FAM LAW

Question 1

What is an engagement

Answer 1

Agreements between two people to enter into marriage or civil partnership at a determined date or reasonable period of time after engagement

Question 2

Can it be enforces through specific performance?

Answer 2

No, court cant order parties to marry to remedy a breach of contract

Question 3

What is an engagement contract since specific performance cannot be ordered?

Answer 3

Sui generis, meaning it is oof its own nature and not a standard contract

Question 4

Normal law of contract rules determine legal requirements for an engagement, what are these rules?

Answer 4

1. offer by one person and acceptance by another
2. If a date is determined both parties have duty to enter into marriage to one another
3. If one party does not want to go through with the marriage there is a breach of promise

Question 5

What are the legal requirements to conclude a valid marriage with reference to case law?

Answer 5

1. LEGALLY AND FACTUALLY LEGITIMATE: Both parties should be single. A married person promising to marry a third party is void under civil law. In Friedman v Harris, married man promised to marry woman if she paid him, promised to pay back if they didn’t get married. He refused to pay money back. This is against public policy and void (par delictum- equal fault rule) was applied and court did not order repayment. neither party can institute claims for repayment or damages. In Jajbhay v Cassim the equal fault rule was not applied so rigidly, and courts must consider whether it is in public interest or not, and courts must prevent unjustifiable enrichment of one person at the cost of another.
   CONSENSUS: Meeting of the minds. Factors that influence consent are material mistake, misrepresentation, duress and undue influence. In Thelemann v Von Geyso the woman thought she was pregnant, and partner promised to marry her, but she was mistaken, and partner withdrew promise. She sued for breach of promise, but court held that engagement was voidable.
   CAPACITY TO ACT: Minor must get parental consent. Boys under 18 and girls under 15 must get ministerial consent which means that the engagement is conditional until they get consent from the minister (conditionally valid until then)
   POSSIBILITY OF PERFORMANCE: They must be able to marry each other at the time of the engagement, if the is a condition and the condition is impossible to fulfil then the engagement is not valid. Must be marriageable age and opposite sex to enter into civil marriage or of same sex to conclude a civil partnership.

Question 6

How can an engagement be lawfully terminated?

Answer 6

Marriage
Death
Mutual Agreement
Withdrawal of parental consent
Unilateral lawful termination- iusta cause- for a sound reason
(other party may not have a claim for damages)

Question 7

How can an engagement be unlawfully terminated?

Answer 7

Breach of promise and held liable for damages and delictual action taken against them
Termination without existence of iusta cause, innocent party may claim damages
Unilateral wrongful termination which constitutes breach of promise to marry

Question 8

What does iusta cause mean

Answer 8

Sound reason

Question 9

What are the consequences of unlawful termination

Answer 9

In Guggenheim v Rosenbaum the court confirmed that there are 2 distinct claims for breach of promise, the one is claim for damages based on contract and the other claim for satisfaction based on law of delict.
In this case the court held that the plaintiff could claim for actual expenses or real damages

Question 9

Possible claims in unlawful termination

Answer 9

Damages for breach of contract
Satisfaction of infringement of personality rights

Question 10

2 scenarios where people claim for damages

Answer 10

1. Wronged party may claim damages where offending party repudiates contract without a just cause
2. Wronged party may claim damages where offending party’s wrongful conduct provides a just cause for wronged party to repudiate the contract

Question 11

Principle of positive interesse

Answer 11

Wronged party must be put in the same financial position they would have been in if the contract was fulfilled properly- doesn’t apply to engagements in a case of breach of promise

Question 12

What are real damages

Answer 12

Monetary loss that a party suffers as a direct consequence of a breach of promise, they have to prove that a financial loss was sufferred

Question 13

What is prospective loss

Answer 13

Prove that marriage would have been advantageous to plaintiff

Question 14

Brief outline of the following cases:
Sepheri v Scanlan
Van Jaarsveld v Bridges
Cloete v Maritz

