 above.
127 On taking the value of the labour involved in rendering child-care into account in respect of a maintenance award, see further Bonthuys 2001 THRHR 204–205.
128 1990 (2) SA 862 (E).
129 On settlement agreements, see ch 12 above.
130 See eg Taylor v Taylor 1952 (4) SA 279 (SR); Van Tonder v Van Tonder 2000 (1) SA 529 (O).
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South African Family Law
return the child and refrain from removing the child in future. This rule applies even in the
absence of an existing court order awarding care to the parent from whom the child was
removed.131
14.6.3 An order directing compliance
If either parent fails to comply with the terms of an existing court order regarding guardianship, care or contact, the court may issue an order directing compliance.132 However, if the
breach took the form of removing the child from South Africa, the South African court does
not have jurisdiction to order the child’s return. Instead, the court which has jurisdiction in
the area where the child now resides must be approached for an order compelling the child’s
return to South Africa. If a South African court made an order in such a situation, the order
could not be enforced by the South African court and would therefore be ineffective.133 If the
country or state to which the child has been removed is a party to the Hague Convention on
the Civil Aspects of International Child Abduction and the child is below the age of 16 years,
the provisions of this Convention can be used to obtain the child’s return to South Africa so
that any dispute regarding care or contact can be decided here. The Convention is discussed
in chapter 23 below.
14.6.4 Reasonable force
It has been held that a parent who wants to enforce contact may use reasonable force to do so
and may expect the care-giving parent to take steps to persuade an unwilling child to submit
to contact.134 Whether this approach is acceptable in present times is unclear. What is clear is
that the child’s views on why he or she does not want contact must be established and given
due consideration, taking his or her age, maturity and stage of development into account.135 It
is submitted that if an older child is intractably opposed to contact and his or her opposition
136
is not simply the product of parental indoctrination or parental alienation syndrome, the
child ought not to be forced to endure contact.
14.6.5 Criminal sanctions
Refusing to allow someone who has a right to contact or who holds parental responsibilities
and rights in terms of a court order or a parental responsibilities and rights agreement that
has taken effect137 to exercise such right is a crime.138 Preventing the exercise of such right is
also a crime.139 Furthermore, a person who has care while another person has a right of contact or has parental responsibilities and rights in terms of a court order or a parental responsibilities and rights agreement that has taken effect, must immediately notify the other person
in writing of any change in his or her residential address.140 Failure to give such notice is a
crime.141 Punishment for any of these crimes is a fine or imprisonment for up to one year.142
________________________
131 See eg Van Tonder v Van Tonder 2000 (1) SA 529 (O).
132 See eg Matthews v Matthews 1983 (4) SA 136 (SE); Jonker v Stoffels [2010] JOL 25571 (NCK). On the
practical problems the parent may encounter in obtaining such an order, see Hlophe 1998 SALJ 441.
133 See eg Di Bona v Di Bona 1993 (2) SA 682 (C); B v S [2006] 4 All SA 515 (SCA), 2006 (5) SA 540 (SCA).
134 Oppel v Oppel 1973 (3) SA 675 (T); Germani v Herf 1975 (4) SA 887 (A); Katz v Katz [2009] JOL 23557
(GSJ), but see Pommerel v Pommerel Case 4042/1986 (SE) (unreported).
135 S 10 of the Children’s Act.
136 On parental alienation syndrome, see Bosman-Sadie and Corrie 64; Chürr LitNet Akademies (Regte) 8 April
2015, http://www.litnet.co.za/Article/aantekeninge-oor-regsaspekte-van-ouervervreemdingsindroom-insuid-afrika (accessed 22 June 2015).
137 A parental responsibilities and rights agreement takes effect when it is registered by the Family Advocate
or made an order of court in terms of s 22(4) of the Children’s Act. See further ch 23 below.
138 S 35(1) of the Children’s Act.
139 Ibid.
140 S 35(2)(a) of the Children’s Act.
141 S 35(2)(b) of the Children’s Act.
142 S 35(1) and (2)(b) of the Children’s Act.
Chapter 14: The interests of the children of divorcing parents
191
Anyone who wilfully and in a mala fide manner exercises any aspect of guardianship, care or
contact in violation of an existing court order can also be charged with contempt of court.
The same applies if someone frustrates an order regarding guardianship, care or contact wilfully and in a mala fide manner.143 For example, if a divorce order includes a term that the
care-giving parent may not remove the child to another province without first obtaining the
other parent’s consent, the care-giving parent can be charged with contempt of court if he or
she secretly relocates the child to another province. It must be borne in mind, however, that
the mere fact that a parent may be in contempt of court does not mean that the court is compelled to enforce the existing order. If enforcement is not in the child’s best interests, the
court will refuse to enforce the order. Thus, for example, a court will not order that a child be
returned to the care of someone who is known to be abusing him or her.
14.7 Rescission, suspension and variation of an order made upon
divorce
Section 8(1) of the Divorce Act provides that the court may rescind or vary an order regarding guardianship, care, contact or maintenance, or suspend a maintenance order or contact
order made upon divorce if there is sufficient reason for doing so.144 If the Family Advocate
has instituted an enquiry in terms of the Mediation in Certain Divorce Matters Act, the court
may not grant an application for rescission, variation or suspension unless it has considered
the Family Advocate’s report and recommendations.145 The paramount concern is the child’s
best interests.146 The child may participate in the matter depending on his or her age, maturity and stage of development.147
It should also be borne in mind that section 5(1) of the Matrimonial Affairs Act 37 of 1953
empowers the court to make whatever order it deems fit in respect of guardianship or care of,
or contact with, a child who was born of married parents. This order may be made on the
application of either parent if the child’s parents are already divorced. In other words, section
5(1) of the Matrimonial Affairs Act can be used to obtain a post-divorce order regarding
guardianship, care or contact.148
Further, in its capacity as upper guardian of all minors, the High Court has the power to
vary, rescind or suspend any order regarding guardianship, care, contact or maintenance,149
and a Maintenance Court may vary or rescind a maintenance order in respect of a child in
terms of the Maintenance Act 99 of 1998.150
If a South African court is approached for rescission, variation or suspension of an order a
foreign court made in respect of a child who now resides in South Africa, the common-law
rule is that the court must establish what is in the child’s best interests and make an independent judgment on the evidence before it.151 However, if the child is below the age of 16
________________________
143 See eg Hepburn v Miller [2008] JOL 21354 (W), where a suspended sentence of a fine of R20 000 was
imposed on the transgressing parent and Jonker v Stoffels [2010] JOL 25571 (NCK), where the respondent
was sentenced to one month’s imprisonment. The latter sentence was suspended for 10 days provided the
respondent delivered the child to the applicants as ordered.
144 On the meaning of “sufficient reason”, see ch 13 above.
145 S 8(1) of the Divorce Act. On enquiries in terms of the Mediation in Certain Divorce Matters Act, see
above in this chapter.
146 See above in this chapter. See also Gumbi v Goba [2011] JOL 26631 (KZP).
147 S 10 of the Children’s Act.
148 On s 5(1) of the Matrimonial Affairs Act, see ch 23 below.
149 On the court’s powers as upper guardian, see ch 23 below.
150 On variation and rescission of a maintenance order in terms of the Maintenance Act, see ch 5 above. On
the termination of a maintenance order when the child in respect of whom the maintenance must be
paid becomes self-supporting or reaches the age stipulated in the order, see ch 23 below.
151 The same rule applies if enforcement of a foreign care or contact order is sought: see eg Märtens v Märtens
1991 (4) SA 287 (T); Di Bona v Di Bona 1993 (2) SA 682 (C); Kirsh v Kirsh [1999] 2 All SA 193 (C) (also
reported as K v K 1999 (4) SA 691 (C)). Generally on the recognition and enforcement of foreign care
continued
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South African Family Law
years and has been wrongfully removed to, or is wrongfully retained in South Africa from a
fellow contracting state, the left-behind parent can seek the child’s return in terms of the
Hague Convention on the Civil Aspects of International Child Abduction so that the merits of
any care or contact dispute can be decided in the foreign country, as is explained in chapter
23 below.
________________________
orders in South Africa, see Forsyth 422–423; Schulze in Heaton (ed) Law of Divorce and Dissolution of Life
Partnerships 666–668; Nicholson 1993 (2) Codicillus 4, 1999 CILSA 228–229.
15
MISCELLANEOUS MATTERS
REGARDING DIVORCE
15.1 Personal consequences of divorce
15.1.1 General
Like the parties’ status changes when they get married, their status also changes when they
1
get divorced. For instance, they are free to remarry after the divorce, and the restrictions on
their capacity to act and to litigate which operated if they were married in community of
2
property cease to apply. Further, the non-owning or non-renting party loses the right to
occupy the former matrimonial home.3 Both parties also lose their right to inherit from one
4
another in terms of the rules of intestate succession. In so far as testate succession is concerned, a special rule applies for three months after the divorce. This rule is discussed under
a separate heading below.
Some of the personal consequences of marriage continue to apply despite the divorce.
Thus the prohibition on marriage between a party and his or her relations by affinity in the
direct line which arose as a result of the marriage continues to operate after the divorce.5
Further, a spouse who was a minor when he or she married retains the status of majority the
marriage conferred on him or her even if the marriage ends in divorce before he or she turns
7
18.6 A divorced woman may continue to use her married surname. She may also resume a
surname she bore at any previous time (such as her maiden name) or add any surname she
8
bore at any prior time to the surname she assumed after getting married. Her former husband does not have the same choice. As indicated in chapter 5, this differentiation between
(former) wives and (former) husbands may well be unconstitutional.
15.1.2 The effect of divorce on a will
It often happens that one spouse nominates the other as a beneficiary in his or her will. If the
spouses subsequently divorce, the question arises whether the former spouse will still inherit
________________________
1 No waiting period applies; either spouse (or both spouses) may remarry as soon as the divorce has been
granted.
2 Gugu v Zongwana [2014] 1 All SA 203 (ECM). See further Sonnekus in Heaton (ed) Law of Divorce and
Dissolution of Life Partnerships 45–48.
3 In Dique v Van der Merwe [2001] 2 All SA 289 (T), 2001 (2) SA 1006 (T) it was held that a widow cannot
invoke the right to occupy the matrimonial home as this right exists only during the subsistence of the
marriage. Logically, the same applies to a divorced spouse. On mechanisms which can be used to afford the
non-owning spouse the right to continue occupying the matrimonial home, see Sonnekus in Heaton (ed)
Law of Divorce and Dissolution of Life Partnerships 50–54.
4 See further Sonnekus in Heaton (ed) Law of Divorce and Dissolution of Life Partnerships 49.
5 See ch 3 above and s 8(6) of the Civil Union Act 17 of 2006.
6 Voet 4.4.6; Cohen v Sytner (1897) 14 SC 13.
7 S 26(1) of the Births and Deaths Registration Act 51 of 1992.
8 Ibid. See further Sonnekus in Heaton (ed) Law of Divorce and Dissolution of Life Partnerships 39–44.
193
194
South African Family Law
in terms of the will. If the testator changes his or her will to disinherit his or her former
spouse the answer is clear – the former spouse will not inherit. But what happens if the
testator does not change his or her will? The latter situation is governed by section 2B of the
Wills Act 7 of 1953. It provides that if a testator dies within three months of his or her marriage being dissolved by divorce or annulment, any will he or she executed prior to the
dissolution of the marriage will be implemented as if his or her former spouse had died before
the dissolution of the marriage. In other words, the former spouse will be deemed to have
died before the dissolution of the marriage and will therefore not inherit. This is the position
unless it appears from the will that the testator intended to benefit his or her former spouse
despite the dissolution of the marriage. Thus, if the testator no longer wishes his or her former
spouse to inherit, he or she should revoke the existing will. If the will is not revoked and the
testator dies more than three months after the dissolution of the marriage, the testator’s
former spouse inherits if he or she was benefited in the will.9
The provision can be explained by means of the following example. A man benefits his wife
in his will. The spouses subsequently get divorced. One month after the divorce the man dies
without having changed his will. In terms of section 2B, his former wife does not inherit
unless it is clear from the will that the man intended that she should inherit even if they got
divorced. If this intention does not appear from the will, she does not inherit because she is
deemed to have died before the divorce. If, however, the man in this example had died more
than three months after the divorce, his former wife would have inherited from him because
then the deeming clause in section 2B would not have applied.
15.2 Divorce proceedings
15.2.1 The meaning of the concept “divorce action”
Section 1 of the Divorce Act 70 of 1979 defines the concept “divorce action”. It includes the
following:
(1) An action for a decree of divorce or other relief in connection with a divorce.
(2) An application pendente lite for any of the following:
(a) An interdict.
(b) Interim care of, or contact with, a minor child of the marriage.
(c) The payment of maintenance.
(3) An application for a contribution towards the costs of a divorce action.
(4) An application to institute the action or make the application in forma pauperis (that is,
like a pauper).
(5) An application for substituted service of process in the action or application.
(6) An application for edictal citation of a party to the action or application.
15.2.2 Jurisdiction in a divorce action10
Section 2(1) of the Divorce Act provides that a court has jurisdiction if the parties or either of
them:
(1) Is domiciled in the court’s area of jurisdiction on the date on which the action is instituted; or
________________________
9 See further Sonnekus in Heaton (ed) Law of Divorce and Dissolution of Life Partnerships 49–50; Sonnekus 1996
THRHR 294.
10 See in general Catto in Heaton (ed) Law of Divorce and Dissolution of Life Partnerships 506–511; Hahlo, 5th
edn, 436–438; Lee and Honoré par 133; Kruger in Clark (ed) Family Law Service par F54; Brooks 1979
THRHR 103; Farris 1993 THRHR 277; Horn 1993 Obiter 170. See also Vermeulen v Vermeulen; Buffel v Buffel
1989 (2) SA 771 (NC).
Chapter 15: Miscellaneous matters regarding divorce
195
(2) Is ordinarily resident in the court’s area of jurisdiction on that date and has been ordinarily resident in South Africa for at least one year immediately prior to that date.
The “court” the section refers to is the High Court or a Regional Division of the Magistrate’s
11
Court (also called a Regional Court).
In terms of section 8(2) of the Divorce Act, a court other than the one which made the original divorce order has jurisdiction regarding rescission, suspension or variation of the order
if the parties are domiciled within its area of jurisdiction or the applicant is domiciled within
its area of jurisdiction and the respondent consents to such jurisdiction.12
15.2.3 Instituting a divorce
A spouse must personally institute divorce proceedings. A curator bonis does not have locus
standi to institute divorce proceedings on behalf of a spouse, because “the relationship of
husband and wife is so personal that it would be most inexpedient to allow a third party –
even if he be the curator to the lunatic [that is, the mentally ill person] – to determine
whether or not a divorce should be obtained on behalf of the lunatic”.13
No section of the Divorce Act stipulates the method by which a divorce must be brought
before court. However, the courts require that all divorce proceedings be brought by way of
an action.14
In the Gauteng Local Division of the High Court, Johannesburg an undefended divorce of
a childless couple can be heard without either party being present to give oral evidence, for
all evidence may be submitted by way of affidavit.15
15.2.4 Procedure in divorce and other family-law matters
The adversarial procedure currently applies in most family-law matters, including divorces.
However, a purely adversarial procedure is widely regarded as inappropriate for dealing with
these matters.16 Alternative dispute resolution, especially mediation, as an adjunct to (or even
as a replacement for) the adversarial procedure has been suggested as a more suitable option.
The first official step in the direction of mediation in family law was contained in the Mediation in Certain Divorce Matters Act 24 of 1987, which came into operation on 1 October
1990.17 The title of the Act creates the impression that the Act is concerned with the provision
of mediation services in divorce matters. This is a half-truth. Firstly, the Act is limited solely to
________________________
11 S 1(1) of the Divorce Act. For a critical discussion of the legislation which conferred jurisdiction in a
divorce action on the Regional Divisions of the Magistrate’s Court, see Sloth-Nielsen 2011 Journal for Juridical Science 1.
12 Parties cannot grant jurisdiction to a court by way of agreement if neither of them is domiciled within the
area of the court’s jurisdiction: Granoth v Granoth 1983 (4) SA 50 (C).
13 Ex parte AB 1910 TPD 1332 1341; see also Spangenberg v De Waal [2008] 1 All SA 162 (T). Although these
decisions relate specifically to a curator bonis, it is submitted that a curator ad litem and a curator personae also
do not have locus standi to institute divorce proceedings, because the extremely personal nature of a marriage is unaffected by the type of curator who is appointed for one of the spouses.
14 In Ex parte Inkley and Inkley 1995 (3) SA 528 (C) the court held that the legal convictions of the community
on the importance of marriage require that a marriage not be terminated without proper consideration of
all the relevant facts, and that motion proceedings are accordingly not suitable for a divorce. But see De
Jong 1996 THRHR 505 who submits that motion proceedings ought to be allowed in respect of undefended
divorces. For a step-by-step guide on instituting a divorce action, see Van Zyl Nov 1999 De Rebus 44; but see
also Kern Jan 2000 De Rebus 5 for a warning on the information on edictal citation in that step-by-step
guide.
15 South Gauteng Practice Direction Note 12(10); see also Catto in Heaton (ed) Law of Divorce and Dissolution
of Life Partnerships 538.
16 See eg De Jong in Heaton (ed) Law of Divorce and Dissolution of Life Partnerships 577–581 and the sources
cited there. On the instances where mediation might be inappropriate (eg when there is domestic violence
or a risk of child abuse, substance abuse or mental health problems, or a substantial power imbalance between the parties which the mediator is unable to address), see eg De Jong in Heaton (ed) op cit 586–587
and the sources cited there.
17 On the Act, see further ch 14 above.
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South African Family Law
child-related matters. Secondly, the Act and regulations do not expressly make provision for
mediation. However, in practice, the Family Advocate’s role has three components namely,
18
monitoring, evaluation and mediation. Although the monitoring and evaluation functions
are dominant, some type of mediation does take place when the Family Advocate attempts to
19
get the parties to agree on the arrangements for the children whose welfare is at stake.
Despite the limited scope of the Act and of the public “mediation” offered under it, the Act
signified a welcome intention to provide state-funded avenues for less adversarial methods for
the resolution of family-law matters.
Several other legislative initiatives relating to mediation in family-law matters have subsequently seen the light of day. However, none of them has established the comprehensive
20
South African approach to mediation in family-law matters authors have called for.
The Children’s Act 38 of 2005 afforded more legislative recognition to mediation and also
increased the scope of state-funded public mediation by expanding the types of cases in which
21
the Family Advocate must play a role. Section 21 imposes compulsory mediation on unmarried parents who cannot agree whether the father meets the requirements for obtaining full
parental responsibilities and rights. Their dispute must be referred for mediation by a Family
Advocate, social worker, social service professional or other suitably qualified person.22 Furthermore, co-holders of parental responsibilities and rights who experience difficulties in
exercising those responsibilities and rights are compelled to seek either the assistance of a
Family Advocate, social worker or psychologist, or mediation through a social worker or other
suitably qualified person in order to try to agree on a parenting plan before they turn to the
23
court. The Act further grants the court the discretion in some instances to order mediation
and to refer a matter or an issue to a lay-forum hearing in an attempt to settle the matter or
issue.24 If a matter is contested, the Children’s Court may also order that a pre-hearing conference be held.25 Further, several provisions of the Act encourage parties to reach agreement
on issues such as the conferment of parental responsibilities and rights on third parties,26
post-adoption agreements,27 and surrogate motherhood agreements.28 Although mediation is
not pertinently mentioned in respect of these matters, it could play a role in facilitating
negotiations between the parties.29 The Act also encourages a conciliatory and consultative
approach, by providing for pre-hearing conferences, family group conferences and other lay
forums.30
Another public mediation initiative operates by way of a pilot scheme at certain Maintenance Courts. This initiative is restricted to training maintenance officers to employ mediation skills for purposes of conducting their maintenance investigations. It does not oblige the
31
parties to the maintenance dispute to engage in mediation.
________________________
18 See eg De Jong in Heaton (ed) Law of Divorce and Dissolution of Life Partnerships 607; Kaganas and Budlender
4; Van Zyl 2000 Obiter 376.
19 See eg De Jong in Heaton (ed) Law of Divorce and Dissolution of Life Partnerships 607; Kaganas and Budlender
4.
20 See eg De Jong 2010 TSAR 529.
21 If the parties choose to use a private mediator (eg a lawyer, social worker or psychologist), they have to pay
for the mediation. If the services of the Family Advocate are used, the mediation is state-funded.
22 S 21(3). On the acquisition of parental responsibilities and rights in terms of s 21, see ch 23 below.
23 S 33(2) read with s 33(5). On parenting plans, see ch 23 below.
24 Ss 49, 70 and 71.
25 S 69.
26 Ss 22(1) and 30(3).
27 S 234(1).
28 S 292 read with ss 293 and 295.
29 See eg De Jong in Boezaart (ed) Child Law in South Africa 123–124; De Jong 2008 THRHR 634 639–640; De
Jong 2010 TSAR 527.
30 Ss 69, 70 and 71. On these forums, see eg Leppan in Sloth-Nielsen and Du Toit (eds) Trials and Tribulations,
Trends and Triumphs 169–173; Louw and Spijker 2007 Obiter 101; Kruger 2009 (2) Speculum Juris 44–45.
31 Although the Strategic Plan of the Department of Justice and Constitutional Development for 2011–2016
envisaged the introduction of mediation services for maintenance matters (South African Law Reform
continued
Chapter 15: Miscellaneous matters regarding divorce
197
The latest mediation scheme, which came into operation on 1 December 2014, applies to
all civil cases; in other words, it is not restricted to family-law matters. It provides for voluntary,
32
private, court-annexed mediation in all civil cases in twelve Magistrates’ Courts. The media33
tion can be initiated before or after the commencement of litigation. If, at the time of the
trial, the parties have not already referred their dispute to mediation, the court may at any
time before judgment enquire into the possibility of mediation and give the parties an oppor34
tunity to refer their dispute to mediation. If a request for mediation is made, the clerk or
registrar of the court must explain the purpose, meaning, objectives and benefits of media35
tion to the parties. He or she also assists the parties in concluding their agreement to medi36
ate, facilitates the mediation, and files mediation agreements and reports. However, he or
she does not conduct the actual mediation. This is done by accredited mediators who are
selected from a panel of mediators approved by the Department of Justice and Constitutional
37
Development. The parties are liable for the mediator’s fees and receive no state-aid in this
38
regard.
Apart from the legislative impetus for mediation in child-related matters, the High Court
has also used its power as upper guardian of all minors to compel parties to engage in media39
tion before approaching the court for another order. The level of judicial support media40
tion enjoys also appears from MB v NB, where the Gauteng Local Division of the High Court
capped the fees the parties’ legal representatives could charge because they did not counsel
the parties on the benefits of mediation and did not advise the parties to have the matter
mediated at an early stage. The Supreme Court of Appeal has also expressed its support for
mediation in family-law matters. Referring to MB v NB, Lewis JA stated in an obiter dictum in S
41
v J that mediation in family matters is a useful way to avoid protracted and expensive legal
battles, and that litigation should not necessarily be a first resort in these matters. She further
warned legal practitioners to heed section 6(4) of the Children’s Act which provides that in
matters concerning children a conciliatory and problem-solving approach should be followed
42
and a confrontational approach avoided.
________________________
32
33
34
35
36
37
38
39
40
41
42
Commission Issue Paper 28 Review of the Maintenance Act 13), the pilot scheme is much more limited in
scope. For an empirical evaluation of the pilot scheme in two cities in South Africa (Pretoria and Johannesburg), see De Jong 2009 THRHR 274–295.
GN 855 in GG 38164 of 31 October 2014 read with rule 72 of the Rules of the Magistrates’ Courts. The
scheme will eventually be rolled out to all Magistrates’ Courts: Chauke The Citizen 29 March 2014,
http://citizen.co.za/151585/obtaining-a-court-order-made-easier (accessed 11 February 2015); South African Government “Justice and Constitutional Development on Court-annexed Mediation Service”,
http://www.gov.za/court-annexed-mediation-service-increase-access-justice-all 1 December 2014 (accessed
11 February 2015). The Short Process Courts and Mediation in Certain Civil Cases Act 103 of 1991 also
provides for mediation in civil Magistrates’ Court cases, but the procedure provided for in this Act has never been used in family-law matters: De Jong in Heaton (ed) Law of Divorce and Dissolution of Life Partnerships
609 fn 274.
Rule 75(1)(a) and (b) of the Rules of the Magistrates’ Courts; see also rule 74(1) of the Rules of the
Magistrates’ Courts.
Rules 75(2) and 79(1) of the Rules of the Magistrates’ Courts.
Rule 76(1)(a) of the Rules of the Magistrates’ Courts.
See eg rules 76(2), 77(3)–(6), 78(1)(b), 80(2) and 82(1) of the Rules of the Magistrates’ Courts.
Rules 73 and 86(2) of the Rules of the Magistrates’ Courts.
Rule 84(1) and (2) of the Rules of the Magistrates’ Courts. On this mediation scheme, see further De Jong
in Heaton (ed) Law of Divorce and Dissolution of Life Partnerships 609–612; Heaton in Atkin (ed) 2015 International Survey of Family Law 315–319; Manyathi-Jele Apr 2015 De Rebus 11.
Van den Berg v Le Roux [2003] 3 All SA 599 (NC); Townsend-Turner v Morrow 2004 (2) SA 32 (C).
2010 (3) SA 220 (GSJ).
[2011] 2 All SA 299 (SCA) (also reported as FS v JJ 2011 (3) SA 126 (SCA)).
On the adversarial procedure, mediation and other forms of alternative dispute resolution in family-law
matters, see further Barratt (ed) Persons and the Family 370; Boniface in Sloth-Nielsen and Du Toit (eds)
Trials and Tribulations, Trends and Triumphs 160–161; De Jong in Heaton (ed) Law of Divorce and Dissolution
of Life Partnerships ch 13; De Jong in Boezaart (ed) Child Law in South Africa ch 5; O’Leary 1 et seq; Schneider
in Sloth-Nielsen and Du Toit (eds) Trials and Tribulations, Trends and Triumphs 149–150; Skelton and Carnelley (eds) Family Law 345–347; Van Zyl Divorce Mediation and the Best Interests of the Child chs 4–7; Van Zyl
continued
198
South African Family Law
Currently, arbitration may not be used in any divorce-related matter, as section 2 of the
Arbitration Act 42 of 1965 prohibits arbitration in respect of matrimonial issues.43 In 2001, the
South African Law Commission recommended that the Arbitration Act should be amended to
permit arbitration in matrimonial property disputes which do not affect the rights or interests
of the spouses’ children,44 but the necessary amendment has not yet been effected by the
legislator.
