Module 5

Question 1

What is the judgement in the Fourie case?

Answer 1

In the Fourie case, the Constitutional court declared that the restriction on opposite sex couples to marry was unconstitutional and instructed parliament to change the law. Parliament passed the Civil Union Act, which allows both opposite and same-sex couples to marry.

Question 2

What is the difference between the Marriage Act and Civil Union Act?

Answer 2

Marriage according to the Civil Union Act mirrors the requirements and consequences of marriage under the Marriage Act, except that it can also be concluded between two people of the same sex it is monogamous.

Question 3

What is the Civil marriage definition?

Answer 3

A Civil marriage is defined as the legally recognised voluntary union for life of two people with the exclusion of all others.

Question 4

What are the Acts for same-sex marriages and the Act for opposite sex marriages?

Answer 4

Civil marriages are same sex marriages according to the Marriage Act 25 of 1961 and opposite sex marriages according to the Civil Union Act of 2006

Question 5

What are the requirements for a civil marriage?

Answer 5

Requirements for civil marriages:
- Capacity to marriage
- Consensus/Consent to marry
- Formalities complied with to marry
- Sex of the spouses

Question 6

What is the absolute capacity to marry?

Answer 6

The absolute capacity to marry is the ability to marry any other person. The absolute capacity can be hindered by a marriage to someone else, mental illness, intoxication, age or factors which impede their ability to understand or control their behavior.

Question 7

What is the absolute ability to marry hindered by?

Answer 7

The ability to marry is hindered by:
- Mental illness- people who are mentally ill have no capacity to perform juristic acts of any kind as they are unable to understand the legal consequences and their actions could be motivated by delusions caused by the illness. Any marriage that’s done will be void.
- Age- In the Civil Act they have to be 18 years or older to get married. In the Marriage Act, they must be over the age of puberty (girls over 12 and boys 14) and with the permission of the Minister of Home Affairs for boys under 18 and girls under 15.
- Intoxication- People that are severely toxicated that are unable to understand the legal nature have no capacity to marry. However the onus is on them to prove their incapacity
- Nature of marriage- Civil Marriages are monogamous and so you can’t get married if you are already married to somebody else
- Other factors- The declaration of a prodigal doesn’t affect the ability to marry.

Question 8

Can you marry more than one spouse in civil marriage in customary marriage?

Answer 8

In civil marriages if there is more than one marriage in a customary marriage these subsequent marriages would be void. Similarly, a spouse in an existing customary marriage is not allowed to conclude a civil marriage in terms of the Marriage Act or the Civil Union Act to someone else such a subsequent civil marriage will be void

Question 9

What is the relative capacity to marry?

Answer 9

The relative capacity to marry is the ability to marry a particular person in a prohibited degree of relationships. In South Africa the only legal pediment stopping people with the capacity to marry is if they are related to each other within the prohibited degrees of relationship.

Question 10

What are the different blood relatives in law?

Answer 10

In law there is a distinguisher between people who are related by blood relations (relationships of consanguinity) and relationships created by marriage (relationship of affinity). The law also distinguishes between direct lines of descent and people who are collaterals.

Question 11

Who are people related in direct lines?

Answer 11

People are related in a direct line if they are descendants or ancestors of each other. People are collateral if they have a common ancestor but are not related in a direct line, such as siblings, aunts, uncles and cousins.

Question 12

How do you calculate the degrees of relationship?

Answer 12

The degree of relationship between collaterals is calculated by counting the number of generational steps between one of the collaterals and the common ancestors, then adding them up. The total number of steps is the degree of relationship

Question 13

What are the relative capacities of relationships that are prohibited

Answer 13

The relative capacity prohibited marriages are:
- No marriages in the direct line (ascendants and descendants), this even if you’re related to them by blood or marriage. These rules apply to people involved in half-blood people
- No marriages to relations if one person is related in the first degree to the common ancestors. The closest degree of relationship is two degrees, which is siblings and is a direct line.
- You may not marry your spouse’s direct line. This prohibition continues after the marriage has ended, whether through divorce or death.
- Adopted children may not marry their blood relatives or their adoptive parents but are free to marry anyone else in their adoptive family

Question 14

Can people marry collateral blood partners?

