South African family law
Encyclopedia
South African family law is concerned with those legal rules
in South Africa
which pertain to familial relationships
. It may be defined as "that subdivision of material private law
which researches, describes and regulates the origin, contents and dissolution of all legal relationships between: (i) husband
and wife
(including the parties to a civil union
); (ii) parent
s, guardian
s (and other holders of parental rights and responsibilities
) and children; and (iii) relatives related through blood and affinity."
, among them
distinguished between two forms of marriage: the matrimonium non iustum and the iustae nuptiae (or iustum matrimonium). The former concerned a relationship between one man and one woman who intended to marry but could not do so in terms of Roman law
; the latter dealt with formally-recognised marriages.
Marriage between the Continental peoples under early Germanic law
bore a close resemblance to that of the lobolo
marriage in terms of the customary law of South Africa
n indigenous peoples.
In the late Middle Ages
, marriage fell under the jurisdiction
of the Roman Catholic Church
. This still has some practical consequences in modern South African law. In terms of canon law, marriage was a sacrament
and a grace of God to the spouses, and could not be dissolved by any human agency. Divorce, in other words, was almost entirely unlawful.
After the Reformation
, the rigidities of Catholic marriage
began to fall away, and the institution became more secularised, as other systems of marriage were introduced. The province of Holland seems to have been the first Europe
an jurisdiction to permit civil marriage
s. This impact of this on South African law may be gauged from the fact that the country's common law
is based primarily on Roman-Dutch law. The basic premises of the Political Ordinance of 1580 still form the basis for the contemporary South African law of marriage, which, while generally located in the private sphere, often crosses over into other areas for the law: for example, the criminal
and the constitutional
.
of one of them or as otherwise provided by law." In light of recent constitutional developments in South Africa, this definition has been found to be inadequate, particularly as regards its assumptions against polygamy
and sex-same life partnerships: In Minister of Home Affairs v Fourie, it was declared unconstitutional.
, in Fourie v Minister of Home Affairs, held that the common-law definition of marriage deprived committed same-sex couples of the option of marriage and thus denied them its many rights and protections. This discrimination, on grounds of gender and religion and sexual orientation, was found to be unfair, in that it violated the constitutional right to equality and other guarantees in the Bill of Rights. The court held further that the Marriage Act
had been passed on the assumption that the common-law definition applied only to opposite-sex marriage. The common law had to be developed to embrace same-sex partners by redefining marriage as the "union of two persons to the exclusion of all others for life." This type of marriage is now capable of full recognition as a legally valid marriage, provided that the formalities in the Marriage Act are complied with.
In Lesbian and Gay Equality Project v Minister of Home Affairs, the Marriage Act as well as the common-law definition were challenged. The Constitutional Court held that it was clearly in the
interests of justice that it be heard together with the Fourie case. Setting aside the order of the SCA in Fouries case, the court declared that the common-law definition of marriage was unconstitutional and invalid to the extent that it does not permit same-sex couples to enjoy the same status, benefits and responsibilities as those accorded to heterosexual couples.
The court was unanimous on the point that the omission from the Marriage Act, after the words "or husband," of the words "or spouse" was inconsistent with the Constitution; section 30(1) of the Marriage Act was therefore invalidated to the extent of the inconsistency. This declaration was suspended for twelve months from the date of the judgment, until December 1, 2006
, to allow Parliament
to enact remedial legislation. If Parliament failed to do so, section 30(1) would automatically be read thenceforth as including the words "or spouse" after the words "or husband."
, it is intended for the glory of God
, for the avoidance of fornication
, for procreation, and to provide for the other partner by help and assistance. These aims are also reflected in Roman-Dutch law. The consortium omnis vitae refers to all the duties which fall under the relationship of married spouses.
.
, religion
, culture
and social practice. In Rattigan v Chief Immigration Officer, Zimbabwe, Gubbay CJ described marriage as
Although a Zimbabwe
an case, Rattigan is widely cited in South African jurisprudence; it continues:
Gubbay also cited in Rattigan the words of Justice Field in Maynard v Hill, which characterised marriage as
That marriage is still held in high regard by modern society is reflected in such cases as Kuhn v Karp, Ex parte Inkley and Inkley and Van der Westhuizen v Van der Westhuizen In Ryland v Edros, Farlam J indicated the need for South African family law to recognise diversity
in marriage forms and the possibility of a pluralistic
recognition of different forms of marriage, including the potentially polygamous
Muslim
marriage.
The centrality of marriage to many lives, and the centrality to marriage of cohabitation, was further emphasised in the Constitutional Court
by O'Regan J
in Dawood, Shalabi and Thomas v Minister of Home Affairs. Although the Constitution itself does not expressly protect the right to family life or the right of spouses to cohabit,Volks v Robinson the constitutional right to human dignity has been found to encompass and protect the right of individuals to enter into permanent relationships, including the right to marry. To prohibit such a relationship, and thus to impair the spouses in their duty of cohabitation, would be to frustrate them in their personal fulfilment, and hence would amount to a limitation on the right to dignity. Whether or not such a limitation is constitutional will depend, in terms of the Constitution, on whether or not it is reasonable and justifiable in an open and democratic society.
Although the Constitution gives no explicit recognition to the right to marry, South Africa is a signatory to various international instruments which do. In terms of the International Covenant on Civil and Political Rights
,
Similarly, the African Commission on Human and Peoples' Rights
provides that
Finally, according to the Universal Declaration of Human Rights
, "The family is the natural and fundamental group unit of society and is entitled to protection by society and the State."
In Volks v Robinson, endorsing Dawood and enumerating these instruments, the court found that "there can be no doubt that our Constitution recognises the institution of marriage." It cited a provision in the Bill of Rights which, "in substance," provides for "marriages concluded under any tradition, or a system of religious, personal or family law." The court concluded that "both the Constitution and international instruments impose an obligation on our country to protect the institution of marriage." This is in line with the establishment of "a new legal landscape consistent with the values of diversity, tolerance of difference and the concern for human dignity expressed in the Constitution."
, and are not associated by the law with any particular religion. They are monogamous by definition.
s and usages traditionally observed among the indigenous African peoples of South Africa and which form part of the culture of those peoples."
Prior to the year 2000
, customary marriages enjoyed only limited recognition, polygamy being contra bonos mores. Since 2000, however, they have enjoyed full recognition under the Act. This is in line with the provision in the Constitution for "marriages concluded under any tradition, or a system of religious, personal or family law." Customary marriages are now valid and in all respects equal in status to civil marriage, so that the Act is similar in its consequences and regulations to the Marriage Act and Civil Union Act, although the requirements for a valid marriage are different.
South African law, generally speaking, does not permit polygamous marriages. The Act provides the only exception to this rule, in that it allows for polygyny
, but only if it has been concluded under customary law and complies with the provisions of the Act. The constitutionality of polygamy and lobolo
is a contentious issue, requiring their balance against the rights of equality and of dignity.
or rites.
Muslim marriages enjoy some statutory recognition under the Criminal Procedure Act
(CPA) and the Children's Act. In terms of the former, "for the purposes of the law of evidence in criminal proceedings, 'marriage' shall include [...] any marriage concluded under any system of religious law." In terms of the latter,
There is, however, no express recognition, so that statutes are generally interpreted by the judiciary to include Muslim marriages.
In Daniels v Campbell
, an application was made for confirmation of an order of the Cape High Court which had declared invalid and unconstitutional certain provisions of the Maintenance Act and the Intestate Succession Act for their failure to recognise as "spouses" persons married according to Muslim rites. Sachs held that the word "spouse" in its ordinary meaning includes parties to a Muslim marriage, because such a reading corresponds to the way the word is generally understood and used, and because it would be far more awkward from a linguistic point of view to exclude parties to a Muslim marriage from the word "spouse" than to include them. The historic exclusion did not flow from the courts giving the word its ordinary meaning but from a linguistically strained use of the word flowing from a particular cultural and racial approach, owing more to prejudice than to the English language, so that both the impact and the intent of the restricted interpretation was discriminatory.
In Women's Legal Centre Trust v President of the Republic of South Africa
it fell to the Constitutional Court to decide whether the President and Parliament had failed in their exclusive constitutional obligation to enact legislation governing Muslim marriages. The court found that the obligation in fact did not fall exclusively on Parliament and the President, and that, in terms of the Constitution, the court did not have exclusive jurisdiction to entertain the application. The question, therefore, of whether or not Parliament and the President are under an obligation (even if not exclusive) to recognise Muslim marriage, and whether or not such legislation would be consistent with the Constitution, went unanswered.
Before the new constitutional dispensation, the recognition of Muslim marriages was regarded as a "retrograde step and entirely immoral." The Appellate Division, in Ismail v Ismail, noted, "in passing, that it seems unlikely that the non-recognition of polygamous unions will cause any real hardship to the members of the Muslim community, except, perhaps, in isolated instances." This was rejected in Hassam v Jacobs
.