Apart from the difficulties arising from the current divorce procedure, access to justice is
another problem in respect of family-law matters, for the majority of the population cannot
afford to pay lawyers’ fees.45
15.3 Relief pendente lite
15.3.1 General
Rule 43(1) of the Uniform Rules of Court empowers the High Court to make an order whenever a spouse requests one or more of the following forms of relief while a matrimonial action
is pending:
(1) Maintenance pendente lite (or interim maintenance) for himself or herself or the spouses’
minor children.
(2) A contribution towards the costs of the pending matrimonial action.
(3) Interim care of a child.
(4) Interim contact with a child.
Rule 58 of the Rules of the Magistrates’ Courts confers the same power on a Regional Court.
In Zaphiriou v Zaphiriou 46 it was held that rule 43 of the Uniform Rules of Court can be
invoked even if the validity or subsistence of the marriage that the matrimonial action relates
to is in dispute, and that the word “spouse” in rule 43(1) must be interpreted to include not
only a person who is admitted to be a spouse but also a person who alleges that he or she is a
spouse but whose allegation is denied. In Zaphiriou there was prima facie evidence that the
parties had concluded a civil marriage, but the husband alleged that the marriage had been
terminated by divorce. In Baadjies v Matubela 47 there was no prima facie evidence of any type of
marriage having been concluded between the parties. On this ground, the court distinguished the case before it from Zaphiriou and refused to consider an application in terms of
________________________
43
44
45
46
47
Alternative Dispute Resolution in the Best Interests of the Child chs 4–7; Scott-Macnab and Mowatt 1986 De Jure
313, 1987 De Jure 41; Mowatt 1988 TSAR 47; Burman and Rudolph 1990 SALJ 251; Mowatt 1991 TSAR 289,
1992 CILSA 44; Clark 1993 THRHR 454; Folb and De Bruyn 1994 SALJ 316; Goldberg 1995 THRHR 276,
1996 TSAR 358, 1998 TSAR 748; Bonthuys 1999 SAJHR 319–322; Van Zyl Apr 2000 De Rebus 27; De Jong
2005 TSAR 33, 2005 THRHR 95; Cohen Aug 2007 De Rebus 5; De Jong 2007 CILSA 280, 2008 THRHR 454
and 630, 2009 THRHR 275, 2010 TSAR 515; Boniface 2012 PELJ 377; De Jong 2012 Stell LR 235–239, 2014
PELJ 2356; Van der Berg Apr 2015 De Rebus 24.
On arbitration of disputes regarding the patrimonial consequences of divorce, see Cohen 1993 De Rebus
642, Feb 2000 De Rebus 7. See further De Jong 2014 PELJ 2356, who advocates using arbitration as an option
for the resolution of family-law disputes, either alone or in conjunction with mediation. On the issue of
whether parenting coordination amounts to arbitration, see De Jong in Heaton (ed) Law of Divorce and Dissolution of Life Partnerships 616; De Jong July 2013 De Rebus 38.
Report on Domestic Arbitration pars 3.28–3.30.
Some people are able to obtain legal advice (and sometimes legal representation) through Legal Aid South
Africa (formerly the Legal Aid Board), legal aid clinics at universities or legal advice centres of nongovernmental organisations. One of the access-to-justice initiatives is the People’s Family Law Centre in
Cape Town. The centre is a partnership between private donors and the Department of Justice and Constitutional Development. It offers the services of specialised paralegals and a mediation panel: Burman and
Glasser 2003 SAJHR 486.
1967 (1) SA 342 (W).
2002 (3) SA 427 (W).
Chapter 15: Miscellaneous matters regarding divorce
199
rule 43 by a woman who alleged that she was married at customary law. In AM v RM 48 the
court extended the approach in Zaphiriou to a Muslim marriage which the husband alleged
had been terminated by divorce. In Hoosein v Dangor 49 Yekiso J also relied on Zaphiriou and
ordered the husband in a Muslim marriage to pay interim maintenance to his wife and to
make a contribution towards her costs in respect of the pending matrimonial action between
the spouses.50
The objective of the rules relating to interim relief is to have these interim matters adjudicated expeditiously and cheaply.51 The courts often warn against elaborate declarations and
unduly complicated applications because this entails abuse of the procedure and unnecessary
costs.52
The High Court may make an order in terms of rule 43 even if the matrimonial proceed53
ings that are pending between the parties were instituted in a Regional Court.
15.3.2 Maintenance pendente lite and a contribution towards costs
In chapter 5 above it is indicated that litigation costs are part of the duty of support. In terms
of the common law, matrimonial guilt determines whether a spouse can claim support during
the subsistence of the marriage. By virtue of this approach, a spouse who causes the breakdown of his or her marriage is not entitled to interim maintenance or a contribution towards
the costs of the pending matrimonial action. Prior to the coming into operation of the
Divorce Act in 1979, the common-law approach operated in respect of applications in terms
of rule 43 of the Uniform Rules of Court.54 Our courts have subsequently held that the enactment of no-fault divorce55 has altered the position. In Carstens v Carstens 56 the court held
that the rationale for using matrimonial guilt as the determining factor in the context of
interim maintenance and a contribution towards costs has fallen away because the Divorce
Act no longer requires matrimonial misconduct for a divorce to be granted. Instead of relying
on matrimonial guilt, the court held that it is against public policy to award interim maintenance to a wife who was living with another man as husband and wife. Even though the court
dismissed the wife’s claim for interim maintenance, it ordered a contribution towards costs in
her favour. It held that, as the spouses were married in community of property and the wife
could consequently claim part of the joint estate upon divorce, she was entitled to a contribution towards costs to enable her to pursue her claim in respect of the joint estate. In Dodo v
Dodo 57 and SP v HP 58 the courts adopted the same approach. The conclusion to be reached is
that public policy determines whether interim maintenance is to be awarded, while the issue
________________________
48
49
50
51
52
53
54
55
56
57
58
2010 (2) SA 223 (ECP). For criticism of the decision, see Kruuse 2009 (2) Speculum Juris 127.
[2010] 2 All SA 55 (WCC), 2010 (4) BCLR 362 (WCC).
AM v RM and Hoosein v Dangor are discussed in more detail in ch 18 below.
See eg Colman v Colman 1967 (1) SA 291 (C); Zaphiriou v Zaphiriou 1967 (1) SA 342 (W); Varkel v Varkel 1967
(4) SA 129 (C); Mather v Mather 1970 (4) SA 582 (O); Henning v Henning 1975 (2) SA 787 (O); Verster v
Verster 1975 (3) SA 493 (W); Andrade v Andrade 1982 (4) SA 854 (O); Grauman v Grauman 1984 (3) SA 477
(W); Greenspan v Greenspan 2000 (2) SA 283 (C); Baadjies v Matubela 2002 (3) SA 427 (W). The application
is usually made in the form of a declaration in an affidavit, but the court may also hear oral evidence.
See eg Smit v Smit 1978 (2) SA 720 (W); Nienaber v Nienaber 1980 (2) SA 803 (O); Andrade v Andrade 1982
(4) SA 854 (O); Grauman v Grauman 1984 (3) SA 477 (W); Micklem v Micklem 1988 (3) SA 259 (C); Visser v
Visser 1992 (4) SA 530 (SEC). The courts punish prolixity by striking the matter off the roll (see eg Visser v
Visser; Patmore v Patmore 1997 (4) SA 785 (W)), making a costs award against the party whose papers are prolix and contain unnecessary details, or ruling that the practitioners who drafted and submitted the papers
cannot claim costs from their client (see eg Visser v Visser; Patmore v Patmore; Du Preez v Du Preez 2009 (6) SA
28 (T).
FN v MN [2014] JOL 32412 (GJ).
See eg Chamani v Chamani 1979 (4) SA 804 (W).
See ch 11 above.
1985 (2) SA 351 (SE).
1990 (2) SA 77 (W).
2009 (5) SA 223 (O).
200
South African Family Law
of whether the applicant is making property claims against the other spouse is crucial in
respect of an application for a contribution towards costs. In view of the decision of the
59
Supreme Court of Appeal in EH v SH that the fact that a spouse who is claiming post-divorce
maintenance is living with another person is not, on its own, a reason for dismissing the
claim, a claim for interim maintenance should no longer be rejected solely because the
60
applicant is cohabiting with another person.
An applicant who claims a contribution towards costs is entitled to a contribution only if he
or she has a prima facie case or a bona fide defence in respect of an issue concerning parental
responsibilities and rights, maintenance and/or the spouses’ property rights on divorce which
he or she is unable to litigate without a contribution towards costs.61 If an application for a
contribution towards costs succeeds, the applicant is entitled to a contribution which enables
him or her to litigate on a scale which is commensurate with the respondent’s means as well
as the scale on which the respondent is litigating and intends to litigate.62 The contribution
sought need not be limited to costs on a party and party scale (which relates mainly to the
legal representative’s disbursements and costs), but can also include part of the reasonable
fees of the applicant’s legal representative.63
64
In Greenspan v Greenspan the court held that it cannot make an order that interim mainte65
nance must be paid by way of a lump sum. However, using the analogy of Oshry v Feldman
where the Supreme Court of Appeal explained why a lump-sum payment can be made in
respect of a claim for maintenance from a deceased estate, it is submitted that the court may
also award interim maintenance by way of a lump-sum.
Although the issue has not been finally settled, it seems that a spouse’s interim maintenance may be calculated with reference to shared expenses in respect of adult dependent
66
children.
15.4 A final order for costs
Section 10 of the Divorce Act provides that the court is not bound to make an order for costs
in favour of the successful party in a divorce. Having regard to factors such as the parties’
means and their conduct in so far as it may be relevant, the court may make any order it
considers just. This includes ordering that the costs of the proceedings be apportioned
between the parties.67
________________________
59
60
61
62
63
64
65
66
67
2012 (4) SA 164 (SCA). On EH v SH, see further ch 13 above.
See further Catto in Heaton (ed) Law of Divorce and Dissolution of Life Partnerships 542.
Van Niekerk A Practical Guide to Patrimonial Litigation in Divorce Actions par 6.3.1.
See eg Glazer v Glazer 1959 (3) SA 928 (W); Dodo v Dodo 1990 (2) SA 77 (W); Nicholson v Nicholson 1998 (1)
SA 48 (W); Cary v Cary [1999] 2 All SA 71 (C), 1998 (8) BCLR 877 (C), 1999 (3) SA 615 (C); Senior v Senior
1999 (4) SA 955 (W); Greenspan v Greenspan 2000 (2) SA 283 (C); Petty v Petty [2002] 2 All SA 193 (T).
Nicholson v Nicholson 1998 (1) SA 48 (W); Senior v Senior 1999 (4) SA 955 (W); Petty v Petty [2002] 2 All SA
193 (T). On rule 43 of the Uniform Rules of Court and rule 58 of the Rules of the Magistrates’ Courts, see
further Catto in Heaton (ed) Law of Divorce and Dissolution of Life Partnerships 539–546; De Jong and Heaton
in Heaton (ed) Law of Divorce and Dissolution of Life Partnerships 143–145; Hahlo, 5th edn, 423–436; Schäfer
in Clark (ed) Family Law Service par F52; Van Niekerk A Practical Guide to Patrimonial Litigation in Divorce Actions ch 6; Van Zyl Handbook of the South African Law of Maintenance 53–54; Van Schalkwyk 2000 De Jure 396.
2000 (2) SA 283 (C).
[2011] 1 All SA 124 (SCA), 2010 (6) SA 19 (SCA), Heaton and Kruger Casebook on Family Law case [40]. On
this case, see further ch 10 above.
See eg Butcher v Butcher 2009 (2) SA 421 (C), Heaton and Kruger Casebook on Family Law case [62]; JG v CG
2012 (3) SA 103 (GSJ), Heaton and Kruger Casebook on Family Law case [63]. See also De Jong and Heaton
in Heaton (ed) Law of Divorce and Dissolution of Life Partnerships 144.
See Hahlo, 5th edn, 424 et seq for a comprehensive discussion of this section. See also Maas v Maas 1993 (3)
SA 885 (O). On interim and final costs awards in matrimonial proceedings, see further Catto in Heaton
(ed) Law of Divorce and Dissolution of Life Partnerships 569–571.
Chapter 15: Miscellaneous matters regarding divorce
201
15.5 Limitation on the publication of particulars of a divorce
In terms of section 12 of the Divorce Act, only the names of the parties to divorce proceedings, the fact that the divorce was pending and the order of the court could be published. In
Johncom Media Investments Limited v M 68 the Constitutional Court held that this limitation on
the publication of particulars of a divorce limited the right to freedom of expression,69 not
only of the media, but also of the public, as it deprived the public of the right to receive information. Although the purpose of the limitation was legitimate, namely to protect the privacy
and dignity70 of the divorcing parties and their children, the chosen method of protection was
over-broad and was also not particularly efficient in achieving its purpose, since it permitted
publication of the identities of the parties. The court held that the purpose of section 12 could
be better achieved by prohibiting the publication of particulars which identify the parties and
their children. It concluded that the limitation of the right to freedom of expression could
not be justified, and declared section 12 unconstitutional and invalid. The court further prohibited the publication of the identity of any party or child in any divorce proceedings before
any court, as well as the publication of any information which may reveal the identity of a
party or child, unless the court authorises publication. The Constitutional Court specified
that court authorisation of publication may be granted in exceptional circumstances only.
15.6 The abolition of orders for judicial separation
As is indicated in chapter 9 above, pre-1979 divorce law empowered the court to grant an
order for judicial separation. Such an order meant that the marriage continued to exist but
that the spouses were no longer bound to live together. Naturally, neither spouse could enter
into another marriage. Section 14 of the Divorce Act abolished the court’s power to issue
orders for judicial separation.
________________________
68 2009 (8) BCLR 751 (CC), 2009 (4) SA 7 (CC). For criticism of the decision, see Albertus 2011 PELJ 227–
230.
69 S 16 of the Constitution.
70 Ss 10 and 14 of the Constitution.
PART
2
CIVIL UNIONS
16
CIVIL UNIONS
16.1 Introduction
Civil unions have been recognised since 30 November 2006, when the Civil Union Act 17 of
2006 came into operation.1 The Act is the legislator’s response to the decision of the Constitutional Court in Minister of Home Affairs v Fourie (Doctors for Life International, Amici Curiae); Lesbian and Gay Equality Project v Minister of Home Affairs,2 in which the common-law definition of
marriage and the marriage formula contained in the Marriage Act 25 of 1961 were declared
unconstitutional to the extent that they excluded same-sex couples from the status, benefits
and responsibilities accorded to heterosexual couples. The court suspended the declaration
of unconstitutionality until 1 December 2006 to enable Parliament to correct the defects.
In terms of section 1 of the Civil Union Act, a civil union is the monogamous, voluntary
union of two persons who are at least 18 years of age, which is solemnised and registered in
accordance with the procedures prescribed by the Act. The term “civil union” includes a
marriage and a civil partnership concluded in terms of the Act.3 It is entirely up to the civil
union partners whether their civil union takes the form of a marriage or a civil partnership.4
Regardless of whether they call their civil union a marriage or a civil partnership, the requirements for and consequences of the civil union are exactly the same.5 Apart from the fact that
a civil union may be concluded by parties of the same or the opposite sex, the requirements
for and consequences of a civil union are in most respects identical to those of civil marriages,
as is explained below.6
16.2 The legal requirements for a civil union
16.2.1 General
(a) Capacity to act
Because a civil union, like a civil marriage,7 is based on agreement, both parties must have
capacity to act in order to be able to enter into a valid civil union. With the exception of the
________________________
1
2
3
4
5
S 16 of the Civil Union Act 17 of 2006.
2006 (1) SA 524 (CC), 2006 (3) BCLR 355 (CC).
S 2(a).
S 11(1).
S 13. For explanations of why a particular couple might prefer one or the other label for their civil union,
see Barratt (ed) Persons and the Family 233; De Vos Bill of Rights Compendium par 3J41; Sinclair in Atkin (ed)
2008 International Survey of Family Law 404; Skelton and Carnelley (eds) Family Law 171; Bilchitz and Judge
2007 SAJHR 484–485; De Vos 2007 SAJHR 461–462, 2008 Utrecht Law Review 170; Bakker 2009 Journal for
Juridical Science 7–8; Smith and Robinson 2010 PELJ 37.
6 The Act has been criticised for reinforcing the primacy of the civil marriage, extending protection only to
those who are prepared to adopt a family relationship model which deviates relatively little from the conventional civil marriage model, and compelling civil union partners to accept all the consequences of the
traditional civil marriage: see eg Sinclair in Atkin (ed) 2008 International Survey of Family Law 404–406; Bonthuys 2007 SAJHR 526; De Vos and Barnard 2007 SALJ 821; Bakker 2009 Journal for Juridical Science 8, 15–17.
7 See ch 3 above.
205
206
South African Family Law
position of minors, the rules that are set out in chapter 3 above regarding the capacity to act
in respect of a civil marriage apply equally to the capacity to enter into a civil union.
In terms of the definition of a “civil union” in section 1 of the Civil Union Act, only persons
who have already reached the age of 18 years may enter into a civil union. Thus, a minor cannot validly enter into a civil union even if he or she is assisted by his or her parent or legal
guardian.8 Unlike the Marriage Act and the Recognition of Customary Marriages Act 120 of
1998, which allow a minor to enter into a civil or customary marriage provided that he or she
obtains the consent of certain persons or institutions,9 the Civil Union Act does not provide
for any exception to the rule that a minor may not enter into a civil union. Excluding minors
from a civil union while allowing them to enter into a civil or customary marriage violates the
equality clause of the Constitution,10 for it denies minors the opportunity to formalise their
relationship in a particular way, namely through a civil union. Furthermore, as a civil union is
the only means by which a same-sex couple can obtain full legal recognition of their relationship, the exclusion of minors from the ambit of the Act violates not only the equality clause
but also same-sex minors’ right to dignity and flies in the face of the decision in Minister of
Home Affairs v Fourie (Doctors for Life International, Amici Curiae); Lesbian and Gay Equality Project
v Minister of Home Affairs 11 as it denies same-sex minors the opportunity to acquire the status,
benefits and responsibilities which opposite sex minors can acquire.12
(b) Agreement
When concluding a civil union, both parties must have the intention to enter into a civil union
with one another. During the ceremony itself, the marriage officer must expressly ask each
party whether he or she accepts the other party as spouse/civil partner, and both parties must
answer in the affirmative. The civil union may not be solemnised if either party replies in the
negative.13
Problems in connection with agreement arise when both parties declare their agreement at
the ceremony, but it subsequently transpires that genuine agreement was absent, or that there
was a defect regarding agreement, for example, because the parties laboured under a material mistake or one of them gave their agreement because of misrepresentation, duress or
undue influence. The same rules which apply to agreement in respect of a civil marriage14
apply to agreement in respect of a civil union.
(c) Lawfulness
Like a civil marriage, and unlike a customary marriage, a civil union is monogamous. Neither
party to a civil union may be a party to an existing civil union, civil marriage or customary
________________________
8 See also Barratt (ed) Persons and the Family 63; Heaton Persons 106; Schäfer in Clark (ed) Family Law Service
par R41; Van Schalkwyk 2007 De Jure 168, 172. S 17 of the Children’s Act 38 of 2005 lowered the age of
majority from 21 to 18 years of age as from 1 July 2007. Sinclair in Atkin (ed) 2008 International Survey of
Family Law 408 raises the interesting question of whether persons over the age of 18 but below 21 who entered into a civil union between 30 Nov 2006 and 1 July 2007 needed parental consent to do so. As s 1 of
the Civil Union Act restricts a civil union to persons over the age of 18 years and the Act does not deal with
parental consent at all, she states that the Act creates the impression that parental consent was not required.
9 See chs 3 above and 17 below.
10 S 9 of the Constitution of the Republic of South Africa, 1996.
11 2006 (1) SA 524 (CC), 2006 (3) BCLR 355 (CC).
12 On the constitutional arguments regarding the position of same-sex minors, see also Heaton in Gerber and
Sifris (eds) Current Trends in the Regulation of Same-Sex Relationships 112; Sinclair in Atkin (ed) 2008 International Survey of Family Law 408; Van Schalkwyk 2007 De Jure 168; De Ru 2010 THRHR 561–563. In view of
the adverse consequences of child marriages, a more suitable solution to the current unconstitutional violation of the equality clause and the right to dignity might be to increase the minimum marriageable age in
respect of civil marriages and customary marriages, rather than to amend the Civil Union Act to permit
minors to enter into a civil union.
13 S 11(2).
14 Those rules are discussed in ch 3 above.
Chapter 16: Civil unions
207
marriage at the time when he or she enters into the civil union.15 If either party has previously
been a party to a civil union or a civil or customary marriage, the civil union may not be
solemnised until the marriage officer has been provided with a certified copy of the divorce
order or of the death certificate of the party’s deceased spouse or civil union partner.16
A civil union may be concluded by parties of the same or the opposite sex.17 Apart from this
exception, a civil union may only be registered by persons who would be able to enter into a
civil or customary marriage.18 Thus, for example, an adoptive parent may not enter into a civil
union with his or her adopted child.19 Nor may persons who are within the prohibited degrees
of relationship for purposes of a civil or customary marriage enter into a civil union with each
other.20
The prohibited degrees of relationship in respect of civil and customary marriages largely
correspond. However, in some traditional (that is, tribal) groups the prohibited relationships
for the purposes of customary marriage extend to more relatives than is the case in respect of
a civil marriage. Furthermore, there are differences between the rules of various traditional
communities regarding which relatives fall within the prohibited degrees of relationship.21 On
a literal and strict interpretation, the provision in the Civil Union Act means that persons who
would have been permitted to enter into a civil marriage but not a customary marriage may
not enter into a civil union, regardless of their race and regardless of whether they belong to
any traditional community.22 This interpretation leads to illogical and absurd results. How, for
example, could one logically justify imposing a rule that applies to the Pedi people on urban
white, coloured or Asian people who have never had any relationship with the Pedi tribe?
Moreover, how would it be determined which traditional community’s rules are to be applied
to people who are not members of any traditional community? As legislation should be interpreted in a manner which avoids absurd results,23 it is submitted that when there are differences between the prohibited degrees of relationship in respect of customary and civil
marriages, the rules of customary law should be applied only to people who are subject to
customary law.
16.2.2 Prescribed formalities
(a) Marriage officers
Broadly speaking, the solemnisation and registration of a civil union take place in the same
way as the solemnisation and registration of a civil marriage. Thus, a civil union may only be
solemnised by a marriage officer. Anyone who purports to solemnise a civil union without
having the necessary authority to do so or an authorised marriage officer who solemnises a
prohibited civil union, is guilty of an offence.24 Subject to the exceptions provided for by the
Civil Union Act, a marriage officer has all the powers, responsibilities and duties which the
Marriage Act confers on marriage officers.25
________________________
15
16
17
18
19
20
21
22
23
24
25
S 8(1) and (3) of the Civil Union Act; see also s 3(2) of the Recognition of Customary Marriages Act.
S 8(4) and (5) of the Civil Union Act.
Ss 1 and 8(6) of the Civil Union Act.
S 8(6).
On the prohibition of a civil marriage between an adopted child and his or her parent, see ch 3 above and
on the same prohibition in respect of customary marriages, see ch 17 below.
Bilchitz and Judge 2007 SAJHR 492.
See eg Jansen in Rautenbach et al Introduction to Legal Pluralism in South Africa 55; Olivier Die Privaatreg van
die Suid-Afrikaanse Bantoetaalsprekendes 11–13; Olivier et al LAWSA Indigenous Law par 9; Seymour 123–125;
South African Law Commission Report on Customary Marriages Project 90 par 5.3.1.
But see Van Schalkwyk 2007 De Jure 172 who disapproves of the view that s 8(6) means that prospective civil
union partners must meet the requirements regarding civil and customary marriages. On whether customary marriages are reserved for black persons, see ch 17 fn 1 below.
See eg Devenish Interpretation of Statutes 177–178; Du Plessis 93–94, 103–105; Steyn 123–124.
S 14(1).
S 4(2).
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South African Family Law
All persons who are ex officio marriage officers in terms of the Marriage Act and all officers
in the public, diplomatic or consular service who have been designated as marriage officers
under the Marriage Act qualify as marriage officers for purposes of the Civil Union Act.26
Thus, all secular marriage officers may solemnise civil marriages and civil unions, and their
appointment as marriage officers for such marriages and unions is regulated by the same
rules. However, the position as regards the appointment of religious marriage officers for purposes of solemnising civil unions differs from that which applies in respect of civil marriages.
A religious denomination or organisation that wants to solemnise civil unions must apply in
writing to the Minister of Home Affairs27 for approval to do so.28 If the Minister grants the
approval, a minister of religion or a person holding a responsible position in the approved
denomination or organisation may apply to be designated as a marriage officer for purposes
of solemnising civil unions.29 The minister or person holding a responsible position may not
be appointed as a marriage officer for purposes of solemnising civil unions until the Minister
of Home Affairs has approved the denomination or organisation as a whole.30 Therefore, a
dual process applies in the case of religious officers. If the subsequent request by the religious
officer is granted, he or she is a marriage officer for purposes of solemnising civil unions for
as long as he or she is a minister or occupies the responsible position.31
Any secular marriage officer (that is, a marriage officer other than a religious marriage
officer) may inform the Minister of Home Affairs in writing that he or she objects on the
ground of conscience, religion and belief to solemnising a civil union between persons of the
same sex. He or she will then not be compelled to solemnise any same-sex civil union.32 Affording secular marriage officers the option to refuse to solemnise a same-sex civil union violates
the equality clause,33 as it curtails same-sex couples’ right to enter into a civil union as freely as
their heterosexual counterparts can. It also violates same-sex couples’ right to dignity,34 and
________________________
26 S 2(1) and (2) of the Marriage Act, read with the definition of “marriage officer” in s 1 of the Civil Union Act.
27 See the definition of “Minister” in s 1 of the Civil Union Act.
28 S 5(1). This subsection refers only to “marriages” and not to “civil partnerships” or the collective term “civil
unions”. The same applies to subsecs 5(2), (4) and (6). The implication of using only the word “marriages”
is that civil partnerships are not covered by these subsections. There is no rational basis for restricting the
capacity of religious marriage officers to solemnising marriages only. As none of the other sections of the
Act draws a distinction between solemnisation of civil partnerships and marriages under the Act, it seems
that the use of only the word “marriages” is due to a drafting error. The exclusive reference to “marriages”
creates a differentiation between the solemnisation of marriages and civil partnerships which infringes the
right to equality (s 9 of the Constitution) of religious marriage officers who wish to solemnise civil partnerships. The differentiation further violates the right to equality of persons who want to have their civil partnerships solemnised by a religious marriage officer, as it creates inequality before the law and unequal
protection and benefit of the law (s 9(1) of the Constitution). In the case of couples whose religion, conscience and/or belief dictates that they should have their civil partnership solemnised by a religious marriage officer, the differentiation also constitutes unfair discrimination on the grounds of religion,
conscience and belief (s 9(3) of the Constitution). There is no discernable justification for these violations
of the right to equality.