Answer 14

Sepheri v Scanlan highlights the evolving understanding of engagement contracts, with the court considering more enlightened views that question the constitutionality of enforcing breach of promise to marry claims.
The case suggests that engagement contracts are unique (sui generis), and courts do not unconditionally apply the principle of positive interesse but consider various factors.
Van Jaarsveld v Bridges emphasizes the difficulty in quantifying prospective losses in breach of promise cases, as they are often speculative and remote.
It questions how tangible damages can be raised for something that is speculative.
In cases of breach of promise, offering to marry the plaintiff may not necessarily mitigate damages, as seen in Van Jaarsveld v Bridges.
Cloete v Maritz involved a plaintiff who claimed damages for breach of promise after the defendant ended their ten-year engagement to marry someone else.
The court held that rigid contractual terms are untenable when one party wishes to end the engagement contract.
The court characterized engagements as agreements to consider marriage, providing parties with time to decide whether to proceed.
This approach reflects a development of common law, moving away from strict contractual enforcement in engagement cases.

Question 15

When can a plaintiff claim for satisfaction

Answer 15

For the infringement of personal rights- injury to personality such as mental pain and suffering
Court remedies pain and suffering with monetary reward
Defendant pays money to make them feel better
Plaintiff must prove that defendant had intention to infringe on personality rights
In Nhlapo v Zimu-defendant became romantically involved with a thirds party while he was living with his fiancee and he removed her from his medical aid to add third party and the court found this to be insulting

Question 16

Kinds of engagement gifts

Answer 16

1. Gifts showing serious intention of donor to enter into the marriage- given back to donor if receiver breaches contract
2. Gifts given in anticipation of marriage- receiver will gain benefit thereof during marriage like house
3. Small gifts as tokens of affection- flowers and small gifts

Question 17

When gifts are to be returned:

Answer 17

Terminated by mutual consent: All gifts other than small gifts, consumed, alienated or lost gifts
Wrongfully terminated: Innocent party may regain gifts given to them which sets of the value claimed back in damages
Customary law: No claim for damages in breach of promise to marry - party who cause damage will forfeit lobolo or return gifts and lobolo

Question 18

Claim for seduction

Answer 18

No more part of SA law, not even married person can claim for seduction(relationship outside scope of engagement

Question 19

Requirements for a valid marriage

Answer 19

1. Both parties have capacity to act when married
2. Lawfulness
3. Consensus between parties regarding intended marriage
4. Parties must comply with formalities

Question 20

Difference between relative and absolute impediments

Answer 20

1. Absolute= May not enter into any marriage
2. Relative=Prevent from entering into specific marriage

Question 21

What is absolute incapacity

Answer 21

Marital status: Already married Bigamy= want to conclude marriage while already being married
Mental incapacity: person who doesn’t understand the nature of marriage( different when there are lucid intervals)
Parties below marriageable age: Common Law Minimum age boys 14 girls 12, but under Section 26(1) of the Marriage Act boys under 18 and girls under 15 cant conclude marriage without written consent of the Minister of Home Affairs and with parental consent according to the Childrens Act 18(3)(c)

Question 22

Relative Incapacity

Answer 22

Gender- Marriage act- only persons of opposite sex may marry unless their sex description is altered on their birth certificate then they are deemed to be of that sex and may marry
Trans and intersex persons in civil marriages- If alterations were made in terms of the Alteration of Sex Description and Sex Status Act then they may marry
Minors- Between the ages of 7 and 18 need consent

Question 23

Recognition of customary marriages Act 120 of 1998

Answer 23

For a customary marriage to be valid the spouses must be above 18, must consent to be married under customary law and must be entered into in terms of customary law

Question 24

For a customary marriage to be valid the spouses must be above 18, must consent to be married under customary law and must be entered into in terms of customary law

Answer 24

Recognition of customary marriages Act 120 of 1998

Question 25

Civil Union Act 17 of 2006

Answer 25

Voluntary union of persons 18+ Minor is under 18 according to Section 17 of Childrens Act, need guardianship consent

Question 26

Section 31 of Childrens Act

Answer 26

Person making decision regarding child must give ue consideration to wishes of child bearing in mind age and metal capacity

Question 27

What happens when the consent of the parent or guardian is unavailable?