Answer 14

People may marry their collateral blood, provided that there are four or more degrees of relationship between them. There are no prohibitions on marrying the collaterals of a former spouse.

Question 15

What is the voluntary capacity in civil marriages?

Answer 15

A civil marriage is a voluntary union of two people. People can only marry each other if they give voluntary consent to the marriage. The voluntary consent must also be informed consent and must understand the material aspects of the marriage and give consent to them.

Question 16

When is consent invalid?

Answer 16

• They are unable to give consent because they lack capacity to do so
• There was duress or intimidation such as in the Smith v Smith case. - The intimidation can take the form of physical violence.
• There was a mistake about the identity of the person they were marrying (error in persona). Since both parties have to be present at a wedding, this is difficult to happen in practice.
• There was a mistake about the nature of the transaction that is a marriage (error in negotio). This would occur if one or both spouses did not realise that they were concluding the marriage.
• Misrepresentations about other material aspects can affect the validity of the marriage. A marriage may be voidable if one of the spouses has misrepresented certain important facts that go to the heart of the marriage relationship.

Question 17

When can a coerced party have their marriage annulled?

Answer 17

• The fear was sufficiently serious to invalidate consent
• The fear was reasonable
• The fear arose from circumstances for which this part was not responsible

Question 18

What is the Smith v Smith case and what happened?

Answer 18

In the Smith v Smith case the court examined what was meant by sufficient so serious or reasonable fear in granting an annulment. Before the wedding, Ms Smith fell in love with another man. Her parents and fiancé did not react well. They insisted she get married and assaulted and threatened her. The judge found that the fear must be serious enough and the court must have regarded the circumstance. It was found that Mrs Smith’s fear was reasonable and therefore the marriage was voidable.

Question 19

Can misrepresentation due to material facts be grounds for annulment?

Answer 19

Mistakes regarding the qualities of the spouse are not usually regarded as material and thus not grounds for an annulment. Thus a mistake about the race, nationality, religion, previous material status, age, name or prior sexual experience does not render the marriage liable to annulment.

Question 20

Are sham marriages valid?

Answer 20

Sham marriages that arent for love are valid marriages. These are all valid even if the motives were improper as seen in Marten v Marten.

Question 21

What is the Marten case and what happened?

Answer 21

In the Marten case Mr Holden fell in love with a women and wanted her to move to South Africa. Mr Holden was unable to marry as he was already married and he asked Mr Martens his friend to marry her woman. It was held that even though the motivations behind the marriage are unacceptable and constituted abuse of the legal system, it was their intention to get married. Therefore, the marriage was valid and the only available form of termination was a divorce.

Question 22

What are some formal requirements in the marriage Act?

Answer 22

A marriage must be undertaken in a public and formal way. It is a requirement for a valid marriage are found in the Marriage Act with the Civil Act have similar requirements. Failure to adhere to some of the formalities may render the marriage void. The reason for these requirements is to make marriage a public affair and to ensure that the marriage doesn’t happen secretly.

Question 23

What is a valid marriage officer?

Answer 23

A civil marriage must be conducted by a marriage officer in order to be valid. People are marriage officers ex officio such as all magistrates and all special justices of the peace and
Anybody the Minister of Home Affairs can designate other employees in the public service of diplomatic or consular services to be marriage officers. Ministers of religion and other officials in religious organisations may also become marriage officers.

Question 24

Can someone object to a marriage?

Answer 24

Civil unions allow legally valid objections to the dealing with the capacity for them to get married. Any person who wishes to object to proposed marriage must lodge the objection with the marriage officer who will have to investigate the matter. If they believe that there is no lawful impediment to the proposed marriage, then they can proceed with the marriage.

Question 25

Can a marriage officers object to performing marriages?