29 S 5(4). On the exclusive reference to “marriages” in this subsection, see the previous footnote and Schäfer
in Clark (ed) Family Law Service par R38.
30 There is thus a dual process for the appointment of religious marriage officers. As a minister of religion or
person holding a responsible position in a religious denomination or organisation cannot obtain a designation as marriage officer for purposes of solemnising a civil union unless his or her denomination or organisation has already obtained approval, a maverick minister or person holding a responsible position in a
religious denomination or organisation which disapproves of (same-sex) civil unions cannot obtain the authority to officiate at such civil unions. On this issue, see further Skelton and Carnelley (eds) Family Law
173; Bilchitz and Judge 2007 SAJHR 493–495; MacDougall, Bonthuys, Norrie and Van den Brink 2012 Canadian Journal of Human Rights 141.
31 S 5(4).
32 S 6. Govender 2008 Obiter 15 cogently points out that if a secular marriage officer is permitted to refuse to
solemnise a same-sex civil union, a magistrate should equally be allowed to recuse himself or herself from
an application for an adoption of a child by a same-sex couple.
33 S 9 of the Constitution.
34 S 10 of the Constitution.
Chapter 16: Civil unions
209
may well be unconstitutional.35 Furthermore, it is unclear why the legislator thought that only
secular marriage officers should be afforded the liberty of refusing to solemnise same-sex civil
unions. Presumably the differentiation between secular and religious marriage officers was
based on the assumption that religious denominations or organisations which object to samesex unions would not apply to be designated as institutions which may solemnise civil
36
unions. This assumption loses sight of the fact that heterosexual persons are also allowed to
enter into a civil union. A religious denomination or organisation that objects to same-sex
civil unions might want to solemnise heterosexual civil unions while opting out of solemnising same-sex unions, but section 6 does not permit this, as it seems to provide for an all-ornothing approach to solemnisation of civil unions in so far as religious denominations or
organisations are concerned.
(b) Formalities preceding the civil union ceremony
As is the case in respect of a civil marriage, anyone who wishes to raise an objection to an intended civil union must lodge a written objection with the marriage officer who is to solemnise the civil union.37 The marriage officer must enquire into the grounds on which the objection is based and may only solemnise the civil union if he or she is satisfied that there is no
lawful impediment to it.38
Each party must furnish the marriage officer with his or her identity document or the prescribed affidavit. If either party fails to do so, the marriage officer may not solemnise the civil
union.39
Prior to the solemnisation of the civil union, the marriage officer must ask the parties
whether their civil union should be known as a marriage or a civil partnership.40 The prospective civil union partners must further individually and in writing declare their willingness to
enter into the civil union with one another and must sign the prescribed document signifying
their willingness in the presence of two witnesses.41 The marriage officer must then solemnise
the civil union using the term the parties chose, that is, “marriage” or “civil partnership”.42
(c) Formalities during the civil union ceremony
A civil union must take place in the presence of the parties themselves and at least two witnesses.43 Entering into a civil union by proxy is not allowed, as the Civil Union Act expressly
prohibits a representative from entering into a civil union on behalf of somebody else.44
A civil union may be solemnised at any time and on any day of the week, but a marriage
officer is not obliged to solemnise a civil union before 8:00 or after 16:00.45 The civil union
must be solemnised and registered in a public office or private dwelling, with open doors, or
________________________
35 On the possible unconstitutionality of the accommodation of conscientious objections under the Act, see
De Vos Bill of Rights Compendium par 3J41; Heaton in Gerber and Sifris (eds) Current Trends in the Regulation
of Same-Sex Relationships 113; Schäfer in Clark (ed) Family Law Service par R39; Sinclair in Atkin (ed) 2008
International Survey of Family Law 404; Bilchitz and Judge 2007 SAJHR 490–492, 493–495; De Vos 2007 SAJHR
462–463; Bonthuys 2008 SALJ 473; De Vos 2008 Utrecht Law Review 171–173; Govender 2008 Obiter 15; Bakker 2009 Journal for Juridical Science 4; Ntlama 2010 PELJ 204–205; De Ru 2010 THRHR 555–560; MacDougall, Bonthuys, Norrie and Van den Brink 2012 Canadian Journal of Human Rights 141–142; Kruuse 2014
International Journal of Law, Policy and the Family 150.
36 See also MacDougall, Bonthuys, Norrie and Van den Brink 2012 Canadian Journal of Human Rights 141.
37 S 9(1).
38 S 9(2) and (3).
39 S 7.
40 S 11(1).
41 S 12(1).
42 S 11(1).
43 S 10(2).
44 S 10(3).
45 S 10(1).
210
South African Family Law
on the premises of such an office or dwelling.46 It may be solemnised elsewhere, however, if
either of the parties cannot be present at any of the above-mentioned places because of a
serious or longstanding illness or serious bodily injury.47
In solemnising the civil union, the marriage officer must put the following question to each
of the parties separately:
Do you, AB, declare that as far as you know there is no lawful impediment to your proposed
marriage/civil partnership with CD here present, and that you call all here present to witness that you take CD as your lawful spouse/civil partner?
Each party must reply in the affirmative. If either party does not reply in the affirmative, the
solemnisation of the civil union may not proceed.48 If the parties do reply in the affirmative,
they must give each other the right hand. The marriage officer then declares that the parties
have been lawfully joined in a marriage/civil partnership.49 It is at this moment that the civil
union legally comes into existence.50 The marriage officer and two witnesses must sign the
civil union register to certify that the above-mentioned declaration was made in their presence.51 If there is a bona fide error, omission or oversight with regard to the question, declaration or giving of the right hand or if a physical disability renders compliance with these
provisions impossible, the civil union is nevertheless valid if it was in every other respect solemnised in accordance with the provisions of the Act.52
(d) Registration of the civil union
A marriage officer who solemnises a civil union must keep a record of all the civil unions he
or she solemnises53 and must issue each couple with a registration certificate which states that
they have entered into a marriage/civil partnership under the Civil Union Act.54 A duly
signed registration certificate is prima facie proof of the existence of the civil union.55
The marriage officer must send the civil union register to a regional or district representative of the Department of Home Affairs, who then enters the particulars of the civil union in
the records kept in terms of the Identification Act 68 of 1997.56
16.3 Consequences of a civil union
16.3.1 General
Subject to the changes which are required by the context, the consequences of a civil union
correspond to those of a civil marriage.57 Furthermore, except in so far as the Marriage Act
________________________
46 S 10(2). But see Van Schalkwyk 2007 De Jure 170, who argues that the premises the legislator had in mind
might be a church or other building used for religious services. He submits that since s 5(1) and (2) permits the appointment of religious marriage officers, the omission of a reference to a church or other building used for religious services in s 10(2) might be due to a legislative oversight. However, he also states that
the intended premises might indeed only be the premises of a public office or private dwelling, as the legislator might simply have intended to remove the type of problem which arose for decision in Ex parte Dow
1987 (3) SA 829 (D). In that case, the parties had entered into a civil marriage in the garden of a dwelling
despite the requirement in s 29(2) of the Marriage Act that the marriage must be solemnised in a church
or other building used for religious services or in a public office or private dwelling with open doors. On Ex
parte Dow, see further ch 3 above.
47 S 10(2).
48 S 11(2).
49 Ibid.
50 See also Van Schalkwyk 2007 De Jure 171.
51 S 12(2).
52 S 11(3).
53 S 12(5).
54 S 12(3).
55 S 12(4).
56 S 12(6) and (7) of the Civil Union Act.
57 S 13(1). The fact that a civil union has, with the necessary contextual adaptations, the same consequences
as a marriage under the Marriage Act (ie, a civil marriage) does not mean that a civil union amounts to a
civil marriage. This is so even if the civil union takes the form of a “marriage”. Civil marriage is governed by
continued
Chapter 16: Civil unions
211
and the Recognition of Customary Marriages Act are concerned, any reference to “marriage”
is equated with “civil union” and any reference to “husband”, “wife” or “spouse” with “civil
union partner”.58 Therefore, the invariable consequences of a civil union correspond to those
of a civil marriage, civil union partners have the same options as regards the proprietary consequences of their union as spouses in a civil marriage have, and a civil union is dissolved in
exactly the same way as a civil marriage.
16.3.2 Invariable consequences
The invariable consequences of a civil marriage are discussed in chapter 5 above. One of
those consequences is that a civil marriage is monogamous. The same rule applies to a civil
union. Thus, neither partner may enter into another civil union or a civil or customary marriage
during the subsistence of the civil union.59 Using the position which applies in respect of civil
marriages as the basis, it is submitted that a civil union, civil marriage or customary marriage
which is concluded in violation of the above-mentioned prohibition is void.
Another invariable consequence of a civil marriage is that the pater est quem nuptiae demonstrant presumption (that is, the marriage indicates who the father is) operates in respect of
any child the wife gives birth to. In terms of this presumption, a child born to a married
woman is presumed to have been fathered by her husband.60 Section 13(1) of the Civil Union
Act requires that the legal consequences of a civil marriage must be applied to a civil union
“with such changes as may be required by the context”. Application of the pater est quem nuptiae
demonstrant presumption in a civil union between heterosexual persons is easy, as there is a
male civil union partner who can be presumed to be the father of the child to which the
female civil union partner gives birth. However, it is unclear how the presumption can be
adapted to fit the circumstances of a same-sex civil union. The presumption specifically refers
to a father, while there are two male or two female parties (that is, two “fathers” or two
“mothers”) in a same-sex civil union. Furthermore, in the case of a same-sex civil union, procreation necessarily involves artificial fertilisation, and in the case of a male couple it necessarily involves surrogate motherhood too (unless, of course, the child is conceived through an
adulterous relationship with a third party of the opposite sex). As the rules regarding artificial
fertilisation and surrogate motherhood61 usually determine who the child’s parents are in the
case of a same-sex civil union, application of an adapted version of the pater est quem nuptiae
demonstrant presumption in respect of such civil unions is probably not viable.62
The position in respect of a civil union partner’s post-civil-union surname also differs from
that which applies in respect of spouses in a civil marriage. Section 26(1) of the Births and
Deaths Registration Act 51 of 1992 permits “a woman after her marriage” to assume the
surname of “the man with whom she concluded such marriage or after having assumed his
surname to resume a surname she bore at any prior time. It also permits “a married or
divorced woman or a widow” to resume a surname which she bore at any prior time, and “a
woman, whether married or divorced, or a widow” to add to the surname she assumed after
getting married, any surname which she bore at any prior time. Because section 13(2) of the
63
Civil Union Act provides that any reference to “husband” or “wife” in any Act other than the
________________________
58
59
60
61
62
63
the common law as amended by the Marriage Act and thus remains the preserve of heterosexual couples,
while a marriage (or a civil partnership) which is concluded under the Civil Union Act is a creature of the
particular statute which encompasses both heterosexual and same-sex couples in its ambit.
S 13(2).
S 8(1) and (2) of the Civil Union Act; see also s 10(4) of the Recognition of Customary Marriages Act.
Grotius 1.12.3; Voet 1.6.6. See also Fitzgerald v Green 1911 EDL 432; Atkin v Estate Bowmer 1913 CPD 505;
Williams v Williams 1925 TPD 538; Van Lutterveld v Engels 1959 (2) SA 699 (A).
For a discussion of those rules, see Heaton Persons 50–53.
See also Heaton Persons 56; Heaton in Gerber and Sifris (eds) Current Trends in the Regulation of Same-Sex
Relationships 114–115; De Ru 2013 Fundamina 247.
Obviously, the references in the Births and Marriages Registration Act to “a woman after her marriage”, “a
married … woman”, etc are to be equated with the word “wife” and the reference to “the man with whom
continued
212
South African Family Law
Marriage Act or the Recognition of Customary Marriages Act includes “civil union partner”
and section 13(1) of the Civil Union Act provides that the legal consequences of a civil marriage apply, “with such changes as may be required by the context”, to a civil union, the
dispensation in section 26(1) of the Births and Deaths Registration Act seems to apply to both
parties to a civil union. In a civil marriage, in contrast, the dispensation regarding surname
applies only to wives. It is submitted that this differentiation between the position of civil
union partners and spouses in a civil marriage is unconstitutional as it constitutes unjustifiable inequality.64
The matrimonial property system which applies to a civil union and the mechanisms for
changing the matrimonial property system are governed by the same rules which apply to civil
marriages. Those rules are set out in chapters 6 to 8 above. Thus, for example, if the civil
union partners do not enter into an antenuptial agreement, community of property operates
in their civil union and they have equal powers of administration in respect of the joint estate.
If they do enter into an antenuptial contract, the terms of the contract determine the proprietary consequences of their civil union. It is clear that the above-mentioned rules apply if
both civil union partners are domiciled in South Africa. Because our private international law
provides that the lex domicilii of the husband at the time of a couple’s marriage dictates their
matrimonial property system65 and section 13 of the Civil Union Act entails that this rule
applies to civil unions too, the rules regarding determination of a couple’s matrimonial
property system also apply if the civil union partners are of the opposite sex and the male
partner is domiciled in South Africa. A problem arises if the civil union partners are of the
same sex and one or both of them are not domiciled in South Africa. As there is no “husband” in such a civil union, the rule regarding the husband’s lex domicilii being the determining factor fails to reveal the proprietary consequences of the couple’s civil union.66 This
failure unjustifiably limits the right to equality. It, inter alia, unfairly discriminates against
same-sex civil union partners on the ground of their sexual orientation, by leaving the proprietary consequences of their civil union uncertain.67 As South African private international
law does not currently have a ready replacement for the rule regarding the husband’s lex
domicilii being the determining factor, the legislator should step in to enact a suitable and
constitutionally acceptable replacement for the rule.68
16.4 The dissolution of a civil union
Exactly the same rules which govern the dissolution of a civil marriage apply to the dissolution of a civil union.69 Those rules are discussed in chapters 9 to 15 above. It must be noted,
however, that, because of the provision in section 7(3) of the Divorce Act 70 of 1979 which
________________________
64
65
66
67
68
69
she concluded such marriage” is to be equated with “husband” for purposes of the Civil Union Act. See also
McConnachie 2010 SALJ 426–427.
See also ch 5 above. S 9 of the Constitution contains the equality clause and s 36 the limitation clause.
Frankel’s Estate v The Master 1950 (1) SA 220 (A).
On this point, see also Farlam JA’s minority judgment in Fourie v Minister of Home Affairs 2005 (3) BCLR 241
(SCA), 2005 (3) SA 429 (SCA) pars 124–125; AS v CS 2011 (2) SA 360 (WCC); Heaton in Gerber and Sifris
(eds) Current Trends in the Regulation of Same-Sex Relationships 114; Schäfer in Clark (ed) Family Law Service
par R48; Sinclair in Atkin (ed) 2008 International Survey of Family Law 408–409; Mamashela and Carnelley
2006 Obiter 385; Neels and Wethmar-Lemmer 2008 TSAR 588; De Ru 2010 THRHR 564; De Ru 2013 Fundamina 247. McConnachie 2010 SALJ 435 suggests that the civil union partners may choose which partner is
to be identified as the “husband”. He shows that this is an absurd and unworkable position: 435–436.
See also Heaton Persons 40.
Even in the case of heterosexual spouses in a civil or customary marriage and heterosexual civil union
partners, the rule is unconstitutional, as it amounts to unjustifiable unfair discrimination on the ground of
sex: see also Heaton Persons 40; Neels 1992 TSAR 336; Heaton and Schoeman 2000 THRHR 146; Schoeman
2004 TSAR 117–118, 140; McConnachie 2010 SALJ 436–438. For recommendations on a possible replacement for the current rule, see Stoll and Visser 1989 De Jure 330; Schoeman 2001 TSAR 72; Schoeman 2004
TSAR 115; Schoeman 2004 Praxis des Internationales Privat- und Verfahrensrechts 65; Neels and WethmarLemmer 2008 TSAR 588–589; McConnachie 2010 SALJ 438–440.
S 13; see also AS v CS 2011 (2) SA 360 (WCC), Heaton and Kruger Casebook on Family Law case [64].
Chapter 16: Civil unions
213
permits redistribution of assets only if the parties married before 1 November 1984 or
2 December 1988,70 redistribution of assets is not available to any divorcing civil union partner.
16.5 The constitutionality of the Civil Union Act
The possible unconstitutionality of specific provisions of the Civil Union Act is mentioned
above in this chapter. For present purposes, the focus falls on the constitutionality of the Act
as a whole. The main issue is whether the Act achieved what the Constitutional Court in Minister of Home Affairs v Fourie (Doctors for Life International, Amici Curiae); Lesbian and Gay Equality
Project v Minister of Home Affairs 71 required the legislator to do, namely afford same-sex couples
the status, benefits and responsibilities accorded to opposite sex couples.72 Broadly speaking,
the Act confers the same right on heterosexual and same-sex couples to enter into a fully recognised relationship which may be called a marriage or a civil partnership.73 In this sense, the
Act therefore meets the requirement set out in Fourie. Most commentators therefore adopt
the view that the Act is a constitutionally acceptable vehicle for conferring full legal recognition on same-sex relationships.74
A complicating factor is that the Act is the only means available to same-sex couples who want
to obtain full legal recognition for their relationship, while heterosexual couples can acquire
such recognition by way of either a civil union or a civil marriage. Some authors are of the view
that this differentiation results in a separate but equal remedy in direct contravention of the
warning in Fourie that the concept of “separate but equal”, which historically “served as a
threadbare cloak for covering distaste for or repudiation by those in power of the group subjected to segregation”,75 would be unconstitutional and that the legislator must “be as generous
and accepting towards same-sex couples as it is to heterosexual couples, both in terms of the
intangibles as well as the tangibles involved”.76 The authors suggest that this difficulty can be
overcome by repealing the Marriage Act.77 Another view is that instead of repealing it, the
Marriage Act should be amended to apply to heterosexual and same-sex couples alike. In
addition, the Civil Union Act should be repealed, because it unjustifiably violates the right to
equality because some of its provisions apply only to same-sex couples, confers a second-class
marital status on same-sex couples, and produces new forms of oppression and repudiation.78
________________________
70
71
72
73
74
75
76
77
78
On redistribution of assets upon divorce, see ch 12 above.
2006 (1) SA 524 (CC), 2006 (3) BCLR 355 (CC).
Pars 120, 158, 161, 162.
The provision enabling secular marriage officers to refuse to solemnise a same-sex civil union (see the discussion of s 6 above) could have deleterious implications for same-sex couples’ right to enter into a civil
union in that it might render exercising their right very difficult. The theoretically equal rights of same-sex
and heterosexual couples to enter into a civil union may therefore be scuppered by marriage officers.
See eg Sinclair in Atkin (ed) 2008 International Survey of Family Law 404, 498, 499; Bilchitz and Judge 2007
SAJHR 482, 483–484; De Vos 2007 SAJHR 463; De Vos and Barnard 2007 SALJ 820.
Par 150.
Par 153. The first draft of the Civil Union Bill would certainly have been a constitutionally untenable separate but equal measure, for it restricted same-sex couples to entering into a civil partnership which was
open only to them. On this point, see eg De Vos Bill of Rights Compendium par 3J41; Sinclair in Atkin (ed)
2008 International Survey of Family Law 403–404; Barnard 2007 SAJHR 516–517, 521–522; Bilchitz and Judge
2007 SAJHR 479–482; De Vos 2007 SAJHR 458–460; De Vos and Barnard 2007 SALJ 808–811, 819; De Vos
2008 Utrecht Law Review 167–169; Govender 2008 Obiter 17; De Ru 2013 Fundamina 243–244.
Bilchitz and Judge 2007 SAJHR 488, 489; De Vos and Barnard 2007 SALJ 821, 822; Bakker 2009 Journal for
Juridical Science 8.
The provisions which relate only to same-sex couples are s 6 and the exclusion of same-sex minors by the
definition of “civil union” in s 1. These provisions are discussed above in this chapter. On the arguments
regarding the constitutionality of the Civil Union Act and the continuing inability of same-sex couples to
enter into a civil marriage, see further Heaton in Gerber and Sifris (eds) Current Trends in the Regulation of
Same-Sex Relationships 114–115; Robinson in Atkin (ed) 2007 International Survey of Family Law 288; Sinclair
in Atkin (ed) 2008 International Survey of Family Law 403–405; Bilchitz and Judge 2007 SAJHR 487 et seq; Jivan
2007 Law, Democracy and Development 43; Wood-Bodley 2008 SALJ 485–486; Ntlama 2010 PELJ 197 et seq; De
Ru 2010 THRHR 564–567. On the issue of whether it is the Marriage Act or the Civil Union Act which
should be repealed, see also Smith and Robinson 2010 PELJ 47–68.
PART
3
CUSTOMARY MARRIAGES
17
CUSTOMARY MARRIAGES
17.1 Introduction
A customary marriage is a marriage which is concluded, not in terms of the common law and
the Marriage Act 25 of 1961 or a system of religious law, but in terms of customary law and the
Recognition of Customary Marriages Act 120 of 1998. “Customary law” refers to “the customs
and usages traditionally observed among the indigenous African peoples of South Africa and
which form part of the culture of those peoples”.1
Prior to the coming into operation of the Recognition of Customary Marriages Act on
15 November 2000, customary marriages were recognised only for limited purposes,2 because
they permit polygyny and are not solemnised in terms of the Marriage Act. Section 2 of the
Recognition of Customary Marriages Act conferred full legal recognition on monogamous
and de facto polygynous customary marriages regardless of when they were concluded.3 Many
of the requirements and consequences the Act imposes in respect of customary marriages are
the same as those which apply to civil marriages.4
17.2 The legal requirements for a customary marriage
17.2.1 Marriages entered into before the coming into operation of the Act
The legal requirements for a valid customary marriage depend on whether the marriage was
concluded before or after the coming into operation of the Act. A customary marriage concluded before the coming into operation of the Act is valid only if it complies with the customary-law requirements for a valid marriage.5
A distinction has to be drawn between KwaZulu-Natal and the rest of the country. As Zulu
customary law has been partly codified for KwaZulu-Natal, the codes on Zulu law are the
________________________
1 S 1 of the Recognition of Customary Marriages Act 120 of 1998. Dlamini 1999 Obiter 15 is of the view that
customary marriages are restricted to African persons. Jansen in Rautenbach et al Introduction to Legal Pluralism in South Africa 50 submits that they are not, but points out that people who do not follow a cultural lifestyle where there are African traditional leaders and traditional community values and customs might find
it difficult to prove that they have entered into a customary marriage. See further Himonga and Nhlapo
(eds) African Customary Law 96–97. On whether the Act applies to Namas, Bushmen and Griquas, see
Maithufi and Bekker 2002 CILSA 196.
2 Eg, in terms of s 31 of the Black Laws Amendment Act 76 of 1963 a widow in a customary marriage could
claim damages for loss of support arising from her husband’s death, and the Births and Deaths Registration
Act 51 of 1992 deemed customary marriages to be valid marriages.
3 As the constitutionality of the recognition of customary marriages is no longer contentious, the arguments
in this regard are not considered in this book.
4 According to Himonga 2005 Acta Juridica 84 the nearly total substitution by the Act of the customary-law
consequences of a customary marriage with the consequences which apply in a civil marriage has created a
“common law African customary marriage”. Bakker 2009 Journal for Juridical Science 17 goes even further. He
states that customary marriages have been turned into civil marriages in which polygyny is permitted. See
also Bekker and Van Niekerk 2009 SA Public Law 214, who state that customary marriages have become civil
marriages in all but name.
5 S 2(1) of the Recognition of Customary Marriages Act.
217
218
South African Family Law
starting point in ascertaining the customary-law requirements for a valid customary marriage
in that province. For historical reasons two different codes, namely the KwaZulu Act on the
Code of Zulu Law 16 of 1985 and the Natal Code of Zulu Law,6 apply. In so far as customary
marriages are concerned the Codes are virtually identical. They require that the bride must
publicly declare to the official witness7 that the marriage is taking place of her own free will
and with her consent, and that if either future spouse is a minor, his or her father or legal
guardian must also consent to the marriage.8 The Codes further provide that certain family
members are not within the prohibited degrees of relationship for purposes of entering into a
customary marriage.9 Although the Codes do not expressly stipulate this as an “essential” for
marriage, lobolo (or bogadi, bohali, xuma, lumalo, thaka, ikhazi, magadi, emabheka, bridewealth) is
customarily delivered.10 In other words, the bridegroom or the head of his family gives property to the head of the bride’s family in consideration of the marriage.
Uncodified systems of customary marriage law apply in the rest of the country. These systems differ from one another to varying degrees. The various systems are discussed in several
specialised works on customary law which, it must be conceded, do not in all respects reflect
current customary family law.11 Very briefly and as a broad generalisation, the requirements
that are set by most systems of customary law which apply outside KwaZulu-Natal seem to be
the following: Regardless of the spouses’ ages, both of them and the bride’s father or legal
guardian must consent to the marriage. If the bridegroom is a minor, his father, legal guardian or family head must also consent to the marriage. The spouses must be over the age of
puberty and must not be within the prohibited degrees of relationship. The wife must be
handed over to her husband’s family and live with her husband. Lobolo is customarily delivered. Often, a ceremony takes place in celebration of the marriage.12
17.2.2 Marriages entered into after the coming into operation of the Act
(a) General requirements
A customary marriage that is concluded after the coming into operation of the Act is valid if
the bride and groom are over the age of 18 years, both of them consent to the marriage, and
the marriage is negotiated and entered into or celebrated in accordance with customary law.13
________________________
6 Proc R151 GG 10966 of 9 Oct 1987.
7 The official witness is a person who is appointed by a tribal chief to officiate as a witness at customary
marriages: s 1 of the Codes. The official witness must publicly ask the bride whether she is marrying the
bridegroom of her own free will and consent: s 42 of the Codes.
8 S 38(1) of the Codes.
9 S 37 of the Codes.
10 The Codes do, however, regulate delivery of lobolo by, eg, requiring the persons who contributed to the
lobolo publicly to declare the source(s) of the lobolo to the official witness; providing that lobolo can consist of
cattle or their equivalent in other stock, money or property; and stipulating the maximum lobolo which can
be demanded: see eg ss 43, 47, 51, 52 and ch 8 of the Codes.