The Cape Provincial Division, in Ryland v Edros, held that a court may recognise and enforce contractual obligations arising out of Muslim marriages, provided that those marriages are monogamous. In Amod v MMVF, the action was for payment of damages and loss of support after the death of a spouse, married in terms of Islamic law and not registered under Marriage Act. The duty of support was found to be legally enforceable for monogamous Muslim marriages, but the issue of polygyny was left open. It was in Kahn v Kahn that spouses in polygynous Muslim marriages were finally held, in terms of the Maintenance Act, to have a legally enforceable duty of support to one another.
In Hassam v Jacobs, the issue was whether or not the benefits provided by the Intestate Succession Act and the Maintenance Act accrue to surviving spouses of polygynous Muslim marriages. The objective of the acts is to ensure that widows receive at least a child's share instead of being precariously dependant on family benevolence. The Cape High Court found that the Intestate Succession Act, in discriminating on grounds of gender and religion and marital status, was inconsistent with the Constitution. The word "spouse" in the Act would be interpreted henceforth to include spouses in polygynous Muslim marriages, while "survivor" in the Maintenance Act would be read to include surviving partners of polygynous Muslim marriages. In the Constitutional Court, however, it was found that "spouse" was not reasonably capable of being understood to include more than one spouse in the context of polygynous Muslim marriages. The words "or spouses," therefore, are to be read in after each use of the word "spouse" in the Act.
In summary, the constitutional validity of polygamy has not been subject to judicial scrutiny—indeed, it has been avoided—and the current position is that Muslim marriages receive only limited recognition in South African law. In the Draft Muslim Marriages Bill, there are both provisions in support of recognition and provisions against it.
sect of religious Hindu
marriage
, and an application for an order declaring
The application was dismissed on grounds of legal impossibility. A marriage concluded in terms of religious law, and compliant with the civil requirements, enjoys dual validity. The secular dissolution of such a marriage in terms of the Divorce Act
does not have the effect of dissolving the religious marriage if, as is usually the case, that religion has its own specific requirements for dissolution. The only means for dissolving such a marriage would be to attack successfully the non-recognition of divorce in Hindu religious law. The courts could not and would not interfere in this regard.
In Govender v Ragavayah, the court dealt with an application for an order declaring a Hindu widow to be recognised as a spouse in terms of Intestate Succession Act. This it granted, reading the word "spouse" in the Act to include partners in monogamous Hindu marriages.
A domestic partnership is defined by "living together outside marriage in a relationship which is analogous to, or has most of the characteristics of a marriage."
The status quo is that none of the consequences of legal marriage is automatically conferred on an opposite-sex domestic partnership. There is, however, some statutory recognition in the Compensation for Occupational Injuries and Diseases Act, and judicial recognition in the form of Volks v Robinson, which concerned a man and a woman who had lived together in a permanent life partnership. When he passed away, she lodged a claim for maintenance against his estate in terms of the Maintenance Act but was rejected by the executor. Having never married him, she did not fit the Act's definition of "survivor." It was requested of the court that it read-in partners in domestic partnerships or alternatively declare unconstitutional the relevant provision for its unjustifiable discrimination and its violation of the right to dignity. Handed down before the passage of the Civil Union Act, the majority judgment found that there had been no duty of support while the man had been alive, so there should be no duty for maintenance by his estate following his death.
Domestic partnerships are currently self-recognised and regulated. The partners may jointly enter into contracts of sale and lease, as well as into a universal partnership, whereby they agree to put in common all their property, universorum bonorum: not only what they have but also what they later acquire. Universal partnerships may be entered on either express or tacit terms, but both partners will be required to contribute, and the official objective is to make a profit. Alternatives to the universal partnership exist in the form of life partnership contracts and contracts of agency. It is also worth noting that a person may leave his estate to anyone in his will.
There is considerable debate over the future status of domestic partnerships in South Africa, particularly among feminists. The South African Law Reform Commission published a Discussion Paper on the subject in March 2006. The Civil Union Act requires registration and has a same-sex focus. The Domestic Partnerships Bill, providing for the legal recognition of domestic partnerships and the enforcement of their legal consequences, was tabled on January 14, 2008
. Its preamble observes that, under the Constitution, everyone is equal before the law and has the right to its equal protection and benefit. The Bill still distinguishes between registered and unregistered partnerships.
The foremost protection of homosexuals in South Africa is section 9 of the Constitution
, which forbids discrimination on the basis of sexual orientation.
Same-sex partnerships also enjoy statutory recognition in South Africa, as of November 30, 2006, under the Civil Union Act, which provides for
In the landmark case of Fourie, discussed above, four main arguments were made in opposition to the recognition of same-sex partnerships:
These were all ultimately rejected, and the separate-but-equal
approach strongly dismissed as historically "a threadbare cloak for covering distaste for or repudiation by those in power of the group subjected to segregation."
There is now considerable jurisprudence in recognition of the right to equality of same-sex partners. The following judgments, excluding the already-discussed Fourie, illustrate its development:
It is unlikely, given the provisions of Civil Union Act and its recognition of same-sex marriages, that the court will hear very many such cases in the future.
, which is an agreement sui generis, is generally defined in the common law as "a legal agreement between a man and a woman to marry each other on a specific or determinable date." Despite the constitutional developments discussed previously, this definition remains in place today.
Mistake may take two following forms:
Mistake results in the engagement's being void. There can be no claim for damages by either party.
Misrepresentation occurs where, had the innocent party known the truth, he or she would not have become engaged to the other party. The rescission of an engagement is justified where the misrepresentation is material. If it seriously jeopardises the possibility of achieving a happy and harmonious marriage, the engagement will be void. Misrepresentation will render the engagement voidable at the instance of the innocent party. Among the legitimate grounds for terminating the engagement are such personal qualities as impotence, sterility
and serious mental illness.
The issue of misrepresentation by omission was raised in Schnaar v Jansen, where one of the parties to the engagement omitted to mention
The court held, however, that as none concerned a personal quality of hers, she was under no obligation to disclose these facts to her then-fiancé. She was therefore able to claim damages for breach of promise of marriage.
An engagement may also be rescinded on the ground of innocent misrepresentation. In Thelemann v Von Geyso, Von Geyso was coaxed into a marriage on the belief, which Thelemann held also, that she was pregnant. He was successful in his defence.
If one party was unaware, entering into the engagement, that the other was married, he or she may bring action against the other party.
and for parties who fall within prohibited degrees of relationship
.
or in conflict with the nature of marriage.
. Ceasing to love
the other party does not constitute a iusta causa; nor, as in Schaar, does the non-disclosure of facts which do not bear on the personal qualities of the party who omitted them. A mistaken impression as to "the nature, mental worth, appearance, status or financial position of the other does not constitute a ground for terminating the engagement and is, therefore, irrelevant."
In Krull v Sangerhaus, the court held that, to constitute a iusta causa for unilateral termination, the cause must be of a sufficiently serious nature. The allegation of a dispute between the parties' parents regarding the wedding reception, even if it also involved the parties, was "too frivolous a circumstance to warrant a repudiation."
If the unilateral termination is unjustified, it will amount to a breach of promise.
.
It is probably best to say that damages are sui generis in this area of the law.
In Guggenheim v Rosenbaum a divorced woman in New York
met a man domiciled in South Africa. After accepting his proposal, it was arranged that she would come to South Africa to marry him. She gave up her flat, her car and certain of her furniture (the rest being stored), as well as her employment. On their arrival in Johannesburg
, however, he refused to marry her. The court found that theirs was a valid engagement and therefore that she was entitled to both actual and prospective loss.
Sepheri v Scanlan sets out some of the factors to be considered in assessing contractual damages, among them engagement for a long period of years, constant travel and possibly community of property.
The amount of damages is left to the discretion of the court based on several factors:
Sepheri v Scanlan involved an engagement of more than five years and the relinquishment of career prospects, but no delictual damages (for iniuria or contumelia) were awarded. In light of the contractual damages awarded, the court determined that it would be inappropriate to make an additional award in respect of conduct "which for all its emotional pyrotechnics was an inevitable consequence of ferocious litigation."
Damages may be claimed for seduction
, or extramarital sex
with a virgin with her consent. The plaintiff will need to prove
In M v M a Hindu marriage was entered into between a minor and the defendant, a major. An agreement was reached between the defendant and the plaintiff, acting in his capacity as father and natural guardian of his minor daughter, that the marriage would subsequently be registered according to the laws of South Africa. After their Hindu marriage, the minor (a virgin), in anticipation of their civil marriage, allowed the defendant to have sex with her. The defendant subsequently repudiated his obligation to register the marriage, and the plaintiff claimed damages for seduction and breach of promise to marry.
The court found that the fact that the defendant's father and the plaintiff had negotiated the terms of the marriage in accordance with Hindu custom did not have the result that no privity of contract existed between the minor and the defendant. The Marriage Act did not prohibit the contracting of a valid espousal through the agency of another. The defendant, therefore, was bound to his undertaking to register the marriage. His failure to honour that obligation without lawful excuse constituted a breach of promise.
