Question 1 Valid engagement: 1. Both parties need to give consensus- agree to get married. 2. There needs to be an offer made and accepted. This is usually in the form of the proposal. 3. Both parties should have legal capacity to act. They should not be married / in another civil union or customary marriage 4. They should be of legal age (18), if not minors need to obtain the correct consent from guardians / parents to get married. Without consent the engagement is not valid. 5. Both parties should be unmarried Engagement is based on consensus. (1) Misrepresentation makes an engagement voidable. (1) Concluded by an offer (1) and acceptance. (1) Representative (1) can make offer or accept as parties don’t have to be present. Both parties must have capacity to act. (1) A minor (1) needs his/her parent’s consent (1) and it withdrawn afterwards the engagement is terminated. Parties must be in a position to get engaged and not married, not related (1) within prohibited degrees of relationships and not below the age of puberty (1). Question 2 Guidelines applicable for when a marriage is regarded as having been broken down Section 4(2) of the Divorce Act contains guidelines to when a marriage is regarded as having broken down irretrievably. (1) • Section 4(2)(a) (1) The parties have not lived together as husband and wife (1) for a continuous period of at least one year (1) immediately prior to the institution off the divorce action. • Section 4(2)(b): (1) The defendant has committed adultery (1) and the plaintiff finds it irreconcilable (1) with a continued marriage relationship. • Section 4(2)(c): (1) A court has declared the defendant a habitual criminal (1) and the defendant is undergoing imprisonment (1) as a result of the declaration. Question 3 When does one have the right to maintenance post-divorce Where a settlement agreement has not been made an order of court, according to section 7 (1) of Divorce Act 70 of 1979. Section 7 (2) enables the court to make an order to pay maintenance by one party for any period of time or until till the death or remarriage of the other party. Section 7 (2) couples the divorce decree, with the maintenance order. Maintenance order can not be granted after a divorce has been finalized. Maintenance order will only be granted if the applicant can show a financial need for it and if the defendant can afford to make such financial contributions. Section 7(2) considers the following factors when considering the maintenance order: 1. 2. 3. 4. 5. 6. 7. 8. 9. The spouses existing or prospective means The spouses respective earning capacities The spouses financial needs and obligations The spouses ages The spouses standard of living during the marriage The spouses conduct relative to the breakdown of the marriage The duration of the marriage Any redistribution order in terms of section 7(3) of the Divorce Act Any other factor which should be taken into account Question 4 The Domestic Violence Act Domestic Violence can be referred to as physical, sexual, emotional, verbal, psychological and economic abuse. Intimidation, humiliation, harassment, stalking, damage to property and entering a complainant’s residence. The conduct must harm or may cause harm to complainant’s safety, health or wellbeing. Consequences for DV perpetrators : Perpetrator can incur delictual liability for injuries or damages inflicted on a victim or their property. Perpetrator may be charged with crimes such as, assault, homicide, murder, incest, rape, sexual assault, compelled sexual assault. If the victim is a minor- it may result in the child needing care and protection. Possibly being removed from the violent environment. If the victim is a male (65) or female (60) the perpetrator may face charges for crimes against an older person. Who is protected by DVA 116 of 1998? Any person who has or is in a Domestic relationship and has been subjected to domestic violence, may apply for protection order in terms of the DVA of 116 of 1998. Complainant and Respondent are in a Domestic relationship if: 1. They are or were married. Civil union and religious marriages are included. 2. They lived or live in together, with the relationship taking the nature of a marriage, despite not being married. 3. They are parents of a child or had responsibilities and rights in respect to a child at some point. 4. They are related by consanguinity, affinity or adoption. 5. They are or were engaged or in a dating or customary relationship including an actual romantic, intimate or sexual relationship. 6. They share or have recently shared the same residence. Protection offered to victims: Interim Protection Order The court may not issue a final protection order immediately. An interim protection order is granted if the court is satisfied that there is prima facie evidence of the respondent committing / has committed an act of Domestic Violence and the complainant may suffer undue hardship as a result of domestic violence. A court may not refuse to make an interim order just because there are other legal remedies available to the complainant. The complaint may lodge previous affidavits in support of their application. If an interim protection order is made – the order, a copy of the application, the evidence the court noted- must be served to the respondent The interim protection order calls on the respondent to show cause, on return date specified, why the final protection order should not be granted. The interim protection order has no force, until it has been served to the respondent. It is enforceable throughout SA. Interim Protection Order prohibits the respondent from engaging in: 1. Committing any act of domestic violence. 