Summary PVL2601 - Family Law-study-notes.

PVL2601 - Family Law-study-notes. LEGAL REQUIREMENTS FOR THE CONCLUSION OF A VALID CIVIL MARRIAGE: Marriage is traditionally defined as the legally recognized life long voluntary union between two parties to the exclusion of all others.  Capacity to act – mentally ill persons - if they enter into marriage the moment this occurs marriage is void.  Infant (children below age of 7) do not have the capacity to act.  Prodigals (a person with normal mental ability but who is unable of managing his or her own affairs because he or she squanders his or her assets in an irresponsible reckless way as a result of some defect in his or her power of judgment of character) may marry without consent. A marriage is not valid unless it is lawful for the parties to marry Ex parte Dow – applicant applied for an order declaring this marriage null and void because the wedding had taken place, in conflict with section 29(2) of the marriage act, in front of a garden. Marriage was declared valid. Consensus – forms the basis of and is fundamental requirement for entering into a marriage. Both parties must have the will to marry each other. Error in persona and error in negotio are the only forms of material mistakes recognized in connection with marriage. Misrepresentation – if one party misleads another prior to marriage by making false statements or creating a false impression by concealing information which should have been divulged and thereby persuades the other to enter into marriage, marriage is voidable if misrepresentation was of a serious nature. Duress- if one spouse was forced to consent to the marriage by duress, the marriage is voidable.In smit v smit the woman was coerced to such an extent by her father and prospective husband that she appeared dazed and lacked the will of her own during the wedding. The court concluded that the duress rendered the marriage voidable and therefore set marriage aside. Undue influence also renders a marriage voidable; generally an unlawful marriage is void. Persons within the prohibited degrees of relationship – our law prohibits marriage between persons within certain degrees of relationship. Marriages entered into in conflict with this prohibition are void. RELATIONSHIPS prohibited -  Consanguinity – relationship which is created by birth between persons. It is irrelevant if legitimate or illegitimate (blood relationship) – direct line – your parents, your children.  Consanguinity (blood relationship)– collateral line – your brothers ,sisters, nephews ,nieces and cousins  Affinity - relationship that comes into place by marriage and blood relations of spouses (relationship by marriage) – direct line – your parents in law, your step children  Affinity (relationship by marriage) – collateral line – your sister in law , brother in law  Ascendants – your grandparents, your parents  Descendants – your children, your grandchildren BLOOD LINES: S - The Marketplace to Buy and Sell your Study Material Downloaded by: SUCCESS01 | Distribution of this document is illegal S - The Marketplace to Buy and Sell your Study Material  A woman may not marry her deceased husbands father  A man may not marry his sisters daughter  A man can marry his deceased’s brother wife  A stepchild is a relative by affinity in the direct line  You and sister in law – affinity in the collateral line Formalities preceding the marriage ceremony – section 12 of the marriage act provide that a marriage officer may not solemnize a marriage unless each party furnishes his or her identity document or prescribed affidavit. For marriage both parties must be present personally. No one can conclude a valid marriage through representation. Marriage officer who solemnizes a marriage, the parties thereto and 2 competent witnesses must sign marriage register immediately after marriage has been solemnized. VOID, VOIDABLE AND PUTATIVE CIVIL MARRIAGES: VOID MARRIAGE - a void marriage is one which has simply never come into existence. The position is thus exactly as it would have been had the “marriage” never been concluded Ground for nullity –  Marriage is solemnized by someone who is not a competent marriage officer  No witnesses present at marriage  One party is already married  The parties are related to each other within the prohibited degrees of relationship  One of the parties is below age of puberty  One of the parties is mentally ill A CONSEQUENCE OF A VOID MARRIGE – a marriage is void ad initio – from the outset – does not have legal consequences of a valid marriage. VOIDABLE MARRIAGE – is a marriage in which grounds are present either before or at the time of the wedding, on the basis of which the court can be requested to set the marriage aside. Grounds for setting aside:  Minority  Stuprum – extra marital sexual intercourse with a third party before the marriage  Material mistake  Impotence  Sterility CONSEQUENCES OF A VOIDABLE MARRIAGE: A voidalbe marriage remains in force and has all the normal legal consequences of a valid marriage until it is set aside by a court order. PUTATIVE MARRIAGE – exists when one of the parties to the marriage or both of them married unaware that there is a defect which renders the marriage void. At the time of entering into the marriage the particular party therefore believes in good faith that he or she is entering into a valid civil marriage (example parties did not know that they were related within the prohibited degrees of relationship). Both parties must be unaware of defect. CONSEQUENCES OF A PUTATIVE MARRIAGE: Downloaded by: SUCCESS01 | Distribution of this document is illegal S - The Marketplace to Buy and Sell your Study Material Is void ab initio, it has some of the legal consequences of a valid marriage for as long as at least