Sponsalitia largitas or donationes propter nuptias are gifts made in anticipation of marriage. The intention is to confer a lasting benefit during the marriage on the receiver. These include, for example, a house, a car and jewellery. There is a presumption, indeed, that valuable gifts of a lasting nature, given during the engagement, were given in anticipation of the marriage.
Arrhae sponsalitiae are gifts which reflect the seriousness of the intention of the donor to marry the other party. These are given with the intention that they will be forfeited to the receiver should the donor commit a breach of promise. The engagement ring, therefore, may be retained by the receiver and need only be returned if the engagement is terminated without any fault on the part of the donor.
Small tokens are unconditional gifts, given as tokens of affection. These include, for example, flowers.
The general rule is that all gifts, other than small tokens of affection and those which have been alienated or lost or consumed, must be returned if the engagement is terminated by mutual consent.
The general rule also applies if the engagement is broken off for a reason not imputable to the fault of one of the parties; for instance, if one of them has become insane or impotent, or because both parties' conduct has become such to make marriage unlikely.
If the engagement has been wrongfully terminated by one of the parties, the innocent party may recover all gifts except those of negligent value.
Law
Law is a system of rules and guidelines which are enforced through social institutions to govern behavior, wherever possible. It shapes politics, economics and society in numerous ways and serves as a social mediator of relations between people. Contract law regulates everything from buying a bus...
in South Africa
Law of South Africa
South Africa has a 'hybrid' or 'mixed' legal system, made of the interweaving of a number of distinct legal traditions: a civil law system inherited from the Dutch, a common law system inherited from the British, and a customary law system inherited from indigenous Africans...
which pertain to familial relationships
Family
In human context, a family is a group of people affiliated by consanguinity, affinity, or co-residence. In most societies it is the principal institution for the socialization of children...
. It may be defined as "that subdivision of material private law
Private law
Private law is that part of a civil law legal system which is part of the jus commune that involves relationships between individuals, such as the law of contracts or torts, as it is called in the common law, and the law of obligations as it is called in civilian legal systems...
which researches, describes and regulates the origin, contents and dissolution of all legal relationships between: (i) husband
Husband
A husband is a male participant in a marriage. The rights and obligations of the husband regarding his spouse and others, and his status in the community and in law, vary between cultures and has varied over time...
and wife
Wife
A wife is a female partner in a marriage. The rights and obligations of the wife regarding her spouse and others, and her status in the community and in law, varies between cultures and has varied over time.-Origin and etymology:...
(including the parties to a civil union
Civil union
A civil union, also referred to as a civil partnership, is a legally recognized form of partnership similar to marriage. Beginning with Denmark in 1989, civil unions under one name or another have been established by law in many developed countries in order to provide same-sex couples rights,...
); (ii) parent
Parent
A parent is a caretaker of the offspring in their own species. In humans, a parent is of a child . Children can have one or more parents, but they must have two biological parents. Biological parents consist of the male who sired the child and the female who gave birth to the child...
s, guardian
Legal guardian
A legal guardian is a person who has the legal authority to care for the personal and property interests of another person, called a ward. Usually, a person has the status of guardian because the ward is incapable of caring for his or her own interests due to infancy, incapacity, or disability...
s (and other holders of parental rights and responsibilities
Parental responsibility (access and custody)
In the nations of the European Union and elsewhere, parental responsibility refers to the rights and privileges which underpin the relationship between a child and either of the child's parents or those adults who have a significant role in the child's life...
) and children; and (iii) relatives related through blood and affinity."
Subdivisions
There are various branches of family lawFamily law
Family law is an area of the law that deals with family-related issues and domestic relations including:*the nature of marriage, civil unions, and domestic partnerships;...
, among them
- the law of engagementEngagementAn engagement or betrothal is a promise to marry, and also the period of time between proposal and marriage which may be lengthy or trivial. During this period, a couple is said to be betrothed, affianced, engaged to be married, or simply engaged...
; - matrimonial lawMarriage lawMarriage law refers to the legal requirements which determine the validity of a marriage, which vary considerably between countries.- Rights and obligations :...
and the law of civil unions; - matrimonial property lawMatrimonial regimeMatrimonial regimes, or marital property systems, are systems of property ownership between spouses providing for the creation or absence of a marital estate, and if created, what properties are included in that estate, how and by whom it is managed, and how it will be divided and inherited at the...
; - the law of divorceDivorceDivorce is the final termination of a marital union, canceling the legal duties and responsibilities of marriage and dissolving the bonds of matrimony between the parties...
; and - the law of parentingChild custodyChild custody and guardianship are legal terms which are used to describe the legal and practical relationship between a parent and his or her child, such as the right of the parent to make decisions for the child, and the parent's duty to care for the child.Following ratification of the United...
.
Marriage
Marriage is the act by which a marriage relationship is formed, and which defines the relationship created by that act. The act and the relationship are interrelated: The former requires an intention to create the latter, and the consequences of the latter flow from the nature of the former.Development
Ancient RomeAncient Rome
Ancient Rome was a thriving civilization that grew on the Italian Peninsula as early as the 8th century BC. Located along the Mediterranean Sea and centered on the city of Rome, it expanded to one of the largest empires in the ancient world....
distinguished between two forms of marriage: the matrimonium non iustum and the iustae nuptiae (or iustum matrimonium). The former concerned a relationship between one man and one woman who intended to marry but could not do so in terms of Roman law
Roman law
Roman law is the legal system of ancient Rome, and the legal developments which occurred before the 7th century AD — when the Roman–Byzantine state adopted Greek as the language of government. The development of Roman law comprises more than a thousand years of jurisprudence — from the Twelve...
; the latter dealt with formally-recognised marriages.
Marriage between the Continental peoples under early Germanic law
Early Germanic law
Several Latin law codes of the Germanic peoples written in the Early Middle Ages survive, dating to between the 5th and 9th centuries...
bore a close resemblance to that of the lobolo
Lobolo
Lobolo or Lobola in Zulu, Xhosa and Ndebele; is sometimes translated as bride price) is a traditional Southern African custom whereby the man pays the family of his fiancée for her hand in marriage...
marriage in terms of the customary law of South Africa
South Africa
The Republic of South Africa is a country in southern Africa. Located at the southern tip of Africa, it is divided into nine provinces, with of coastline on the Atlantic and Indian oceans...
n indigenous peoples.
In the late Middle Ages
Late Middle Ages
The Late Middle Ages was the period of European history generally comprising the 14th to the 16th century . The Late Middle Ages followed the High Middle Ages and preceded the onset of the early modern era ....
, marriage fell under the jurisdiction
Canon law
Canon law is the body of laws & regulations made or adopted by ecclesiastical authority, for the government of the Christian organization and its members. It is the internal ecclesiastical law governing the Catholic Church , the Eastern and Oriental Orthodox churches, and the Anglican Communion of...
of the Roman Catholic Church
Roman Catholic Church
The Catholic Church, also known as the Roman Catholic Church, is the world's largest Christian church, with over a billion members. Led by the Pope, it defines its mission as spreading the gospel of Jesus Christ, administering the sacraments and exercising charity...
. This still has some practical consequences in modern South African law. In terms of canon law, marriage was a sacrament
Sacrament
A sacrament is a sacred rite recognized as of particular importance and significance. There are various views on the existence and meaning of such rites.-General definitions and terms:...
and a grace of God to the spouses, and could not be dissolved by any human agency. Divorce, in other words, was almost entirely unlawful.
After the Reformation
Reformation
- Movements :* Protestant Reformation, an attempt by Martin Luther to reform the Roman Catholic Church that resulted in a schism, and grew into a wider movement...
, the rigidities of Catholic marriage
Catholic marriage
Catholic marriage, also called matrimony, is a "covenant by which a man and a woman establish between themselves a partnership of the whole of life and which is ordered by its nature to the good of the spouses and the procreation and education of offspring...
began to fall away, and the institution became more secularised, as other systems of marriage were introduced. The province of Holland seems to have been the first Europe
Europe
Europe is, by convention, one of the world's seven continents. Comprising the westernmost peninsula of Eurasia, Europe is generally 'divided' from Asia to its east by the watershed divides of the Ural and Caucasus Mountains, the Ural River, the Caspian and Black Seas, and the waterways connecting...
an jurisdiction to permit civil marriage
Civil marriage
Civil marriage is marriage performed by a government official and not a religious organization.-History:Every country maintaining a population registry of its residents keeps track of marital status, and most countries believe that it is their responsibility to register married couples. Most...
s. This impact of this on South African law may be gauged from the fact that the country's common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
is based primarily on Roman-Dutch law. The basic premises of the Political Ordinance of 1580 still form the basis for the contemporary South African law of marriage, which, while generally located in the private sphere, often crosses over into other areas for the law: for example, the criminal
Criminal law
Criminal law, is the body of law that relates to crime. It might be defined as the body of rules that defines conduct that is not allowed because it is held to threaten, harm or endanger the safety and welfare of people, and that sets out the punishment to be imposed on people who do not obey...
and the constitutional
Constitutional law
Constitutional law is the body of law which defines the relationship of different entities within a state, namely, the executive, the legislature and the judiciary....