11 On living versus official customary law, see fn 42 below.
12 Generally on the customary-law requirements for a valid marriage, see eg Mabena v Letsoalo 1998 (2) SA
1068 (T); Fanti v Boto 2008 (5) SA 405 (C); Ndlovu v Mokoena 2009 (5) SA 400 (GNP); Motsoatsoa v Roro
[2011] 2 All SA 324 (GSJ); Rasello v Chali In re: Chali v Rasello [2013] JOL 30965 (FB); Moropane v Southon
[2014] ZASCA 76 (29 May 2014); Barratt (ed) Persons and the Family 381–382; Himonga and Nhlapo (eds)
African Customary Law 98–102; Jansen in Rautenbach et al Introduction to Legal Pluralism in South Africa 50–53,
55–59; Kovacs, Ndashe and Williams in Claassens and Smythe (eds) Marriage, Land and Custom 282–286;
Mwambene in Clark (ed) Family Law Service pars G32–G39; Mwambene and Kruuse in Claassens and
Smythe (eds) Marriage, Land and Custom 305–310; Mofokeng 43–61, 63–67, 69–73; Olivier Die Privaatreg van
die Suid-Afrikaanse Bantoetaalsprekendes ch 4; Olivier et al LAWSA Indigenous Law pars 17–35; Seymour 105–
125; Sinclair assisted by Heaton 242–245; South African Law Commission Report on Customary Marriages Project 90 ch 4; Curran and Bonthuys 2005 SAJHR 615–617; Ngema 2012 (2) Speculum Juris 30; Bakker 2013
Obiter 586–589; Nkosi Jan/Feb De Rebus 67.
13 S 3(1). On the purpose of the requirement that the marriage be negotiated and entered into or celebrated
in accordance with customary law, see Bakker 2013 Obiter 586–588.
Chapter 17: Customary marriages
219
14
In MM v MN the Constitutional Court had to decide whether a husband may enter into
another customary marriage without his first wife’s consent. In this particular case, the parties
were married in terms of Xitsonga customary law. The majority of the court held that even
though the Act does not expressly require the first wife’s consent, Xitsonga customary law
does so. It arrived at this finding after examining evidence provided by experts, individuals in
polygynous marriages under Xitsonga customary law, traditional leaders, and an advisor to
traditional leaders. It concluded that when a VaTsonga man decides to enter into a further
customary marriage, he must inform his first wife. The first wife is expected to agree to the
marriage. If she withholds consent, attempts are made to persuade her. If she remains unper15
suaded, divorce may follow. The majority further held that the constitutional rights to
dignity and equality dictate that the first wife’s consent is required. If a further customary
marriage is entered into without the first wife’s knowledge or consent, her right to equality
with her husband is completely undermined because she is unable to consider or protect her
position as regards her personal life, her sexual and reproductive health, and the possible
negative proprietary consequences of the further marriage. Also, because of the highly personal and private nature of marriage, “it would be a blatant intrusion on the dignity of one
16
partner to introduce a new member to that union without obtaining that partner’s consent”.
The majority further held that the equal status and capacity that section 6 of the Act confers
on spouses includes the requirement that both of them consent to the marriage and that the
first wife consents to the future matrimonial property system that will operate in the polygynous marriage. The majority concluded that the first wife’s consent is required for the husband’s further customary marriage, and that the further marriage is invalid if this consent is
not obtained. The order of the majority specifically refers to Xitsonga law, but the statements
on equality and dignity strongly suggest that the court will arrive at the same conclusion in
respect of other South African systems of customary law that may not require the first wife’s
consent. Consequently, the implication of the judgment is that the consent of the first wife in
17
any customary marriage is required for her husband’s further customary marriage.
The Act expressly states that the forbidden degrees of relationship for purposes of a customary marriage must be determined in accordance with customary law.18 Although the Act
does not require delivery of lobolo for the validity of a customary marriage, delivery of lobolo
continues because it is a requirement under most systems of customary law.19
(b) Additional requirements in respect of a minor’s customary marriage
Regardless of whether or not they are subject to customary law, the age of majority is 18 years
for all men and women.20 If either party to a customary marriage is a minor, the minor’s
parent(s) or legal guardian must consent to the marriage. If such consent cannot be obtained,
________________________
14 2013 (4) SA 415 (CC) (also reported as Mayelane v Ngwenyama (Women’s Legal Centre Trust and Others as
Amici Curiae) 2013 (8) BCLR 918 (CC)), Heaton and Kruger Casebook on Family Law case [65]. On the
judgments of the various courts in the case, see Himonga and Nhlapo (eds) African Customary Law 117–118,
141–144; Himonga and Pope in Claassens and Smythe (eds) Marriage, Land and Custom 318 et seq; Bekker
and Van Niekerk 2010 THRHR 679 et seq; Maithufi 2012 De Jure 405 et seq; Maithufi 2013 THRHR 688 et seq;
Maithufi 2013 De Jure 1078 et seq; Kruuse and Sloth-Nielsen 2014 PELJ 1709 et seq; Müller-Van der
Westhuizen LitNet Akademies (Regte) 4 March 2014, http://www.litnet.co.za/vonnisbespreking-dieonsekerhede-aangaande-die-toepaslike-huweliksgoederebedelings-in-poli/ (accessed 22 June 2015); Spies
2015 Stell LR 156 et seq.
15 On the issue of whether it is really the wife’s consent that is required or whether she must simply be
informed of the prospective marriage, see Himonga and Pope in Claassens and Smythe (eds) Marriage,
Land and Custom 322–323; Kruuse and Sloth-Nielsen 2014 PELJ 1720–1722.
16 Par 74.
17 See also Himonga and Pope in Claassens and Smythe (eds) Marriage, Land and Custom 322–323; Heaton
2013 Annual Survey of South African Law 465; Maithufi 2013 De Jure 1087–1088. But see Mwambene and
Kruuse in Claassens and Smythe (eds) Marriage, Land and Custom 296.
18 S 3(6).
19 See above in this chapter.
20 S 9 of the Recognition of Customary Marriages Act, read with s 17 of the Children’s Act.
220
South African Family Law
section 25 of the Marriage Act applies.21 Thus, the minor may ask the presiding officer of the
Children’s Court to consent to the marriage.22 If a parent, legal guardian or presiding officer
withholds consent, the minor may approach the High Court for consent. The court will grant
consent if it is of the opinion that the refusal by the parent, legal guardian or presiding
officer is without adequate reason and contrary to the minor’s best interests.23 Unless the
High Court authorises the marriage, the minor must also obtain the written consent of the
Minister of Home Affairs or the person designated by the Minister. Such consent will be given
only if the marriage is desirable and in the parties’ interests.24 Ministerial consent does not
release the minor from the need to comply with all the other requirements for a valid customary marriage, such as obtaining parental consent.25
If a minor enters into a customary marriage without the consent of his or her parent or
legal guardian, or the presiding officer, section 24A of the Marriage Act applies.26 This section
provides that the marriage is voidable at the instance of the minor or his or her parent or
legal guardian. The application to have the marriage set aside must be made by the parent or
legal guardian before the minor attains majority and within six weeks from the date on which
the parent or legal guardian becomes aware of the existence of the marriage, or by the minor
before he or she attains majority or within three months thereafter. The court may not
dissolve the marriage unless it is satisfied that dissolution is in the interests of the minor(s). If
the Minister’s consent to the customary marriage was not obtained, the Minister may ratify
the marriage if the marriage is desirable and in the parties’ interests and in all other respects
complies with the Recognition of Customary Marriages Act.27
17.3 Registration of the marriage
The spouses must register their customary marriage, but non-registration does not affect the
validity of the marriage.28 Registration of a customary marriage concluded before the coming
into operation of the Act had to occur by 31 December 2010.29 A customary marriage entered
into after the coming into operation of the Act must be registered within three months of the
wedding date or within such longer period as the Minister prescribes in the Government
Gazette.30
Either spouse may apply for registration and must furnish the necessary information to sat31
isfy the registering officer that the marriage exists. If the officer is satisfied that the spouses
entered into a valid customary marriage, he or she must issue a certificate of registration
32
bearing, inter alia, the parties’ identity, the date of their marriage, and any lobolo agreed to.
________________________
21 S 3(3) of the Recognition of Customary Marriages Act. On parental consent, see also s 18(3)(c) of the Children’s Act. On the consent requirement in respect of a minor’s customary marriage, see further Van
Schalkwyk 2000 THRHR 483–486. On s 25(4) of the Marriage Act, see further ch 3 above.
22 S 25(1) of the Marriage Act.
23 S 25(4) of the Marriage Act.
24 S 3(4)(a) of the Recognition of Customary Marriages Act.
25 S 3(4)(b). The position corresponds to that of a girl below the age of 15 years or a boy below the age of 18
years who wants to enter into a civil marriage: see ch 3 above.
26 S 3(5) of the Recognition of Customary Marriages Act. On s 24A of the Marriage Act, see further ch 3 above.
27 S 3(4)(c) of the Recognition of Customary Marriages Act. The position is similar to that of a girl below the
age of 15 years or a boy below the age of 18 years who entered into a civil marriage without the Minister’s
consent: see ch 3 above.
28 S 4(9).
29 S 4(3)(a) originally limited the registration period to one year after the coming into operation of the Act,
but this period was extended by GN 1228 GG 22839 of 23 Nov 2001, GN R1391 GG 31735 of 24 Dec 2008
and GN R51 GG 32916 of 5 Feb 2010.
30 S 4(3)(b).
31 S 4(2).
32 S 4(4).
Chapter 17: Customary marriages
221
The certificate is prima facie proof of the existence of the customary marriage and the other
33
particulars contained in it.
If neither spouse requests registration, any party who has “a sufficient interest in the mat34
ter” may request the registering officer to enquire into the existence of the marriage. If the
officer is satisfied that a valid customary marriage exists or existed, he or she must register the
35
marriage and issue a registration certificate. This provision enables a customary marriage to
be registered after the death of one or both of the spouses.
Finally, a court may, on application and after having investigated the matter, order the registration, cancellation of the registration, or rectification of the registration of any customary
36
marriage.
17.4 The patrimonial consequences of the marriage and control of
the matrimonial property
17.4.1 Introduction
The patrimonial consequences of a customary marriage depend on whether the marriage is
de facto monogamous or polygynous.
17.4.2 Monogamous customary marriages
As a result of the decision of the Constitutional Court in Gumede v President of the Republic of
37
South Africa, section 7(2) of the Recognition of Customary Marriages Act applies to every
monogamous customary marriage, regardless of the date on which the marriage was concluded. Before the decision in Gumede, section 7(2) applied to monogamous customary marriages
spouses concluded after the commencement of the Act, while section 7(1) applied to monogamous customary marriages concluded before the commencement of the Act. Section 7(1)
provided that customary law governed the patrimonial consequences of all customary marriages concluded prior to the coming into operation of the Act. The effect of the application
of customary law to the spouses in Gumede was that the husband owned and controlled all
family property and the wife had no claim to family property. The Constitutional Court held
that depriving wives in some monogamous customary marriages of a claim to family property
because of the date on which they entered into their marriage constitutes unjustifiable unfair
discrimination on the ground of gender. The court declared section 7(1) unconstitutional
and invalid to the extent that it related to monogamous customary marriages. The court also
declared the inclusion of the words “entered into after the commencement of this Act” in
section 7(2) unconstitutional and invalid and excised them from the section. Consequently,
section 7(2) now applies to all monogamous customary marriages, while section 7(1) still
________________________
33 S 4(8); see also TM v NM 2014 (4) SA 575 (SCA). In the absence of a registration certificate, the existence
of the marriage can be proved by other means, although this may be a formidable task: De Koker 2001
TSAR 257. On the difficulties in having a customary marriage registered, see further De Souza in Claassens
and Smythe (eds) Marriage, Land and Custom 239; Kovacs, Ndashe and Williams in Claassens and Smythe
(eds) Marriage, Land and Custom 278–282; Mwambene and Kruuse in Claassens and Smythe (eds) Marriage,
Land and Custom 300–303.
34 S 4(5)(a). Meyer 2008 South African Deeds Journal 10 gives the following examples of who might qualify as a
party with a sufficient interest in the matter: a friend, relative or traditional leader; one of the people who
participated in the marriage negotiations between the spouses’ families; another wife of a husband who has
concluded a polygynous customary marriage; a person with an interest in communal land under the control of the husband; a business partner of one of the spouses; and a fellow trustee of a spouse. She submits
that it is up to the registering officer to determine whether a particular person is a party with a sufficient interest.
35 S 4(5)(b).
36 S 4(7). For an example of a case in which the registration of a customary marriage was cancelled, see
Ndlovu v Mokoena 2009 (5) SA 400 (GNP); for an example of a case in which an action for cancellation was
dismissed, see Maluleke v Minister of Home Affairs Case 02/24921, 9 April 2008 (W) (unreported).
37 2009 (3) BCLR 24 (CC), 2009 (3) SA 152 (CC), Heaton and Kruger Casebook on Family Law case [66].
222
South African Family Law
applies to polygynous customary marriages concluded before the coming into operation of
the Act.
Section 7(2) provides that the matrimonial property system in a monogamous customary
marriage is determined by the same rules that apply to civil marriages. In other words, if the
spouses do not enter into an antenuptial contract, they are married in community of property. If they do enter into an antenuptial contract, the provisions of the antenuptial contract
determine their matrimonial property system. Presumably, the accrual system applies to a
monogamous customary marriage that is out of community of property, unless the accrual
38
system is expressly excluded in the antenuptial contract. The Act further provides that if the
marriage is in community of property, sections 14 to 20 and section 24 of the Matrimonial
Property Act 88 of 1984 apply to the marriage.39 Thus, the rules that govern administration of
the joint estate, litigation by or against a spouse who is married in community of property,
damages paid or recovered by such a spouse, the spouse’s delictual liability, and the statutory
protective measures one spouse can employ against the other are exactly the same in civil and
customary marriages in community of property.40
17.4.3 Polygynous customary marriages
(a) Polygynous marriages entered into before the coming into operation of the Act
As indicated above, the decision in Gumede v President of the Republic of South Africa 41 entails that
section 7(1) of the Recognition of Customary Marriages Act still applies to polygynous customary marriages which were concluded before the coming into operation of the Act. Consequently, the patrimonial consequences of these marriages are still regulated by customary
law.42 Again only a brief, generalised summary of the relevant customary-law rules is given.
Generally speaking, each customary marriage results in the establishment of a separate
house with a specific rank. The rank of the house and wife is determined by the ranking system adopted by the particular group. The predominant system is that of complex ranking,
which manifests itself in two main forms. One form determines each house’s relative rank
________________________
38 Barratt (ed) Persons and the Family 387; Himonga in Heaton (ed) Law of Divorce and Dissolution of Life
Partnerships 247–248. On the accrual system, see ch 7 above.
39 S 7(3).
40 On these sections, see ch 6 above. As Mamashela 2004 SAJHR 631–632 and 635 points out, the consent
requirement in s 15(2) and (3) of the Matrimonial Property Act 88 of 1984 will be of very little consequence for many rural customary spouses as they do not own the types of assets the section relates to.
41 2009 (3) BCLR 24 (CC), 2009 (3) SA 152 (CC).
42 Precisely what the relevant customary-law rules are and whether they can be reconciled with the constitutional values of equality and dignity are difficult to ascertain. Perhaps customary law – as a living body of law
– has developed towards gender equality in respect of the sharing and control of family and house property, but this is by no means clear. Thus it may be that the very same customary position which the Constitutional Court criticised so vehemently in Gumede in so far as it applied to monogamous customary marriages
concluded before the coming into operation of the Act continues to operate in polygynous customary marriages which were concluded before the coming into operation of the Act. See also Pieterse 2009 SAJHR
209–210. On the differences between official and current, living customary law, the difficulties in ascertaining the true content of customary law and the complexities surrounding development of customary law in
keeping with the Constitution, see eg Alexkor Ltd v Richtersveld Community 2003 (12) BCLR 1301 (CC), 2004
(5) SA 460 (CC); Bhe v Magistrate, Khayalitsa (Commission for Gender Equality as Amicus Curiae); Shibi v Sithole;
South African Human Rights Commission v President of the Republic of South Africa 2005 (1) BCLR 1 (CC), 2005
(1) SA 580 (CC); Shilubana v Nwamitwa 2008 (9) BCLR 914 (CC), 2009 (2) SA 66 (CC); Gumede v President
of the Republic of South Africa 2009 (3) BCLR 24 (CC), 2009 (3) SA 152 (CC); Barratt (ed) Persons and the
Family 377–378; Bennett Human Rights and African Customary Law 60–64; Himonga in Fenrich et al (eds) The
Future of African Customary Law 33 et seq; Himonga in Heaton (ed) Law of Divorce and Dissolution of Life Partnerships 233–236; Himonga and Nhlapo (eds) African Customary Law 16–17, 25–35, 61–63; Mbatha et al in
Bonthuys and Albertyn (eds) Gender, Law and Justice 167–168; Dlamini 1984 SALJ 346; Nhlapo 1991 Acta
Juridica 136; Bekker and Maithufi 1992 Journal for Juridical Science 47; Kerr 1999 Obiter 41; Van der Meide
1999 SALJ 100; Nicholson 2003 THRHR 374–375; Bonthuys and Erlank 2004 TSAR 64–72; Lehnert 2005
SAJHR 246–247, 250 et seq; Bekker and Van Niekerk 2009 SA Public Law 216–222; Kerr 2009 SALJ 44–49 and
679–685; Bekker and Van der Merwe 2011 SAPL 115.
Chapter 17: Customary marriages
223
according to the date of the marriage, with the first wife (also known as the great, main or
chief wife) and her house occupying the highest rank. All other wives and their houses are
ranked according to the date of each marriage. In accordance with the other form of complex ranking, the houses are divided into two separate sections. The first wife is the main wife.
Her house forms the senior house in the first section. The second wife is the right-hand wife,
and her house is the senior house in the second section. All further wives are added, in turn,
to the two sections, and their ranking within each section is determined according to the date
of each marriage. Regardless of which form of the complex ranking system applies to a
particular family, the husband is the family head of all the houses. According to the simple
ranking system, each wife does not establish a separate house. Instead, the property of the
whole group, consisting of the family head and all his wives, forms one estate. However, each
wife occupies a different rank, which is determined by her date of marriage. Thus, the first
wife is the chief wife and all other wives are ranked in the order of their marriages. In this
system too, the husband is the head of the family.43
Except when the simple ranking system applies, assets acquired by a spouse become either
general (or family) property or house property. The position of a person within the family
usually determines ownership of property he or she acquires. Generally, anything obtained by
or through a member of a particular house belongs to that house. For example, wages earned
by a particular wife and her children and lobolo paid for her daughters belong to that wife’s
house. The family head may also allot property to a particular house. The family head’s
property and earnings, and any unalloted property fall into the family estate which the family
head must use to support his dependants. Any surplus may be used in his discretion.44
(b) Polygynous marriages entered into after the coming into operation of the Act
(i) A court-approved contract
In terms of section 7(6) of the Act, a husband who already is a party to a customary marriage
and wants to enter into another customary marriage must, prior to the celebration of the new
marriage, obtain the court’s approval of a written contract which is to regulate the future matrimonial property system of his marriages.45 If the existing customary marriage is in community
of property or subject to the accrual system, the court must terminate the matrimonial property system and effect a division of the property.46
In all applications, the court must ensure that the property is equitably distributed, and
take into account all the relevant circumstances of the family groups that would be affected if
the application were granted.47 Although the Act does not expressly require that the present
and future wives’ wishes should be taken into account, the court will presumably consider
________________________
43 On the establishment and ranking of houses, see Himonga and Nhlapo (eds) African Customary Law 129;
Mwambene in Clark (ed) Family Law Service pars G22–G23, G28; Mofokeng 40–41; Olivier Die Privaatreg van
die Suid-Afrikaanse Bantoetaalsprekendes 121–137; Olivier et al LAWSA Indigenous Law pars 41–44; Seymour 69–
95; Sinclair assisted by Heaton 247.
44 Generally on ownership and control of house and family property, see ch 5 of the Zulu Codes; Bennett
Human Rights and African Customary Law 122–123; Bekker and Maithufi in Rautenbach et al Introduction to
Legal Pluralism in South Africa 61–62; Himonga and Nhlapo (eds) African Customary Law 129; Mwambene in
Clark (ed) Family Law Service pars G25–G26, G54–G56; Mofokeng 78–81; Olivier Die Privaatreg van die SuidAfrikaanse Bantoetaalsprekendes 140–150; Olivier et al LAWSA Indigenous Law pars 46–48; Seymour 134–140;
Sinclair assisted by Heaton 247–248; South African Law Commission Report on Customary Marriages Project 90
par 6.3; Mqeke 1999 Obiter 63–64; Van der Meide 1999 SALJ 100; Akinnusi 2000 Journal for Juridical Science
147–148; Vorster, Dlamini-Ndwandwe and Molapo 2001 SA Journal of Ethnology 64–65; Jansen 2002 Journal
for Juridical Science 118–120; Pienaar 2003 Stell LR 263; Bekker and Boonzaaier 2007 De Jure 281–283.
45 See Horn and Janse van Rensburg 2002 Journal for Juridical Science 63–64 and Himonga 2005 Acta Juridica 88
and 106 on the financial, time-related and accessibility problems the requirement of court approval creates.
46 S 7(7)(a)(i).
47 S 7(7)(a)(ii) and (iii). But see Van Schalkwyk 2003 De Jure 305, 306 who submits that these subsections
apply only to customary marriages entered into prior to the coming into operation of the Act and those
which are entered into out of community of property after the coming into operation of the Act.
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South African Family Law
their views as part of their family groups’ circumstances. Furthermore, all persons having a
sufficient interest in the matter and, in particular, the husband’s present and future wives,
must be joined in the proceedings.48
The Act authorises the court to allow amendments to the proposed contract, grant an order subject to conditions, or refuse the application if, in its opinion, any party’s interests
would not be sufficiently safeguarded by the proposed contract.49
The Act does not stipulate the consequences of failure to obtain a court-approved contract.
50
In MM v MN the Constitutional Court held that section 7(6) does not constitute a requirement for the validity of a customary marriage; it simply relates to the matrimonial property
system. Consequently, non-compliance with section 7(6) does not render the marriage void
or voidable.
(ii) The matrimonial property system(s) the contract can provide for
The Act does not expressly stipulate whether the proposed contract could provide for different matrimonial property systems to operate in a husband’s various marriages. In other
words, if a husband has, say, three wives, could one marriage be subject to the accrual system
while the other two are subject to complete separation of property? It seems not, for the Act
provides that the contract must regulate the future “matrimonial property system of his
marriages”. The use of the singular “system” indicates that one matrimonial property system
must govern all his marriages.51 If this interpretation is correct, the issue arises whether a
husband who wants to enter into a polygynous customary marriage can select any of the
matrimonial property systems which are available to couples who enter into a monogamous
52
customary marriage, a civil marriage or a civil union. In MM v MN the majority of the
Constitutional Court endorsed the interpretation of the Supreme Court of Appeal in MN v
53
MM that the legislature did not intend non-compliance with section 7(6) to result in invalidity of a polygynous customary marriage and that the consequences of non-compliance with
the section were adequately met by treating subsequent customary marriages as being out of
community of property. It is submitted that complete separation of property is in any event
54
the only viable matrimonial property system in a polygynous customary marriage.
It seems legally impossible to apply community of property to a polygynous marriage, since
this matrimonial property system entails that each spouse obtains an undivided and indivisible half-share in all property acquired and all liabilities incurred by either spouse.55 It could
surely not be argued that the husband in a polygynous marriage should get one undivided
half-share and all his wives should jointly get the other undivided half-share. Nor could a
separate joint estate be formed for each marriage, for how would the husband’s property and
debts be divided between the various joint estates? Perhaps a court would be willing to
________________________
48 S 7(8).
49 S 7(7)(b).
50 2013 (4) SA 415 (CC) (also reported as Mayelane v Ngwenyama (Women’s Legal Centre Trust and Others as
Amici Curiae) 2013 (8) BCLR 918 (CC)).
51 See also Van Schalkwyk 2000 THRHR 491; Jansen 2002 Journal for Juridical Science 122; Van Schalkwyk 2003
De Jure 305; Streicher June 2004 De Rebus 29; Bakker 2007 THRHR 484.
52 2013 (4) SA 415 (CC) (also reported as Mayelane v Ngwenyama (Women’s Legal Centre Trust and Others as
Amici Curiae) 2013 (8) BCLR 918 (CC)).
53 [2012] 3 All SA 408 (SCA), 2012 (10) BCLR 1071 (SCA), 2012 (4) SA 527 (SCA).
54 See also Barratt (ed) Persons and the Family 388; Mofokeng 83; Pienaar 2003 Stell LR 263, 265–266; BüchnerEveleigh 2013 De Jure 891. Maithufi and Moloi 2002 TSAR 609 are also of the view that complete separation
operates in a polygynous customary marriage. They base their view on s 7(2) of the Act which, they say, “regards a polygamous customary marriage as a marriage out of community of property and profit and loss”.
(See also Maithufi and Bekker 2002 CILSA 189.) This is incorrect, for s 7(2) deals with a monogamous customary marriage and provides that such a marriage is in community of property unless the spouses exclude
community of property in an antenuptial contract. Although Bakker 2007 THRHR 486–487 argues that
community of property and complete separation of property can operate in a polygynous marriage, he hesitantly supports the view that complete separation of property is the only viable option.
55 See ch 6 above.
Chapter 17: Customary marriages
225
approve a contract in which the spouses agree on a variation of community which indicates
exactly what proportion of the total value of the husband’s estate should fall into which joint
estate (for example, 60 per cent falls into the joint estate created by marriage A, 20 per cent
into that created by marriage B, and the remaining 20 per cent into the joint estate created by
marriage C). Serious problems could arise at the termination of a particular joint estate as the
spouses might agree, for instance, that the value of the wife’s half of the particular percentage
of the assets in the joint estate is to be made up by giving her a particular asset (such as the
matrimonial home), which could seriously prejudice the remaining wives.56
Likewise, the accrual system does not seem to be a viable matrimonial property system in a
polygynous customary marriage.57 Let us say, for example, that a husband has two wives. How
would the accrual be determined and divided between them? Awarding each spouse a third of
the combined accrual would violate the statutorily prescribed method for determining a
spouse’s accrual claim. In terms of section 3(1) of the Matrimonial Property Act, a spouse’s
accrual claim is “for an amount equal to half of the difference between the accrual of the
respective estates of the spouses”, that is, half the difference between the larger accrual and
the smaller accrual. This provision cannot be applied in a polygynous marriage, for the
58
accrual in more than two estates would have to be taken into account.
