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FAMILY LAW PVL2601 -Protective Measures in Matrimonial Property Act iro of…

- - - - concluded orally or in writing
    - - Acronym- CCLP (consent,capacity,lawful,possible)
      - Parties must agree (must be consensus) about the marriage
      - parties must have capacity to act (minor needs permission or mentally ill is incapable)
      - engagement must be lawful (parties are unmarried and able to marry)
      - engagement must be judicially and factually possible
    - - ERROR in PERSONA (Material Mistake)
        
        the woman or man for instance thinks he or she is marry x while she is actually marrying y.
        
        Mistaken Identity
      - ERRO in NEGOTIA (Material Mistake)
        
        one of the parties could consider that promise as merely an informal agreement or a joke
      - material mistake = engagement is void
        
        material mistakes results in the engagement being void and thus neither party can claim for damages on the basis of breach of promise.
      - material misrepresentation = engagement is voidable by party who was misled
        
        party x misleads party y about certain facts in relation to the agreement
        
        had party Y known all the facts he would have either NOT entered into the agreement or he would have changed the terms of the agreement
    - - Marriage
      - Death of either person
      - Mutual agreement
      - Withdrawal of parental consent when the party is a minor
      - Unilateral and justified termination based on sound reasons (justa causa)
        
        fact or occurrence which comes about after the engagement has been entered into
        
        will seriously jeopardise the chances of a happy and lasting marriage
        
        NOT JUSTA CAUSA
        
        person A no longer in love
        
        WILL not seriously jeopardise the chances of a
        happy marriage.
        
        will constitute breach of promise
        
        unlawful termination of the engagement
        
        innocent party can claim damages
        
        iniuria (infringement of personality)
      - If parties mutually agree to terminate engagement or due to justa cuasa, all gifts including rings must be returned by both parties. Gifts already used up need not be.
  - - - Requirements
        
        MUST HAVE Capacity to ACt
        
        CAPACITY TO ACT
        
        Mentally ill person does not have the capacity to become engagement as long as the illness lasts.
        
        a MINOR must obtain their PARENTS CONSENT
        
        Emancipated minor has to obtain parental consent.
        
        Minor below 18 who has already been married and now divorced does not require parental consent.
        
        BOTH parties to a marriage must have capacity to act
        
        Consensus
        
        factors affecting consensus?
        
        Mistake
        
        Misrepresentation-
        
        Duress
        
        Undue influence
        
        Must be lawful
        
        Prescribed formalities must be complied with
        
        Marriage by proxy not permitted. Parties must be personally present
        
        Case -Ex Parte Dow
        
        Registration- Marriage register must be signed
        
        parties to the marriage
        
        two witnesses
        
        marriage officer
        
        not done, marriage is still valid
        
        Prohibited degrees of relationship
        
        certain people may not marry each other because they are too closely related.
        
        Related by blood (cosanguity)
        
        collateral line are not ascendants or descendants but have a common ancestor
        
        Relatives in direct line are Ascendants (forebears or ancestors: parents, grandparents, great-grandparents and so on)
        
        Descendants (born of you: children, their children and so on)
        
        Related by marriage (affinity)
        
        Affinity in the direct line-
        
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        Affinity in the collateral line
        
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        Relationship can be in the direct line or collateral.
        
        PROHIBITIONS- who may not marry RULES
        
        Rule 1-
        
        Blood relatives in the direct line
        
        Rule 2
        
        Blood relatives in the collateral line may not marry if either of them is related to their common ancestor within
        the first degree or generation
        
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        Rule 3
        
        Persons related to each other by affinity in the direct line may not marry
        
        Rule 4
        
        Persons related to each other by affinity in the collateral line are allowed to marry
    - - Minor = 7 - 18 years old
      - Minors have limited capacity to act so they MUST obtain permission to enter into Marriage
        
        Both parents alive = both parents must consent even if they are divorced
        
        If one parent is dead = the surviving parent must provide permssion
        
        if the both parents are dead = then the GUARDIAN must provide consent
        
        if both parents are not able and the minor has no guardian = Commissioner of Child Welfare gives consent
        
        if the Commissioner of Child Welfare refuses = then HIGH COURT can provide consent
        