.
Definition
The traditional definition of marriage is a "legally recognised life-long voluntary union between one man and one woman to the exclusion of all other persons," or "a union of one man and one woman who mutually agree to live together as spouses until the marriage is dissolved by the deathDeath
Death is the permanent termination of the biological functions that sustain a living organism. Phenomena which commonly bring about death include old age, predation, malnutrition, disease, and accidents or trauma resulting in terminal injury....
of one of them or as otherwise provided by law." In light of recent constitutional developments in South Africa, this definition has been found to be inadequate, particularly as regards its assumptions against polygamy
Polygamy
Polygamy is a marriage which includes more than two partners...
and sex-same life partnerships: In Minister of Home Affairs v Fourie, it was declared unconstitutional.
"One man and one woman"
The Supreme Court of AppealSupreme Court of Appeal of South Africa
The Supreme Court of Appeal is an appellate court in South Africa; it is the highest appeal court except in constitutional matters, which are ultimately decided by the Constitutional Court...
, in Fourie v Minister of Home Affairs, held that the common-law definition of marriage deprived committed same-sex couples of the option of marriage and thus denied them its many rights and protections. This discrimination, on grounds of gender and religion and sexual orientation, was found to be unfair, in that it violated the constitutional right to equality and other guarantees in the Bill of Rights. The court held further that the Marriage Act
Marriage Act, 1961 (South Africa)
The Marriage Act, 1961 is an act of the Parliament of South Africa governing the solemnisation and registration of marriages in South Africa...
had been passed on the assumption that the common-law definition applied only to opposite-sex marriage. The common law had to be developed to embrace same-sex partners by redefining marriage as the "union of two persons to the exclusion of all others for life." This type of marriage is now capable of full recognition as a legally valid marriage, provided that the formalities in the Marriage Act are complied with.
In Lesbian and Gay Equality Project v Minister of Home Affairs, the Marriage Act as well as the common-law definition were challenged. The Constitutional Court held that it was clearly in the
interests of justice that it be heard together with the Fourie case. Setting aside the order of the SCA in Fouries case, the court declared that the common-law definition of marriage was unconstitutional and invalid to the extent that it does not permit same-sex couples to enjoy the same status, benefits and responsibilities as those accorded to heterosexual couples.
The court was unanimous on the point that the omission from the Marriage Act, after the words "or husband," of the words "or spouse" was inconsistent with the Constitution; section 30(1) of the Marriage Act was therefore invalidated to the extent of the inconsistency. This declaration was suspended for twelve months from the date of the judgment, until December 1, 2006
2006 in South Africa
- January :* 10 January – 3 miners are killed and 4 others are injured when a magnitude 2.4 earthquake traps 12 miners underground at the TauTona gold mine near Carletonville...
, to allow Parliament
Parliament of South Africa
The Parliament of South Africa is South Africa's legislature and under the country's current Constitution is composed of the National Assembly and the National Council of Provinces....
to enact remedial legislation. If Parliament failed to do so, section 30(1) would automatically be read thenceforth as including the words "or spouse" after the words "or husband."
"To the exclusion of all other persons"
Exclusivity is not a universal characteristic of marriage; it is a special characteristic of Western civil law and the Anglo-American common law marriage."To live together as spouses"
This part of the definition concerns "the very heart of the matter," which is to say the object or purpose of marriage. In ChristianityChristianity
Christianity is a monotheistic religion based on the life and teachings of Jesus as presented in canonical gospels and other New Testament writings...
, it is intended for the glory of God
God
God is the English name given to a singular being in theistic and deistic religions who is either the sole deity in monotheism, or a single deity in polytheism....
, for the avoidance of fornication
Fornication
Fornication typically refers to consensual sexual intercourse between two people not married to each other. For many people, the term carries a moral or religious association, but the significance of sexual acts to which the term is applied varies between religions, societies and cultures. The...
, for procreation, and to provide for the other partner by help and assistance. These aims are also reflected in Roman-Dutch law. The consortium omnis vitae refers to all the duties which fall under the relationship of married spouses.
Dissolution as provided by law
Death dissolves a marriage, but the law provides also for dissolution by the high court on some ground which renders the marriage voidable, or following upon an order presuming the death of the one spouse, or on some ground arising after marriage which is recognised as a ground for divorceDivorce
Divorce is the final termination of a marital union, canceling the legal duties and responsibilities of marriage and dissolving the bonds of matrimony between the parties...
.
Nature
Marriage has its foundations in a variety of bailiwicks beyond the legal realm, including philosophyPhilosophy
Philosophy is the study of general and fundamental problems, such as those connected with existence, knowledge, values, reason, mind, and language. Philosophy is distinguished from other ways of addressing such problems by its critical, generally systematic approach and its reliance on rational...
, religion
Religion
Religion is a collection of cultural systems, belief systems, and worldviews that establishes symbols that relate humanity to spirituality and, sometimes, to moral values. Many religions have narratives, symbols, traditions and sacred histories that are intended to give meaning to life or to...
, culture
Culture
Culture is a term that has many different inter-related meanings. For example, in 1952, Alfred Kroeber and Clyde Kluckhohn compiled a list of 164 definitions of "culture" in Culture: A Critical Review of Concepts and Definitions...
and social practice. In Rattigan v Chief Immigration Officer, Zimbabwe, Gubbay CJ described marriage as
a juristic act sui generis. It gives rise to a physical, moral and spiritual community of life - a consortium omnis vitae. It obliges the husband and wife to live together for life (more realistically, for as long as the marriage endures) and to confer sexual privileges exclusively upon each other [...]. The duties of cohabitation, loyalty, fidelity and mutual assistance and support flow from the marital relationship. To live together as spouses in community of life, to afford each other marital privileges and to be ever faithful, are the inherent commands which lie at the very heart of marriage.
Although a Zimbabwe
Zimbabwe
Zimbabwe is a landlocked country located in the southern part of the African continent, between the Zambezi and Limpopo rivers. It is bordered by South Africa to the south, Botswana to the southwest, Zambia and a tip of Namibia to the northwest and Mozambique to the east. Zimbabwe has three...
an case, Rattigan is widely cited in South African jurisprudence; it continues:
Marriages are almost invariably entered into by parties who have deep affection for one another and who intend to devote the remainder of their lives together. Although the condition of matrimony does not, as a concept of law, make the spouses one flesh—una caro—it nonetheless embodies the obligations to found a home, to cohabit, to have children and to live together as a family unit. It is the most fundamental institution known to mankind—"the first step from barbarism" and "the true basis of human progress".
Gubbay also cited in Rattigan the words of Justice Field in Maynard v Hill, which characterised marriage as
an institution, in the maintenance of which in its purity the public is deeply interested, for it is the foundation of the family and of society, without which there would be neither civilisation nor progress [...]. It is [...] a social relation, like that of parent and child, the obligations of which arise not from the consent of concurring minds, but are the creation of the law itself, a relation the most important, as affecting the happiness of individuals, the first step from barbarismBarbarismBarbarism may refer to:* Barbarian society** primitive culture, which has never been civilized.** societal collapse, which was formerly civilized.* Barbarism , non-standard word or expression....
to incipient civilisation, the purest tie of social life, and the true basis of human progress.
That marriage is still held in high regard by modern society is reflected in such cases as Kuhn v Karp, Ex parte Inkley and Inkley and Van der Westhuizen v Van der Westhuizen In Ryland v Edros, Farlam J indicated the need for South African family law to recognise diversity
Diversity
-Science and technology:*Biodiversity, the degree of variation of life forms within a given ecosystem, biome, or an entire planet.*Diversity Index, a statistic intended to assess the diversity of any population in which each member belongs to a unique group, type or species.*Diversity scheme, a...
in marriage forms and the possibility of a pluralistic
Pluralism
Pluralism is, in the general sense, the acknowledgment of diversity. The concept is used, often in different ways, in a wide range of issues. In politics, pluralism is often considered by proponents of modern democracy to be in the interests of its citizens, and so political pluralism is one of its...
recognition of different forms of marriage, including the potentially polygamous
Polygamy
Polygamy is a marriage which includes more than two partners...
Muslim
Islam
Islam . The most common are and . : Arabic pronunciation varies regionally. The first vowel ranges from ~~. The second vowel ranges from ~~~...
marriage.