one of the parties is bona fide, one of the parties on reasonable grounds was unaware of defect that renders the marriage void. PRESCRIBED CASE – MOOLA V AULSEBROOK: The applicant and her deceased husband had gone through a marriage ceremony in accordance with Islamic rites by a priest who was not a duly appointed marriage officer. Neither spouse was aware that they had to be married by a duly appointed marriage officer. The spouses lived together in monogamy from date of wedding until the husband’s death. They had seven children. When the husband died it was discovered that his will was invalid and his estate therefore had to devolve intestate. The applicant applied for an order declaring the children to be legitimate to enable them to inherit from their father. (At that time extra marital children could not inherit from their father in terms of the rules of intestate succession). The application was based on the argument that the marriage between the children’s parents was a putative marriage even though the statutory requirements for solemnization of a marriage had not been complied with. The application was granted. In this case the court had to decide whether or not a putative marriage can come into existence if the marriage was not duly solemnized. At common law due solemnization was a prerequisite for a putative marriage. There are however many cases which are authority for the view that as long as the marriage was “contracted openly and in accordance with rituals and ceremonies not inconsistent with our law” it can be putative (ex parte anzar, ex parte l , ex parte soobiah, ex parte Reynolds) PRESCRIBED CASE - SOLOMONS V ABRAMS: due solemnization as a requirement for a putative marriage. The parties entered into a Muslim marriage. There was no evidence that they attempted or intended to comply with the requirements of the marriage act. Nor did they make any attempt to establish what those requirements were. They did not think that they had entered into a civil marriage. The priest did not hold himself out as being authorized to solemnize a civil marriage or as purporting to solemnize such a marriage. The applicant sought an order declaring that the union between the parties was putative civil marriage and that the children born thereof were legitimate. The application was dismissed. Parties did not think that the moulana was a marriage officer. Their evidence is not that they thought that they had become spouses in a civil marriage. There is no evidence of attempting or intending to comply with the requirements of the marriage act. THE INVARIABLE CONSEQUENCES OF A CIVIL MARRIAGE: Refers to personal consequences to marriage. Status of spouses change –  neither spouse may marry anyone else whilst marriage subsists,  spouses are guardians of children born of marriage,  relationship by affinity is created,  spouses married in cop capacity to act is restricted,  minor attains majority and retains it even if marriage dissolved. Legal concept of consortium Omnis vitae is used in our law to determine when a marriage relationship is no longer normal. This concept includes material and immaterial things. By this we mean that this concept does not have a precise definition as virtually all the objects of all the rights Downloaded by: SUCCESS01 | Distribution of this document is illegal S - The Marketplace to Buy and Sell your Study Material emanating from marriage can be grouped together. In Grobblelaar vs Havenga – this concept was described an “an abstraction comprising the totality of a number of rights, duties and advantages accruing to the spouse of a marriage. This totality comprises inter alia “companionship, love, affection, comfort, mutual services, sexual intercourse. In Peter vs Minister of Law and order it was said that the concept is used “as an umbrella word for all the legal rights of one spouse” Spousal maintenance – from its beginning to its end marriage imposes a reciprocal duty of support between spouses, provided that the spouse whom claims maintenance is in need of it and the spouse from whom it is claimed is in a position to provide it. Duty of support arises at the beginning of the marriage, that is, as soon as the marriage has been solemnized. Requirements for the duty of support between spouses , there must be a valid marriage between the parties, the person claiming support must be in need of support ,the person from whom the support is claimed must be able to provide it. PRESCRIBED CASE - EXCELL V DOUGLAS – liability for household necessaries when there is no joint household. The defendant and his wife are married in community of property. They agreed to part. For the duration of the separation, the husband paid his wife an allowance. In 1923 a court ordered him to pay his wife 20 pounds per month. A number of years after their separation, the wife bought clothes on credit. When she refused to pay for the goods, the storekeeper demanded payment from the defendant. He denied liability on the ground that the spouses were living apart and that he was paying his wife a monthly allowance. The court a quo held that a husband is indeed liable for household necessaries his wife buys while they are living apart, owing to an agreement between them. The defendant appealed against this decision. The appeal was upheld. The question as to when and how far a wife can bind her husband by her contracts is dealt with by a large number of roman Dutch law writers, and has often been discussed in our courts. This case deals with the basis of ones spouses’ liability for goods the other spouse purchased on credit while there was no common household between them. One spouse has the capacity to bind the other and, if the marriage is in cop, the joint estate, for household goods only if 3 requirements