Answer 25

In the Marriage Act, there are provisions to allow marriage officers to object to conducting the marriage. In the Civil Union Act, civil servants are not allowed to object to perform a marriage due to their beliefs

Question 26

What formula does a valid marriage have to follow?

Answer 26

For a valid marriage, it has to follow the marriage formula, have at least two witnesses, and a registration of the marriage. If the format of the wedding ceremony and the vows exchanged have been approved by the Minister. The crucial part of the marriage vows is that the couple must publicly agree to be married to each other. The wording of the formula also makes it clearer that both parties answer if they wish to get married and reply affirmatively with an I do.

Question 27

What are the requirements of witness for valid marriage?

Answer 27

A civil marriage will only be valid if there are at least two competent witnesses present at the solemisation of the marriage as it prevents clandestine marriages.

Question 28

What does Ex parte Dow case state?

Answer 28

The Acts do have a specific the time and place for marriage however this does not affect the validity of the marriage as seen in the Ex parte Dow case were Dow stated the wedding was invalid due to it being outside and the court found that the purpose was not defeated by marrying in the garden or house but to prevent clandestine marriages.

Question 29

What are the requirements to register a marriage?

Answer 29

Civil marriages must be registered in the manner prescribed in the Marriage Act or the Civil Union Act. The essential elements of registration are that the marriage officer, the parties to the marriage and two competent witnesses sign the marriage register or other prescribed documents that are then sent to the public official responsible for the population register. An unregistered marriage can still be valid if it can be proven that all other formalities were followed and a marriage did take place.

Question 30

What is Willies principle about void marriages?

Answer 30

Wille’s Principles states that a marriage which is null and void ab initio is not a marriage at all, in principle none of the legal consequences of marriage attach to it

Question 31

What happens if all the requirements of a marriage are not fulfilled or are?

Answer 31

Valid marriages are when all the requirements have been fulfilled and therefore all personal and financial consequences of a valid marriage follow from the date of the marriage. If all the requirements have not been fulfilled a marriage can either be void and voidable. If it is a void marriage it may be a putative marriage with certain requirements

Question 32

What is a void marriage?

Answer 32

A void marriage has never come into existence in the eyes if the law is as if the parties had never entered into a marriage. Each of the parties retains their legal status as an unmarried person.

Question 33

What makes a void marriage void?

Answer 33

A void marriage is always void regardless of whether or not the court makes a declaration but for the sake of legal certainty an application for declaration of nullity is usually made to a court. The court merely confirms the existing state of affairs by making a declaratory order.

Question 34

Can a void marriage be made valid?

Answer 34

The court cannot declare a void marriage valid, however it can be made valid subject to certain statutory qualifications. The marriage cannot be made valid except if it is a putative marriage

Question 35

What are the grounds that might lead to a void marriage?

Answer 35

Grounds for nullity leading to a void marriage:
- Parties lack the capacity to marry both absolute or relative
- Important formal requirements are no met

Question 36

What do the Lee and Honore suggest in there book about marriages?

Answer 36

Lee and Honore have suggested that a marriage should only be void on the grounds of noncompliance with formalities where some material formality has not been complied with. They suggest that certain formalities are less important and merely aimed at ensuring a suitably ceremonious atmosphere should be regarded as immaterial, as seen in Ex Parte Dow

Question 37

What does Willies principle state about voidable marriages?

Answer 37

Willes’ principles state a voidable marriage is valid for all purposes unless and until the cohort grants a decree of nullity on the grounds of a defect which already existed at the time of the marriage ceremony.

Question 38

What is a voidabe marriage?

Answer 38

A voidable marriage suffered from a less important defect at the time it was entered into. The defect is not critical enough to render the marriage void. Because of the defect the parties can apply to the court to have the marriage annulled.

Question 39

What is the consequences of a voidable marriage that isnt annulled?

Answer 39

Until a marriage is annulled, a voidable marriage continues as a valid marriage and has all the consequences of a valid civil marriage. If the spouses continue with the relationship after a voidable reason has been disclosed the court will assume that the relationship has been ratified and is valid

Question 40

What happens when a voidable marriage is decleared void?

