CH 8 Consequences of Marriage

Question 1

Consequences of marriage on personal status

Answer 1

1) Attainment of adulthood is a process
2)Does not depend on an individual’s age
3)Factors such as initiation and marriage are pivotal

Question 2

Majority status and capacity of spouses

Answer 2

1) Elderhood in traditional Customary law takes place progressively
2) Dependent on individual milestones
3) Milestones include marriage, parenthood etc

Question 3

Majory statsus and capacity of spouses
Pt 2

Answer 3

4) Men attained adulthood by establishing a separate homestead
5) Women attained elderhood through marriage and by giving birth
6) Seniority played a role in attaining adulthood in polygamous
marriage

Question 4

s11(3)(b) of the BAA

Answer 4

1) Marriage made as
woman a minor under the protection of her husband
2) Now repealed
3) Women were viewed as inferior compared to their husbands

Question 5

RCMA

Answer 5

Enhanced the status of women

Question 6

RCMA S6 introduced reforms to customary law

Answer 6

1) Married women now have full status and capacity
2) Capacity to acquire assets and to dispose of them
3) To enter into contracts and to litigate

Question 7

S 6: Applies retrospectively to pre-RCMA monogamous marriages, this was confirmed by?

Answer 7

Gumede case s 6 also apply to pre-RCMA marriages

Question 8

Ramuhovhi case

Answer 8

1) Prevents discrimination against women married before RCMA came
into force
2) Confirmed that the RCMA abolishes the marital power of the husband
over the wife
3) Abolition of women’s minority status and elevation of their legal
status has encroached on the concept of the husband as the head of
the family
4) Women can now partake in decision-making on marital matters

Question 9

Majority status of a married minor

Answer 9

1) A civil marriage of a minor results in the minor becoming a major
2) The position under customary law differs from culture to culture
3) Need for equal treatment, marriage of minor had to be equal to civil marriage

Question 10

Capacity to enter into other marriages

Answer 10

1) Spouses married under customary law may conclude subsequent civil
marriages with each other
2) Mzalisi case, it is permissible to be married both at customary and
civil law simultaneously
3) Couple who has concluded a civil marriage cannot enter into a
customary marriage

Question 11

Netshituka case

Answer 11

Conclusion of a customary marriage between spouses without simultaneously registering a civil marriage renders the subsequent civil marriage to a person outside the
marriage void

Question 12

Status of Polygamy

Answer 12

1) Civil marriages cannot be polygamous
2) Only husbands are allowed to have more than one spouse in
customary law
3) Polyandry is not recognised
4) Mayelane v Ngwenyama, a husband must obtain consent of the
first wife before concluding a valid subsequent marriage

Question 13

Status of wives inter se in polygamous marriages concluded before 15 Nov 2000

Answer 13

1) Simple marriage are marriage consisting of two wives
2) Complex marriage are marriage consisting of more than two wives
3) Separate house is created for each wife after marriage

Question 14

Status of wives inter se in polygamous marriages concluded before 15 Nov 2000 (PT2)

Answer 14

4) Husband allots property to the house
5) Customary law regulates the status of wives in pre-RCMA marriages
6) Unequal status exists
7) Seniority determines rank of a wife
8) Husband must treat all wives equally

Question 15

Ramuhovhi and section 7(1)
Changed property ownership to align with Constitutional values of
equality

Answer 15

1) This followed the Gumede decision
2) Spouses have joint and equal ownership
3) And other rights and rights of management of control over
matrimonial property
4) Distinction between family property, house property & personal property

Question 16

Status of wives inter se in polygamous marriages concluded after 15 Nov 2000

Answer 16

1) The RCMAis silent on the ranking of wives in polygamous marriages
2) Debatable whether customary law continues to apply to polygamous
marriages concluded after 15 Nov 2000

Question 17

The impact of ICOP on the capacity of spouses married under customary law are spelt out in the following sections of the MPA:

Answer 17

Section 14 provides for (gender) equality in the management of the affairs of the joint estate. This arguably gives greater legal capacity to wives.

Section 15 specifies a range of juristic acts: those that require no consent from the other spouse

Section 16 explains what happens when a spouse refuses consent in a transaction requiring consent. This would be a way for the spouse to overcome their impeded legal capacity.

Question 18

Section 17

Answer 18

1) Sets out the powers of the spouses to litigate against others (limited capacity) and each other and deals with applications for surrender and sequestration of the joint estate, as
well as the joint and severability of the spouses where a debt is recoverable from the joint estate

Question 19

Secton 18

Answer 19

Provides for certain damages that are excluded from community and
recoverable from the other spouse, as well as listing certain awards of damages that do not fall
into the joint estate and therefore can be used by that spouse without limitation.

