Lecture 8

Question 1

Legal consequences

Answer 1

1) Invariable (personal) consequences
2) Variable (patrimonial) consequences

Question 2

Invariable (personal) consequences

Answer 2

1) Cannot be changed by the parties
2) Apply to marriage
automatically, by law

Question 3

Variable (patrimonial) consequences

Answer 3

Parties can choose which
consequences should apply to
their marriage

Question 4

Invariable (personal
consequences)

Answer 4

1)Status
2) Consortium
3) Maintenance
4) Household necessaries
5) Right to reside in
shared home

Question 5

Status

Answer 5

1) Cannot conclude another marriage
2) Impediments based on affinity are created
3) Can inherit intestate
4) Children regarded as children born from formally recognized marriage
5) Capacity to act and capacity to litigate affected
6) Wife can take husband’s surname
7) Minor regarded as a major

Question 6

Consortium

Answer 6

1) Intangible component= e.g. love, affection, companionship, sexual
intercourse etc.

2) Tangible component= e.g. duty to support each other financially

Question 7

To what extent can a spouse enforce their intangible
rights against the other spouse?

Answer 7

1) Osman v Osman 1983 2 SA 706 (D)
2) Wife could not be granted an interdict against her husband to
prohibit him from having sexual relations with another woman.
3) This would amount to an infringement of his right to freedom.
4) Seems the intangible component in general cannot be directly
enforced in a court of law
5) Only remedy is divorce

Question 8

To what extent can a spouse enforce their intangible
rights against third parties?
To what extent can a spouse enforce their intangible
rights against third parties?

Answer 8

RH v DE

Question 9

Private Law Remedies

Answer 9

1) Action on the ground of adultery
2) Action on the ground of enticement
3) Action on the ground of harboring
Divorce

Question 10

Public law remedies

Answer 10

1) Criminal law (Sexual Offences and
Related Matters Amendment Act 32 of
2007)
2) Domestic Violence Act 116 of 1998
3) Constitution: Right to dignity (s 10)

Question 10

Maintenance

Answer 10

1) Duty to support arises at conclusion of the marriage.
2) The duty ends at termination of the marriage.
3) Maintenance primarily refers to things necessary to survive e.g. shelter, clothing, medical care etc
4) Also includes legal costs for a divorce action

Question 11

Approach the magistrate’s court and show compliance with two
basic requirements:

Answer 11

1) He/she in need of financial support
2) Other spouse can provide financial support

The amount of maintenance to which a spouse is entitled will
depend on a variety of factors including standard of living and
means

Question 12

General rule:

Question 13

Exception to general rule:

Question 14

Creation of a new statutory duty of support after dissolution:

Question 15

Maintenance Act
99 of 1998

Answer 15

1) Lay complaint with maintenance officer
2) Maintenance officer will investigate
complaint as prescribed in Act
3) May decide to institute an enquiry in the maintenance court
4) Maintenance court will make one if the orders specified
5) A person may appeal against such order to the high court

Question 16

What if there is an existing maintenance order but
spouse fails to comply with the order ?

Answer 16

1) Warrant of execution against property of debtor
2) Order for attachment of emoluments
3) Order for attachment of debt
4) Order for attachment
of any pension, annuity, gratuity etc

Question 17

Right to reside in shared home

Answer 17

1) Right as a result of conclusion of valid union.
2) Who owns the house is irrelevant.
3) Right may be forfeited/lost in certain instances
e.g. domestic violence.
4) Includes use of all the household items.