Answer 27

Can apply to the Presiding officer of the children's court for consent to their marriage Childrens court may not give consent when holder of parental right refuses to grant consent, only if holder is insane absent or mentally ill Marriage concluded without consent means it is voidable by one partner or guardian High Court can be approached if Childrens Court refuses Must prove that refusal is contrary to interest of the minor

Question 28

B v B

Answer 28

The court granted consent to the minor despite the parents concern that the minor was too young or they were brought up in different religions. The boy converted to the girls religion and the girl was staying with the boys parents who gave consent so court believed that it was in the best interest of the minor to marryA

Question 29

Alcock v Alcock

Answer 29

Girl was 11 months away from becoming a major, her parents refused to give reasoning for their refusal, reasons for application were reasonable

Question 30

Dee Greeff v De Greeff

Answer 30

Court refused to grant pregnant minor permission to marry man 13 years her senior with history of alcohol abuse- parental refusal not against her best interests

Question 31

What are the absolute impediments when concluding a valid marriage

Answer 31

Marital status Mental Incapacity Below maritable age

Question 32

What are the relative impediments when wanting to conclude a valid marriage

Answer 32

Degress of relationship = distinguishing between consanguinity, affinity and relationship through adoption. Marriages within the prohibited degrees of relationship are prohibited and thus void. Consanguinity = blood relationship → divided into the direct line (ascendants and descendants) → this is is strictly forbidden → and the collateral line (common ancestor) → allowed except if they are related to the common ancestor within the first degree. Affinity = refers to the relationships created through marriage → relations by marriages in the direct line (ascending and descending) are prohibited from marrying each other → relations by marriage in the collateral line are allowed to marry. South African law prohibits a man from marrying his mother-in-law. Adoption = no marriage between the adopted child and the adoptive parent → marriages between adopted children and other adoptive family members → if possible before adoption then possible thereafter. Section 242(3) of the Children's Act = an adopted child must for all purposes be regarded as the child of the adopted parent and an adopted parent must for all purposes be regarded as the parents of the adopted child. Guardian & Ward = a guardian may marry their ward only with the consent of the High Court as they cannot effectively give consent to the marriage themselves. Person under Curatorship = can enter marriage without the consent of their curator → unless they are under curatorship due to mental illness.

Question 33

Section 242(3) of childrens Act

Answer 33

The adopted child must for all purposes be regarded as the child of the parent who adopted them

Question 34

May a person under curatorship marry without consent

Answer 34

Only if they have a curator bc they are incapable of managing their affairs not because of a mental illness

Question 35

What is tthe basis of all engagements and marriages

Answer 35

Confirmed through a declaration made at a marriage ceremony in the presence of two witnesses and a marriage officer

Question 36

Non essential error

Answer 36

Marriage still valid

Question 37

Essential error

Answer 37

Marriage void

Question 38

Error in persona

Answer 38

Mistake about identity of other person, void

Question 39

Error in negotio

Answer 39

Mistake as to the nature of the marriage, void

Question 40

Error equalitatis

Answer 40

Mistake pertaining to non characteristics of other party, does not result in lack of consensus

Question 41

Stander v Stander

Answer 41

Court ruled that failure to disclose premarital sex or existence of child outside of marriage does not render marriage voidable

Question 42

Van Niekerk v Van Niekerk

Answer 42

Inability to have children renders marriage voidable if inability existed at the time that the marriage was concluded and parties intended to have children Man sued wife for divorce but then applied for annulment as he was unaware of wife's sterility before marriage and she had an operation which made her sterile before marriage was concluded

Question 43

Venter v Venter

Answer 43

Only fraudulent concealment of marriage may render marriage voidable

Question 44

Fourie v Minister of Home Affairs

Answer 44

Procreative potential is not a defining characteristic of a happy marriage

Question 45

Stuprum

Answer 45

Wife pregnant at time of marriage

Question 46

Marriage Act Section 11(1)

Answer 46

Marriage only to be solemnised by marriage officer otherwise void

Question 47

Ex parte Dow

Answer 47

The wedding was solemnised in the garden of a private dwelling (Section 12 of marriages act states that church/private dwelling with open doors) it is so that public is aware and can make objections

Question 48

Section 30(1) of Marriage Act

Answer 48

Marriage formula

Question 49

Section 29 of Marriage Act

Answer 49

Registration of marriages-witnesses to marriage must sign marriage register immediately after marriage officer Signatures signify that declaration was made in presence of marriage officer