are met: there must be a valid marriage between the parties, the parties must share a joint household, the transaction in question must relate to household necessaries. As was pointed in this case once the joint household comes to an end, one spouse can no longer bind the other spouse in contract for household necessaries – one of the requirements for contractual liability is absent, namely joint household. PRESCRIBED CASE - RELOOMEL V RAMSAY: liability for household necessaries Dr ramsay and his wife were married out of cop. Dr ramsay went to England and left his wife and children behind in Potchefstroom. There was no disagreement between the spouses and they were therefore not separated in the legal sense. Dr Ramsay gave his wife a very meager allowance of 15 pounds per month while he was away. During his absence his wife exceeded her allowance. On Dr Ramsay’s return, the plaintiff demanded payment for the debts Mrs Ramsay had incurred. Dr Ramsay refused to pay. He averred that the goods that the plaintiff had supplied to his wife were not household necessaries that his wife had had no right to pledge his credit, and that as their marriage was out of cop he was not liable for debts she incurred. The court a quo allowed the plaintiffs claim in respect of several items but refused to allow his claim for payment for silk and other fabric, as it did not consider them to be household necessaries. The plaintiff appealed against this decision. The appeal was upheld and Dr Ramsay was ordered to pay for the dress fabric as well. In this case the court inter alia set out how one should determine whether a particular item is a household necessary. The court emphasized that factors such as the spouses standard of living ,their means, the customs of the people in their area and so forth must be considered. The subjective approach was used in terms of which the matter is viewed from the prospective of the dealer. In terms Downloaded by: SUCCESS01 | Distribution of this document is illegal S - The Marketplace to Buy and Sell your Study Material of the subjective approach the court looks at the facts of which the dealer was aware or should be reasonably aware. It held tat ,because the dealer did not even know that Dr Ramsay was away it was irrelevant that Dr Ramsay had given his wife money so that she did not have to buy on credit. Court held that one spouse cannot limit regarding necessary household expenses others capacity to buy household necessaries on credit by making funds available to him or her with which household necessaries must be bought. The facts in this case were viewed from the third parties point. . Subjective approach test used ,the matter is viewed from the dealers point of view and considers only the facts of which the dealer was aware of which he or she could reasonably have been expected to be aware. Subjective approach affords better protection to third parties. MAINTENACE ACT – Expressly provides that it applies in respect of legal duty of any person to maintain any other parties irrespective of nature of the relationship between those persons giving rise to the duty. Orders the court may make: If a maintenance order is not already in operation a maintenance court may make an order against the liable person for the payment of maintenance. An order for periodical payment of sums of money towards the maintenance creditor’s maintenance, a maintenance order can include any provision the court deems fit regarding payment of medical expenses to the maintenance creditor, maintenance court substitute or discharge a maintenance order that is in place. Enforcement of a maintenance order – the maintenance act provides for civil and criminal sanctions for failure to comply with a maintenance order. Civil sanctions if a maintenance debtor fails to make payment in accordance with a maintenance order within 10 days from the date on which payment becomes payable the maintenance creditor may apply for a warrant of execution against the maintenance debtors property, an order for attachment of emoluments (salary, wages, remuneration), an order for the attachment of any present or future debt owing or accruing to the maintenance debtor. Matrimonial home – during the subsistence of the marriage both spouses are entitled to live in the matrimonial home and to use the household assets (such as furniture and appliances) irrespective of whether they are married in or out of cop and irrespective of which spouses owns or rents the matrimonial home. It is sui generic (that is unique) and invariable a consequence of marriage. Parental authority – as a result of marriage both parents have equal guardianship over their children. Donations between spouses- are allowed. PRESCRIBED CASE - BANNATYNE V BANNATYNE –enforcement of a maintenance order. When the parties were divorced in the Pretoria high court in 1999, a settlement order providing for the payment of maintenance to the wife and the children was incorporated into the decree of divorce. The husband also undertook to retain the children on his medical aid scheme and to pay their reasonable medical expenses. The husband did not pay maintenance regularly. Towards the end of 1999 he obtained a reduction of maintenance in the maintenance court. The order of the maintenance court replaced the order of the high court. The husband again fell into arrears. He further removed the children from his medical aid scheme and refused to pay their medical expenses. The wife repeatedly approached the maintenance court for enforcement of the maintenance order. 