        The Minister of Home Affairs can also provide consent if Boy < 18 years and girl < 15 years and have reached puberty
      - ABSENCE OF REQUIRED CONSENT
        
        Validity
        
        24A Marriage Act 25 of 1961
        
        says that minors marriage is NOT void if consent is not obtained
        
        PLEASE NOTE =
        
        However a competent court may dissolve it on grounds of lack of consent on application by parents or guardian or minor themselves within certain periods
        
        Patrimonial consequences
        
        marriage is dissolved on ground of lack of consent
        
        court can make an order
        regarding the division of matrimonial property
        
        marriage is not dissolved
        
        the Act provides
        
        If the parties have not entered into an antenuptial contract, community of property applies
        
        the parties entered in to ANC where accrual was not excluded, the ANC is valid
        
        It does not provide for if the ANC is excluded. The question arises whether the contract is valid or void.
        
        Distribution of Marital property on dissolution of marriage
        
        patrimonial consequences of the marriage are the same as if the minor were of
        
        age when the marriage was entered into and any antenuptial contract in terms of which the accrual system is included and
        
        which has been executed with a view to such a marriage is deemed to have been validly executed.
    - - Two grounds for nullity of a marriage
        
        1 Non -compliance with formal requirements for a valid marriage
        
        2 Non -compliance with the material requirements for a valid marriage
      - Consequences of a void marriage
        
        void marriage does not have the legal consequences of a valid marriage therefore
        a court order declaring the marriage void is not essential.
        
        DOES NOT have the legal consequences of a valid marriage
        
        Status of parties = unmarried
        
        children born of unmarried parents = illegitimate kids
        
        a DECLARATORY order of the court should be obtained just to state the marriage is VOID
      - A VOIDABLE marriage is a marriage can be set aside due to reasons which are present before the Marriage
        
        Grounds for setting aside a voidable marriage
        
        Minority
        
        arriage of a minor can be set aside if entered into without consent at request of parents, guardians or
        minor
        
        stuprum
        
        extramarital sexual intercourse with a 3rd party before the marriage
        
        When can a man apply for the annulment of his marriage on the ground of stuprum? A man can apply for
        annulment where his wife was pregnant with another mans child as the time of entering into the marriage
        
        material mistake
        
        Mistake concerning identity of other person (error in personam)
        and mistake concerning nature of the juristic act (error in negotio)
        
        impotence
        
        one spouse has to prove that the other was already impotent before entering the marriage. Either spouse
        may apply for annulment provided that she was unaware of the impotence.
        
        When will an applicant fail with his application for the annulment of marriage on the ground of impotence?
        
        If applicant was aware of the impotence
        
        If applicant condoned or excused the impotence
        
        impotence was temporary or probably curable
        
        sterility
        
        person is able to have sexual intercourse but cannot procreate children and is thus infertile
        
        Court case law
        
        Van Niekerk v Van Niekerk = mere fact of sterility renders the marriage voidable
        
        Venter v Venter = that not the presence of sterility which renders it voidable but the fraudulent concealment thereof
        
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        undue influence
        
        duress
        
        Consequences of a voidable civil marriage- remains in force until set aside by a court order
        
        a voidable remains in force until a court sets it aside
        
        Has all the same consequences as a valid marriage
        
        Status of parties = married
        
        children born of married parents (legitimate kids)
        
        MUST be annulled by a COURT ORDER
      - Putative Marriages
        
        a void marriage can also be a putative marriage
        
        When one or both parties were unaware that something caused their marriage to be void
        
        they acted in good faith
        
        They believed they were married lawfully
        
        Unlike a marriage which is merely void, the putative marriage has some of the legal consequences of a valid
        marriage.
        
        Children born of these marriages are legitimate
        
        Patrimonial consequences will depend on whether one or both parties were bona fide
    - - INVARIABLE
        
        come into effect automatically by operation of the law
        
        CANNOT be EXCLUDED by the parties
        
        Mainly concern the person of the spouses
      - VARIABLE
        
        Can be agreed upon or excluded beforehand by the parties in an ANC
        
        Mainly affect the estates of each spouse
        
        UNIT 5 anc ANTE NUPTIAL CONTRACTS
        
        The purpose of an antenuptial contract
        
        to exclude all or some of the common-law and statutory consequences of marriage, in particularly those relating to the matrimonial property system.
        