The centrality of marriage to many lives, and the centrality to marriage of cohabitation, was further emphasised in the Constitutional Court
Constitutional Court of South Africa
The Constitutional Court of South Africa was established in 1994 by South Africa's first democratic constitution: the Interim Constitution of 1993. In terms of the 1996 Constitution the Constitutional Court established in 1994 continues to hold office. The court began its first sessions in February...
by O'Regan J
Kate O'Regan
Kate O'Regan was a judge in the Constitutional Court of South Africa. She was appointed to the bench in 1994 by Nelson Mandela. She hold a B.A. and LL.B. from the University of Cape Town, an LL.M. from the University of Sydney and a Ph.D. from the London School of Economics...
in Dawood, Shalabi and Thomas v Minister of Home Affairs. Although the Constitution itself does not expressly protect the right to family life or the right of spouses to cohabit,Volks v Robinson the constitutional right to human dignity has been found to encompass and protect the right of individuals to enter into permanent relationships, including the right to marry. To prohibit such a relationship, and thus to impair the spouses in their duty of cohabitation, would be to frustrate them in their personal fulfilment, and hence would amount to a limitation on the right to dignity. Whether or not such a limitation is constitutional will depend, in terms of the Constitution, on whether or not it is reasonable and justifiable in an open and democratic society.
Although the Constitution gives no explicit recognition to the right to marry, South Africa is a signatory to various international instruments which do. In terms of the International Covenant on Civil and Political Rights
International Covenant on Civil and Political Rights
The International Covenant on Civil and Political Rights is a multilateral treaty adopted by the United Nations General Assembly on December 16, 1966, and in force from March 23, 1976...
,
- The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.
- The right of men and women of marriageable age to marry and to found a family shall be recognized.
- No marriage shall be entered into without the free and full consent of the intending spouses.
Similarly, the African Commission on Human and Peoples' Rights
African Commission on Human and Peoples' Rights
The African Commission on Human and Peoples' Rights is a quasi-judicial body tasked with promoting and protecting human rights and collective rights throughout the African continent as well as interpreting the African Charter on Human and Peoples' Rights and considering individual complaints of...
provides that
- The family shall be the natural unit and basis of society. It shall be protected by the State which shall take care of its physical health and moral.
- The State shall have the duty to assist the family which is the custodian of morals and traditional values recognized by the community.
Finally, according to the Universal Declaration of Human Rights
Universal Declaration of Human Rights
The Universal Declaration of Human Rights is a declaration adopted by the United Nations General Assembly . The Declaration arose directly from the experience of the Second World War and represents the first global expression of rights to which all human beings are inherently entitled...
, "The family is the natural and fundamental group unit of society and is entitled to protection by society and the State."
In Volks v Robinson, endorsing Dawood and enumerating these instruments, the court found that "there can be no doubt that our Constitution recognises the institution of marriage." It cited a provision in the Bill of Rights which, "in substance," provides for "marriages concluded under any tradition, or a system of religious, personal or family law." The court concluded that "both the Constitution and international instruments impose an obligation on our country to protect the institution of marriage." This is in line with the establishment of "a new legal landscape consistent with the values of diversity, tolerance of difference and the concern for human dignity expressed in the Constitution."
Civil marriage
Civil marriages are concluded in terms of the Marriage Act or the Civil Union ActCivil Union Act, 2006
The Civil Union Act, 2006 is a South African Act of Parliament which legalised same-sex marriage. It was enacted as Parliament's response to the judgment of the Constitutional Court in the case of Minister of Home Affairs v Fourie, which ruled that it was unconstitutional for the state to provide...
, and are not associated by the law with any particular religion. They are monogamous by definition.
Customary marriage
Customary marriages are those concluded in accordance with customary law, which is defined in the Recognition of Customary Marriages Act as "the customCustom
Custom may refer to:* Convention , a set of agreed, stipulated or generally accepted rules, norms, standards or criteria, often taking the form of a custom* Customization , anything made or modified to personal taste...
s and usages traditionally observed among the indigenous African peoples of South Africa and which form part of the culture of those peoples."
Prior to the year 2000
2000 in South Africa
-February:*Tropical Cyclone Eline brings heavy rains to Mozambique, South Africa, Zimbabwe, Botswana, Zambia, Malawi and Madagascar*The Mozambican navy begins evacuating people from low ground using rubber boats donated from last year's floods....
, customary marriages enjoyed only limited recognition, polygamy being contra bonos mores. Since 2000, however, they have enjoyed full recognition under the Act. This is in line with the provision in the Constitution for "marriages concluded under any tradition, or a system of religious, personal or family law." Customary marriages are now valid and in all respects equal in status to civil marriage, so that the Act is similar in its consequences and regulations to the Marriage Act and Civil Union Act, although the requirements for a valid marriage are different.
South African law, generally speaking, does not permit polygamous marriages. The Act provides the only exception to this rule, in that it allows for polygyny
Polygyny
Polygyny is a form of marriage in which a man has two or more wives at the same time. In countries where the practice is illegal, the man is referred to as a bigamist or a polygamist...
, but only if it has been concluded under customary law and complies with the provisions of the Act. The constitutionality of polygamy and lobolo
Lobolo
Lobolo or Lobola in Zulu, Xhosa and Ndebele; is sometimes translated as bride price) is a traditional Southern African custom whereby the man pays the family of his fiancée for her hand in marriage...
is a contentious issue, requiring their balance against the rights of equality and of dignity.
Muslim marriage
A Muslim marriage is one concluded in terms of Islamic religious lawSharia
Sharia law, is the moral code and religious law of Islam. Sharia is derived from two primary sources of Islamic law: the precepts set forth in the Quran, and the example set by the Islamic prophet Muhammad in the Sunnah. Fiqh jurisprudence interprets and extends the application of sharia to...
or rites.
Statutory recognition
Muslim marriages enjoy some statutory recognition under the Criminal Procedure Act
Criminal Procedure Act
Criminal Procedure Act is a stock short title used for legislation relating to criminal procedure in Hong Kong, the Republic of Ireland, South Africa and the United Kingdom....
(CPA) and the Children's Act. In terms of the former, "for the purposes of the law of evidence in criminal proceedings, 'marriage' shall include [...] any marriage concluded under any system of religious law." In terms of the latter,
"marriage" means a marriage—
- (a) recognised in terms of South African law or customary law; or
- (b) concluded in accordance with a system of religious law subject to specified procedures,
and any reference to a husband, wife, widower, widow, divorced person, married person or spouse must be construed accordingly.
There is, however, no express recognition, so that statutes are generally interpreted by the judiciary to include Muslim marriages.
In Daniels v Campbell
Daniels v Campbell
Daniels v Campbell NO and Others, an important case in South African law, was heard in the Constitutional Court on November 6, 2003, with judgment handed down on March 11, 2004.- Facts :...
, an application was made for confirmation of an order of the Cape High Court which had declared invalid and unconstitutional certain provisions of the Maintenance Act and the Intestate Succession Act for their failure to recognise as "spouses" persons married according to Muslim rites. Sachs held that the word "spouse" in its ordinary meaning includes parties to a Muslim marriage, because such a reading corresponds to the way the word is generally understood and used, and because it would be far more awkward from a linguistic point of view to exclude parties to a Muslim marriage from the word "spouse" than to include them. The historic exclusion did not flow from the courts giving the word its ordinary meaning but from a linguistically strained use of the word flowing from a particular cultural and racial approach, owing more to prejudice than to the English language, so that both the impact and the intent of the restricted interpretation was discriminatory.
In Women's Legal Centre Trust v President of the Republic of South Africa
Women's Legal Centre Trust v President of the Republic of South Africa
Women's Legal Centre Trust v President of the Republic of South Africa, an important case in South African law, was heard in the Constitutional Court on May 20, 2009, with judgment handed down on July 22, 2009.- Facts :...
it fell to the Constitutional Court to decide whether the President and Parliament had failed in their exclusive constitutional obligation to enact legislation governing Muslim marriages. The court found that the obligation in fact did not fall exclusively on Parliament and the President, and that, in terms of the Constitution, the court did not have exclusive jurisdiction to entertain the application. The question, therefore, of whether or not Parliament and the President are under an obligation (even if not exclusive) to recognise Muslim marriage, and whether or not such legislation would be consistent with the Constitution, went unanswered.
Judicial recognition
Before the new constitutional dispensation, the recognition of Muslim marriages was regarded as a "retrograde step and entirely immoral." The Appellate Division, in Ismail v Ismail, noted, "in passing, that it seems unlikely that the non-recognition of polygamous unions will cause any real hardship to the members of the Muslim community, except, perhaps, in isolated instances." This was rejected in Hassam v Jacobs
Hassam v Jacobs
Hassam v Jacobs NO and Others, an important case in South African law, was heard in the Constitutional Court on February 19, 2009, with judgment handed down on July 15.- Facts :...
.
The Cape Provincial Division, in Ryland v Edros, held that a court may recognise and enforce contractual obligations arising out of Muslim marriages, provided that those marriages are monogamous. In Amod v MMVF, the action was for payment of damages and loss of support after the death of a spouse, married in terms of Islamic law and not registered under Marriage Act. The duty of support was found to be legally enforceable for monogamous Muslim marriages, but the issue of polygyny was left open. It was in Kahn v Kahn that spouses in polygynous Muslim marriages were finally held, in terms of the Maintenance Act, to have a legally enforceable duty of support to one another.