Question 20

In Community of Property

Answer 20

1) The ICOP relating to a monogamous customary marriage can be limited (and the parties retain greater legal capacity)
2) Concluding an antenuptial contract under section 7(2) of the RCMA. Antenuptial contracts may

Question 21

Sec 7(2)

Answer 21

1) Antenuptial contract providing that a wife must get the consent of her husband to undertake certain
juristic acts, but the husband does not need to do the same.
2) However, an antenuptial contract
limiting the powers and statuses of wives in relation to their husbands or in a way that their husbands are not limited would likely not survive constitutional scrutiny and would therefore be unenforceable.

Question 22

Consequences of marriage in respect of children of the marriage

Answer 22

1) Children always attached to a family
2) Illegitimacy is not recognised under living customary law
3) In matrilineal societies children of unmarried women were born into the family of their mother
4) In patrilineal societies children of unmarried women were born into the family of their father

Question 23

Effect of Motsepe v Khoza

Answer 23

1) A man who is not the biological father of the child is permitted to pay lobolo for the child of an unmarried women
2) Child becomes attached of the man who paid lobolo
3) Traditionally lobolo was key in the affiliation of a child
4) Fathers obtained parental rights by paying lobolo
5) Before lobolo, rights vested with mother’s father

Question 24

Section 30(3) of the interim Constitution
Section 28 of the Constitution

Answer 24

1) Introduced best interests of the child principle
2) Best interests of the child are of paramount importance in all matters concerning a child
3) Parental rights determined ito best interests of the child principle

Question 25

Hlophe v Mahlalela

Answer 25

That lobolo has no effect on parental
rights

Question 26

Effect of the Children’s Act on the consequences of customary marriage regarding children

Answer 26

1) RCMA gives effect to the Children’s Act
2) Children’s Act aligns the law regulating children to Constitutional
values
3) S 28 ofthe Constitution guarantees the rights of children
4) Husbands and wives have equal parental rights and responsibilities
5) Parental rights and responsibilities are outlined in section 18(2) and
(3) of the Children’s Act

Question 27

Types of property

Answer 27

1) General property
2) Family property
3) Personal property

Question 28

General property

Answer 28

1) Also regarded as house property
2) Property acquired by individual members of a house
3) Assets received as lobolo for members of the house
4) Property allotted to the house by the head of the family

Question 29

Family property

Answer 29

1) Property acquired by family head
2) Property not allotted to a specific house
3) All members of the family can utilise the property

Question 30

Monogamous customary marriages in terms of the RCMA and the MPA

Answer 30

1) Before Gumede case, only
monogamous marriages concluded after
2) 15 Nov 2000 werein community of property and of profit and loss
3) Gumedeinvalidated s 7(1) in respect of monogamous

Question 31

Monogamous customary marriages in terms of the RCMA and the MPA

Answer 31

4) Gumedecaseamendeds7(2)
marriages
5) S7(2) nowapplies to all monogamous customary marriages
6) All monogamous customary marriages are in community of property
unless excluded through an antenuptial contract

Question 32

Monogamous marriage in community of property

Answer 32

1) Spouses own an indivisible joint estate
2) Includes assets acquired before and during the marriage
3) Equal share in the estate

Question 33

Monogamous marriage in community of property PT 2

Answer 33

4) Liabilities incurred are recoverable from joint estate
5) Certain assets and liabilities are excluded from the joint estate
6) These are recoverable from individual spouses

Question 34

Assets and liabilities excluded from joint estate

Answer 34

1) Assets excluded by the antenuptial contract
2) Assets excluded by a will
3) Delictual damages paid to one spouse by the other spouse
4)Assets excluded in terms of legislation

Question 35

Monogamous marriage out of community of property

Answer 35

1) Default system is in community of property
2) Can be changed through an antenuptial contract
3) Can conclude a marriage out of community of property
4) Antenuptial contract will regulate the proprietary consequences

Question 36

Polygamous marriages in terms of the RCMA

Answer 36

1) Proprietary consequences of pre-RCMA polygamous marriages were
regulated by customary law
2) Ranking system applied
3) Invalidated by Ramuhovhi v President of the Republic of South
Africa

Question 37

Polygamous marriages in terms of the RCMA PT.2

Answer 37

4) Declared s 7(1) invalid and unconstitutional
5) Recognition of Customary Marriages Amendment Act 1 of 2021
6) Amendeds7(1) for pre-RCMA polygamous marriages

Question 38

S7(6) regulates proprietary consequences of polygamous marriages
2) Must conclude a contract regulating the future consequences
3) To be approved by the court

Answer 38

1) Protects matrimonial property rights of all spouses
2) Court must terminate existing system before approving the contract
3) S7(8) all persons with an interest must be joined in the application

Question 39

RCMA silent on non-compliance with section 7(6)
Decided in the Mayelane v Ngwenyama

Answer 39

1) HC invalidated second marriage
2) SCA validated second marriage
3) CC invalidated second marriage on a different groun