Question 50

Difference between a void and a voidable marriage

Answer 50

Void: 1. Marriage does not exist 2. No consequences for either party, does not affect their status 3. No court order needed do declare void 4. No discretion exercised Voidable: 1. Marriage exists 2. Marriage has consequences, affects status of parties 3. Court order needed to declare void 4. Discretion exercised

Question 51

What are the formal and the material requirements for a marriage to be voidable if the requirements are not fulfilled

Answer 51

Formal requirements: -incompetence of marriage officer= Section 6 of Marriage Act -Lack of written consent from minister of Home Affairs for boys under 18 and girls under 15 -No witnesses present at ceremony Material requirements -One party already married in a civil union -One or both below marriage age or mentally ill

Question 52

What claim can be made in void marriages

Answer 52

Delictual claims

Question 53

What is he status of parties that come out of a voidable marriage

Answer 53

As if they never entered into the marriage

Question 54

What are the grounds for nullity

Answer 54

Material misrepresentation Impotence of spouse when marriage was concluded No consent in respect of a minor Prenuptial stuprum

Question 55

What are the grounds for setting a marriage aside

Answer 55

Stuprum-prove they were unaware that the pregnancy was a result of intercourse with another man Impotence-Spouse was unaware of impotence at time that marriage was concluded Sterility- If it existed at time of marriage

Question 56

What are putative marriages

Answer 56

Both parties are in good faith but mistakenly believe that valid marriage exists, to alleviate the harsh consequences of a void marriage especially in relation to children

Question 57

Status of children in putative marriages

Answer 57

Same than that of children in legally solemnised marriages

Question 58

What are the patrimonial consequence based on the following scenarios:

Answer 58

Both parties were acting in good faith, marriage without antenuptial contract excluding community of property-Marriage is in community of property One party was acting in good faith- it will be in community of property if it is to the advantage of the wronged party

Question 59

What are the intestate succession rights consequences of marriage

Answer 59

Deceased survived by spouse and not descendants=Surviving spouse inherits whole estate through intestate successionW

Question 60

What if a man married a woman with a child

Answer 60

Will acquire full parental rights

Question 61

Minors status when they marry?

Answer 61

The obtain full majority status

Question 62

Negotiorum Gestio

Answer 62

- Voluntary management by one person of the affairs of another without the consent or knowledge of the latter → the person is unauthorised to act

Question 63

Unjustified Enrichment

Answer 63

- If one spouse unjustly obtains a patrimonial advantage at the expense of a third party → the enrichmed spouse must reimburse the impovrished third party → the requirements for this are that the must be actual enrichment of one spouse, at the expense of an impovrished party, the enrichment must be unfounded, with no rule of law denying the impovrished party the right of restitution.

Question 64

Enforcement of Maintenance

Answer 64

Maintenance actt 99 of 1998

Question 65

Enforcement of Maintenance

Answer 65

Facts = plaintiff's husband, the first defendant, cheated on her with the second defendant which resulted in divorce and relief → the second defendant's action were undefended → plaintiff and first defendant were not living together anymore → the first defendant and second defendant are now living together → first defendant fired plaintiff over the confrontation of the affair → plaintiff claims marriage was fine before another came in → plaintiff alleged she faced alienation of affection and contumelies as well as damages for adultery and contumelia (infringement caused by wrongful conduct that is insulting) → break of consortium which is the benefits which are acquired and found in marriage. Legal Question = is the plaintiff entitled to damages and if so, what damages is she entitled to? Take note the case is from 1996. Ratio = made the point that adultery is less serious in society that it used to be, there are degrees of reprehensibility in this case = case is severe, second defendant aware of the marriage and initial happiness of it, second defendant flaunted, plaintiff protested the affair but the defendants continued → court said second defendant acted insensitivitely and that the law is the only plaintiff's way to get recourse. Marriage is society's basic structure and is recognised by law, the first and second defendants consciously and deliberately desecrated the marriage relationship → ruled that plaintiff is entitled to damages. Conclusion = the second defendant is liable for the damages, and has to pay for = alienation of affection, loss of consortium and contumeilia and also had to pay for the plaintiff's law suit cost.

Question 66

Hardie v Janses

Answer 66

Mentally ill person does not have the capacity to conclude a marriage because they dont understand the legal nature of a marriage contract and the consequences thereof