2 writs of execution were even issued but failed to produce any money. The wife then approached the high court for an order committing the husband to prison for contempt of court for failing to comply with a maintenance order which had been made at the time of their divorce. The HC committed the husband for contempt of court but this was not a competent order as the order which had been made at the time of the parties divorce had ceased to be of force when the maintenance court order replaced it. The husband Downloaded by: SUCCESS01 | Distribution of this document is illegal S - The Marketplace to Buy and Sell your Study Material appealed to the supreme court of appeal, which held that the wife had not established factual and legal grounds for the granting of a contempt order. The wife applied to the CC for special leave to appeal on the ground that the SC of appeal had failed to take section 28(2) of the constitution of RSA into consideration. This section requires that the best interest of the child be given paramount in all matters affecting the child. The CC granted the wife special appeal and also upheld her appeal against the order of the SC of appeal. The cc court held that contempt of court proceedings are appropriate constitutional relief for the enforcement of a claim for the maintenance of children – if the legislative remedies are in some way defective. This decision indicates the serious light in which the CC views non compliance with maintenance orders and is most welcome. It is important to note that the CC held that the HC may only be approached for an order committing the maintenance defaulter for contempt of court if there is good and sufficient reason for doing so THE VARIABLE CONSEQUENCES OF A CIVIL MARRIAGE – IN COP Marriages in cop are the primary matrimonial system in S.A. COP excluded – existence of a valid anc wherein cop and loss excluded, domicilii of husband (so if husband is domiciled in England marriages automatically out), black marriages. Assets – the moment they enter into a marriage in cop the spouses become co owners of everything that either of them owned prior to marriage. This transfer of ownership takes place automatically by operation of law – so no registration need take place. Assets excluded are: 1. assets excluded in an anc 2. assets excluded by will or deed of donation 3. assets subject to a fideicommissum or usufruct 4. engagement gifts – jocalia 5. benefits under the friendly society act – section 17 6. non patrimonial damages – any damages claimed fro delict committed against him ,also disability payments 7. cost in matrimonial action 8. assets which replace separate assets Attachment of separate assets – creditors can look at the assets of both spouses married in cop for recovery of debt. (du plessis v pienaar) Liabilities – marriages in cop means the merger of liabilities of spouses as well. PRESCRIBED CASE - DE WET V JURGENS – the nature if the spouses liability for their joint debts The respondent was married in cop. Her husband committed adultery with Ms Shaw. Ms Shaw’s conduct affected the respondent to such an extent that she had to received ate claimed medical treatment. With her husbands consent (which was necessary), the respondent claimed for damages for personality infringement and medical expenses from Ms Shaw. The respondent’s husband was declared insolvent before the damages were paid to the respondent. When the amount was eventually paid, the trustee of the insolvent estate claimed it, as he contended that it fell into the insolvent estate. The trustee argued that the respondent was an insolvent because her husband was Downloaded by: SUCCESS01 | Distribution of this document is illegal S - The Marketplace to Buy and Sell your Study Material an insolvent and that the damages therefore fell into the insolvent estate. The court a quo held that the respondent was an insolvent but that the damages did not fall into the insolvent estate as the amount was excluded in terms of section 23(8) of the insolvency act. The trustee appealed against this decision and his appeal was dismissed. . The appellant division held that spouses who are married in cop are joint debtors in respect of joint debts. The same court had however also held that the spouses remain separate debtors even though the debt has to be paid out of the joint estate. NEDBANK V VAN ZYL – a wife married in cop cannot stand surety for her husband’s debts In September 1980 the respondent, Mrs Van Zyl , entered into a deed of suretyship with Nedbank Ltd in terms of which she bound herself as surety and co-principal debtor for the repayment on demand of all moneys her husband owed Nedbank on overdraft then and thereafter. At the time of execution of this agreement, Mr and Mrs Van Zyl were married in cop, but in 1982 they were divorced. During 1984 Mr Van Zyl defaulted on his obligations to Nedbank. All Nedbanks endeavors to recover the amount from him were fruitless. Nedbank then sued the respondent for payment of the outstanding amount together with interest and costs. Nedbank sought to hold the respondent liable solely on the ground of deed of suretyship. In the court a quo it was held that the agreement was a nullity and Nedbank’s claim was dismissed. Nedbanks appeal to the appellate division (now SC) was also dismissed. Court held that spouses married in cop are joint debtors but. One spouse that is married in cop cannot stand surety on the others debts because those debts are joint debts and in our law a person cannot stand surety for his or her own debts even if the spouse has assets falling outside the joint estate. MARRIAGE IN COP – ADMINISTRATION OF JOINT ESTATE Principle of equal administration of the joint estate – replaced marital power. Wife and husband have same capacity to dispose of assets of the joint estate. Acts that requires both Spouses consents: 1. prior written consent attested by 2 competent witnesses in respect of each transaction separately – transaction which requires