Complete separation of property therefore seems to be the only viable option. Application
of this system would not cause practical difficulties, as the husband and each of his wives
________________________
56 Vorster, Dlamini-Ndwandwe and Molapo 2001 SA Journal of Ethnology 65, Bekker and Van Niekerk 2009 SA
Public Law 209 and Knoetze 2005 THRHR 298 are also of the view that community of property cannot operate in a polygynous marriage. Van Schalkwyk 2000 THRHR 491–492, 497, 2003 De Jure 306–307 submits that
community of property can operate if all the assets and liabilities the husband and all of his wives have at
the time of the further marriage are excluded from the joint estate. A single joint estate which excludes all
the spouses’ antenuptial assets and liabilities is then created when the further marriage comes into existence. When the joint estate is terminated (which presumably has to happen when the husband’s customary
marriage with one of his wives is terminated), the estate is divided equally between the husband and all the
wives. Eg, if the husband has two wives, he and his wives each receive a third of the single joint estate. (See
also Streicher June 2004 De Rebus 30; Bakker 2007 THRHR 485–486). Van Schalkwyk’s point of view inter
alia entails that if one customary marriage is terminated, the matrimonial property system which operates
in all the other marriages is also terminated even though those marriages continue to exist. This is not in
keeping with the provisions of the Act, for the Act does not provide that termination of one marriage inevitably results in the termination of the matrimonial property system which operates in the remaining marriages. Moreover, what matrimonial property system would apply in the remaining marriages after the
dissolution of the one marriage? Would the husband again have to approach the court for approval of a
contract governing the matrimonial property system of the remaining marriages? If the answer is “Yes”,
what would happen to the matrimonial property until such time as the new contract is approved? And how
would liability for debts which are incurred and ownership of property which is acquired in the intervening
time be determined? Or is the answer perhaps that the old matrimonial property contract continues to operate subject to a new joint estate being created between the husband and the remaining wives? This option
could give rise to serious difficulties of proof and mathematics. Or must the court which dissolves the one
customary marriage, by virtue of its power to “make any equitable order that it deems just” (s 8(4)(b)) also
make an order in respect of the matrimonial property system which is to operate in the remaining marriages? This would still not solve the problem with marriages terminated by death as the court does not have
the power to make an equitable order in such event. On the termination of a customary marriage by death,
see below in this chapter.
57 But see Van Schalkwyk 2000 THRHR 492, 2003 De Jure 306–307. Streicher June 2004 De Rebus 30–31 admits
that the accrual system is not a viable option but nevertheless argues that it is available to spouses in a polygynous customary marriage. See also Vorster, Dlamini-Ndwandwe and Molapo 2001 SA Journal of Ethnology 65.
58 The impossibility of applying the accrual system to a polygynous customary marriage is illustrated by the
following example. Let us assume that a husband enters into a polygynous customary marriage with three
wives. Within six months of one another, the individual marriages end in divorce. None of the wives’ estates
show any accrual at the time of the dissolution of the marriage. Thus, each wife has a claim to share in her
husband’s accrual upon dissolution of her marriage. If the method prescribed by s 3(1) of the Matrimonial
Property Act were to be used, the wife whose marriage is dissolved first would be entitled to half her husband’s accrual, which would reduce the second and third wives’ claims to share in their husband’s accrual
on the dissolution of their respective marriages. Likewise, if the second wife’s accrual share were to be calculated according to the statutorily prescribed method, this would reduce the third wife’s accrual claim.
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would simply retain their own estates. But complete separation of property is notoriously
unfair to wives who do not have an opportunity to build up their own estates.59 In the case of
dissolution of a polygynous marriage by divorce, the court fortunately has the power to make
“any equitable order that it deems just”. However, wives whose polygynous customary marriages are terminated by death cannot avail themselves of this remedy.
Finally, the contract could possibly apply the customary-law consequences regarding ownership and control of family and house property to the polygynous marriage. However, it is
submitted that inclusion of these consequences should be allowed only if it can be shown that
customary law has developed to such an extent that current, living customary law satisfies the
constitutional requirement of gender equality. Whether such development has taken place is
by no means clear.60
17.4.4 Alteration of the matrimonial property system
(a) Marriages entered into before the coming into operation of the Act
Section 7(4) of the Recognition of Customary Marriages Act authorises spouses who entered
into a customary marriage before the coming into operation of the Act to alter their matrimonial property system with the court’s permission. The application must be made by the spouses
jointly, and if the husband has more than one wife, all wives must be joined in the proceedings.61 The court will only grant the application if it is satisfied that:
(1) There are sound reasons for the proposed change.
(2) Sufficient written notice has been given to all creditors to whom the spouses owe more
than R500 (or such amount as the Minister of Justice and Constitutional Development
(now the Minister of Justice and Correctional Services) may determine in the Government
Gazette).
(3) No other person will be prejudiced by the proposed change.62
(b) Marriages entered into after the coming into operation of the Act
The Recognition of Customary Marriages Act provides that spouses who enter into a monogamous customary marriage after the coming into operation of the Act may apply to court in
terms of section 21(1) of the Matrimonial Property Act for permission to change their matrimonial property system.63 As the relevant provision of the Recognition of Customary Marriages
Act is expressly limited to monogamous customary marriages, spouses in polygynous customary marriages which were concluded after the coming into operation of the Act cannot invoke
the same mechanism to change their matrimonial property system.64
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59 It was precisely for this reason that the judicial discretion to redistribute assets upon divorce, and the accrual
system were introduced into our law: see chs 12 and 7 above, respectively.
60 On customary law as a living and developing body of law and the difficulties regarding establishing the content of customary law, see fn 42 above.
61 Van Schalkwyk 2003 De Jure 307 correctly points out that if a polygynous customary marriage which is concluded after the coming into operation of the Act can only be subject to complete separation of property
(as is argued above in this chapter), spouses who entered into a polygynous customary marriage prior to
the coming into operation of the Act should only be allowed to change to complete separation of property.
62 This application is similar to the application in terms of s 21(1) of the Matrimonial Property Act. On the
latter application, see ch 8 above.
63 S 7(5). Although this section applies the whole of s 21 of the Matrimonial Property Act to monogamous
customary marriages entered into after the coming into operation of the Act, s 21(2) is clearly irrelevant as
it deals with a mechanism for postnuptial introduction of the accrual system which is no longer available:
see ch 8 above. See also Van Schalkwyk 2000 THRHR 490 who submits that s 21(1) cannot be used to introduce customary-law proprietary consequences.
64 See also Van Schalkwyk 2003 De Jure 307–308, who is critical of the restriction of the extension of s 21(1) of
the Matrimonial Property Act to monogamous customary marriages entered into after the coming into operation of the Recognition of Customary Marriages Act.
Chapter 17: Customary marriages
227
17.4.5 A customary marriage a minor entered into without the requisite consent
(a) The patrimonial consequences if the marriage is set aside
Above in this chapter it is indicated that a customary marriage a minor entered into without
the necessary consent may be dissolved by the court on application by the minor or his or her
parent or legal guardian. This rule applies regardless of when the minor entered into the
marriage. In terms of section 8(4)(a) of the Recognition of Customary Marriages Act, section
24(1) of the Matrimonial Property Act governs the patrimonial consequences if the court dissolves the marriage. Thus, the court may make any order with regard to the division of the
spouses’ matrimonial property that it deems just.65
(b) The patrimonial consequences if the marriage is not set aside
It is unclear what the patrimonial consequences are if an unassisted minor’s customary marriage
is not set aside. Section 24(2) of the Matrimonial Property Act regulates these consequences
in respect of a minor’s civil marriage. The only references in the Recognition of Customary
Marriages Act to section 24(2) of the Matrimonial Property Act appear in sections 7(3) and
10(3) of the Act, which apply the entire section 24 to monogamous customary marriages in
community of property and to marriages which are concluded in community of property by
couples who originally married each other at customary law and subsequently also concluded
a civil marriage with each other.66
It seems that the legislator erroneously included the references to section 24 of the Matrimonial Property Act in sections 7(3) and 10(3) of the Recognition of Customary Marriages
Act.67 First of all, it should be noted that these references are partly meaningless, since section
24(1) of the Matrimonial Property Act governs the position that obtains when a minor’s
unassisted marriage is set aside,68 while sections 7(3) and 10(3) of the Recognition of Customary Marriages Act relate to the position during the subsistence of a monogamous customary
marriage and a “converted” marriage in community of property. Furthermore, the second
part of section 24(2) of the Matrimonial Property Act (the part that deems any antenuptial
contract in terms of which the accrual system is included, to have been validly executed) quite
obviously also has no meaning in the context of sections which expressly provide that they
apply to a marriage “which is in community of property”. The references to section 24 can
therefore have meaning only in so far as they afford validity to a minor’s unassisted marriage
in community of property which is not set aside. The implication is that if the legislator
indeed intended section 24(2) of the Matrimonial Property Act to regulate the patrimonial
consequences of an unassisted minor’s marriage which is not set aside, it has actually decreed
that all monogamous customary marriages and “converted” marriages of unassisted minors
which are not set aside are in community of property.69 It seems highly unlikely that the legislator would have intended this result.
Furthermore, section 7(3) of the Recognition of Customary Marriages Act relates only to
monogamous customary marriages.70 Why would the legislator have deemed it necessary only
________________________
65 On s 24(1) of the Matrimonial Property Act, see further ch 3 above.
66 The patrimonial consequences and administration of the joint estate in a monogamous customary marriage are discussed above in this chapter, and the patrimonial consequences of a “converted” marriage below in this chapter.
67 It is interesting to note that the South African Law Commission did not include s 24 in the comparable
clauses it drafted for the Recognition of Customary Marriages Bill it attached to the Report on Customary
Marriages Project 90: see cll 7(3) and 10(2)(b) of that Bill. The reference to s 24 was inserted by the Justice
Portfolio Committee.
68 The legislator itself acknowledges this by expressly providing in s 8(4)(a) of the Recognition of Customary
Marriages Act that “[a] court granting a decree for the dissolution of a customary marriage . . . has the
powers contemplated in . . . section 24(1) of the Matrimonial Property Act”.
69 But see Van Schalkwyk 2003 De Jure 308 who states that an antenuptial contract the minor concluded prior
to his or her unassisted customary marriage is enforceable. See also Van Schalkwyk 2000 THRHR 489.
70 All “converted” marriages are monogamous: see below in this chapter. Therefore, s 10(3) is not at issue in
this context.
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to regulate monogamous customary marriages of unassisted minors? Arguably, the issue of an
unassisted minor’s polygynous customary marriage will simply never arise, as a husband who
wants to enter into a further customary marriage after the coming into operation of the Act
must approach the court in terms of section 7(6) for approval of a contract governing the
matrimonial property system which is to operate in his polygynous marriage71 and the court
will simply refuse to entertain such an application if the minor does not have the required
consent to marry. However, it must be borne in mind that a court-approved contract is not a
requirement for the validity of a polygynous customary marriage. Moreover, section 7(6) does
not apply to customary marriages which were entered into prior to the coming into operation
of the Act.
Furthermore, restricting an unassisted minor who enters into a customary or “converted”
marriage which is not set aside to only one matrimonial property system, namely community
of property, protects only those unassisted minors whose financial interests are served by that
particular matrimonial system and leaves minors whose financial interests require that they be
allowed to enter into an antenuptial contract in which they select the accrual system or
complete separation of property unprotected.72 This differentiation is unconstitutional because it amounts to an unjustifiable denial of equality before the law and equal protection
and benefit of the law and does not afford paramountcy to the best interests of the child.73
If the view is accepted that the legislator erroneously included section 24 in the list of provisions of the Matrimonial Property Act which apply to customary marriages and “converted”
marriages in community of property, it means that the Recognition of Customary Marriages Act
fails to address the issue of the patrimonial consequences of a minor’s unassisted marriage
which is not set aside. (Regardless of whether or not this view is accepted, it is clear that the Act
does not regulate the patrimonial consequences of a polygynous customary marriage an unassisted minor concluded prior to the coming into operation of the Act.) One must therefore
look to customary law in an attempt to discover what the patrimonial consequences of such
marriages are. In terms of customary law, a minor who wants to marry may only do so with the
consent of his or her father, legal guardian or family head. Traditionally, customary law did not
provide for nullity of a customary marriage,74 probably because customary marriages were
assumed invariably to be concluded with the involvement of both family groups. Traditional,
uncodified customary law thus does not provide us with an answer. The Codes of Zulu law do,
however, deal with nullity of a customary marriage. They expressly provide that a marriage
which does not comply with the essentials for the coming into existence of a valid customary
marriage is void.75 The issue of the patrimonial consequences of a customary marriage a minor
enters into without consent and which is not set aside thus simply does not arise in terms of the
Codes. Consequently, customary law does not assist us. Therefore, we must look to general
principles in an attempt to solve the problem. Before the minor reaches majority, the High
Court could possibly, in its capacity as upper guardian of all minors,76 determine the patrimonial
consequences of the minor’s unassisted marriage which is not set aside. But it is unclear what
the position is if the minor has in the meantime reached majority. As the court is then no
longer in the position of upper guardian, it cannot on this basis determine the patrimonial
consequences of the marriage.
________________________
71 S 7(6); see further the discussion above in this chapter.
72 But see Van Schalkwyk 2000 THRHR 489, who submits that s 7(3) of the Recognition of Customary Marriages Act entails that the same patrimonial consequences apply to a minor’s unassisted civil or customary marriage. On the patrimonial consequences of an unassisted minor’s civil marriage which is not set aside, see
ch 3 above.
73 Ss 9(1), 28(2) and 36 of the Constitution.
74 See eg South African Law Commission Report on Customary Marriages Project 90 par 8.1.1.
75 S 49 of the Codes of Zulu law.
76 On the court’s upper guardianship, see ch 23 below.
Chapter 17: Customary marriages
229
17.5 The wife’s status
The Act abolishes the wife’s status of perpetual minority and her husband’s guardianship over
her in all customary marriages.77 Section 6 of the Act furthermore expressly provides that the
wife has,
on the basis of equality with her husband and subject to the matrimonial property system governing the marriage, full status and capacity, including the capacity to acquire assets and to dispose of
them, to enter into contracts and to litigate, in addition to any rights and powers that she might
have at customary law.
Unless current, living customary law no longer restricts ownership and control of all family
property to the husband as the family head, the proviso that the wife’s status and capacity are
subject to the matrimonial property system means that in a polygynous customary marriage
concluded before the coming into operation of the Act the capacity of the wives to acquire
and deal with property and their capacity to act are still severely restricted.78
It is unclear whether section 6 alters the status of multiple wives of one man vis-à-vis one another. As appears from the discussion of the patrimonial consequences of a customary marriage,
wives do not all occupy the same rank. Section 6 provides that a wife has the same status as her
husband. This rule applies regardless of the number of wives the husband has. One interpretation is that because all the wives have the same status as their husband, there can be no distinction according to rank. Another is that, although the Act creates equality between husband and
wife, the phrase “in addition to any rights that she may have at customary law” implies that the
relative status of each wife remains unaltered so that, for example, the chief wife retains the
customary rights associated with her superior status.79
17.6 Termination of the marriage by divorce
17.6.1 Ground for divorce
The provisions which regulate the dissolution of a customary marriage are the same regardless
of when the marriage was entered into. In so far as the ground for divorce is concerned, the
Act permits dissolution only on the ground of the irretrievable breakdown of the marriage.80
17.6.2 The consequences of divorce
(a) The patrimonial consequences of divorce
(i) General
Broadly speaking, the financial consequences of divorce in respect of a customary marriage
are the same as those which apply to a civil marriage or civil union. Section 8(4)(a) of the
Recognition of Customary Marriages Act inter alia confers “the powers contemplated in sections 7, 8, 9 and 10 of the Divorce Act, 1979” on the court which dissolves a customary marriage. Thus, the court inter alia has the power to make an order in accordance with the terms
________________________
77 Ss 6 and 9 and the schedule. The husband’s guardianship over his wife entailed inter alia that she could not
acquire property and had no capacity to act or litigate unless she was assisted by her husband.
78 On the development of customary law, and living customary law, see above in this chapter.
79 See further Himonga and Nhlapo (eds) African Customary Law 120–121; Vorster 1999 Obiter 90; Horn and
Janse van Rensburg 2002 Journal for Juridical Science 61. On the practical implications of s 6, see further
Bronstein 2000 SAJHR 563–570, 573–574; Jansen 2002 Journal for Juridical Science 115; Pienaar 2003 Stell LR
258, 262; Bekker and Van Schalkwyk 2005 De Jure 396; Mamashela 2004 SAJHR 634.
80 S 8(1). The circumstances which formerly constituted the customary-law grounds for divorce can be taken
into account in deciding whether irretrievable breakdown has occurred: see eg Himonga and Nhlapo (eds)
African Customary Law 149; Jansen in Rautenbach et al Introduction to Legal Pluralism in South Africa 64–65;
Skelton and Carnelley (eds) Family Law 188; Maithufi and Bekker 2001 Obiter 262, 266; Horn and Janse van
Rensburg 2002 Journal for Juridical Science 65; Van Schalkwyk 2003 De Jure 309. For a detailed discussion of
the ground for divorce in a customary marriage, see Himonga in Heaton (ed) Law of Divorce and Dissolution
of Life Partnerships 237–242.
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of a settlement agreement and to make an order regarding post-divorce maintenance, redistribution of assets, forfeiture of patrimonial benefits, and costs. It may also subsequently
rescind, vary or suspend a maintenance order or an order regarding the spouses’ children.81
In the case of the dissolution of a polygynous customary marriage, section 8(4)(b) of the Act
further requires the court to take all relevant factors into consideration and to “make any
equitable order that it deems just”.
(ii) Redistribution of assets
Redistribution in terms of section 8(4)(a)
Prior to the decision in Gumede v President of the Republic of South Africa,82 it was unclear to
which customary marriages the court’s power to order redistribution in terms of section
8(4)(a) of the Act applies. Although section 8(4)(a) applies the whole of section 7 of the Divorce Act 70 of 1979 to the dissolution of a customary marriage, the uncertainty arose because
of the express wording of section 7(3) of the Divorce Act. Section 7(3) expressly restricts the
judicial power to redistribute assets to marriages which are subject to complete separation
and were concluded before the coming into operation of the Matrimonial Property Act on
1 November 1984 in the case of white, coloured and Asian persons, or before the coming into
operation of the Marriage and Matrimonial Property Law Amendment Act 3 of 1988 on 2 December 1988 in the case of African persons. Since section 7(3) – which was originally enacted
solely with civil marriages in mind – expressly refers only to marriages that are subject to
complete separation of property, it was argued that the court’s power to redistribute property
in customary marriages is similarly restricted. In Gumede the Constitutional Court held that the
power to redistribute assets in terms of section 8(4)(a) applies to all customary marriages,
regardless of when they were concluded and regardless of the matrimonial property system
that operates in them. The court stated that in order to give effect to the dominant purpose
of the Recognition of Customary Marriages Act, namely to recognise and reform the law on
customary marriages and to equalise the status and capacity of customary spouses, the limitation that applies to civil marriages should not be applied to customary marriages. It further
pointed out that, textually, section 8(4)(a) does not refer to customary marriages in or out of
community of property. It held that the absence of a reference to marriage in or out of
community of property was apt in the context of customary marriages for, “properly understood, customary marriages should not be seen through the prism of the marital proprietary
regimes under the common law or divorce legislation that regulates civil marriages”.83 It
stated that customary law “does not place a premium on the dichotomy between marriages in
and out of community of property” and that the equitable discretion section 8(4)(a) confers
on a court is “more consonant with the underlying ethos of customary law which strives for
equity in resolving conflict”.84 The court therefore concluded that there was no valid reason
for limiting the court’s power to redistribute assets to customary marriages in which separation of property operates. In customary marriages, unlike civil marriages, redistribution of
assets can therefore be invoked regardless of the matrimonial property system which operates
in the marriage.85
The court further held that a spouse who seeks redistribution of assets in a customary marriage does not bear an onus to prove that he or she is entitled to have certain assets transferred to him or her. Instead, the court has to
carefully examine all the circumstances relevant to the customary marriage and in particular the
manner in which the property of the marriage has been acquired, controlled and used by the
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81 On settlement agreements, forfeiture of benefits, redistribution of assets and pension interests, see further
ch 12 above. On post-divorce maintenance and costs see, respectively, chs 13 and 15 above.
82 2009 (3) BCLR 24 (CC), 2009 (3) SA 152 (CC).
83 Par 43; see also par 42.
84 Par 43.
85 On the unconstitutionality of this differentiation, see ch 12 above.
Chapter 17: Customary marriages
231
parties concerned, in order to determine, in the final instance, what would be a just and equitable order on the proprietary consequences of the divorce.86
Redistribution in terms of section 8(4)(b)
Section 8(4)(b) of the Act also empowers the court to make a redistribution order, but this
section applies only to the dissolution of a marriage of a man who is a spouse in a polygynous
customary marriage. Section 8(4)(b) provides that the court which dissolves such a customary
marriage must take all relevant factors into consideration and “make any equitable order that
it deems just”. The section specifically lists a postnuptial alteration of the spouses’ matrimonial
property system as a relevant factor.87 If the husband entered into another customary marriage after the coming into operation of the Act, the court must also take the existing order
regarding the matrimonial property system of the polygynous marriage into account.88
(iii) Pension interests
Van Schalkwyk89 submits that section 7(7) and (8) of the Divorce Act, which deals with spouses’
pension interests upon divorce,90 does not apply to customary marriages in which customarylaw patrimonial consequences operate. His submission is based on the premise that section
7(7) and (8) applies only to marriages in which a “burgerlike huweliksgoederebedeling” (a
civil matrimonial property system) operates. It is submitted that the wording of neither
section 8(4)(a) of the Recognition of Customary Marriages Act nor section 7(7) and (8) of
the Divorce Act indicates such limitation. Nor does there seem to be any other reason why
pension interests should only be taken into account in customary marriages in which the mat91
rimonial property system is not governed by customary law. Surely, the fact that sharing of
pension interests upon divorce is foreign to customary law does not justify excluding the
application of section 7(7) and (8). After all, pension interests were traditionally not shared
upon the dissolution of a civil marriage either and it was precisely to change this position that
section 7(7) and (8) was originally inserted into the Divorce Act. It must furthermore be
borne in mind that as a result of the decision in Gumede v President of the Republic of South
Africa,92 a court which dissolves a customary marriage may redistribute the spouses’ assets.
Excluding pension interests from the scope of the court’s power to redistribute assets in
polygynous customary marriages which are subject to customary proprietary consequences
while including them in the scope of the court’s power in all other customary marriages
would be an unjustifiable violation of the right to equality93 and would therefore be unconstitutional.
(iv) Forfeiture of benefits
Some authors are of the view that forfeiture of benefits cannot apply to customary marriages
in which the patrimonial consequences are governed by customary law.94 Once again this view
is based on the assumption that the particular section of the Divorce Act, namely section 9, is
limited to marriages in which a “burgerlike huweliksgoederebedeling” applies. As the
________________________
86 Par 44. See also par 48 where it is stated that the court must “investigate all the facts relevant to the marriage property”.
87 Postnuptial alteration of the matrimonial property system in a customary marriage is governed by s 7(4)
and (5) of the Recognition of Customary Marriages Act and is discussed above in this chapter.
88 On the existing order regarding the matrimonial property system which operates in the polygynous marriage, see the discussion of s 7(6) and (7) above in this chapter.
89 2000 THRHR 496.
90 On s 7(7) and (8), see ch 12 above.
91 See also Himonga in Heaton (ed) Law of Divorce and Dissolution of Life Partnerships 250–251; Jansen in
Rautenbach et al Introduction to Legal Pluralism in South Africa 67.
92 2009 (3) BCLR 24 (CC), 2009 (3) SA 152 (CC).
93 Ss 9 and 36 of the Constitution.
94 Van Schalkwyk 2000 THRHR 496; Bonthuys 2001 THRHR 211; Jansen 2002 Journal for Juridical Science 124;
but see also 2003 De Jure 310, where Van Schalkwyk does not state that forfeiture is restricted to some customary marriages.
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South African Family Law
wording of neither section 8(4)(a) of the Recognition of Customary Marriages Act nor
95
section 9 of the Divorce Act indicates such limitation, this view is not supported either.
(v) Lobolo
Because the contract for the delivery of lobolo is concluded between the bridegroom and the
bride’s father, it does not relate to the spouses’ matrimonial property and is not automatically
terminated by the dissolution of the marriage.96
(b) The interests of the children of divorcing parents
The Act empowers the court to make an order regarding the guardianship or care of a minor
child of a customary marriage.97 It also applies section 6 of the Divorce Act as well as the
Mediation in Certain Divorce Matters Act 24 of 1987 to the dissolution of the marriage.98
Thus, a Family Advocate must investigate the welfare of the child and furnish the court with a
report and recommendations. After considering the report and recommendations, the court
may make any order it deems fit regarding guardianship, care, contact and maintenance.99
(c) Maintenance
In respect of maintenance, the Recognition of Customary Marriages Act specifically requires
the court to take into account any provision or arrangement that has been made in accordance with customary law.100 The payment of lobolo and isondlo (that is, delivery of an animal by
a father to the person who raised his child)101 probably qualify as factors in terms of this provision.102
17.6.3 Joinder
The court may order that any person who, in the court’s opinion, has a sufficient interest in
the matter be joined in the divorce proceedings.103 Examples of such persons are any or all of
the husband’s other wives and the wife’s father as lobolo holder.104
17.6.4 Jurisdiction
A divorce order in respect of a customary marriage must be obtained from the High Court or
a Regional Division of the Magistrate’s Court.105
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95 See also Himonga in Heaton (ed) Law of Divorce and Dissolution of Life Partnerships 251.
96 On the rules regarding the return of lobolo, see eg Jansen in Rautenbach et al Introduction to Legal Pluralism in South Africa 68; Mwambene in Clark (ed) Family Law Service pars G60–G62; Mofokeng 89–90, 94;
Olivier et al LAWSA Indigenous Law pars 58, 59, 63; Jansen 2003 Journal for Juridical Science 130–131; Curran
and Bonthuys 2005 SAJHR 623; Nkosi Nov 2013 De Rebus 36. See further Himonga in Heaton (ed) Law of
Divorce and Dissolution of Life Partnerships 255–256.
97 S 8(4)(d).
98 S 8(3).
99 S 6 of the Divorce Act 70 of 1979 and the Mediation in Certain Divorce Matters Act 24 of 1987 are discussed in ch 14 above. See further Barratt (ed) Persons and the Family 389; Himonga in Heaton (ed) Law
of Divorce and Dissolution of Life Partnerships 262–278; Jansen in Rautenbach et al Introduction to Legal Pluralism in South Africa 65–66; Maithufi and Bekker 2001 Obiter 268–269; Ngema 2013 PELJ 404.
100 S 8(4)(e).
101 On isondlo and maintenance of children under customary law, see Clark in Van Heerden et al (eds)
Boberg’s Law of Persons and the Family 257–258; Mwambene in Clark (ed) Family Law Service par G75;
Mofokeng 92; Olivier Die Privaatreg van die Suid-Afrikaanse Bantoetaalsprekendes 557–561; Olivier et al
LAWSA Indigenous Law par 169; Seymour 242–246; South African Law Commission Report on Customary
Marriages pars 7.4.2–7.4.4.