        The formalities for the creation of a valid antenuptial contract
        
        If antenuptial contract is not properly executed by a notary and registered at the Deeds Office, it is not valid against third parties (s 86 of the Deeds Registries Act 47 of 1937).
        
        unregistered antenuptial contract is known as an informal antenuptial contract and is only valid between the spouses
        
        Postnuptial execution and registration of an antenuptial contract
        
        Section 88 of the Deeds Registries Act which govern the execution and registration of an antenuptial contract after the marriage
        
        Validity of an antenuptial contract against third parties:
        
        Deeds Registries Act provides that an antenuptial contract must comply with the formalities of notarial execution and registration to be valid against third parties
        
        execution and registration of the antenuptial contract after the marriage,
        
        Section 88 of the Deeds Registries Act allows execution after the marriage but you need HIGH COURT CONSENT
        
        Additional requirements which apply to the antenuptial contract of a minor
        
        Pages 87 and 88 of your textbook discusses whose consent or assistance is required for the conclusion of a valid antenuptial contract by a minor.
        
        The contents of the antenuptial contract
        
        Provisions
        
        The matrimonial property system
        
        purpose of an antenuptial contract is usually to deviate from the automatic matrimonial property consequences of marriage, namely marriage in community of property
        
        A right of recourse in respect of household necessaries
        
        antenuptial contract can also contain provisions regarding a spouse's right of recourse in respect of liability for household necessaries.
        
        arriages out of community of property section 23 of the Matrimonial Property Act governs this liability.
        
        Succession
        
        What is a pactum successorium and may it be included in an antenuptial contract? Study the answers to these questions on page 89 of the textbook.
        
        Marriage settlements
      - Spousal maintenance
        
        support and maintenance in the same thing
        
        reciprocal duty on spouses to maintain each other
        
        duty arises at start of marriage as soon as it has been solemnised and lasts until termination (death or divorce)
        
        Requirements for duty of support between spouses
        
        must be a valid marriage between parties
        
        person claiming support must be in need of support
        
        person from whom support is claimed must be able to provide it
        
        Recovery of debts for support
        
        COP = debt recovered First from the joint estate
        
        out of COP
        
        spouse who incurred the debt is liable unless the debt
        was in respect of household necessaries in which case both will be jointly liable
        
        In terms of Divorce Act
        
        Duty to support lasts till end of marriage
        
        However a court can grant order for maintenance after
        divorce
        
        in terms of Maintenance of surviving spouse Act
        
        surviving spouse can be maintained
        out of the estate of the deceased
        
        CASE LAW
        
        FELDMan v Oshry overuled by SCA in Oshry and oshry v Feldman
        
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        If marriage still exists
        
        duty may be terminated only if the spouses no
        longer live together and if the spouse who is claiming is the one who caused the separation
        
        TERMINATION of a JOINT household
        
        joint household no longer exists one spouse can no longer bind the other in contract to
        buy household necessaries.
        
        When household terminates, one of the requirements for the capacity to buy household good
        necessaries is no longer met and the capacity no longer exists.
        
        DOES NOT mean a spouse cannot still bind the other on
        the basis of the duty to support.
        
        CASE LAW: Reloomel v Ramsay- court set out how one should determine whether a particular item is a household necessary or
        not.
        
        COURT an apply a SUBJECTIVE approach
        
        COURT can apply an OBJECTIVE approach
        
        If court revokes a spouses power to buy household necessaries, the other spouse will not be liable for it.
        
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        The Maintenance Act 99 of 1998
        
        Applies in respect of the legal duty of any person to maintain another irrespective of the relationship
        
        Therefore it applies also to contractual duties between people not related by blood or marriage.
        