In Hassam v Jacobs, the issue was whether or not the benefits provided by the Intestate Succession Act and the Maintenance Act accrue to surviving spouses of polygynous Muslim marriages. The objective of the acts is to ensure that widows receive at least a child's share instead of being precariously dependant on family benevolence. The Cape High Court found that the Intestate Succession Act, in discriminating on grounds of gender and religion and marital status, was inconsistent with the Constitution. The word "spouse" in the Act would be interpreted henceforth to include spouses in polygynous Muslim marriages, while "survivor" in the Maintenance Act would be read to include surviving partners of polygynous Muslim marriages. In the Constitutional Court, however, it was found that "spouse" was not reasonably capable of being understood to include more than one spouse in the context of polygynous Muslim marriages. The words "or spouses," therefore, are to be read in after each use of the word "spouse" in the Act.
In summary, the constitutional validity of polygamy has not been subject to judicial scrutiny—indeed, it has been avoided—and the current position is that Muslim marriages receive only limited recognition in South African law. In the Draft Muslim Marriages Bill, there are both provisions in support of recognition and provisions against it.
Hindu marriage
Singh v Ramparsad dealt with a marriage in terms of the VedicVedic Hinduism
Vedic Hindism may refer to:*Hinduism*Shrauta, surviving conservative traditions within Hinduism*historical Vedic religion...
sect of religious Hindu
Hinduism
Hinduism is the predominant and indigenous religious tradition of the Indian Subcontinent. Hinduism is known to its followers as , amongst many other expressions...
marriage
Marriage in Hinduism
A Hindu marriage joins two individuals for life, so that they can pursue dharma , artha , kama , and moksa together...
, and an application for an order declaring
- that the Marriage Act recognises the solemnisation or validity of Hindu marriage; and, in the alternative,
- that section 11(3) of the Act is unconstitutional.
The application was dismissed on grounds of legal impossibility. A marriage concluded in terms of religious law, and compliant with the civil requirements, enjoys dual validity. The secular dissolution of such a marriage in terms of the Divorce Act
Divorce Act
Canada's Divorce Act is the federal Act that governs divorce in that country. The Constitution of Canada has explicitly made marriage and divorce the realm of the federal government rather than of the provinces....
does not have the effect of dissolving the religious marriage if, as is usually the case, that religion has its own specific requirements for dissolution. The only means for dissolving such a marriage would be to attack successfully the non-recognition of divorce in Hindu religious law. The courts could not and would not interfere in this regard.
In Govender v Ragavayah, the court dealt with an application for an order declaring a Hindu widow to be recognised as a spouse in terms of Intestate Succession Act. This it granted, reading the word "spouse" in the Act to include partners in monogamous Hindu marriages.
Opposite-sex domestic partnerships
A domestic partnership is defined by "living together outside marriage in a relationship which is analogous to, or has most of the characteristics of a marriage."
The status quo is that none of the consequences of legal marriage is automatically conferred on an opposite-sex domestic partnership. There is, however, some statutory recognition in the Compensation for Occupational Injuries and Diseases Act, and judicial recognition in the form of Volks v Robinson, which concerned a man and a woman who had lived together in a permanent life partnership. When he passed away, she lodged a claim for maintenance against his estate in terms of the Maintenance Act but was rejected by the executor. Having never married him, she did not fit the Act's definition of "survivor." It was requested of the court that it read-in partners in domestic partnerships or alternatively declare unconstitutional the relevant provision for its unjustifiable discrimination and its violation of the right to dignity. Handed down before the passage of the Civil Union Act, the majority judgment found that there had been no duty of support while the man had been alive, so there should be no duty for maintenance by his estate following his death.
Domestic partnerships are currently self-recognised and regulated. The partners may jointly enter into contracts of sale and lease, as well as into a universal partnership, whereby they agree to put in common all their property, universorum bonorum: not only what they have but also what they later acquire. Universal partnerships may be entered on either express or tacit terms, but both partners will be required to contribute, and the official objective is to make a profit. Alternatives to the universal partnership exist in the form of life partnership contracts and contracts of agency. It is also worth noting that a person may leave his estate to anyone in his will.
There is considerable debate over the future status of domestic partnerships in South Africa, particularly among feminists. The South African Law Reform Commission published a Discussion Paper on the subject in March 2006. The Civil Union Act requires registration and has a same-sex focus. The Domestic Partnerships Bill, providing for the legal recognition of domestic partnerships and the enforcement of their legal consequences, was tabled on January 14, 2008
2008 in South Africa
-January:* 12 January – Jackie Selebi is suspended as South Africa's National Police Commissioner as the National Prosecuting Authority states that they will bring charges against him for corruption and defeating the ends of justice....
. Its preamble observes that, under the Constitution, everyone is equal before the law and has the right to its equal protection and benefit. The Bill still distinguishes between registered and unregistered partnerships.
Same-sex partnerships
The foremost protection of homosexuals in South Africa is section 9 of the Constitution
Section Nine of the Constitution of South Africa
Section Nine of the Constitution of South Africa guarantees equality before the law and freedom from discrimination to the people of South Africa. This equality right is the first right listed in the Bill of Rights...
, which forbids discrimination on the basis of sexual orientation.
Statutory recognition
Same-sex partnerships also enjoy statutory recognition in South Africa, as of November 30, 2006, under the Civil Union Act, which provides for
- the right to enter into a civil union, open to both opposite-sex and same-sex couples, which may be called either a "marriage" or a "civil partnership";
- the right of a marriage officer, employed by the state, to refuse to marry same-sex couples on grounds of "conscience, religion or belief;"
- all rights and obligations and benefits of a marriage to be afforded to civil unions.
In the landmark case of Fourie, discussed above, four main arguments were made in opposition to the recognition of same-sex partnerships:
- the inability of same-sex partners to procreate;
- the need to respect religion;
- the constitutional necessity to have recourse to diverse family law systems; and
- the recognition given by international law to heterosexual marriage.
These were all ultimately rejected, and the separate-but-equal
Separate but equal
Separate but equal was a legal doctrine in United States constitutional law that justified systems of segregation. Under this doctrine, services, facilities and public accommodations were allowed to be separated by race, on the condition that the quality of each group's public facilities was to...
approach strongly dismissed as historically "a threadbare cloak for covering distaste for or repudiation by those in power of the group subjected to segregation."
Judicial recognition
There is now considerable jurisprudence in recognition of the right to equality of same-sex partners. The following judgments, excluding the already-discussed Fourie, illustrate its development:
- National Coalition for Gay and Lesbian Equality v Minister of Justice dealt with a challenge to the constitutionality of the offenceSodomy lawA sodomy law is a law that defines certain sexual acts as crimes. The precise sexual acts meant by the term sodomy are rarely spelled out in the law, but are typically understood by courts to include any sexual act deemed unnatural. It also has a range of similar euphemisms...
of sodomySodomySodomy is an anal or other copulation-like act, especially between male persons or between a man and animal, and one who practices sodomy is a "sodomite"...
, and required consideration of the common law. The court found that it amounted to a violation of the right to equality (which cannot be limited) by unfairly discriminating against gay men on basis of sexual orientation. - In National Coalition for Gay and Lesbian Equality v Minister of Home AffairsNational Coalition for Gay and Lesbian Equality v Minister of Home AffairsNational Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs and Others is a 1999 decision of the Constitutional Court of South Africa which extended immigration rights to the foreign partners of South African citizens in same-sex relationships.The Court ruled that section...
, the Alien Controls Act was found to be unconstitutional in denying same-sex partners the same rights as heterosexual partners. Immigration rights were thus extended to the foreign partners of South African citizens in same-sex relationships. - Satchwell v President of the Republic of South AfricaSatchwell v President of the Republic of South AfricaSatchwell v President of the Republic of South Africa and Another is a 2002 decision of the Constitutional Court of South Africa which determined that the same-sex life partner of a judge was entitled to the same financial benefits available to the opposite-sex spouse of a judge...
involved a challenge to certain provisions in the Judge's Remuneration and Conditions of Employment Act, which were found to be unconstitutional in their denial to same-sex life partners of the benefits usually afforded to a judge's spouse. - In Du Plessis v Road Accident Fund, a same-sex couple had lived together in a long-term relationship, having gone through a ceremony similar to marriage, and would have married had it been possible. They had the intention of reciprocal duty of support. The court held, however, that to extend to such partners the common-law action for loss of support would be an incremental step to ensure that the common law accorded with the dynamic and evolving fabric of South African society as reflected in the Constitution, recent legislation and judicial pronouncements, and therefore that the plaintiff was entitled to claim damages from the defendant for loss of that support.