102 See also Himonga in Heaton (ed) Law of Divorce and Dissolution of Life Partnerships 275–277; Himonga and
Nhlapo (eds) African Customary Law 156; Jansen in Rautenbach et al Introduction to Legal Pluralism in South
Africa 69; Maithufi 2000 THRHR 515; Pienaar 2003 Stell LR 267–268. On post-divorce spousal maintenance in terms of the Recognition of Customary Marriages Act, see further Himonga in Heaton (ed) Law
of Divorce and Dissolution of Life Partnerships 259–260.
103 S 8(4)(c).
104 See Mofokeng 94; Maithufi 2000 THRHR 515 and Maithufi and Moloi 2002 TSAR 609–610 on joining the
wife’s father as lobolo holder. See further Maithufi and Bekker 2002 CILSA 194–195.
105 S 8(1) read with s 1 of the Recognition of Customary Marriages Act.
Chapter 17: Customary marriages
233
17.6.5 Procedure
Although the adversarial procedure applies to divorce proceedings in respect of customary
marriages just as it applies to divorce proceedings in respect of civil marriages and civil unions, the Recognition of Customary Marriages Act expressly preserves the “role, recognised in
customary law, of any person, including any traditional leader, in the mediation, in accordance with customary law, of any dispute or matter arising prior to the dissolution of a customary marriage by a court”.106 Therefore, the traditional structures can still be used for, for
example, mediating domestic disputes during the subsistence of the marriage, getting the
couple to attempt to reconcile, or getting them to conclude a settlement agreement.107
17.6.6 Interim relief
Pending their divorce, either spouse in a customary marriage may apply for maintenance pendente lite, a contribution towards costs, interim care of a child, and/or interim contact with a
child in terms of rule 43 of the Uniform Rules of Court or rule 58 of the Rules of the Magis109
trates’ Courts.108 In ML v KG the Gauteng Local Division of the High Court, Johannesburg
held that maintenance for children born from a previous relationship of the wife can, in
certain circumstances, be included in a claim for maintenance pendente lite if the spouses are
alleged to have entered into a customary marriage.
17.7 Termination of the marriage by death
17.7.1 Death as a ground for termination
A significant shortcoming of the Act is its silence on termination of a customary marriage by
death. With the exception of KwaZulu-Natal,110 traditional customary law provides that a customary marriage is not necessarily terminated by a spouse’s death. The wife’s death never destroys the house created by her marriage. Nor does it necessarily end the marriage. After her
death, her husband may take another woman to produce (further) children for the deceased’s house. This custom is known as the sororate and is practised mainly if the deceased
wife is not survived by an heir. The husband’s death also does not terminate the marriage.
Instead, the custom of the levirate allows the deceased husband to be replaced by one of his
paternal male relatives. Any child the woman has with this man is deemed to be her deceased
husband’s child.111 The Act’s failure to deal with dissolution of a customary marriage by death
presumably affords recognition to the principle that, outside KwaZulu-Natal, death does not
inevitably terminate a customary marriage, and also to the sororate and levirate customs.112
________________________
106 S 8(5).
107 See further Himonga in Heaton (ed) Law of Divorce and Dissolution of Life Partnerships 242–243; Horn and
Janse van Rensburg 2002 Journal for Juridical Science 66.
108 Baadjies v Matubela [2002] 2 All SA 623 (W), 2002 (3) SA 427 (W). In this case, the application was dismissed because there was no proof of the existence of a customary marriage. On Baadjies, see further ch 15
above. See also Himonga in Heaton (ed) Law of Divorce and Dissolution of Life Partnerships 261.
109 (15078/12) [2013] ZAGPJHC 87 (8 April 2013).
110 S 36(1) of the Zulu Codes provides that the death of either spouse terminates a customary marriage. However, s 56 of the Codes permits ukungena (ie the levirate custom), which is usually practised only if the husband’s death does not terminate the marriage. See below in this chapter on the levirate.
111 On the levirate and sororate, see Bennett Human Rights and African Customary Law 127–128; Himonga and
Nhlapo (eds) African Customary Law 153–154; Jansen in Rautenbach et al Introduction to Legal Pluralism in
South Africa 69–70; Mofokeng 38–40; Olivier Die Privaatreg van die Suid-Afrikaanse Bantoetaalsprekendes 102–
111, 519–535, 537–542; Olivier et al LAWSA Indigenous Law par 37; Seymour 286–294, 279–283; Sinclair
assisted by Heaton 259; Curran and Bonthuys 2005 SAJHR 628–629.
112 See Vorster 1998 (1) Codicillus 46, who made the comment in respect of a similar provision in the draft Recognition of Customary Marriages Bill which was attached to the South African Law Commission’s Discussion Paper 74 Customary Marriages Project 90, which preceded the Report on Customary Marriages. The Report on
Customary Marriages and the draft Bill attached to it also did not deal with the termination of a customary
marriage by death. See also Vorster 1999 Obiter 90. But see Streicher June 2004 De Rebus 29, who states that
continued
234
South African Family Law
17.7.2 Maintenance of the surviving spouse(s)
In Hassam v Jacobs,113 the Cape Provincial Division of the High Court (now the Western Cape
Division of the High Court, Cape Town) held that the word “survivor” in the Maintenance of
Surviving Spouses Act 27 of 1990 can be applied to more than one surviving spouse without
unduly straining the language of the Act. Van Reenen J accordingly concluded that the Act
applies to de facto monogamous and polygynous Muslim marriages. His decision specifically
concerned spouses in Muslim marriages, but it is self-evident that if surviving spouses in all
Muslim marriages (which are not yet fully recognised) fall within the ambit of the Act, surviving spouses in all customary marriages (which are fully recognised) also fall within its ambit. It
is most unlikely that the interpretation Van Reenen J adopted will not be followed in the
future for, when the Constitutional Court had to consider another part of his decision in
Hassam, namely his declaration of invalidity of a section of the Intestate Succession Act 81 of
1987,114 it gave no indication that it disapproved of his interpretation of the Maintenance of
Surviving Spouses Act. Therefore, a surviving spouse in any customary marriage can institute a
claim against the estate of his or her deceased spouse for his or her reasonable maintenance
needs until his or her death or remarriage.115 In the case of a polygynous marriage, the fact of
there being several wives will obviously be relevant in determining each wife’s reasonable
maintenance needs.116 If the maintenance claims of surviving wives in a polygynous customary
marriage compete with one another and there are insufficient resources from which they can be
met, the claims will, presumably, by analogy to the rule regarding competing claims of a surviving spouse and a dependent child of the deceased spouse, all be reduced proportionately.117
17.8 The co-existence of a customary marriage and a civil marriage
or civil union
17.8.1 A subsequent customary marriage by a party to a civil marriage or civil
union
In terms of section 10(4) of the Recognition of Customary Marriages Act and section 8(2) of
the Civil Union Act 17 of 2006, a person who is a party to a civil marriage or a civil union may
not enter into a customary marriage during the subsistence of the civil marriage or civil
union. This rule applies even if the parties to the civil marriage or civil union want to enter
118
into a customary marriage with each other. As section 10(4) of the Recognition of Customary Marriages Act expressly provides that the parties to a civil marriage are not “competent to
enter into any other marriage”, it is clear that the spouses lack capacity to enter into another
marriage. As a result of the spouses’ lack of capacity, any customary marriage which is con119
cluded in violation of section 10(4) is void. Although section 8(2) of the Civil Union Act
________________________
113
114
115
116
117
118
119
the legislator’s imposition of principles relating to the consequences of a civil marriage on customary marriages implies that death terminates a customary marriage if the marriage is subject to community of property or the accrual system. However, he also states at 31 that it is unclear whether death terminates a
customary marriage. See further Jansen in Rautenbach et al Introduction to Legal Pluralism in South Africa 70;
Skelton and Carnelley (eds) Family Law 190; Jansen 2002 Journal for Juridical Science 124.
[2008] 4 All SA 350 (C).
An order of constitutional invalidity regarding an Act has no force unless it is confirmed by the Constitutional Court: s 172(2)(a) of the Constitution.
S 2(1) of the Maintenance of Surviving Spouses Act.
See s 3 of the Maintenance of Surviving Spouses Act.
S 2(3)(b) of the Maintenance of Surviving Spouses Act. On the Maintenance of Surviving Spouses Act, see
further ch 10 above.
The monogamous nature of a civil marriage barred a subsequent customary marriage even prior to the
coming into operation of the Recognition of Customary Marriages Act. However, in the Transkei, a spouse
in a civil marriage out of community of property could validly enter into a subsequent customary marriage
with the same or another woman: ss 1 and 3 of the Transkei Marriage Act 21 of 1978.
See also Palesa v Moleko [2013] 4 All SA 166 (GSJ); Jansen in Rautenbach et al Introduction to Legal Pluralism
in South Africa 71; Bonthuys and Pieterse 2000 THRHR 623, 624; Maithufi 2000 THRHR 512; Bakker 2006
continued
Chapter 17: Customary marriages
235
120
does not expressly refer to competence and the prescription in section 13(2) of the Civil
Union Act that a reference to a marriage includes a civil union does not apply to the Recognition of Customary Marriages Act, it is submitted that a customary marriage that is concluded
during the subsistence of a civil union is also void. Section 13(1) of the Civil Union Act, which
provides that the legal consequences of a civil marriage apply to a civil union, lends support
to this view. Furthermore, an interpretation which leads to the opposite conclusion, namely
that a customary marriage is void if it is concluded during the subsistence of a civil marriage
but not if it is concluded during the subsistence of a civil union would be unconstitutional as
such a differentiation would unjustifiably violate the equality clause.
17.8.2 A subsequent civil marriage or civil union by a party to a customary
marriage
(a) Capacity to enter into a subsequent civil marriage or civil union
In terms of section 3(2) of the Recognition of Customary Marriages Act, the parties to a customary marriage are not “competent” to enter into a civil marriage with another person. However, in terms of section 10(1), they are “competent” to enter into a civil marriage with each
other, but before they may do so, the husband’s other customary marriages (if any) must first
be dissolved.121 As these sections expressly refer to competence, a subsequent civil marriage in
contravention of these provisions is void.122
________________________
THRHR 71; Maithufi and Bekker 2009 Obiter 170, 171; but see Dlamini 1999 Obiter 30. As s 10(4) operates
prospectively, it does not nullify a customary marriage that was validly concluded during the subsistence of
a civil marriage out of community of property in terms of the Transkei Marriage Act: Kambule v Master of
the High Court [2007] 4 All SA 898 (C) (also reported as Kambule v The Master 2007 (3) SA 403 (EC)).
Although (with the exception of a marriage under the Transkei Marriage Act) a customary marriage
which is concluded during the subsistence of a civil marriage is void, the Supreme Court of Appeal in Gaza
v Road Accident Fund Case 419/2006, 19 Nov 2007 (SCA) (unreported) made an order in accordance with
an agreement providing that the surviving spouse in a customary marriage can claim compensation for
loss of support even though her husband was married to another woman in a civil marriage when he married her at customary law: Jansen in Rautenbach et al Introduction to Legal Pluralism in South Africa 53;
Maithufi and Bekker 2009 Obiter 168–169.
120 The section provides that “[a] person who is married under the Marriage Act or the Customary Marriages
Act may not register a civil union”.
121 The wording of ss 3(2) and 10(1) of the Recognition of Customary Marriages Act is similar to s 22(1) and
(2) of the Black Administration Act 38 of 1927, which governed the position prior to the coming into operation of the Recognition of Customary Marriages Act. S 1(a) and (b) of the Marriage and Matrimonial
Property Law Amendment Act 3 of 1988 amended s 22(1) and (2) of the Black Administration Act to introduce the prohibition on a subsequent civil marriage with another person. Prior to the amendment (ie,
prior to 2 Dec 1988), a subsequent civil marriage automatically dissolved the customary marriage. S 22(1)
and (2) of the Black Administration Act were repealed by the schedule of the Recognition of Customary
Marriages Act. As the repeal does not have retroactive effect, s 22(1) and (2) still applies to marriages
which were concluded prior to the coming into operation of the Recognition of Customary Marriages Act.
On the effect of s 22(1) and (2), see eg Thembisile v Thembisile 2002 (2) SA 209 (T); Netshituka v Netshituka
2011 (5) SA 453 (SCA); TM v NM 2014 (4) SA 575 (SCA); Olivier et al LAWSA Indigenous Law par 74; Sinclair assisted by Heaton 222–223; Maithufi 1992 THRHR 631–632; Jansen 2003 Journal for Juridical Science
121–126; Maithufi and Moloi 2005 De Jure 145–149; Maithufi 2013 TSAR 726–727. For criticism of the decision in Netshituka, see Heaton 2011 Annual Survey of South African Law 480–482; Bakker and Heaton 2012
TSAR 586; Buchner-Eveleigh 2012 De Jure 596; Maithufi 2015 THRHR 307.
122 Thembisile v Thembisile 2002 (2) SA 209 (T); Jansen in Rautenbach et al Introduction to Legal Pluralism in
South Africa 71; Bonthuys and Pieterse 2000 THRHR 622, 624; Maithufi 2000 THRHR 512; Bakker 2006
THRHR 68; Maithufi and Bekker 2009 Obiter 166. This was also the position in terms of the amended s
22(1) and (2) of the Black Administration Act: see the previous footnote. As s 10(1) of the Recognition of
Customary Marriages Act operates only prospectively, it does not invalidate a customary marriage that was
validly concluded during the subsistence of a civil marriage out of community of property in terms of the
Transkei Marriage Act: Kambule v Master of the High Court [2007] 4 All SA 898 (C) (also reported as Kambule
v The Master 2007 (3) SA 403 (EC)).
236
South African Family Law
The position in respect of a civil union by a party to a customary marriage is more complicated. Firstly, section 8(3) of the Civil Union Act provides that a party to a customary marriage “may not” enter into a civil union. As the section does not expressly refer to
competence, the nature of the invalidity of a civil union which is concluded in contravention
of this section is not as clear as is the case in respect of a civil marriage which is concluded in
violation of sections 3(2) and 10(1) of the Recognition of Customary Marriages Act. Furthermore, because the prescription in section 13(2) of the Civil Union Act that a reference to a
marriage includes a civil union does not apply to the Recognition of Customary Marriages
Act, the rule that a civil marriage which is concluded in contravention of sections 3(2) and
10(1) is void cannot simply be applied to a civil union which is concluded during the subsistence of a customary marriage. However, on the same arguments advanced above in respect of
section 10(4) of the Recognition of Customary Marriages Act, it is submitted that such a civil
union is indeed void.
A second issue with regard to the capacity of customary spouses to enter into a civil union is
that the Civil Union Act does not provide for any exception to the rule in section 8(3) that a
party to a customary marriage may not enter into a civil union. Thus a customary spouse may
not even enter into a civil union with his or her customary spouse. Permitting spouses in a
customary marriage to enter into a civil marriage, but not a civil union, with each other probably constitutes an unjustifiable violation of the equality clause.
(b) The consequences of a subsequent civil marriage
If a couple who is married at customary law also enters into a civil marriage with each other,
their marriage is in community of property unless they conclude an antenuptial contract. If
the marriage is in community of property, sections 14 to 20 and section 24 of the Matrimonial
Property Act apply to it.123
Unfortunately the Recognition of Customary Marriages Act does not adequately regulate
the consequences of the interface between the couple’s customary marriage and their subsequent civil marriage. Section 10(2) provides as follows:
When a marriage is concluded as contemplated in subsection (1) the marriage is in community
of property and of profit and loss unless such consequences are specifically excluded in an antenuptial contract which regulates the matrimonial property system of their marriage.
The memorandum which accompanied the Recognition of Customary Marriages Bill states
that clause 10(2) of the Bill (which reads like section 10(2) of the Act) “ensures that there is
no implication that the customary marriage is superseded by a civil marriage when the parties
have contracted both” and that the parties “are merely seen as converting from one set of
consequences to another”.124 However, the Act does not clearly set out the consequences of
the “conversion”. Does the “conversion” mean that the customary marriage continues to exist
with the result that the spouses are simultaneously married according to two systems of law? If
so, how are those instances when there are fundamental differences between the two systems
to be handled? For example, what if a couple entered into a customary marriage in community
of property, while their subsequent civil marriage is subject to the accrual system? In these
circumstances the patrimonial consequences of the two types of marriages differ fundamentally. If one type of marriage is not to be regarded as subservient to the other, recognition
ought simultaneously to be given to both systems, but it is legally impossible to do so in a case
such as this.125
________________________
123 S 10(3) of the Recognition of Customary Marriages Act. On the difference in the wording of the English
and Afrikaans versions of this subsection, see Van Schalkwyk 2000 THRHR 481 and 493. In is submitted
above in this chapter that the inclusion of s 24 of the Matrimonial Property Act in the list is the result of a
legislative error.
124 Par 3.10.
125 In its report which preceded the Recognition of Customary Marriages Bill, the South African Law Commission acknowledged “the impossibility of enforcing both common- and customary-law regimes
continued
Chapter 17: Customary marriages
237
It is submitted that careful reading of the wording of section 10(2) reveals that, in the
above example, community of property operates until the date of the civil marriage and that
section 10(2) applies as from that date. This is so for the following reason: section 10(2)
prescribes the matrimonial property consequences in “the marriage” “[w]hen a marriage is
concluded as contemplated in subsection (1)”. Section 10(1) governs the capacity of spouses
who are married at customary law to “contract a marriage with each other under the Marriage
Act”, that is, their capacity to conclude a civil marriage. Section 10(2) therefore only deals
with the consequences of the civil marriage. Thus, in the above example, all assets acquired
before the civil marriage are governed by the rules regarding community of property, while
all assets acquired as from the date of the civil marriage are the spouses’ separate assets
subject to accrual sharing upon dissolution of the civil marriage. Adopting the same reasoning in respect of the other consequences of the “conversion” of a customary marriage into a
civil marriage, one concludes that the rules regulating the customary marriage and its consequences operate until the civil marriage is entered into and thereafter the rules regulating
the civil marriage operate. In other words, the consequences of the customary marriage come
to an end at the date of the civil marriage, but the termination is not retroactive.126
________________________
simultaneously”: Report on Customary Marriages Project 90 par 3.2.9. On the problems arising from dual and
converted customary and civil marriages, see further South African Law Commission op cit pars 3.2 and 3.3.
126 See also Jansen in Rautenbach et al Introduction to Legal Pluralism in South Africa 72; Van Schalkwyk 2000
THRHR 481, 494, 2003 De Jure 295; Büchner-Eveleigh 2013 De Jure 894–899. See further Bonthuys and Pieterse 2000 THRHR 623 who are of the view that, for all intents and purposes, the existing customary marriage is turned into a civil marriage.
PART
4
MUSLIM AND HINDU MARRIAGES
18
MUSLIM MARRIAGES
18.1 Introduction
In the previous chapter it was indicated that prior to the coming into operation of the Recognition of Customary Marriages Act 120 of 1998, customary marriages were recognised only for
limited purposes because they permit polygyny and are not solemnised in terms of the Marriage Act 25 of 1961. These are also the reasons why our law affords limited protection to
Muslim marriages.1
Numerous calls have been made for full recognition of Muslim marriages. In 2003, the
South African Law Reform Commission published a report on Muslim marriages.2 The report
was accompanied by a draft Bill which provided for the recognition of some Muslim marriages.
As the draft Bill was subject to a great deal of criticism an amended version, entitled the
3
Muslim Marriages Bill, 2010, was published for public comment in January 2011. The latter
4
Bill, too, has been fiercely criticised. As yet, no version of the proposed legislation has been
submitted to Parliament for approval.
In 2009, the Women’s Legal Centre brought an unsuccessful application for direct access
to the Constitutional Court to seek an order compelling the President and Parliament to
5
enact legislation recognising Muslim marriages. The court rejected the application inter alia
on the grounds that the obligation to enact legislation to fulfil constitutional rights falls on
________________________
1 See eg Ismail v Ismail 1983 (1) SA 1006 (A); Kalla v The Master 1994 (4) BCLR 79 (T), 1995 (1) SA 261 (T).
If a particular Muslim marriage is monogamous and meets the requirements of the Marriage Act, it qualifies as a civil marriage. In such event, the Muslim marriage and the civil marriage exist side by side, with the
civil marriage being fully recognised and the Muslim marriage receiving only limited recognition. In 2014,
more than 100 Imams were appointed as marriage officers under the Marriage Act: SANews.gov “Full Legal
Status for Muslim Marriages in South Africa”, http://www.southafrica.info/services/rights/muslim020514.htm (accessed 22 June 2015); Schoeman-Malan LitNet Akademies (Regte) 8 Jan 2015,
http://www.litnet.co.za/vonnisbespreking-is-die-moslemhuwelik-nou-n-erkende-huwelik/ (accessed 22 June
2015) 284–286. Monogamous Muslim marriages solemnised by these Imams qualify as civil marriages. On
dual validity of religious marriages, see further ch 1 above.
2 South African Law Reform Commission Project 106 Islamic Marriages and Related Matters Report.
3 General Notice 37 GG 33946 of 21 January 2011.
4 On the 2003 draft Bill and the 2010 Bill, see Amien in Claassens and Smythe (eds) Marriage, Land and
Custom 357; Amien in Maclean and Eekelaar (eds) Managing Family Justice 109–117, 119–122; Barratt (ed)
Persons and the Family 407–410; Manjoo in Sloth-Nielsen and Du Toit (eds) Trials and Tribulations, Trends and
Triumphs 122–127; Mbatha et al in Bonthuys and Albertyn (eds) Gender, Law and Justice 171, 180–188; Moosa
Unveiling the Mind 154–160; Moosa in Heaton (ed) Law of Divorce and Dissolution of Life Partnerships 290–296,
321, 326–354; Navsa in Sloth-Nielsen and Du Toit (eds) Trials and Tribulations, Trends and Triumphs 115–
117; Skelton and Carnelley (eds) Family Law 197–201; Gabru 2004 PELJ 9–11; Motala 2004 CILSA 327–339;
Rautenbach 2004 PELJ 5; Moosa 2009 PELJ 73–74; Bakker 2009 THRHR 400–402; Du Toit 2009 SALJ 479–
480; Denson and Carnelley 2009 Obiter 691–693; Amien 2010 International Journal of Law, Policy and the Family 374–380; Bakker 2010 Speculum Juris 66; Domingo 2011 Obiter 382–384; Neels 2012 TSAR 486; SchoemanMalan LitNet Akademies (Regte) 8 Jan 2015, http://www.litnet.co.za/vonnisbespreking-is-die-moslemhuweliknou-n-erkende-huwelik/ (accessed 22 June 2015) 272–274.
5 Women’s Legal Centre Trust v President of the Republic of South Africa 2009 (6) SA 94 (C).
241
242
South African Family Law
the State and not the President and Parliament alone, and that direct access to the Constitutional Court was not justified. The court did not consider whether an obligation to enact
legislation to recognise Muslim marriages exists or whether such legislation is required by the
Constitution of the Republic of South Africa, 1996. Nor did it consider whether such legisla6
tion would be consistent with the Constitution. More recently, in Faro v Bingham, the Western
Cape Division of the High Court, Cape Town ordered the Minister of Justice and Constitutional Development to file an affidavit by 15 July 2014 setting out the progress made in respect of the enactment of the Muslim Marriages Bill and/or any similar legislation. This
deadline lapsed seemingly without any progress having been made in respect of the enactment of the legislation. As a result, the Women’s Legal Centre has signalled its intent to
launch litigation in the Western Cape Division of the High Court, Cape Town compelling the
7
State to enact legislation recognising Muslim marriages.
18.2 Recognition of Muslim marriages
Because this book is not intended to be a comprehensive exposition of the pluralism of South
African marriage laws, the regulation of Muslim marriages by Islamic law (that is, Shari’ah) is
not discussed in this chapter.8 The focus of the chapter is the limited legal recognition of
Muslim marriages in terms of South African law.
Various Acts or sections of Acts expressly provide that they apply to religious marriages. For
example, the whole of the Births and Deaths Registration Act 51 of 1992, Domestic Violence
Act 116 of 1998 and Children’s Act 38 of 2005 apply to religious marriages.9 Other examples
are section 10A of the Civil Proceedings Evidence Act 25 of 1965 and section 195(2) of the
Criminal Procedure Act 51 of 1977, which recognise religious marriages for purposes of compelling a spouse as a witness in civil and criminal proceedings; section 4(q) read with section 1
of the Estate Duty Act 45 of 1955, which exempts property accruing to a surviving spouse in a
religious marriage from estate duty; section 7 read with section 1 of the Demobilisation Act 99
of 1996, which confers a dependant’s benefit on a surviving spouse in a religious marriage;
and section 2 read with section 31(1) of the Special Pensions Act 69 of 1996, which entitles a
surviving spouse in “a marriage under any Asian religion” to a survivor’s lump-sum benefit.
These provisions apply regardless of whether the religious marriage is de facto monogamous
or polygynous.
________________________
6 [2013] ZAWCHC 159 (25 October 2013).
7 “WLC turns to courts on Muslim Marriage Bill”, http://www.vocfm.co.za/wlc-turns-to-courts-on-muslimmarriage-bill/ (accessed 22 June 2015).
8 On Islamic marriage law, see eg Amien in Claassens and Smythe (eds) Marriage, Land and Custom 357;
Barratt (ed) Persons and the Family 405–407; Clark in Van Heerden et al (eds) Boberg’s Law of Persons and the
Family 258; Goolam in Clark (ed) Family Law Service Division O; Goolam et al in Rautenbach et al Introduction
to Legal Pluralism in South Africa 296–311; Mbatha et al in Bonthuys and Albertyn (eds) Gender, Law and Justice 158–189; Mofokeng 139–162; Moosa Unveiling the Mind ch 11; Moosa in Heaton (ed) Law of Divorce and
Dissolution of Life Partnerships 284–290, 298–325; 331–352; South African Law Commission Issue Paper 15 Project 59 Islamic Marriages and Related Matters; Cachalia 1993 THRHR 392; Moosa 1995 Stell LR 417, 1995 African Law Review 15; Roodt 1995 (2) Codicillus 50; Mahomed Aug 1998 De Rebus 3; Moosa 1998 Stell LR 196,
1998 SALJ 479; Cassim 1999 (1) Codicillus 2; Moosa Oct 1999 De Rebus 35; Mahomed Jan 2000 De Rebus 10;
Goolam 2001 Stell LR 199; Moodley 2001 (2) Codicillus 8; Gabru 2004 PELJ 4–9; Pienaar 2006 Stell LR 321;
Carnelley 2007 Obiter 340–341; Bakker 2008 Obiter 540–541; Denson 2009 Obiter 245–250; Moosa 2009 PELJ
67–70, 79–81; Denson and Carnelley 2009 Obiter 684–687, 689–690; Bakker 2010 Speculum Juris 66; OsmanHyder 2011 Stell LR 243; Carnelley and Bhamjee 2012 Obiter 489–499; Booley 2014 Law, Democracy and Development 37; Moosa and Abduroaf 2014 Acta Juridica 174–186. On whether Islamic law should be considered
part of South African law or whether it is foreign law, see Bakker 2008 Obiter 536–540, 2009 THRHR 402–
404.