        Maintenance court can make order for payment of maintenance by lump sum and periodical payments
        
        order of the maintenance order has the effect of an order made in a civil action and can be enforced in the
        ordinary courts.
        
        rovisions of Act can be invoked before debtor is
        convicted of an offence of failing to pay
        
        If he fails to pay within 10 days from the date it is payable,
        the creditor can apply for:
        
        Authorisation of a warrant of execution against the maintenance debtors property
        
        Order for the attachment of emoluments due to the maintenance debtor (ie. Attachment of wages, allowance etc
        whether in money or not)
        
        Order for attachment of any present or future debt owing to or accruing to him
        
        The Matrimonial Home
        
        As a result of marriage, both spouses have the right to occupy the matrimonial home irrespective of how they are
        married and of who rents or owns it.
        
        Parental responsibility and rights
        
        Both parents have parental responsibilities and rights in respect of their children born of the marriage
        
        Donations between Spouses
        
        COP = no donations between spouses EXCEPT if the asset is NOT part of the joint estate
        
        has a ZERO SUM effect in a COP marriage
        
        FAMILY NAME
        
        Wife does NOT have to take her Husbands surname
        
        She can keep her surname or have a double barreled surname
        
        Husband must apply to the director general if he wants to take his wife's surname
      - Unit 7 (Dissolution of a civil marriage general and dissolution by death) -Pg 14 in REN
        
        three ways in which a marriage can be dissolved
        
        DEATH
        
        Community of Prop regime
        
        Marriage ends @ death = COP ENDS (PG 14 REN notes)
        
        DIVORCE
        
        ANNULMENT
        
        Judicial separation
        
        ABOLISHED by Section 14 of DIVORCE ACT
        
        Extra-judicial separation
  - - - contra bonos mores – against good morals.
- - - - Estate Sayle V Commissioner For Inland Revenue & De Wet V jurgens
    - - Assets = both before marriage + after marriage
      - Ownership takes place automatically by law
      - Assets excluded
        
        excluded by ANC
        
        Excluded by DEED and Donation
        
        Assets subject to FIDEICOMISSUM or USUFRUCT
        
        Jocalia (engagement gifts)
        
        Benefits under Friendly Societies Act
        
        Non Patrimonial Damages
        
        Costs in Matrimonial Action
        
        Assets which replace separate assets
        
        Assets as result of personal injury inflicted by spouse
        
        Proceeds excluded by court in terms of Prevention of Organised Crime Act
    - - Spouse is liable for damages for NON - PATRIMONIAL LOSS
        
        DUE to DELICT committed by him or a CONTRIBUTION is recoverable from spouse under the APPORTIONMENT of DAMAGES act
        
        THIS is damage or contribution is recovered from the separate property owned by the spouse
        
        IF this has to be recovered from the JOINT estate then an adjustment to the joint estate will be made in favour of the other spouse if the estate is dissolved
    - - SEC 14 of MATRIMONIAL Property ACT
        
        Marital power is replaced by EQUAL concurrent MANAGEMENT in COP marriages
        
        means that spouses have equal powers to manage estate
        
        any spouse may perform any JURISTIC ACT with regard to joint estate WITHOUT CONSENT
        
        EXCEPT acts which are EXCLUDED by the ACT
        
        Different FORMS of CONSENT NEEDED to perform certain acts
        
        Prior WRITTEN consent + attested by 2 competent witnesses
        
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        Written Consent + ATTESTED by 2 competent witnesses
        
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        Written consent
        
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        ORAL or TACIT consent
        
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        NO Consent needed
        
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      - Protective Measures in Matrimonial Property Act iro of admin of joint estate
- - - - civil union partners can choose whether they want to call their union, marriage or a civil partnership
        
        same consequences as a marriage in terms of the marriage act
  - - - it must be MONOGOMOUS
- - - - if below the age of 18 years then you need get permission from the Min of HOME Affairs
    - - also determined by CUSTOMARY LAW
  - - - had to be registered before 15 November 2002
        
        NON registration DOES NOT affect the validity of the marriage
        
        any interested person or spouse may apply
    - - must be registered within 3 months after the date of the marriage
      - non registration DOES NOT affect validity
  - - - IRRETRIEVABLE BREAKDOWN
    - - Spousal Maintenance
      - distribution of assets
      - forfeiture of benefits
      - orders regarding costs
    - - court must consider any arrangements made according to customary law
      - Court may order a joinder of anyone with SUFFICIENT Interest in the divorce proceedings