2. Enlisting anothers persons help to commit Domestic violence 3. Entering a residence shared by the complainant and respondent, if this is in the complainants best interests. Respondent may be ordered to discharge rent/ mortgage payments 4. Entering a specified part of such residence 5. Entering complainants residence 6. Entering complainants work place 7. Preventing the complainant, who ordinarily lives in a residence shared by the parties, from entering or remaining in shared residence or part thereof 8. Committing any other act specified in the protection order. Question 5 Maintenance of Surviving Spouses Act 27 of 1990 The spouse who has survived has a claim for maintenance against the estate of the deceased spouse, in respect of reasonable maintenance needs. The surviving spouse must prove that they have a financial need and can not provide for themselves by their own means or earning. 1. She has indeed (1) in terms of the Maintenance of Surviving Spouses act 27 of 1990. (1) 2. She can claim for reasonable maintenance needs until death or remarriage. (1) 3. She can claim if she is not in the position to maintain herself. (1) 4. When determining the reasonable needs the court considers the following aspects: 5. The amount available in the estate (1) 6. The existing and expected means, earnings, financial needs and obligations of the surviving spouse. (1) 7. The duration of the marriage. (1) 8. The surviving’s spouse standard of living during the subsistence of the marriage. (1) 9. The surviving’s souse age at the time of death of spouse. (1) 10. Any other relevant factor. (1) The surviving spouse’s maintenance doesn’t take precedence over the maintenance claim of a dependent child against the deceased estate. Same order of preference. Question 6 The Older Persons Act requires that anyone who is involved with an older person in a professional capacity must notify the director-general or social workers when they are of an opinion an older person needs care and protection in the following circumstances: 1. 2. 3. 4. When income, assets or old persons grant is being taken against their will When the are unlawfully removed from their property When person lives, works or begs for living on streets. When person abuses or is addicted to any substance with no support or treatment 5. When person is exposed to circumstances which can harm the person physically or emotionally 6. Where old person lives in circumstances that are conducive to seduction, abduction or sexual exploitation 7. Where a person is in a state of physical, mental or social neglect Question 7 Antenuptial Contracts 1. The agreement cant be contra bones mores- meaning contrary to good morals 2. The agreement can not be contrary to the nature or law of the marriage 3. The primary purpose is to regulate the matrimonial property system 4. Section 23 of the Matrimonial Property Act 88 of 1984 governs the liability for household necessities where the marriage is out of community of property. 5. A right of recourse can be included 6. The spouses may agree on the devolution of their estates after their respective deaths. 7. This pacta successorium is recognized in our law and can be amended by a will 8. Spouses can also include donations to each other with or without certain conditions. The following is usually included in an antenuptial contract: 1. 2. 3. 4. 5. The matrimonial property system A right of recourse regarding household necessaries Succession Marriage settlement Donations ( Donations must be expressly accepted by the party to whom it was donated) – immoveable property , wedding gifts, moveable property. ANC is only terminated when all the contractual obligations contained have been fulfilled. ANC is interpreted- therefore no specific wording is needed It is the parties’ intentions that need to be reflected correctly. A minor needs consent to marry and additional consent to enter an ANC. If no consent is obtained ANC is VOID and cannot be ratified or registered afterwards. Question 8 Consequences of civil marriages on the status “position” of parties Some consequences come into being (ex lege) automatically by operation of law and cant be excluded by spouses. Other consequences can be regulated by spouses via an ANC. The following changes occur : 1. A minor obtains majority. Even after a divorce, the minor will still be considered a major. 2. One has limited capacity to act in terms of financial decisions and major life decisions, especially when married in community of property. Since there is a joint estate, spouses need each others consent for certain purchases etc. 3. Intestate succession to occur between spouses. 4. Any children conceived before the marriage (out of wedlock) are now considered children born of wedlock or married parents. 