Answer 40

If the court issues a declaration of annulment the marriage is cancelled. The decree is retroactive. The legal position is as if the marriage had never taken place. They are out back in the same position as they would have been if not married. Children in a voidable marriage are regarded as being marital children.

Question 41

What happens to third parties in a voidable marriage?

Answer 41

The rights of third parties who entered into a legal transaction with parties to a voidable marriage are protected.

Question 42

What are the grounds for the voidability of a marriage?

Answer 42

• Material mistake- Theses are mistakes as to the identity of the other party (error in personam) or mistakes as to the nature of the juristic act (error in negotio) renders it voidable
• Marriage of a minor without parental permission
• Marriage performed under duress or intimidation
• If the woman is pregnant with someone else child at the time of the marriage (Stuprum) and consoles this the wife or husband can apply for annulment
• Sexual impotence of either spouse that wasn’t disclosed but known at the time of the marriage, incurable and permanent
• Infertility of either spouse if the infertile spouse had knowledge of the infertility and did not disclose it

Question 43

What is a putative marriage?

Answer 43

A putative marriage are void marriages, where one or both parties were not aware of the defect rendering their marriage void and there was some public marriage celebration which was consistent with the legal requirements of the marriage

Question 44

When can a marriage be a putative marriage?

Answer 44

A marriage can still be redeemed as a putative marriage even if formal requirements are not strictly complied with. The marriage must have been contracted openly and in accordance with rituals and ceremonies not inconsistent with our law

Question 45

What people are protected in a putative marriages?

Answer 45

The doctrine of putative marriages offers some protection to certain people in this category of people if:
- One or both of the partners were under the impression that they were legally married. This means that one or both parties must in good faith (bona fide) believe that there was a marriage.
- They must have gone through some form of public ceremony which could reasonably be regarded as a marriage, even if the ceremony did not meet the requirements for a valid marriage.

Question 46

What are the consequences of children in a putative marriage?

Answer 46

In a putative marriage children will be regarded as being born in wedlock and of married parents.

Question 47

What are the consequences of putative marriages if both parties are in good faith?

Answer 47

The consequences of a putative marriage if both parties are in good faith:
- The marriage will be regarded as being in community of property, if they did not enter into an antenuptial contract
- If they entered into an antenuptial contract, the contract will be enforceable

Question 48

What are the consequences of a putative marriage if one party is in good faith?

Answer 48

• The property consequences which are favourable to the bona fide (good faith) party will apply

Question 49

What are the legal consequences of a valid marriage?

Answer 49

Legal consequences of a valid marriage:
- Financial (variable) consequences can be changed by parties entering an antenuptial contract and relate to the ownership of assets acquired before or during marriages
- Personal (invariable) consequences are automatically ascribed (ex lege) by law and parties cannot legal change these in antenuptial construct, these are often ancient common law rules

Question 50

What are the invariable consequences of a valid marriage?

Answer 50

• Consortium omnis vitae- means a partnership in all of life and set of rights and duties spouses owe to each other
• Reciprocal duty of spousal support- this is automatic and each spouse has a duty to support the other
• Household necessities for the common household- each spouse must contribute based on their means and the necessities depend on the social and economic status and standard of living.
• A change in Marital status
• Rights to succession

Question 51

What is Consortium omnis vitae?

Answer 51

Consortium omnis vitae is a physical, moral and spiritual community of life. It’s a legal binding right and duty which the spouses cannot avoid. An agreement between spouses that they will not fulfil their consortium duties will be invalid on the grounds that it is against public policy

Question 51

What happened in the Grobbelaar case?

Answer 51

In the Grobbelaar case the approved definition was by lord justice Birkett that stated companionship, love, affection, comfort, mutual services, sexual intercourse all belong to the married state and taken together they make up consortium. It was concluded that consortium is an abstraction comprising the totality of the number of rights, duties and advantages occurring to spouses of a marriage

Question 52

What is the outcome in the Dawood case in realtion to consortium?