9 See s 1(2) of the Births and Deaths Registration Act 51 of 1992, the definition of “domestic relationship” in
s 1 of the Domestic Violence Act 116 of 1998 and the definition of “marriage” in s 1(1) of the Children’s
Act 38 of 2005.
Chapter 18: Muslim marriages
243
Apart from the explicit statutory recognition referred to in the previous paragraph, the
courts have interpreted the wording of some statutory provisions to include Muslim marriages
within their ambit. Thus, in Daniels v Campbell 10 the Constitutional Court held that a surviving
spouse in a monogamous Muslim marriage qualifies as a “spouse” and “survivor” in terms of
the Intestate Succession Act 81 of 1987 and the Maintenance of Surviving Spouses Act 27 of
1990. The court held that the real issue is not whether the marriage is valid; instead, the issue
is what the ordinary meaning of the word “spouse” entails. The court found that the ordinary
meaning encompasses a party to a monogamous Muslim marriage. It further stated that the
old interpretation of “spouse”, which excluded a party to a Muslim marriage, did not flow
from the courts giving the word its ordinary meaning, but “emanated from a linguistically
strained use of the word flowing from a culturally and racially hegemonic appropriation of
it”.11 The old, narrow interpretation was discriminatory and unsustainable in view of the
Constitution. The court further considered the objectives of the two Acts which were at issue,
namely the Intestate Succession Act and the Maintenance of Surviving Spouses Act, and held
that the clear purposes of the Acts would best be furthered by including surviving spouses
from monogamous Muslim marriages in the protection the Acts offer. The court therefore
concluded that the word “spouse” in the Acts and the word “survivor” in the Maintenance of
Surviving Spouses Act include Muslim spouses and surviving spouses.
In Hassam v Jacobs 12 the Cape Provincial Division of the High Court (now the Western Cape
Division of the High Court, Cape Town) extended the application of the Intestate Succession
Act and the Maintenance of Surviving Spouses Act to spouses in de facto polygynous Muslim
marriages. Van Reenen J held that the word “survivor” in the Maintenance of Surviving
Spouses Act can be applied to more than one surviving spouse without unduly straining the
language of the Act. He accordingly concluded that the Act applies to de facto monogamous
and polygynous Muslim marriages. He further found that, with the exception of section
1(4)(f ), the provisions of the Intestate Succession Act could also easily be applied to spouses
in de facto polygynous marriages. In respect of the use of the word “spouse” in section 1(4)(f )
Van Reenen J held that the section clearly contemplated only one spouse. He found the
exclusion of surviving spouses in a de facto polygynous Muslim marriage unconstitutional and
made a reading-in order that re-cast section 1(4)(f ). Because an order of constitutional invalidity regarding an Act has no force unless it is confirmed by the Constitutional Court,13 Van
Reenen J’s order regarding section 1(4)(f ) had to be referred to the Constitutional Court.
The Constitutional Court held that exclusion of widows of de facto polygynous Muslim marriages from the Intestate Succession Act constitutes unjustifiable unfair discrimination on the
grounds of gender, religion and marital status.14 The Constitutional Court also held that the
objective of the Act, namely to lessen surviving spouses’ dependence on family benevolence,
is frustrated by the exclusion of surviving spouses of de facto polygynous Muslim marriages.
The court found that the word “spouse” in section 1 of the Act cannot in its ordinary sense
refer to more than one spouse. Since the word as used in the section was not reasonably
capable of being understood as referring to more than one spouse, the Constitutional Court
could not adopt the same approach it did in Daniels v Campbell. Instead it had to find that
section 1 was unconstitutional. It remedied the unconstitutionality by reading in the words
“or spouses” after each use of the word “spouse” in section 1.15 As it was only the order in
respect of section 1 of the Intestate Succession Act that had to be referred to the Constitutional Court, the court did not deal with the Maintenance of Surviving Spouses Act. Van
Reenen J’s inclusive interpretation of the latter Act therefore reflects the current state of the
________________________
10
11
12
13
14
15
2004 (7) BCLR 735 (CC), 2004 (5) SA 331 (CC), Heaton and Kruger Casebook on Family Law case [67].
Par 19.
[2008] 4 All SA 350 (C).
S 172(2)(a) of the Constitution of the Republic of South Africa, 1996.
Hassam v Jacobs 2009 (5) SA 572 (CC), Heaton and Kruger Casebook on Family Law case [68].
The Constitutional Court further indicated how a child’s share must be calculated and how an intestate
estate should devolve if the deceased were survived by more than one spouse.
244
South African Family Law
law in the Western Cape. It is unlikely that another division of the High Court would reach a
different conclusion should it have to decide on the meaning of the word “survivor” in the
Maintenance of Surviving Spouses Act.
Several decisions which did not turn on the interpretation of legislation have also extended
recognition to Muslim marriages for limited purposes.
In Islamic law, marriage is a contract. In Ryland v Edros 16 the court held that the contractual
obligations flowing from a de facto monogamous Muslim marriage can be recognised and
enforced as between the parties despite the fact that the marriage is potentially polygynous.
The court rejected the 1983 decision in Ismail v Ismail 17 in which the Appellate Division (now
the Supreme Court of Appeal) had held that a potentially polygynous, but de facto monogamous, Muslim marriage and the contractual obligations flowing from it could not be recognised because polygamy violates public policy. In Ryland v Edros Farlam J held that in Ismail v
Ismail the Appellate Division had considered the views of only one group of our pluralistic
society. This was no longer acceptable. Now, an act (such as marrying under a system of
religious law which allows a man to take more than one wife) will be branded as offensive to
public policy only if it “is offensive to those values which are shared by the community at
large, by all right-thinking people in the community and not only by one section of it”.18
Farlam J held that the Appellate Division’s decision no longer precluded a court from enforcing a claim emanating from the marriage contract between Muslim spouses. He stressed,
however, that his decision would not necessarily apply to contractual agreements flowing from
a de facto polygynous Muslim marriage. It is important to realise that enforcing the contractual
obligations which flow from a Muslim marriage does not mean that the marriage is equated
with a civil or customary marriage or that it is fully recognised. The decision in Ryland v Edros
simply means that the spouses in a de facto monogamous Muslim marriage are bound, as
against each other, by their contractual undertakings under Islamic law.
In Amod (born Peer) v Multilateral Motor Vehicle Accidents Fund (Commission for Gender Equality
Intervening) 19 the Supreme Court of Appeal extended the dependant’s action for loss of support to the surviving spouse in a monogamous Muslim marriage. In this case, the plaintiff’s
husband was killed in a motor vehicle accident. She instituted a claim for compensation for
loss of support against the Multilateral Motor Vehicle Accidents Fund. The court held that
the decisive issue was not whether or not the plaintiff was lawfully married to the deceased,
but whether or not the deceased was under a legal duty to support the plaintiff in a relationship which was worthy of recognition and protection in terms of the common law. The court
analysed the origins and evolution of the dependant’s action, and concluded that a dependant who was not legally married to the deceased could have an action for compensation for
loss of support if the following requirements were met:
(1) The deceased had a legally enforceable duty to support the dependant.
(2) This duty arose from a marriage that was concluded in accordance with the tenets of a
recognised and accepted faith.
(3) The duty deserved recognition and protection for the purposes of a dependant’s action.
The court concluded that in view of the ethos of tolerance, pluralism and religious freedom
which had evidenced itself in South Africa even before the formal adoption of the interim
20
Constitution (that is, the Constitution of the Republic of South Africa 200 of 1993), the boni
mores of our society require that the contractual duty of support which flows from a Muslim
marriage should be recognised and be legally enforceable at common law. The Fund was
________________________
16
17
18
19
20
[1996] 4 All SA 557 (C), 1997 (1) BCLR 77 (C), 1997 (2) SA 690 (C).
1983 (1) SA 1006 (A).
707G.
[1999] 4 All SA 421 (SCA), 1999 (4) SA 1319 (SCA).
The final Constitution (Constitution of the Republic of South Africa, 1996) replaced the interim Constitution on 4 Feb 1997.
Chapter 18: Muslim marriages
245
therefore ordered to compensate the plaintiff for her loss of support. In this case, too, the
court emphasised that the marriage had been de facto monogamous and that it left the issue of
whether dependants would have an action for loss of support in the case of a de facto polygynous marriage open.
In Khan v Khan 21 the Transvaal Provincial Division of the High Court (now the Gauteng
Division of the High Court, Pretoria) held that it was no longer contra bonos mores to recognise
the duty of support that results from a Muslim marriage even if the marriage is de facto polygynous. It would be blatantly discriminatory not to recognise the duty of support that arises
from a polygynous Muslim marriage while recognising it in respect of a monogamous Muslim
marriage (as had been done in Ryland and Amod). The court therefore concluded that a
spouse in a de facto polygynous Muslim marriage can use the Maintenance Act 99 of 1998 to
enforce the duty of support that arises from the marriage.
In AM v RM,22 the court granted a Muslim woman’s application for maintenance pendente
lite in terms of rule 43 of the Uniform Rules of Court23 even though the spouses had never
entered into a civil marriage. The same happened in Hoosein v Dangor.24 In both cases the wife
had instituted proceedings to have the spouses’ Muslim marriage declared valid in terms of
South African law, or to have the non-recognition of Muslim marriages declared unconstitutional, and to have the spouses’ Muslim marriage dissolved by divorce in terms of the Divorce
Act 70 of 1979. The judges in both cases relied on Zaphiriou v Zaphiriou 25 in which the court
held that rule 43 can be invoked even if the validity or subsistence of the marriage is in
dispute, and that the word “spouse” in rule 43(1) must be interpreted as including a person
who alleges that he or she is a spouse but whose allegation is denied. In both cases, the judges
also pointed out that the courts have increasingly enforced the rights which flow from Muslim
marriages even though these marriages are not yet fully recognised. The difference between
AM v RM and Hoosein v Dangor is that in AM v RM the husband alleged that the couple’s Muslim marriage had already been dissolved by divorce in terms of Islamic law. Revelas J found it
unnecessary to investigate whether the marriage had in fact been dissolved. She held that the
pending constitutional challenge regarding the non-recognition of Muslim marriages and the
inapplicability of the Divorce Act to such marriages encompassed a challenge to divorce by
talaq in terms of Islamic law. As a result, the status and effect of a talaq would have to be scrutinised by the court that decides the constitutional challenge. Therefore, the pending action
entailed the suspension of divorce by talaq until the action was decided. Thus, it was irrelevant
for purposes of the wife’s application in terms of rule 43 whether the spouses were already
divorced by talaq. Revelas J also referred to two unreported decisions in which interim
maintenance had been awarded in terms of rule 43 to a Muslim wife and a former Muslim
wife, respectively.26 She held that the entitlement to maintenance pendente lite is founded on a
general duty to provide spousal support and that a Muslim wife can therefore be awarded
interim maintenance even if the validity or subsistence of her marriage is in dispute.27
In Ismail v Ismail 28 the Eastern Cape Division of the High Court gave effect to a contract of
lease the parties to a Muslim marriage had concluded in respect of their matrimonial home,
even though the husband was already a party to a civil marriage with another woman. This
decision was based purely on the factual circumstances regarding the contract of lease. The
________________________
21
22
23
24
25
26
2005 (2) SA 272 (T).
2010 (2) SA 223 (ECP).
Rule 43 is discussed in ch 15 above.
[2010] 2 All SA 55 (WCC), 2010 (4) BCLR 362 (WCC).
1967 (1) SA 342 (W).
Cassim v Cassim (Part A) Case 3954/06 (T) 15 Dec 2006 (unreported); Jamalodeen v Moola Case 1835/06 (N)
date unknown (unreported).
27 This dictum is in keeping with the approach in Zaphiriou v Zaphiriou 1967 (1) SA 342 (W): see ch 15 above.
For criticism of the decision, see Kruuse 2009 (2) Speculum Juris 127.
28 2007 (4) SA 557 (E).
246
South African Family Law
court did not extend the right to occupy the matrimonial home (which operates in civil
marriages and civil unions)29 to Muslim spouses.
30
Finally, in Rose v Rose the Western Cape Division of the High Court, Cape Town held that
a wife in a Muslim marriage can invoke section 7(2) and (8) of the Divorce Act to claim postdivorce maintenance and a share of her husband’s pension interest. Relying on the reasoning
32
in Daniels v Campbell 31 and Hassam v Jacobs, the court held that the central question is not
whether a marriage is valid, but whether the protection a particular Act intends to confer on a
person should be withheld from the type of relationship to which the person is a party. The
court pointed out that the term “marriage” is not defined in the Divorce Act and stated that it
would be anomalous to hold that a party to a Muslim marriage qualifies as a “spouse” for the
purposes of the Intestate Succession Act and the Maintenance of Surviving Spouses Act but a
Muslim marriage does not qualify as a marriage for the purposes of the Divorce Act. Therefore, the court concluded that the Divorce Act could apply to the dissolution of a Muslim
marriage. As the spouses in Rose had entered into their Muslim marriage while the husband
was a party to a civil marriage with another woman, the court was also asked to decide whether this fact implied that the wife in the Muslim marriage could not claim maintenance or a
share of her husband’s pension interest when the Muslim marriage was terminated. The court
stated that the existence of the civil marriage rendered the Muslim marriage polygynous.
Relying on Hassam, the court held that distinguishing between the parties to a monogamous
Muslim marriage and a polygynous Muslim marriage amounts to unjustifiable unfair discrimination. It also held that the dignity of the parties to a polygynous Muslim marriage is just as
worthy of respect as the dignity of parties to a civil marriage or a customary marriage. Consequently, the court concluded that the existence of the civil marriage was not a bar to the
claims of the wife in the Muslim marriage.
It is submitted that the finding in Rose is wrong. Firstly, it is trite that civil marriages are
monogamous and that any marriage a party to an existing civil marriage concludes with
33
another person is void. This rule applies regardless of whether the purported subsequent
34
marriage is a civil, customary or Muslim marriage. Therefore, the Muslim marriage in Rose
was not simply an unrecognised marriage; it was a void marriage. Because the marriage was
void, the Divorce Act could not have applied to it since there was no marriage that could have
been terminated by divorce. For this reason alone, the case should have been dismissed.
Secondly, the case should have been dismissed because it was based on the incorrect assumption that parties can pick and choose which provisions of an Act they want to apply to their
marriage. If section 7(2) and (8) of Divorce Act is to apply to the dissolution of a marriage,
the other provisions of the Act must, logically, also apply (unless, of course, some of them are
expressly or by necessary implication restricted to particular instances). Therefore, in Rose, an
order for divorce based on the grounds stipulated in section 3 of the Divorce Act should also
35
have been sought. The judgment contains no indication that this was ever done.
________________________
29 See ch 5 above on the right to occupy the matrimonial home, which is an invariable consequence of a civil
marriage. See ch 16 above on civil unions.
30 [2015] 2 All SA 352 (WCC).
31 2004 (7) BCLR 735 (CC), 2004 (5) SA 331 (CC).
32 2009 (5) SA 572 (CC).
33 See chs 3 and 4 above.
34 In so far as customary marriages are concerned the common-law rule that polygamy is irreconcilable with a
civil marriage has been embodied in s 10(4) of the Recognition of Customary Marriages Act 120 of 1998.
The section provides that a person who is a party to a civil marriage may not enter into a customary marriage during the subsistence of the civil marriage. A customary marriage that is concluded in violation of s
10(4) is void. See further ch 17 above.
35 On s 3, see ch 11 above.
Chapter 18: Muslim marriages
247
18.3 The Constitution and Muslim marriages
Those who advocate the recognition of Muslim marriages on constitutional grounds argue
that non-recognition of these marriages violates, inter alia, the right not to be subject to unfair
discrimination on the ground of religion, conscience, belief or culture, the right to dignity,
the right to freedom of conscience, religion, thought, belief and opinion, the right to culture,
and the right to choose to participate in a particular culture.36 From a sex and gender-equality
perspective it is arguable that Muslim marriages should not be recognised in their present
form, because elements of these marriages unjustifiably violate Muslim women’s rights to sex
and gender equality and to dignity. One of these elements is polygyny. However, in view of
the number of cases in which de facto polygynous Muslim marriages have received recognition
(albeit for limited purposes) and the full recognition of polygynous customary marriages, it is
improbable that the recognition of Muslim marriages will be found to be constitutionally
untenable because Muslim marriages permit polygyny. Other aspects which are said to contribute to women’s inequality in a Muslim marriage are the short period for which wives are
entitled to post-divorce maintenance, the possibility of a unilateral divorce at the instance of
the husband, and the compulsory post-dissolution waiting period (idda) during which the
former wife may not remarry. It is hoped that when the proposed legislation regulating
Muslim marriages is eventually enacted, these aspects will be properly addressed.37
________________________
36 Ss 9(3), 10, 15 and 30 of the Constitution.
37 On the arguments regarding the unconstitutionality of non-recognition of Muslim marriages, and of the
provisions of the Muslim Marriages Bill, see Kalla v The Master 1994 (4) BCLR 79 (T), 1995 (1) SA 261 (T);
Ryland v Edros [1996] 4 All SA 557 (C), 1997 (1) BCLR 77 (C), 1997 (2) SA 690 (C); Daniels v Campbell 2004
(7) BCLR 735 (CC), 2004 (5) SA 331 (CC); Khan v Khan 2005 (2) SA 272 (T); Hassam v Jacobs [2008] 4 All
SA 350 (C); Hassam v Jacobs 2009 (5) SA 572 (CC); Barratt (ed) Persons and the Family 398; Goolam in
Blanpain (ed) Law in Motion 752; Goolam in Clark (ed) Family Law Service par O2; Manjoo in Sloth-Nielsen
and Du Toit (eds) Trials and Tribulations, Trends and Triumphs 126–127; Mbatha et al in Bonthuys and Albertyn (eds) Gender, Law and Justice 165–169, 177–179; Mofokeng 163–167; Moosa Unveiling the Mind 154, 161;
Sinclair in Van Heerden et al (eds) Boberg’s Law of Persons and the Family 168–169 fn 21; Sinclair assisted by
Heaton 265–266; Skelton and Carnelley (eds) Family Law 193–194; Visser and Potgieter 17; Bekker 1991
Acta Juridica 5–6; Bonthuys and Du Plessis 1995 SA Public Law 200; Du Plessis and Gouws 1996 SA Public Law
472; Goolam 1996 Journal for Juridical Science 130; Malan 1998 THRHR 300; Moosa 1998 SAJHR 508; Moosa
1998 Stell LR 196; Clark and Kerr 1999 SALJ 24; Malan Oct 1999 De Rebus 37; Goldblatt 2000 SAJHR 141–
143; Rautenbach and Du Plessis 2000 THRHR 309 et seq; Bonthuys 2002 SAJHR 41; Bonthuys 2002 SALJ 763,
775–782; Bakker 2009 THRHR 398–400; Denson 2009 Obiter 264 et seq; Denson and Van der Walt 2009 Obiter
191–196; Denson and Carnelley 2009 Obiter 693–696; Amien 2010 International Journal of Law, Policy and the
Family 364–365; Domingo 2011 Obiter 384; Neels 2012 TSAR 486; Schoeman-Malan LitNet Akademies (Regte)
8 Jan 2015, http://www.litnet.co.za/vonnisbespreking-is-die-moslemhuwelik-nou-n-erkende-huwelik/ (accessed 22 June 2015) 271.
19
HINDU MARRIAGES
19.1 Introduction
Like Muslim marriages, Hindu marriages do not enjoy full legal recognition in South Africa;
they enjoy only the limited protection that has been afforded to them by certain Acts and
cases. Although polygyny is permitted by traditional Hindu law, it occurs very rarely
nowadays.1 Therefore, the main reason for denying Hindu marriages full recognition under
South African law is that these marriages are not solemnised in terms of the Marriage Act 25
of 1961.2 Because this book is not intended to be a comprehensive exposition of the pluralism
of South African marriage laws, the focus of the chapter falls, not on Hindu marriage law,3
but on the limited legal recognition of Hindu marriages in terms of South African law.4
19.2 Recognition of Hindu marriages
Some Acts or sections of Acts afford recognition to Hindu marriages for specific purposes by
including religious marriages in the ambit of the legislation. Several examples of such legislation are provided in the chapter on Muslim marriages.5
Apart from the explicit statutory recognition referred to in the previous paragraph, the
court in Govender v Ragavayah (Women’s Legal Centre Trust as Amicus Curiae) 6 held that the
word “spouse” in the Intestate Succession Act 81 of 1987 includes the surviving partner in a
monogamous Hindu marriage. This decision was partly based on Daniels v Campbell,7 in which
the Constitutional Court held that a surviving spouse in a monogamous Muslim marriage
qualifies as a “spouse” in terms of the Intestate Succession Act. The decision in Govender came
as no surprise. As there is no constitutionally acceptable reason for distinguishing between
the judicial recognition of Muslim and Hindu marriages for specific purposes, it is logical, if
courts have extended recognition to Muslim marriages, that a court faced with a similar case
in respect of a Hindu marriage should afford the same recognition to the Hindu marriage.
Thus, for example, spouses in Hindu marriages should also be able to institute claims in
________________________
1 Monogamy has become the approved norm for Hindu marriages, but polygyny does sometimes occur:
Gokul and Rautenbach in Rautenbach et al Introduction to Legal Pluralism in South Africa 273.
2 See also Mbatha et al in Bonthuys and Albertyn (eds) Gender, Law and Justice 158.
3 On Hindu marriage law, see Gokul and Rautenbach in Rautenbach et al Introduction to Legal Pluralism in
South Africa 273–285; Mofokeng 123–135; Rautenbach in Heaton (ed) Law of Divorce and Dissolution of Life
Partnerships 355–358, 373–385. On the application of Hindu law in South Africa, see Rautenbach in Heaton
(ed) Law of Divorce and Dissolution of Life Partnerships 368–370.
4 In 2006, the South African Law Reform Commission approved the inclusion of an investigation into the
recognition of Hindu marriages into its programme: South African Law Reform Commission Thirty Fifth
Annual Report 2007/ 2008 26. The commission has not yet published a discussion paper or draft Bill on
these marriages.
5 See ch 18 above.
6 [2009] 1 All SA 371 (D), 2009 (3) SA 178 (D), Heaton and Kruger Casebook on Family Law case [70].
7 2004 (7) BCLR 735 (CC), 2004 (5) SA 331 (CC), Heaton and Kruger Casebook on Family Law case [67].
249
250
South African Family Law
terms of the Intestate Succession Act and the Maintenance of Surviving Spouses Act 27 of
1990, claim compensation for loss of support, use the Maintenance Act 99 of 1998 to enforce
the spousal duty of support, and invoke rule 43 of the Uniform Rules of Court.8 According to
Hindu law, a marriage is a sacrament as well as a civil contract.9 To the extent that a Hindu
marriage is a contract, the contractual obligations flowing from the marriage should be
recognised and enforced as between the parties, as is the case in respect of Muslim marriages.10
Although the courts can recognise certain aspects of a Hindu marriage for certain purposes, they do not have the power to declare a Hindu marriage valid or to turn it into a civil
marriage (or a civil union). In Singh v Ramparsad 11 a woman who was married in terms of
Hindu law wanted to obtain a divorce. She had married her husband in terms of the Vedic
branch of the Hindu religion which does not recognise divorce.12 Both spouses knew that
their marriage was indissoluble and they knew that their marriage would not be recognised by
South African law unless it was solemnised in terms of the Marriage Act and qualified as a civil
marriage. The wife sought an order declaring that the Marriage Act either recognised the solemnisation and legal validity of religious marriages or did not preclude the recognition of the
solemnisation and legal validity of such marriages. She further sought an order declaring her
Hindu marriage to be legally valid. As an alternative, she sought an order declaring that the
word “marriage” in the Divorce Act 70 of 1979 included religious marriages and that her
Hindu marriage therefore fell within the ambit of the Act. In other words, she wanted either
to have her Hindu marriage turned into a civil marriage which could be dissolved by divorce
in terms of the Divorce Act, or to have the consequences of a civil marriage imposed on her
Hindu marriage so that she could obtain a divorce. If the relief were to be granted, she further wanted the court to order a divorce in terms of the Divorce Act.
The action was correctly dismissed, for it was legally impossible to achieve what the wife
wanted. If a marriage is concluded in terms of religious law and also complies with the requirements for a civil marriage, it has dual validity.13 In such event, the civil marriage can be dissolved by a secular divorce order in terms of the Divorce Act, but the secular divorce order
does not free the spouses from the bonds of their religious marriage if the religion prohibits
divorce (as in the present case) or sets additional requirements for dissolution of the religious
marriage (as is the case, for example, in respect of Jewish marriages).14 Granting a secular
divorce in a purely religious marriage such as the one in Singh would be futile, because the
spouses never entered into a civil marriage and there was accordingly no marriage which
could be dissolved by a secular divorce order. Even if the court were to recognise the spouses’
religious marriage, such recognition would not turn the Hindu marriage into a civil marriage
or any other type of marriage which could be dissolved by a secular divorce order. The
________________________
8 See Daniels v Campbell 2004 (7) BCLR 735 (CC), 2004 (5) SA 331 (CC); Hassam v Jacobs [2008] 4 All SA 350
(C); Hassam v Jacobs 2009 (5) SA 572 (CC), Heaton and Kruger Casebook on Family Law case [68]; Amod (born
Peer) v Multilateral Motor Vehicle Accidents Fund (Commission for Gender Equality Intervening) [1999] 4 All SA 421
(SCA), 1999 (4) SA 1319 (SCA); Khan v Khan 2005 (2) SA 272 (T); Cassim v Cassim (Part A) Case 3954/06
(T) 15 Dec 2006 (unreported); Jamalodeen v Moola Case 1835/06 (N) date unknown (unreported); AM v
RM 2010 (2) SA 223 (ECP); Hoosein v Dangor [2010] 2 All SA 55 (WCC), 2010 (4) BCLR 362 (WCC) and
ch 18 above on these rights of Muslim spouses.
9 See eg Gokul and Rautenbach in Rautenbach et al Introduction to Legal Pluralism in South Africa 273;
Mofokeng 123, 128.
10 Ryland v Edros [1996] 4 All SA 557 (C), 1997 (1) BCLR 77 (C), 1997 (2) SA 690 (C).
11 2007 (3) SA 445 (D), Heaton and Kruger Casebook on Family Law case [69].
12 All the traditional branches of Hindu religious law consider marriage to be indissoluble because of its sacramental nature: Singh v Ramparsad 2007 (3) SA 445 (D) pars 1, 2, 8, 9; Mofokeng 133; Nanda 1960 Northwestern University Law Review 624, 627. Customary modes of divorce are recognised by various Hindu tribes, but
these modes are viewed as reflecting the practices of lower castes: Mofokeng 134; Nanda op cit 630. On the
incongruity of denial of divorce to some Hindus and recognition of customary divorce for others, and the
differences between official and unofficial Hindu law in this regard, see Holden chs 1 and 4.