- In Gory v Kolver, when Henry Brooks died intestate, his parents nominated Daniel Kolver to be the executor of his estate, this decision being made on the basis that Brooks had no spouse. Mark Gory, however, wished to inherit in terms of Intestate Succession Act. The court held that the relationship between Brooks and Gory amounted to a same-sex permanent life partnership, and that they had pursued reciprocal duties of support. The exclusion of same-sex partners from the Act was unconstitutional, and the court ordered a reading-in of words "or partner in a permanent same-sex life partnership in which the partners have undertaken reciprocal duties of support."
It is unlikely, given the provisions of Civil Union Act and its recognition of same-sex marriages, that the court will hear very many such cases in the future.
Engagement
An engagementEngagement
An engagement or betrothal is a promise to marry, and also the period of time between proposal and marriage which may be lengthy or trivial. During this period, a couple is said to be betrothed, affianced, engaged to be married, or simply engaged...
, which is an agreement sui generis, is generally defined in the common law as "a legal agreement between a man and a woman to marry each other on a specific or determinable date." Despite the constitutional developments discussed previously, this definition remains in place today.
Capacity
- To enter into an engagement, one must generally be eighteen years of age (the age of majority) or older.
- Minors require the consent of both their parents or guardians (unless certain circumstances are in place or a court order is granted). Removal of consent results in the immediate termination of the engagement.
- Persons with mental illnessMental illnessA mental disorder or mental illness is a psychological or behavioral pattern generally associated with subjective distress or disability that occurs in an individual, and which is not a part of normal development or culture. Such a disorder may consist of a combination of affective, behavioural,...
cannot become engaged.
Consensus
Consensus is precluded, inter alia, by mistake, misrepresentation, metus and undue influence.Mistake
Mistake may take two following forms:
- Error in persona (mistake as to the person with whom consensus has been reached); and
- Error in negotio (mistake as to nature of the juristic act).
Mistake results in the engagement's being void. There can be no claim for damages by either party.
Misrepresentation
Misrepresentation occurs where, had the innocent party known the truth, he or she would not have become engaged to the other party. The rescission of an engagement is justified where the misrepresentation is material. If it seriously jeopardises the possibility of achieving a happy and harmonious marriage, the engagement will be void. Misrepresentation will render the engagement voidable at the instance of the innocent party. Among the legitimate grounds for terminating the engagement are such personal qualities as impotence, sterility
Sterility
Sterile or sterility may refer to:*Sterilization , a term referring to any process that eliminates or kills all forms of life from an item or field*Sterility , an inability of a living organism to effect sexual reproduction...
and serious mental illness.
The issue of misrepresentation by omission was raised in Schnaar v Jansen, where one of the parties to the engagement omitted to mention
- that one of her uncles had been found guilty of (and hanged for) murderMurderMurder is the unlawful killing, with malice aforethought, of another human being, and generally this state of mind distinguishes murder from other forms of unlawful homicide...
ing his wife; - that another uncle was in an interracial marriageInterracial marriageInterracial marriage occurs when two people of differing racial groups marry. This is a form of exogamy and can be seen in the broader context of miscegenation .-Legality of interracial marriage:In the Western world certain jurisdictions have had regulations...
; and - that her brother had been convicted of housebreakingHousebreakingHousebreaking is the process of training a domesticated animal that lives with its human owners in a house to excrete outdoors, or in a designated indoor area, rather than inside the house. The pet owner's desire is to break the habit of eliminating in the house, hence the term...
and theftTheftIn common usage, theft is the illegal taking of another person's property without that person's permission or consent. The word is also used as an informal shorthand term for some crimes against property, such as burglary, embezzlement, larceny, looting, robbery, shoplifting and fraud...
.
The court held, however, that as none concerned a personal quality of hers, she was under no obligation to disclose these facts to her then-fiancé. She was therefore able to claim damages for breach of promise of marriage.
An engagement may also be rescinded on the ground of innocent misrepresentation. In Thelemann v Von Geyso, Von Geyso was coaxed into a marriage on the belief, which Thelemann held also, that she was pregnant. He was successful in his defence.
Lawfulness
One must have competence to marry if one is to enter into an engagement. One cannot become engaged, for instance, while one is married to someone else. In Friedman v Harris, it was held that payment for the promise to become engaged renders the engagement void, as it is contra bonos mores, and the payer will not be entitled to return of the amount paid.If one party was unaware, entering into the engagement, that the other was married, he or she may bring action against the other party.
Possibility
Performance of the engagement contract will be impossible if the parties are not permitted to marry. This is always the case for minors below the age of pubertyPuberty
Puberty is the process of physical changes by which a child's body matures into an adult body capable of reproduction, as initiated by hormonal signals from the brain to the gonads; the ovaries in a girl, the testes in a boy...
and for parties who fall within prohibited degrees of relationship
Incest
Incest is sexual intercourse between close relatives that is usually illegal in the jurisdiction where it takes place and/or is conventionally considered a taboo. The term may apply to sexual activities between: individuals of close "blood relationship"; members of the same household; step...
.
Consequences
Engagement confers the duty to marry and to be faithful. There is nno duty, however, to be intimate. The date of marriage must be set within a reasonable time, and there will be a breach of promise if a party refuses to marry on the agreed-upon date. An engagement may be concluded subject to conditions, but these may not be immoral, illegal, impossibleImpossibility
In contract law, impossibility is an excuse for the nonperformance of duties under a contract, based on a change in circumstances , the nonoccurrence of which was an underlying assumption of the contract, that makes performance of the contract literally impossible...
or in conflict with the nature of marriage.
Termination
Engagement is terminated most obviously on marriage, but it may also be terminated- by the death of one of the parties;
- by mutual agreement;
- in the case of minors, by the withdrawal of parental consent; and
- by unilateral termination.
Unilateral termination
A unilateral termination must be justified; it must constitute a iusta causa, such as sterility, impotence, hereditary disease or a serious crimeCrime
Crime is the breach of rules or laws for which some governing authority can ultimately prescribe a conviction...
. Ceasing to love
Love
Love is an emotion of strong affection and personal attachment. In philosophical context, love is a virtue representing all of human kindness, compassion, and affection. Love is central to many religions, as in the Christian phrase, "God is love" or Agape in the Canonical gospels...
the other party does not constitute a iusta causa; nor, as in Schaar, does the non-disclosure of facts which do not bear on the personal qualities of the party who omitted them. A mistaken impression as to "the nature, mental worth, appearance, status or financial position of the other does not constitute a ground for terminating the engagement and is, therefore, irrelevant."
In Krull v Sangerhaus, the court held that, to constitute a iusta causa for unilateral termination, the cause must be of a sufficiently serious nature. The allegation of a dispute between the parties' parents regarding the wedding reception, even if it also involved the parties, was "too frivolous a circumstance to warrant a repudiation."
If the unilateral termination is unjustified, it will amount to a breach of promise.
Breach of promise
The unreported case of Bridges v Van Jaarsveld deals with the constitutional approach. The claimant should keep contractual damages separate from delictual damages. One may not claim performance for breach of promiseBreach of promise
Breach of promise is a former common law tort.From at least medieval times until the early 20th century, a man's promise of engagement to marry a woman was considered, in many jurisdictions, a legally binding contract...
.
Contractual damages
Contractual damages (patrimonial loss from the breach of promise) are calculated on the basis of positive interest. The courts are not consistent in this regard; each case is determined on its specific merits. The courts will, however, consider the following elements:- the manner of the breach;
- the motives behind the breach;
- social status;
- the plaintiff's age; and
- potential for future marriage.
It is probably best to say that damages are sui generis in this area of the law.
In Guggenheim v Rosenbaum a divorced woman in New York
New York
New York is a state in the Northeastern region of the United States. It is the nation's third most populous state. New York is bordered by New Jersey and Pennsylvania to the south, and by Connecticut, Massachusetts and Vermont to the east...
met a man domiciled in South Africa. After accepting his proposal, it was arranged that she would come to South Africa to marry him. She gave up her flat, her car and certain of her furniture (the rest being stored), as well as her employment. On their arrival in Johannesburg
Johannesburg
Johannesburg also known as Jozi, Jo'burg or Egoli, is the largest city in South Africa, by population. Johannesburg is the provincial capital of Gauteng, the wealthiest province in South Africa, having the largest economy of any metropolitan region in Sub-Saharan Africa...
, however, he refused to marry her. The court found that theirs was a valid engagement and therefore that she was entitled to both actual and prospective loss.
Sepheri v Scanlan sets out some of the factors to be considered in assessing contractual damages, among them engagement for a long period of years, constant travel and possibly community of property.
Delictual damages
Delictual damages, for the infringement of personality rights, require the plaintiff to prove- injury to a personality interest; and
- intention to injure.
The amount of damages is left to the discretion of the court based on several factors:
- the way in which breach occurred;
- the motives behind that course of conduct;
- the social status of the parties; and
- previous life experiences.
