What does in persona mean?

Question 1

What does an error in persona mean?

Answer 1

This is a material mistake about the identity of the person you become engage to (example identical twins)

Question 2

What does contra bonos mores mean?

Answer 2

It is engagement or marriage against good morals and against the law

Question 3

What is a breach (of promise)?

Answer 3

When there is an agreement between two parties to marry each other at some future date and one of them refuse to marry or make marriage impossible

Question 4

What does iniuria mean?

Answer 4

Injury (emotional hurt, shock and wounded dignity)

Question 5

What are the types of gifts returnable by the engaged persons?

Answer 5

1. Gifts to show the seriousness of the promise (e.g. engagement ring)
2. Gifts made in anticipation of marriage. Such gifts are valuable (e.g. house, farm, jewellery or an insurance policy). They are given with the intention that the receiver should enjoy the benefit of the gift while the marriage lasts.
3. Small gifts as tokens of affection (e.g. birthday presents) are not returnable. They have already been used, given to someone else or lost.

Question 6

What does void ab initio mean?

Answer 6

It is a marriage which cannot be ratified

Question 7

In which circumstances will a marriage be void?

Answer 7

1. If the prescribed formalities have not been complied with (e.g. the appointed person who solemnized the marriage was not a marriage officer, the required document have not been handed to the marriage officer, or if a girl under the age of fifteen or a boy under the age of eighteen years married without consent of the Minister of Home Affairs
2. If the marriage did not comply with one or more of the formal requirements of marriage (e.g. parties must be unmarried, must not be related to one another within the prohibited degrees of blood relationship (consanguinity) or relationship by marriage (affinity), they must be above the age of puberty and both are sane at the time of marriage, that is, not suffering from mental illness.

Question 8

On what grounds will a marriage be voidable?

Answer 8

1. Minor marries without required consent
2. When a pregnant woman was pregnant at the time of the marriage as a result of intercourse with another man and the husband was not aware of the pregnancy
3. If one of the spouses was impotent at the time of the marriage and was concealed from the other party
4. If one of the spouses was sterile at the time of the marriage and was concealed from the other party
5. If there was no consent between the parties (e.g. mistaken identity or one was forced into the marriage by duress)

Question 9

What is a putative marriage?

Answer 9

1 . When parties are related (e.g. brother and sister)
2. When one of the parties mistakenly believed that the other’s former spouse was dead or that he or she was legally divorced from such former spouse.

Question 10

What does consortium omnis vitae mean?

Answer 10

“Partnership of all our lives”

Question 11

Name the prescribed formalities when a marriage is said to exist.

Answer 11

1. The ceremony is performed by a competent marriage officer (e.g. Magistrates, most Priest of Christian religion and most Rabbis of the Jewish religion)
2. Intended spouses are of age and have capacity to enter into a marriage (e.g. neither party are already married to someone else, is mentally incompetent or is being coerced into the marriage)
3. There are al least two independent witnesses to the ceremony

Question 12

Describe what an antenuptial contract is.

Answer 12

This is when a couple intends to marry out of community of property and must be produced to the marriage officer. It must be signed PRIOR to the marriage and must be registered within three months if being signed.

Question 13

What is banns?

Answer 13

This is a publication or notice of intention to marry in case there are parties who want to object. This is however no longer required.

Question 14

What is a proxy?

Answer 14

This is no longer allowed. Both parties must be present and participate in the marriage ceremony.

Question 15

What is an objection?

Answer 15

This is when someone objects to the marriage of any one of the parties. If verbally in the place of the ceremony the marriage officer is obliged to postpone the ceremony to give the objector time to lodge his/her complaint in writing.

Question 16

Explain changing of the matrimonial regime.

Answer 16

Married couples may apply to the High Court for an order in terms of the Matrimonial Property Act to change the matrimonial regime of their marriage, either from a marriage in community to one out of community (this will automatically include the accrual system) or from out of community to in community.

Question 17

If Peter and Susan were married in community of property and Peter died leaving a will in terms of which he bequeathed his estate to his wife and 3 children in equal shares and the value of the joint estate is R1 000 000, the estate would be distributed as follows:

Answer 17

To Susan (one half by virtue of the marriage in community - 50%) R500 000
To Susan (in terms of the Will - the child share / kindsdeel)
R125 000
To each of the children R125 000 R375 000
R500 000

Question 18

What are the 5 C’s objectives?

Answer 18

1. Companionship
2. Children
3. Chastity (no infidelity)
4. Care
5. Completeness

Question 19

What professional consulting skills are needed?

Answer 19

1. Probing
2. Listening
3. Reflecting
4. Advising
5. Summarizing

Question 20

What are the clauses which should be put on paper in a Deed of Separation?

Answer 20

1. How the communal property is to be divided (who gets/keeps what)
2. Custody of the children (who looks after which child)
3. Maintenance for the children (the other party normally pays towards their maintenance)
4. Access to the children (the other party normally has a right to see the child regularly)
5. Maintenance for the spouse

Question 21

Name the two ground of divorce.

Answer 21

1. The irretrievable breakdown of the marriage, or

2. The mental illness or the continuous unconsciousness of one of the parties.

Question 22

Name the different factors which a court may accept as evidence of the irretrievable breakdown of a marriage.

Answer 22

1. The parties have not lived together as husband and wife for at least one year prior to divorce action (5 C’s)
2. The defendant has committed adultery and the plaintiff finds it irreconcilable
3. The defendant has been declared a habitual criminal and is undergoing imprisonment as a result of the sentence
4. Any other facts or circumstances which may be indicative of the irretrievable breakdown of a marriage

Question 23

Name other facts or circumstances which are mostly given as grounds for divorce.

Answer 23

1. Continuous arguing
2. Absence of love or affection
3. Spouses no longer living together as husband and wife (divorced from bed and table)
4. Loss of interest in continuing the marriage
5. Spouse physically or psychologically incompatible
6. Failure of spouse to contribute his share or support for the family
7. Spouse drinks excessively and/or uses drugs
8. Spouse assault the other
9. Spouse refusing to care for the family
10. Spouse engaging in numerous extramarital relationships
11. Souses have different and incompatible values, goals in life and lifestyles
12. Spouse unwilling to associate with the other’s family
13. Spouse is possessive and over-jealous and making life unbearable for the other

Question 24

What are the rights and responsibilities of parents of their minor children?

Answer 24

1. Major decisions about schooling and tertiary education
2. Major decisions about mental health care and medical care
3. Major decisions about religious and spiritual upbringing
4. Decisions about residence
5. Decisions affecting contact between child and Plaintiff
6. Decisions which are changing a child’s living conditions or well-being
7. Decisions affecting the child’s every day care and routine

Question 25

What is an unopposed divorce?

Answer 25

Only the plaintiff or her attorney needs to be in court

Question 26

What is a marriage with accrual?

Answer 26

This is where the portions of the estate of one of the parties are divided at death or divorce

Question 27

What is a marriage without accrual?

Answer 27

The parties keeps what they have all along