5. Both spouses obtain parental rights and responsibilities automatically to children born while married. 6. Spouses can not enter into another customary/ civil marriage or a civil union with anyone else. 7. New impediments to a subsequent civil marriage arise as a result of the relationship by affinity that is created by marriage. 8. A civil marriage creates consortium omnis vitae 9. A duty of support rises between the spouses 10. The ability to become liable for household necessities Question 9 The courts can make an maintenance order that varies in type : 1. Rehabilitative maintenance: This is maintenance granted for a specific amount of time. The purpose is to enable the other spouse to empower themselves through finding employment or completing their studies, to ensure that they may have future opportunities to provide for themselves financially. This could be for a year or more. 2. Permanent maintenance: This is maintenance usually awarded to older wives / women who were housewives and unemployed for the majority of the marriage. It is usually ordered for longer periods of time such as until the death or remarriage of the other party. These days this is not preferred as it is mostly financially impossible to maintain someone forever. The clean-break principle is preferred for divorce. 3. Token/ Nominal maintenance: This a small amount (R1/R10) that is allocated monthly to a spouse in the event that maintenance might be needed in the future. The amount can later be changed to something more substantial. 4. Lump-Sum maintenance: This is where its paid in one large transaction, instead of multiple payments over a period of time. The Maintenance Act 99 of 1998 allows for lump-sum maintenance payments. Question 10 Void Civil Marriages A marriage that has never come into existence. The position is exactly as it would have been should there never had been a marriage. The court may declare a civil marriage NULL and VOID on the grounds of noncompliance with the formal or material requirements for a civil marriage: Formal Requirements: 1. Marriage is solemnized by someone who is not a competent marriage officer 2. Where consent of the Minister of Home Affairs has not been given for minors below puberty girl (15) and boy (18) 3. Where no witnesses are present at the ceremony Material Requirements: 1. 2. 3. 4. 5. The parties are the same gender One party is already married (civil/ customary) or in a civil union The parties are related to each other within prohibited degrees of relationship One of the parties is below puberty age One of the parties is mentally ill. Consequences of a void marriage: 1. A void doesn’t affect the status of the parities. 2. It doesn’t confer consequences of a civil marriage on the parties or children 3. No matrimonial property system operates between them. No reciprocal duty of support, they can not inherit intestate from each other. 4. They are free to enter another marriage. A declaratory order is usually requested. 5. A void juristic act can not be ratified. However, there are exceptions contained in the marriage Act section (6) and 26 (1)(2) 6. No consequences of a valid civil marriage, except in putative civil marriage. 7. The bona fide party to a void civil marriage may institute a delictual action for satisfaction against the other party. Voidable Civil Marriages A marriage in which grounds are present either before or at the time of the wedding, based on which the court can be requested to set the marriage aside Grounds to set aside a voidable marriage: 1. Minority- where the necessary consent is not obtained for a civil marriage 2. Material mistake – about identity or the nature of the juristic act excludes the agreement 3. Duress 4. Undue influence 5. Stuprum- extra-marital sexual intercourse with a party before the marriage 6. Impotence- the inability to have intercourse 7. Sterility -inability to have children(infertility) Consequences of a voidable marriage: 1. Remains in force normal legal consequences of a valid civil marriage, until it is set aside by a court order. 2. The marriage affects the status of the parties, for the duration of the marriage. If the marriage is set aside, the decree of annulment is retroactive. Putative Civil Marriages This exists when one party or both enters a marriage while being unaware that there is a defect which renders the marriage void. They believe in good faith that they are entering into a valid civil marriage. Example: Brother and sister getting married without knowing they are related within prohibited degrees of relationship. Requirements of a putative marriage: One / both of the parties should be unaware of the defect that renders the marriage void. All further formalities for the solemnization must be complied with that would result in a valid civil marriage. Consequences of a putative marriage: Children who are born of a putative marriage are considered born of married people. Both parties have parental rights and responsibilities. Patrimonial consequence: if married without ANC contract, it is treated as being in COP. If an ANC contract was signed the patrimonial consequences will be regulated by the ANC.
