Chapter 3 - The invariable consequences of civil marriages

Question 1

The status of spouses

Answer 1

1. Neither spouse may enter into another civil marriage, customary marriage or civil union with anyone while the civil marriage subsists.
2. New impediments to a subsequent civil marriage arise as a result of the relationship by affinity that is created by the marriage.
3. A right of intestate succession is created between the spouses
4. As a result of a civil marriage, any children the couple had together before entering into the marriage become children born of married spouses.
5. The spouses have full parental responsibilities and rights in respect of the children born of the marriage
6. The spouses’ capacity to act is restricted if they marry in community of property.
7. A spouse who is a minor when he or she marries attains majority

Question 2

Consortium omnis vitae

Answer 2

This concept is concerned with the duties that arise from the relationship between married spouses

Question 3

Spousal maintenance

Answer 3

1. The reciprocal duty of support between spouses
2. Liability as against third parties
3. Termination of the duty of support

Question 4

The reciprocal duty of support between spouses

Answer 4

A civil marriage imposes a reciprocal 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.

Question 5

Liability as against third parties

Answer 5

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 a community of property, the debt will be settled from the joint estate.

Question 6

Termination of the duty of support

Answer 6

As indicated, the duty terminates upon dissolution of the marriage. Thus, in principle, the duty comes to an end upon the death of either of the spouses

Question 7

Household necessaries

Answer 7

In order to run a household there are certain necessaries that need to be purchased, such as food and clothes.

Question 8

Things which are household necessaries

Answer 8

Clothing for a spouse who is responsible for support

Question 9

Things which are both household necessaries and fall within the duty of support

Answer 9

Accommodation, food, clothing, medical and dental services

Question 10

Things which fall within the dut of support

Answer 10

Litigation costs

Question 11

Requirements for the capacity to incur debts for household necessaries

Answer 11

1. The existence of a valid civil marriage
2. The existence of a joint household
3. The transaction must relate to household necessaries

Question 12

The matrimonial home

Answer 12

Spouses usually share a home - the matrimonial home. Both spouses have a right to occupy the home and use the household assets such as furniture and appliances

Question 13

Donations between spouses

Answer 13

Donations between spouses married out of community of property have been allowed since the commencement of the Matrimonial Property Act on 1 November 1984

Question 14

The family name

Answer 14

In marriage, a woman has the right to choose whether she wants to use her husband’s surname. 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.

Question 15

Headship of the family

Answer 15

In terms of our common law, the husband is the head of the family. In 1984, this common law rule was expressly incorporated into section 13 of the Matrimonial Property Act.