13 On the dual validity of marriages, see ch 1 above.
14 See ch 11 above.
Chapter 19: Hindu marriages
251
marriage would remain a Hindu marriage which cannot be dissolved by divorce because of
the rules of Hindu religious law.
Furthermore, by seeking to have her Hindu marriage covered by the Marriage Act, the wife
was actually asking the court to convert her purely religious marriage into a civil marriage
which could be dissolved by divorce. Neither the Marriage Act nor the Civil Union Act or any
other Act authorises conversion of a purely religious marriage into a civil marriage or a civil
union by judicial decree. Nor does the common law empower the court to convert a potentially polygynous religious marriage into a civil marriage, for civil marriages are monogamous.15
It is submitted that the Constitution of the Republic of South Africa, 1996 does not allow the
court to convert a purely religious marriage into a civil marriage either, and that this is the
position even if the purely religious marriage is de facto monogamous. Section 8(3)(a) of the
Constitution empowers the court to develop the common law in order to give effect to a right
in the Bill of Rights. However, if the court were to develop the common-law definition of
“marriage” to encompass a purely religious Hindu marriage, it would be turning the Hindu
marriage into a civil marriage. Such a conversion would entail too drastic a limitation of the
right to freedom of religion to be permissible in terms of the limitation clause of the Constitution.16 The order would negate the particular religious marriage system, for it would replace
the religious marriage with a secular one.17 Such negation of the religious marriage system
could not be justified in terms of the Constitution.18
The only way in which the wife in Singh could have obtained the right to have her marriage
dissolved by divorce would have been if she had successfully attacked the non-recognition of
divorce in Hindu religious law. And, as Patel J pointed out in Singh, whether a particular religion should permit divorce is not the type of issue a South African court will entertain, since
it involves entanglement in religious doctrine, and our courts “have tried assiduously not to
get entangled in doctrinal issues”.19 Patel J correctly concluded that, on the basis of the doctrine of non-entanglement, “it is not for the Court to pronounce the parties as being divorced
if they elected to practice [sic] a faith and took vows which do not countenance divorce”.20
19.3 The Constitution and Hindu marriages
In the main, the arguments regarding the unconstitutionality of denying recognition to Hindu
marriages are the same as those which are advanced in respect of Muslim marriages.21 They
are therefore not repeated here.
________________________
15 See ch 3 above.
16 S 15(1) of the Constitution of the Republic of South Africa, 1996 contains the right to freedom of religion.
S 36 contains the limitation clause.
17 The Hindu marriage could not be retained intact with a civil marriage being added to it, for spouses who have
entered into one marriage only cannot, by judicial decree, be deemed to have entered into two marriages.
18 See further Heaton 2008 Stell LR 452; Kruuse 2009 (2) Speculum Juris 138, 141–142. See also Rautenbach in
Heaton (ed) Law of Divorce and Dissolution of Life Partnerships 372.
19 Par 50.
20 Par 51.
21 On those arguments, see ch 18 above.
PART
5
LIFE PARTNERSHIPS
20
LIFE PARTNERSHIPS
20.1 Introduction
Since time immemorial, couples have lived together without entering into a legally recognised marriage. In South Africa today, several million people live together in this way.1 Various terms are used to signify this type of relationship, including life partnership, domestic
partnership, cohabitation, and living together.2 In this book, the term “life partnership” is
used because it has acquired a recognised meaning in South African law and is commonly
employed by the courts.3 For present purposes, a life partnership is defined as a same-sex or
heterosexual relationship which is analogous to or has many of the characteristics of a marriage.4
As a general rule, a life partnership does not confer the consequences of a legally recognised marriage on the life partners. However, some Acts confer specific spousal benefits on
life partners, and court decisions have extended additional spousal benefits to same-sex life
partners. Life partners can also acquire a degree of protection for their life partnership by
making use of ordinary legal rules and remedies that are available to all legal subjects, such as
contracts and wills.
Piecemeal extension of rights and duties to life partners, and self-regulation by means of
contracts, wills, and so forth clearly are unsatisfactory means for regulating life partnerships
and protecting life partners.5 The Constitutional Court has acknowledged the need to regulate
________________________
1 For statistics on the prevalence of life partnerships, see eg Smith in Heaton (ed) Law of Divorce and Dissolution of Life Partnerships 393–394; South African Law Reform Commission Project 118 Report Domestic Partnerships par 2.1.9; Meyersfeld 2010 CCR 274.
2 On the various names by which such relationships are known, see eg Sinclair assisted by Heaton 267–268;
Smith in Heaton (ed) Law of Divorce and Dissolution of Life Partnerships 391; South African Law Reform
Commission Project 118 Report Domestic Partnerships pars 1.4.2–1.4.5.
3 The Constitutional Court first used the term in National Coalition for Gay and Lesbian Equality v Minister of
Home Affairs 2000 (1) BCLR 39 (CC), 2000 (2) SA 1 (CC). The South African Law Reform Commission prefers the term “domestic partnership”: Project 118 Report Domestic Partnerships par 1.4.5.
4 See further Smith in Heaton (ed) Law of Divorce and Dissolution of Life Partnerships 406–407, who distinguishes between life partnerships in a wide and a narrow sense. Most South African sources limit life partnerships to the relationship between two persons: see eg Schwellnus in Clark (ed) Family Law Service par N2;
Schwellnus The Legal Implications of Cohabitation in South Africa 1; Sinclair assisted by Heaton 268; South African Law Reform Commission Project 118 Report Domestic Partnerships passim; Wille’s Principles 363; Thomas
1984 THRHR 455; Goldblatt 2003 SALJ 611. As polygynous customary marriages have been recognised (see
ch 17 above), it is clear that our law no longer considers all instances of polygamy to be contra bonos mores. A
distinction between monogamous and polygamous life partnerships is therefore probably no longer justified. However, for the sake of simplicity, this chapter focuses on monogamous life partnerships. On the
most common types of polygamous relationships arising within the context of life partnerships, see Goldblatt 2003 SALJ 623, 626.
5 On the problems which arise from regulating life partnerships by means of contract, agency and/or wills,
see eg Sinclair assisted by Heaton 279–283; South African Law Reform Commission Project 118 Report Domestic Partnerships pars 3.1.56–3.1.60; Lind 1995 SALJ 486–487; De Vos 1996 SA Public Law 361; Clark 2002 SALJ
639; Picarra 2007 SAJHR 566–567.
255
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permanent life partnerships by means of legislation6 and has held that the narrowness of the
past recognition of only heterosexual marriage has excluded many relationships which create
obligations and have a social value which is similar to marriage.7 In view of these pronouncements, it is clear that the legal position regarding life partnerships is in need of reform. Of
course, partial reform has been achieved by way of the Civil Union Act 17 of 2006, which
permits same-sex and heterosexual couples to enter into a civil union. But this Act does not
assist those who do not want all the consequences of a civil marriage to apply to their relationship or do not want to adopt a family relationship model which is virtually identical to a civil
marriage.8 In 2006, the South African Law Reform Commission published a report and draft
Bill on “domestic partnerships” (which is the term it uses to refer to life partnerships).9 The
draft formed the basis of the Domestic Partnerships Bill, 2008.10 As the Bill has not yet proceeded beyond the draft phase and it is anticipated that several amendments will be made
before the proposed legislation is eventually tabled as a Bill, its provisions are not discussed in
this chapter.11 Instead, the focus falls on the current state of the law.
The discussion of the current state of the law starts with a brief exposition of the legal rules
all legally competent persons may use to govern their affairs and which are of the most relevance in the context of life partnerships. Obviously, these rules are at the disposal of heterosexual and same-sex life partners. This exposition is followed by a discussion of the legislative
and judicial recognition which has thus far been afforded to life partnerships. As the courts’
approach towards same-sex life partnerships differs markedly from the approach towards
heterosexual life partnerships, the two types of life partnerships are discussed under separate
subheadings. The position of heterosexual life partnerships is considered first. Then the
position of same-sex life partnerships is discussed. The chapter ends with a brief analysis of
the issue of whether the retention of specific spousal benefits for same-sex life partnerships
after the coming into operation of the Civil Union Act is constitutional.
20.2 Protection of life partners by means of ordinary legal rules
20.2.1 General
Life partners may use any of the ordinary legal mechanisms and invoke any of the ordinary
legal remedies which are available to everybody to achieve protection for their relationship
12
and for themselves. Some of these mechanisms and remedies are briefly discussed below.
20.2.2 Contract
(a) General
Life partners may use contracts to obtain a degree of recognition of their relationship. Thus
13
they may, for example, purchase assets jointly, enter into a joint venture, or jointly enter into
________________________
6 Volks v Robinson 2005 (5) BCLR 446 (CC).
7 Satchwell v President of the Republic of South Africa 2002 (9) BCLR 986 (CC), 2002 (6) SA 1 (CC) par 22. For an
empirical study of the attitudes of African and so-called “coloured” persons towards life partnerships, see
Goldblatt 2003 SALJ 610.
8 A civil union gives rise to the same consequences as a civil marriage: s 13 of the Civil Union Act.
9 Project 118 Report Domestic Partnerships.
10 Earlier, when the first version of the Civil Union Bill 26 of 2006 was submitted to Parliament, the Bill contained provisions regulating domestic partnerships. These provisions were omitted from the second version
of the Bill, which subsequently became the Civil Union Act.
11 On the clauses of the draft Bill, see eg Barratt (ed) Persons and the Family 429–434; De Vos in Sloth-Nielsen
and Du Toit (eds) Trials and Tribulations, Trends and Triumphs 134–140; Skelton and Carnelley (eds) Family
Law 219–230; Smith in Heaton (ed) Law of Divorce and Dissolution of Life Partnerships 467–474; Bakker 2009
Journal for Juridical Science 10–14; Smith and Robinson 2010 (2) PELJ 31–32; Smith 2010 (3) PELJ 274–276,
287–294; Smith 2011 SALJ 563–567, 580–592; Bakker 2013 PELJ 134–139; Smith 2013 SALJ 544–548; Barratt
2015 Stell LR 119–121.
12 For a detailed discussion, see Smith in Heaton (ed) Law of Divorce and Dissolution of Life Partnerships 428–446.
13 For an example where one life partner unsuccessfully sought to prove the existence of a joint venture in
respect of immovable property owned by the other life partner, see McDonald v Young 2012 (3) SA 1 (SCA).
Chapter 20: Life partnerships
257
lease agreements, credit agreements, and so forth. If they do so, the terms of each individual
contract determine each life partner’s rights and duties. Usually, the life partners are joint
owners of assets acquired and joint debtors in respect of obligations incurred under such
contracts.14 If they are joint owners of an asset, neither of them may exclude the other from
using and controlling the asset. However, unless they have entered into a partnership agree15
ment, either of them may alienate his or her share of the jointly owned asset without the
other’s consent.
If the life partnership breaks down and the life partners cannot agree on how jointly owned
assets are to be divided, either of them may invoke the actio communi dividundo, in which event
the court will either order the division it deems just, or appoint a receiver (or liquidator) to
divide the assets.16
(b) Universal partnership
Unlike spouses, life partners may enter into either of the two types of universal partnerships
17
recognised in South African law: a societas universorum bonorum (that is, a universal partnership relating to present and future assets, liabilities, profits and losses) or a societas universorum
quae ex quaestu veniunt (that is, a universal partnership that is limited to the sharing of present
18
and future assets, liabilities, profits and losses acquired from commercial undertakings).
As a universal partnership is brought about by the parties’ entering into a contract, the
ordinary requirements of a contract have to be met. Thus, for example, the parties must have
animus contrahendi (that is, the intention to enter into a contract); in this instance, they must
specifically intend to create a universal partnership. In the absence of this intention, a univer19
sal partnership does not come into existence. For example, in Sepheri v Scanlan a woman who
lived with her fiancé for some five years claimed that a universal partnership existed between
them. She alleged that the universal partnership came about because the defendant had
20
stated that everything was “ours”. The defendant replied that his intention was that everything would be shared only once the couple had married. The court found that the defendant never intended to enter into a universal partnership and that the parties therefore did not
agree to create a universal partnership.
________________________
14 In the case of joint liability, each life partner may only be sued for his or her share of the debt. Some
contracts impose joint and several liability on debtors, in which case each life partner may be sued for the
full debt.
15 On the difference between a partnership and ordinary joint ownership, see Oblowitz v Oblowitz [1953] 4 All
SA 219 (C), 1953 (4) SA (C); Claassen v Quenstedt [2014] JOL 32686 (ECP).
16 On the position of life partners who are joint owners and on the actio communi dividundo, see Schwellnus in
Clark (ed) Family Law Service pars N7, N11; Schwellnus The Legal Implications of Cohabitation in South Africa
10–11, 19–21; Smith in Heaton (ed) Law of Divorce and Dissolution of Life Partnerships 429–430; Van Niekerk A
Practical Guide to Patrimonial Litigation in Divorce Actions pars 2.7.3, 3.5.3.
17 In Butters v Mncora [2012] 2 All SA 485 (SCA), 2012 (4) SA 1 (SCA) the Supreme Court of Appeal found
that historical research showed that Isaacs v Isaacs 1949 (1) SA 952 (C) was incorrect in so far as it required
the existence of a commercial undertaking.
18 Spouses may only enter into a societas universorum quae ex quaestu veniunt: see ch 8 above. On the two types of
universal partnerships our law recognises, see eg Annabhay v Ramlall 1960 (3) SA 802 (N); Sepheri v Scanlan
2008 (1) SA 322 (C); Ponelat v Schrepfer 2012 (1) SA 206 (SCA); JW v CW 2012 (2) SA 529 (NCK); EA v EC
(09/25924) [2012] ZAGPJHC 219 (25 October 2012); Butters v Mncora [2012] 2 All SA 485 (SCA), 2012 (4)
SA 1 (SCA); RD v TD 2014 (4) SA 200 (GP); Subramanien 2013 Obiter 545; Henning 2014 THRHR 231, 427.
Some authors are of the view that the decision in Butters v Mncora created a hybrid between, or a combination of, a commercial and a domestic partnership: see Smith in Heaton (ed) Law of Divorce and Dissolution of
Life Partnerships 438; Bonthuys 2015 SALJ 92. It is submitted that the Supreme Court of Appeal did not intend to create a different type of universal partnership; it merely sought to make it very clear that a societas
universorum bonorum can relate to an “all-embracing venture” (par 31), ie, a venture which extends beyond a
commercial undertaking.
19 2008 (1) SA 322 (C).
20 326F–H, 338J, 339A, 339B–C.
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South African Family Law
In addition, the specific requirements for the formation of a universal partnership must be
satisfied:21
(1) Each party must make a contribution to the partnership, that is, each party must bring
money, labour or skill into the partnership or undertake to bring something into it. In
22
Butters v Mncora, the Supreme Court of Appeal held that since a universal partnership
between life partners is not confined to a commercial undertaking, “logic dictates . . .
that the contribution of both parties need not be confined to a profit making entity”.
Consequently, a life partner who fulfils child-care and domestic responsibilities makes
the requisite contribution even if he or she does not contribute to a commercial under23
taking carried on by the other life partner.
(2) The venture must be carried on for the parties’ joint benefit. According to the judgment
in Butters v Mncora, this requirement is satisfied if the parties intended to share everything and one life partner shared in the benefits of the other’s financial contribution
while the latter life partner shared in the benefits of the former’s fulfilment of domestic
and child-care responsibilities.
(3) The objective must be to make a profit, but the profit need not be commercial. For
24
example, in Ally v Dinath the court considered the objective of accumulating a growing
joint estate sufficient to found an allegation (at least for purposes of pleading) that the
life partners had intended to make a profit. It held that “a pure pecuniary profit motive
is not required”; the achievement of “another material gain such as a joint exercise for
the purpose of saving costs” is enough. This approach was confirmed by the Supreme
25
26
Court of Appeal in Ponelat v Schrepfer. Subsequently, in Butters v Mncora the Supreme
Court of Appeal found that an “all-embracing venture”, consisting of domestic and
commercial activities, satisfies the requirement.
27
A universal partnership can be created expressly or tacitly. In the case of a tacit universal
partnership, the existence of the partnership is inferred if the facts indicate that it is more
28
probable than not that the partnership agreement was concluded. The conduct of the
29
30
parties is decisive in this regard. In Butters v Mncora it was held that the required conduct
need not exceed that which is ordinarily expected of a wife. The court pointed out that it is
fairly clear what can ordinarily be expected of a wife because the spousal relationship “is
31
governed by well-established standards, both legally and socially imposed”. In respect of life
________________________
21 See eg Rhodesia Railways v Commissioner of Taxes 1925 AD 438; Mühlmann v Mühlmann 1981 (4) SA 632 (T)
(confirmed on appeal: 1984 (3) SA 102 (A)); Pezzutto v Dreyer 1992 (3) SA 379 (A); Zulu v Zulu 2008 (4) SA
12 (D); Ponelat v Schrepfer 2012 (1) SA 206 (A); Butters v Mncora [2012] 2 All SA 485 (SCA), 2012 (4) SA 1
(SCA); Cloete v Maritz (6222/2010, 16433/2012) [2014] ZAWCHC 108 (13 June 2014); RD v TD 2014 (4)
SA 200 (GP).
22 [2012] 2 All SA 485 (SCA), 2012 (4) SA 1 (SCA), Heaton and Kruger Casebook on Family Law case [73] par
19.
23 See also Cloete v Maritz (6222/2010, 16433/2012) [2014] ZAWCHC 108 (13 June 2014).
24 1984 (2) SA 451 (T) 455.
25 2012 (1) SA 206 (A).
26 Par 31.
27 Ally v Dinath 1984 (2) SA 451 (T); Ponelat v Schrepfer 2012 (1) SA 206 (SCA); Butters v Mncora [2012] 2 All SA
485 (SCA), 2012 (4) SA 1 (SCA). Bonthuys 2015 SALJ 92–93 criticises the court in Sepheri v Scanlan 2008 (1)
SA 322 (C) and in Ponelat v Schrepfer for not treating oral statements to the effect that the life partners in
these cases would share in the parties’ accumulated assets as sufficient evidence of express, oral agreements. She argues that by evaluating the agreements in view of the rules relating to a tacit universal partnership, the court placed an additional evidentiary burden on the plaintiffs.
28 See eg Mühlmann v Mühlmann 1984 (3) SA 102 (A); Sepheri v Scanlan 2008 (1) SA 322 (C); Ponelat v Schrepfer
2012 (1) SA 206 (SCA); Butters v Mncora [2012] 2 All SA 485 (SCA), 2012 (4) SA 1 (SCA).
29 See eg Ally v Dinath 1984 (2) SA 451 (T); Butters v Mncora [2012] 2 All SA 485 (SCA), 2012 (4) SA 1 (SCA).
30 [2012] 2 All SA 485 (SCA), 2012 (4) SA 1 (SCA).
31 Par 29.
Chapter 20: Life partnerships
259
partners, in contrast, a norm has not yet been legally and socially established. Therefore it is
not possible to state what is ordinarily expected of a life partner.
If life partners form a universal partnership, they jointly own the partnership assets in undivided, but not necessarily equal, shares. The proportion in which they own the assets is determined by the partnership agreement. In the absence of an express provision regarding
their respective shares, each life partner’s contribution to the partnership determines the
extent of his or her share of the partnership assets.32
The issue of which assets fall into the partnership is likewise determined by the partners’
agreement. In the absence of a clear agreement, the partnership assets encompass all property
acquired during the subsistence of the partnership. In certain circumstances, property a life
partner owned prior to the inception of the partnership may be partnership assets.33
During the subsistence of the universal partnership, the ordinary rules of the law of partnership apply. Thus, for example, one of the partners may not alienate partnership property
without the other partners’ consent, use partnership property as security for a personal debt,
or entirely exclude the other partner from controlling or using partnership property.
In the absence of a clear agreement to the contrary, termination of the universal partnership is also governed by the ordinary rules of the law of partnership. As these rules provide
that a former partner may not remain in exclusive possession and occupation of partnership
assets after the termination of the partnership unless the partners have agreed that this may
be done (or unless, in the case of termination by the death of one of the life partners, the
deceased partner bequeathed the property to the surviving partner), a life partner may be
ordered to vacate immovable property owned by the universal partnership if he or she has
been requested to vacate the property and has refused to do so.34 However, if the life partner
who remains in occupation of the property has never formally been requested to vacate the
property, his or her occupation of the property is not unlawful. Consequently, he or she is not
35
liable for damages arising from unlawful occupation.
(c) Life partnership contract
Life partners may regulate any or all of their rights and duties as against each other by means
of a contract. The contract may be limited to regulating a single aspect, such as the duty of
support between the parties, or may be more extensive in scope. If the contract regulates
several legal aspects of the relationship, it is usually called a life partnership contract (cohabitation contract or domestic partnership contract).
The contract may be concluded expressly or tacitly. Proving the existence of a tacit contract
may be difficult as the court must be satisfied that the conduct of the parties was such that it
36
justifies an inference that they intended to, and did, contract on the terms alleged.
The contract may contain any provision which is not illegal, contra bonos mores, or contrary
to public policy. Life partners may, for example, undertake to maintain each other while the
relationship lasts; agree on post-separation maintenance (which is sometimes called “palimony”); deal with ownership of assets acquired before the inception of the life partnership and
________________________
32 See eg Isaacs v Isaacs 1949 (1) SA 952 (C); Mühlmann v Mühlmann 1981 (4) SA 632 (T) (confirmed on
appeal: 1984 (3) SA 102 (A)).
33 On the extent of the property falling within the partnership, see V (also known as L) v De Wet 1953 (1) SA
613 (O); Ally v Dinath 1984 (2) SA 451 (T); Schwellnus in Clark (ed) Family Law Service pars N5, N6; Schwellnus The Legal Implications of Cohabitation in South Africa 8–10; De Bruin and Snyman 1998 SA Merc LJ 368. In
Cloete v Maritz (6222/2010, 16433/2012) [2014] ZAWCHC 108 (13 June 2014) the Western Cape Division
of the High Court, Cape Town adopted the view that if one of the life partners persistently declines to assist
in determining the value of some of the assets belonging to the partnership when the partnership terminates, the court may accept the values the other life partner provides and use them to determine the value
of the assets of the universal partnership.
34 Botha v Deetlefs 2008 (3) SA 419 (N).
35 Cloete v Maritz (6222/2010, 16433/2012) [2014] ZAWCHC 108 (13 June 2014).
36 McDonald v Young 2012 (3) SA 1 (SCA); see also the sources cited in fns 28 and 29 above.
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South African Family Law
during its subsistence; agree on liability for household necessaries; agree on occupation of the
common home during the subsistence of the life partnership and after its termination; and so
forth.37 They may, however, not agree that their life partnership will have all the consequences of a marriage or that their life partnership can only be dissolved in terms of the Divorce Act
70 of 1979.
In the past, there was some uncertainty about the enforceability of contracts which regulate
the legal consequences of the relationship of life partners. It was argued that such contracts
might be unenforceable because they further immorality, reward extramarital sex and/or
undermine marriage. In view of the increasing recognition afforded to life partnerships, this
argument clearly no longer holds good.
As a rule, a contract binds only the parties to it. However, if life partners agree that one of
them will support the other, this agreement is protected by way of the common-law action for
damages for loss of support if a third party kills the life partner who incurred the contractual
duty of support. The Supreme Court of Appeal extended the common-law action, first to
38
surviving same-sex life partners, and then to surviving heterosexual life partners.
(d) Agency
Either life partner may appoint the other as his or her agent and, for example, confer the
power to purchase household necessaries or to purchase assets in the parties’ joint name, on
that life partner.39
20.2.3 Estoppel
If the life partners hold themselves out to third parties as being married, estoppel can be used
to prevent one of them from alleging that he or she is not liable for debts relating to household necessaries the other life partner purchased on credit.40
20.2.4 Will
Life partners may appoint each other as heirs in their respective wills or in a joint will.
20.2.5 Unjustified enrichment
If one life partner has been enriched at the other’s expense, the impoverished life partner
can, in certain circumstances, institute an enrichment claim. However, as our law does not yet
recognise a general enrichment claim,41 enrichment liability is usually of limited use to life
42
partners.
________________________
37 On the contents of a life partnership contract, see Barratt (ed) Persons and the Family 422–423; Schwellnus
in Clark (ed) Family Law Service par N22; Schwellnus The Legal Implications of Cohabitation in South Africa 43–
46; Sinclair assisted by Heaton 281 fn 54; Smith in Heaton (ed) Law of Divorce and Dissolution of Life Partnerships 432–436; South African Law Reform Commission Project 118 Report Domestic Partnerships pars 3.1.38–
3.1.39; Thomas 1984 THRHR 457–459; Hutchings and Delport 1992 De Rebus 125; Singh 1996 CILSA 321.
38 Du Plessis v Road Accident Fund 2003 (11) BCLR 1220 (SCA), 2004 (1) SA 359 (SCA); Paixão v Road Accident
Fund [2012] 4 All SA 262 (SCA), 2012 (6) SA 377 (SCA). On these cases, see below in this chapter.
39 Thompson v Model Steam Laundry Ltd 1926 TPD 674; see also Clark in Van Heerden et al (eds) Boberg’s Law of
Persons and the Family 254–255; Sinclair assisted by Heaton 284 fn 64; Hahlo 1972 SALJ 324.
40 See eg Sinclair assisted by Heaton 447; Van der Vyver and Joubert 550–551. Hahlo 1972 SALJ 324 submits
that the exceptio doli, rather than estoppel, may be the legal basis for liability in such instances. Singh 1996
CILSA 319 states that a life partner may rely on proprietary estoppel. This is true of some foreign systems,
such as English law: see eg Sinclair assisted by Heaton 275 fn 26. South African law, however, does not recognise the doctrine of estoppel as a means of acquiring ownership: see Sonnekus’s analysis in Die Estoppelleerstuk in die Suid-Afrikaanse Reg 209–216. Therefore, Singh’s view is not supported: see also Smith in
Heaton (ed) Law of Divorce and Dissolution of Life Partnerships 444; Heaton 2005 THRHR 667.
41 Nortjé v Pool 1966 (3) SA 96 (A).
42 See further Du Plessis Unjustified Enrichment 188; Smith in Heaton (ed) Law of Divorce and Dissolution of Life
Partnerships 442–444.
Chapter 20: Life partnerships
261
20.3 Legislative and judicial recognition of life partnerships
20.3.1 Heterosexual life partnerships
43
Several Acts treat heterosexual life partners and spouses alike for specific purposes. The
following are examples of such legislative provisions: Section 21(13) of the Insolvency Act 24 of
1936 includes a heterosexual life partner in the definition of a spouse. Thus, if one heterosexual life partner becomes insolvent, the other’s estate also vests in