Answer 52

In the Dawood case it was held that in terms of common law, marriage creates a physical, moral and spiritual community of life. This community of life includes reciprocal obligations of cohabitation, fidelity and sexual intercourse. It was noted that when entering into marriage spouses promise to establish and maintain an intimate relationship for the rest of their lives, which they acknowledge obliges them to support one another, to live together and be faithful to one another.

Question 53

What is interference that is harmful to consortium omnis vitae?

Answer 53

Outside interference harmful to the consortium could take a variety of different forms:
- Unjustified interference by the state
- Adultery
- Loss of support

Question 54

What happened in the Dawood case?

Answer 54

The Dawood case relates to three couples with a foreign couples, it was relating to the Aliens Control Act that gave the Depart of Home Affairs a wide range of discretion in extending and refusing permits for foreigners who are married to SA citizens. It was also stated that although marriage and family life are not constitutionally protected, they are implied in inherent human dignity which is protected and legislation that forces couples to live apart is unconstitutional because of the violation of the marital consortium.

Question 55

What is the delictual damages in marriage due to an affair?

Answer 55

Roman-Dutch common law awarded husbands a delictual action against other men who committed adultery with their wives, this is extended to wives. Aggrieved spouses could use the actio iniuriarum to recover damages for infringement of their honour.

Question 56

Can you still claim for delictual damages due to an affair?

Answer 56

In the RH v DH the CC held that adultery is no longer wrong as action against the third party infringes on their constitutional rights and the adulterous spouses right to dignity, privacy, freedom of intimate association and freedom of security of the person.

Question 57

What does reciprocal duty of spousal support include?

Answer 57

The reciprocal duty of spousal support is an important aspect of marital consortium. This includes financial support and provision of services in the home. The dependents action is sui generis (of its own kind).

Question 58

Can a claimant sue for support sui generis?

Answer 58

A claimant can use sui generis remedy to sue for loss of support when the person who provided support to the claimant has been killed through the negligent wrongful act of a third party. The claimant can sue for patrimonial damages. Cases have limited this remedy to claimants who had an ex-lege right to support from the deceased. The courts rejected claims which were not based on a narrow class of ex-lege support duties.

Question 59

What was held in Santam Bpk case?

Answer 59

The courts held in Santam Bpk case that under the sui generis action it could be extended to other financial dependents if the following requirements:
- The deceased had a duty to support the claimant
- This duty was legally enforceable
- The claimants right to support as worthy of legal protection, as determined by the boni mores (the legal convictions of the community)

Question 60

How can spouses claim consortium against each other?

Answer 60

Spouses have no way to directly enforce the consortium against one another, just indirectly through divorce. Divorce cannot be considered a punitive or compensatory remedy against the other spouse for damages to the marital consortium. The courts will enforce the financial aspects of the consortium such as the reciprocal duty of spousal support.

Question 61

When do the general principles of common law support arise?

Answer 61

• There is a particular kind of legal relationship between them - the duty of support between spouses takes precedence over all theses blood relationships
• The person from whom support is claimed has the necessary means to supply this support- it is not possible to claim support from someone who has nothing to give
• The person who is claiming support is in need of support- the duty of support is limited to necessary support and depends on the standard of the living of the particular family

Question 62

How can spouses claim for duty of support from each other?

Answer 62

If a spouse fails to provide adequate spousal support, the other spouse can get a maintenance order from the High Court. The Maintenance Act empowers maintenance courts to make maintenance orders and also provides both civil and criminal sanctions for non-compliance.

Question 63

When does duties of support end?

Answer 63

Reciprocal duty of support comes to an end when the marriage ends. It will only continue based on a maintenance order at divorce, the Maintenance of Surviving Spouse Act at death or if one spouse leaves the common home without a valid reason. These are all if the spouse is unable to provide for themselves from their own means and earning.

Question 64

What is found in the Gammon case?

