Study Unit 5: The personal consequences of marriage Flashcards
What are the personal consequences of marriage?
- Change in Status of the parties
- Creation of a right of association and companionship with one’s spouse = Consortium omnis vitae
- Reciprocal duty of Support
- Other personal consequences that a party can enforce by an action of Law
Status of Spouses & Diverse Personal Consequences of Marriage
(8 traits)
- Relationship of Affinity is created with spouses family
- Legally prohibited from entering into another marriage, civil union or customary marriage
- Minors obtain majority status = full capacity to act
- Right of intestate succession
- Change of family name
- Unmarried biological fathers = full PRR
- Both parents become holders of** PRR’s** in respect of children born from their marriage
- Capacity to act is restricted in certain transactions (ICoP)
Content of Consortium omnis vitae
+ Cases
- Physical, moral and spiritual community of life
- Entitles total community of life
Cases:
* T v T
* Grobbelaar v Havenga
* Peter v Minister of Law and Order
T v T
- Held that consortium entails 3 components:
1. Passion (eros)
2. Companionship (philia)
3. Self-giving / brotherly love (agapè)
Flowing from consortium are duties of:
* Cohabitation
* Mutual assistance
* Support, fidelity and loyalty
Grobbelaar v Havenga
- Consortium - an abstraction comprising the totality of a number of rights, duties and advantages accruing to the spouses of a marriage
Referred to aspects such as;
1. Companionship
2. Love
3. Affection
4. Comfort
5. Mutual services
6. Sexual intercourse
Peter v Minister of Law and Order
- Intangibles, affection, concern etc.
- More material needs of life, sich as physical care, financial support etc.
Protection of consortium omnis vitae between the spouses
- Cannot be prected directly by means of a court order
- Only real remedy = divorce
- Loss of consortuim can be proof of irretrievable breakdown of marriage
3 Actions that protects against 3rd party intervention
- Adultry
- Enticement
- Harbouring
Adultry
+ Cases
- Actio iniuriarum = delictual action aimed at remedying injury to personality
- Abolished by SCA in RH v DE
Cases:
* RH v DE (SCA)
* DE v RH (CC)
RH v DE (SCA)
Facts:
* DE’s wife had an affair with RE
* DE claimed damages for contumelia and loss of consortium
* High Court - DE was successful in his claim
* RH appealed to SCA
Legal Question:
Is the innocent spouse’s delictual claim for adultry still sustainable?
Ratio decidendi:
* RH and DE’s wife became involved on their own accord, without enticement
* Thus wrongfulness as an element of delict could not be proven
* Marriage had already broken down before the adultery had occurred
* Common law was developed and the innocent spouse’s claims for adultry were abolished
Concludion:
* In favour of RH
DE v RH (CC)
Facts:
* DE appealed the decision of the SCA
* Argued that the abolishement of the delictual action infringed his constitutional right to dignity
Legal Question:
* When a spouse has commited adultery, does an innocent spouse have a delictual claim against the third party for consortium and contumelia?
* Is there justification for the constinued existence of this action?
Ratio Decidendi:
* Adulterous claim is invasive - violates right to privacy, freedom of association and right to freedom of security
* Adultery - infringement of dignity (outweighed by the other three rights)
* These rights can be limited
Enticement
- Third party enticing a spouse to leave the other spouse by influencing the former to such an extent that their loyalty towards the other spouse is threatened
- Wronged party must prove that:
1. The third party acted intentionally
2. Their conduct was harmful - Abusive dynamics - enticement does not apply
Harbouring
- Where third party provides accommodation to a spouse with the deliberate + wrongful intention of severing the marital relationship and depriving the innocent spouse of the other’s consortium
- Third party is concearned for a spouse’s welfare - exclude intention and defeat such a claim
- Third party was unaware that the one spouse has already left the other - Lacks element of causality
Donations between spouses
+ Cases
- S22 of the Matrimonial Property Act = now allows for donations between spouses
Cases:
* Snyman v Rheeder NO
Snyman v Rheeder NO
Facts:
* Solvent spouse claimed release of a stand, a plot, a vehicle and a business
* Spouses had been married OCoP for decades, although they operate one account
* Applicant dealt with her income, inheritances and donations from and into this account
Finding:
* Applicant had proved her title in two of the four disputed items, namely, the stand and the business
* Vehicle and plot transactions were made shortly before the insolvency = these transactions were inheritly suspect