Sepheri v Scanlan involved an engagement of more than five years and the relinquishment of career prospects, but no delictual damages (for iniuria or contumelia) were awarded. In light of the contractual damages awarded, the court determined that it would be inappropriate to make an additional award in respect of conduct "which for all its emotional pyrotechnics was an inevitable consequence of ferocious litigation."
Seduction
Damages may be claimed for seduction
Seduction
In social science, seduction is the process of deliberately enticing a person to engage. The word seduction stems from Latin and means literally "to lead astray". As a result, the term may have a positive or negative connotation...
, or extramarital sex
Extramarital sex
Extramarital sex occurs when a married person engages in sexual activity with someone other than his or her marriage partner.Where extramarital sexual relations breach a sexual norm it may also be referred to as adultery, fornication, philandery, or infidelity...
with a virgin with her consent. The plaintiff will need to prove
- that she was a virginVirginityVirginity refers to the state of a person who has never engaged in sexual intercourse. There are cultural and religious traditions which place special value and significance on this state, especially in the case of unmarried females, associated with notions of personal purity, honor and worth...
; - that she was seduced; and
- that sexual intercourseSexual intercourseSexual intercourse, also known as copulation or coitus, commonly refers to the act in which a male's penis enters a female's vagina for the purposes of sexual pleasure or reproduction. The entities may be of opposite sexes, or they may be hermaphroditic, as is the case with snails...
resulted from that seduction.
In M v M a Hindu marriage was entered into between a minor and the defendant, a major. An agreement was reached between the defendant and the plaintiff, acting in his capacity as father and natural guardian of his minor daughter, that the marriage would subsequently be registered according to the laws of South Africa. After their Hindu marriage, the minor (a virgin), in anticipation of their civil marriage, allowed the defendant to have sex with her. The defendant subsequently repudiated his obligation to register the marriage, and the plaintiff claimed damages for seduction and breach of promise to marry.
The court found that the fact that the defendant's father and the plaintiff had negotiated the terms of the marriage in accordance with Hindu custom did not have the result that no privity of contract existed between the minor and the defendant. The Marriage Act did not prohibit the contracting of a valid espousal through the agency of another. The defendant, therefore, was bound to his undertaking to register the marriage. His failure to honour that obligation without lawful excuse constituted a breach of promise.
Return of engagement gifts
The return of engagement gifts depends on two things: the type of gift and the manner in which the engagement was terminated.Sponsalitia largitas
Sponsalitia largitas or donationes propter nuptias are gifts made in anticipation of marriage. The intention is to confer a lasting benefit during the marriage on the receiver. These include, for example, a house, a car and jewellery. There is a presumption, indeed, that valuable gifts of a lasting nature, given during the engagement, were given in anticipation of the marriage.
Arrhae sponsalitiae
Arrhae sponsalitiae are gifts which reflect the seriousness of the intention of the donor to marry the other party. These are given with the intention that they will be forfeited to the receiver should the donor commit a breach of promise. The engagement ring, therefore, may be retained by the receiver and need only be returned if the engagement is terminated without any fault on the part of the donor.
Small tokens
Small tokens are unconditional gifts, given as tokens of affection. These include, for example, flowers.
Mutual consent
The general rule is that all gifts, other than small tokens of affection and those which have been alienated or lost or consumed, must be returned if the engagement is terminated by mutual consent.
Iusta causa
The general rule also applies if the engagement is broken off for a reason not imputable to the fault of one of the parties; for instance, if one of them has become insane or impotent, or because both parties' conduct has become such to make marriage unlikely.
Breach of promise
If the engagement has been wrongfully terminated by one of the parties, the innocent party may recover all gifts except those of negligent value.
Books
- B Clark Family Law Service (2011).
- DSP Cronje, AH Barnard and PJJ Olivier The South African Law of Persons and Family Law (1990).
- DSP Cronjé & J HeatonSouth African family law (2004).
- J Eekelaar and T Nhlapo (eds) The Changing Family: Family Forms and Family Law (1998).
- JA Robinson, et al Introduction to South African Family Law 4 ed (2009).
Cases
- Amod v Multilateral Motor Vehicle Accidents Fund (Commission For Gender Equality Intervening) 1999 (4) SA 1319 (SCA).
- Daniels v Campbell NO and OthersDaniels v CampbellDaniels v Campbell NO and Others, an important case in South African law, was heard in the Constitutional Court on November 6, 2003, with judgment handed down on March 11, 2004.- Facts :...
2004 (5) SA 331 (CC). - Dawood and Another v Minister of Home Affairs and Others; Shalabi and Another v Minister of Home Affairs and Others; Thomas and Another v Minister of Home Affairs and Others 2000 (3) SA 936.
- Ex Parte Chairperson of the Constitutional Assembly: In re Certification of the Constitution of the Republic of South Africa 1996 (4) SA 744 (CC).
- Ex parte Inkley and Inkley 1995 (3) SA 528 (C).
- Fourie v Minister of Home Affairs 2005 3 SA 429 (SCA).
- Friedman v Harris 1928 CPD 43.
- Gory v Kolver NO and Others (Stark and Others Intervening) 2007 (4) SA 97 (CC).
- Govender v Ragavayah NO and Others 2009 (3) SA 178 (D).
- Guggenheim v Rosenbaum 1961 (4) SA 21 (W).
- Hassam v Jacobs NO and OthersHassam v JacobsHassam v Jacobs NO and Others, an important case in South African law, was heard in the Constitutional Court on February 19, 2009, with judgment handed down on July 15.- Facts :...
2009 (5) SA 572 (CC). - Kahn v Kahn 2005 (2) SA 272 (T).
- Kuhn v Karp 1948 (4) SA 825 (T).
- Krull v Sangerhaus 1980 (4) SA 299 (E).
- M NO v M 1991 (4) SA 587 (D).
- Maynard v Hill 1887 (125) US 190.
- Minister of Home Affairs and Another v Fourie and Another; Lesbian and Gay Equality Project and Others v Minister of Home Affairs and Others 2006 (1) 524 (CC); 2006 3 BCLR 355 (CC).
- National Coalition for Gay and Lesbian Equality and Another v Minister of Justice and Others 1999 (1) SA 6 (CC).
- National Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs and OthersNational Coalition for Gay and Lesbian Equality v Minister of Home AffairsNational Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs and Others is a 1999 decision of the Constitutional Court of South Africa which extended immigration rights to the foreign partners of South African citizens in same-sex relationships.The Court ruled that section...
2000 (2) SA 1 (CC). - Rattigan and Others v Chief Immigration Officer, Zimbabwe, and Others 1995 (2) SA 182 (ZS).
- Ryland v Edros 1997 (2) SA 690 (C).
- Satchwell v President of the Republic of South AfricaSatchwell v President of the Republic of South AfricaSatchwell v President of the Republic of South Africa and Another is a 2002 decision of the Constitutional Court of South Africa which determined that the same-sex life partner of a judge was entitled to the same financial benefits available to the opposite-sex spouse of a judge...
2002 (6) SA 1. - Singh v Ramparsad and Others 2007 (3) SA 445 (D).
- Schnaar v Jansen 1924 (45) NPD 218.
- Sepheri v Scanlan 2008 (1) SA 322 (C).
- Thelemann v Von Geyso 1957 (3) SA 39 (W).
- Van der Westhuizen v Van der Westhuizen and Another 1996 2 SA 850 (C).
- Volks NO v Robinson and Others 2005 (5) BCLR 446 (CC).
- Women's Legal Centre Trust v President of the Republic of South Africa and OthersWomen's Legal Centre Trust v President of the Republic of South AfricaWomen's Legal Centre Trust v President of the Republic of South Africa, an important case in South African law, was heard in the Constitutional Court on May 20, 2009, with judgment handed down on July 22, 2009.- Facts :...
2009 (6) SA 94 (CC).
Statutes
- Alien Controls Act 96 of 1991.
- Children's ActChildren's Act, 2005The Children's Act, 2005 is an act of the Parliament of South Africa that consolidates and reforms the law on matters related to children...
38 of 2005. - Civil Union ActCivil Union Act, 2006The Civil Union Act, 2006 is a South African Act of Parliament which legalised same-sex marriage. It was enacted as Parliament's response to the judgment of the Constitutional Court in the case of Minister of Home Affairs v Fourie, which ruled that it was unconstitutional for the state to provide...
17 of 2006. - Compensation for Occupational Injuries and Diseases Act 130 of 1993.
- Intestate Succession Act 81 of 1987.
- Judge's Remuneration and Conditions of Employment Act 47 of 2001.
- Maintenance of Surviving Spouses Act 27 of 1990.
- Marriage ActMarriage Act, 1961 (South Africa)The Marriage Act, 1961 is an act of the Parliament of South Africa governing the solemnisation and registration of marriages in South Africa...
25 of 1961. - Recognition of Customary Marriages Act 120 of 1998.
Website
- Law24.com "Engagements" (2011) Law24.com (accessed 9 November 2011).