Answer 64

In the Gammon case, Charles Gammon forced his wife to leave and return to her brother for support and maintenance and was therefore liable to repay a third party who had spent money supporting Mrs Gammon when he fulfilled his spousal support obligations. The claim is brought against the spouse who has failed to provide spousal support and claims can be based on unjustified enrichment or negotiorum gestio.

Question 65

How can third parties claim back maintaince from the other spouse?

Answer 65

Third party support can claim the maintenance back by:
- By negotiorum gestio- this is if the third party was aware and intended to manage the affairs of the spouse and the other spouse did not forbid the third party from supplying maintenance.
-For unjustified enrichment- this is if the third party was impoverished as a result of providing support

Question 66

When is the claim of negotiorum gestio available?

Answer 66

The action based on negotiorum gestio is available when the negotiorum gestio has incurred necessary or useful expenses in the course of looking after someone else’s affairs in a reasonable manner and with the intention of managing the affairs of the person without viewing their own personal benefit. This arises when the person is unaware and unable to give consent. This action is not available when the person has expressly forbidden the transactions concerned.

Question 67

What are the requirements of Negotiorum gestio?

Answer 67

• The expenses are necessary or useful
• The gestor incurred these expenses doing something that the spouse should have done
• It was done in a reasonable manner
• It was done with the intention of managing the affairs of the spouse rather than for their own benefit
• The spouse was unaware of the transaction but had not expressly forbidden it

Question 68

What happened in the Excell case?

Answer 68

In the Excell v Douglas case Mr and Mrs Excell were married but had not lived together for many years. They had separated by mutual consent and Mr Excell was therefore still obliged to support his wife even though they were living apart. Mrs Excell bought clothing on account and thus the only grounds on which Mr Excell could be held liable for the money owed was unjustified enrichment. Mr Douglas was impoverished to the amount of $240. Mr Excel argued that some of the clothing was not necessary and that it therefore fell outside of the ambit of his duty of spousal support and he argued that he had already fulfilled his support duty by providing his wife with an allowance. Therefore he was not enriched by his failure to pay for them.

Question 69

What are the requirements for unjustified enrichment?

Answer 69

The basis requirements for unjustified enrichment are:
- The defendant has been factually enriched and the plaintiff has been factually impoverished
- There is a causal link between the defendants enrichment and the plaintiffs impoverishment
- There is no valid legal reason that justifies the enrichment of the defendant at the plaintiffs expense or which justifies the retention of the enrichment by the defendant

Question 70

What are defences for supposal support if sued?

Answer 70

• Had no duty of support- there is no duty of support in a void marriage
• The expenses was not reasonable and falls outside of the ambit of support- spouses only have to provide reasonable support which is based on their standard of living
• The duty has already been fulfilled
• Defences based on the particular remedies- by proving that some requirements have not been met such as expressly forbidden expenditure or expenses were not reasonable, necessary or useful

Question 71

What is a joint household?

Answer 71

The items and services required for the running of the joint household are household necessaries. The joint household is the organised family establishment centering round a married couple who live together in the same home. When determining whether an item or service is necessary for a particular household the court will look at the households social status, their usual standards of living and their means.

Question 72

How can spouses claim for the running of the joint household?

Answer 72

Regardless of their matrimonial property system both spouses share the duty to pay for the items and services that are necessary for running the joint household. Spouses married out of community of property must pay for necessary expenses of the household on a pro rata basis according to their means and if they contribute more than they have a right of recourse if they were married before the Matrimonial Property act (MPA) of 1984.

Question 73

How can third parties claim for debts incurred by running the joint household?

Answer 73

Spouses are jointly liable to third parties for debts that they incur in buying things that are required to run the household. Creditors can choose which spouse to sue for repayment of the debt. They can sue them jointly or separately. Even the spouse who did not enter into the contract can be sued by the third party even if that spouse did not give specific permission to the transaction. This is an automatic incident of civil marriage.

Question 73

What are the requirements to bind spouses in purchase of household necessaries?

Answer 73

Requirements to bind each other in contract for the purchase of household necessaries are;
- A valid civil marriage
- A joint household- this requirement for the capacity to incur debts, the joint household is even if one of the spouses is temporarily absent from the common home
- The items or services must be household necessaries

Question 74

What happens in the Reloomel case?

Answer 74

In the Reloomel case held that providing a spouse for adequate allowance was not a defence against a contractual action based on provision of household necessities. Neither could a husband argue that he had forbidden the purchase concerning the wifes power to bind him in contract is not based on agency and therefore cannot be not based on agency and therefore cannot be revoked by the husband.

Question 75

How is cohabitation a right between spouses?

Answer 75

Cohabitation is one of the consortium rights and duties of married spouses. In terms of the common law, spouses are expected to set up a joint household in their matrimonial residence. Neither spouse may evict the other from the matrimonial home in any way disturb their possessions or use of the residencies

Question 76

Can one spouse evict the other from their common house?

Answer 76

If one spouse threatens to evict the other, the spouse threatened with eviction can obtain an interdict to prevent it. If one spouse has evicted the other, the evicted spouse can regain possession through the mandament ven spolie. The exception is if there is a protection order issued in the Domestic Violence Act.

Question 77

What is Manadament ven spolie?

Answer 77

Manadament ven spolie comes from the roman dutch law and is a spoliation order which is a property based remedy protecting possessions. It is used to regain possession of something you have been deprived of

Question 78

What is the consequences of marital status?

Answer 78

• When a minor marries they attracts majority status, this status continues even if they get divorced
• They spouse cannot marry the ancestors or descendants after the marriage ends due to a relationship of affinity created
• The spouse cannot validly marry or become engaged to another while married
• Marriage creates a right of intestate succession between spouses
• If they marry in community of property, their capacity to perform juristic acts is limited

Question 79

Can a women changed her surname after marriage?

Answer 79

A married women can take her husbands surname without following the official process for name changes. Theses exceptions apply only to women who are married, if a man wishes to change his surname in anyway after marriage he must obtain authorisation from the Director-General of Home Affairs in relation to the Births and Deaths Registration Act.

Question 80

What happens when a spouse dies?

Answer 80

If the spouse dies intestate (without making a will) a spouse has a right to inheritances. If the spouse dies with testate succession (with a will) then this will be the inheritance.

Question 81

What happens if the spouse die intestate?

Answer 81

If a spouse has no right to inherit in terms of a will, the spouse is left destitute as a result of inheriting too little then there is a claim in terms of the Maintenance of Surviving Spouse Act for maintenance against the deceased estate.

Question 82

What are customary marriages?

Answer 82

Customary marriages are marriages which are concluded according to African custom, and currently these marriages are regulated by the Recognition of Customary Marriages Act. Customary marriages are usually monogamous, but they can also be polygynous

Question 83

What are religious marriages and are they valid?

Answer 83

Some religious marriages are also automatically legally valid marriages in terms of the Marriage Act of the Civil Union Act. This happens when the religious officials of the particular religion have been appointed as marriage officers and the marriage ceremonies comply with the formal statutory requirements. In this situation a religious marriage will automatically also be a civil marriage or a civil union and the marriage officer will facilitate the registration of the marriage by the Department of Home Affairs.

Question 84

Can you be married in Civil marriage and religious marriages?

Answer 84

Not all religious marriages are valid marriages and spouses not in the wild marriage will be unmarried intimate partners. Religious marriages such as muslim marriages which are polygynous and opposite-sex or Hindu marriages which are monogamous and opposite sex. These are marriages that can exist simultaneously with a civil marriage.

Question 85

What are common law marriages?

Answer 85

The law doesn’t recognise common law marriages and their legal position will simply be that of unmarried intimate partners. Void marriages can also fall into this category. In these situations, people who thought they were married may, through no fault of their own, have very limited legal rights. They do not have the status of being married and there is no consortium omnis vitae (duties of married spouses) between them.