registration at deeds office, transferring immovable property, registering a mortgage or servitude, granting any other real right over such property, suretyship 2. written consent attested by 2 competent witnesses in respect of each transaction separately – a contract to alienate or burden with a mortgage or servitude ,receiving any credit, purchasing immovable property 3. only written consent – alienating ceding or pledging stock, shares,debetures, bonds insurance, policies, mortgage bonds, fixed deposits, withdrawing money 4. oral or tacit consent – alienating or pledging furniture, receiving money as remuneration, bonus, pension, gratuity, income from his or her separate property, inheritance, donation, bursary, interest or dividends from shares. Protection of third parties – the matrimonial property act protects a 3rd party who enters into a transaction with a person married in cop if the third party does not, and cannot reasonably be expected to know that the persons spouses had to consent to the transaction or that necessary consent was not obtained. In such an instance that transaction is deemed to have been entered into Downloaded by: SUCCESS01 | Distribution of this document is illegal S - The Marketplace to Buy and Sell your Study Material with the required consent. The act does not prescribe how it must be established whether the 3rd party could reasonably have known that the required consent was not given. (Distillers corp. ltd v Modise) Protection of the spouses inter partes – between the parties  the statutory right to adjustment upon dissolution of the joint estate -  dispensing with the other spouses consent – court may authorize the transaction in terms of section 16(1)  suspension of a spouses powers iro of the joint estate  immediate division of the joint estate  the interdict  the common law right of recourse upon dissolution of the joint estate  the action paulina utilis –  having the other spouse declared prodigal capacity to litigate – one spouse married in cop may not institute or defend legal proceedings without the other spouse’s approval. Insolvency – section 17(4) of the matrimonial act provides that an application for the sequestration of a joint estate must be made by both spouses. Compliance with this requirement was preemptory and joiner of both spouses was therefore essential in such proceedings. Suing for joint debts – act stipulates spouse should be sued when a debt is recoverable form the joint estate. PRESCRIBED CASE - EX PARTE KROS – application in terms of section21 (1) of the matrimonial property act. The applicants applied in terms of section 21(1) of the matrimonial property act for permission to change their matrimonial property system from cop to separation of property with retroactive effect. They were married in 1982 and one child was born of marriage. The wife also had a child from a previous marriage. As reasons for the proposed change, the applicants indicated that they had been ignorant about the legal consequences of cop. Had they known what those consequences and implications were, they would have not married in cop. The wife intended to leave one third of her estate to her husband and the balance to her children. This she could not do if the matrimonial property system was not changed. Furthermore the husband intended to start his own business, which could jeopardize the assets the wife had brought into the joint estate, since they could be attached should the business fail. The application was granted. It should be borne in mind that it is no longer possible to introduce the accrual system by means of the registration of a notorial contract in terms of section 21(2) of the act. EX PARTE OOSTHUIZEN – application in terms of section 21(1) of the matrimonial property act. The applicants were married in cop. They subsequently applied in terms of section 21(1) of the matrimonial property act for permission to change their matrimonial property system from cop to separation of property with the retroactive effect. The application was dismissed. THE VARIABLE CONSEQUENCES OF A CIVIL MARRIAGE – OUT OF COP ANC – narrow sense refers to the formal contract which is executed before a notary and registered in the deeds office. Wide sense it is an informal agreement between the parties which only binds them. Downloaded by: SUCCESS01 | Distribution of this document is illegal S - The Marketplace to Buy and Sell your Study Material Formalities for the creation of a valid anc – must be attested by a notary and registered in the deeds office within 3 months of it execution or within such extended period as the court may allow. Postnuptial – anc entered into before the marriage but never complied with formalities of notary and registering at deeds office a court may be approached to formalize contract if 3 requirements are met – parties must have definitely agreed upon terms of anc before marriage, goods reasons must be given by parties for their failure to properly execute and or register anc, must be done within reasonable time. Requirements for minors – minor must personally sign contract with consent of parents/guardians Contents of anc –right of recourse iro household necessaries, succession (devolution of their assets in the event of death), and marriage settlements (donations etc), Anc does not lapse on dissolution of marriage –any provisions for settlement must be carried out. The accrual system – the fundamental idea is that one spouse contributes financially and otherwise to the growth of the other spouses estate and should therefore be entitled to share in that spouses estate on the dissolution of the marriage. Calculating the accrual – accrual =net end value – net commencement value – asset which do not form part of accrual. the smaller estate – larger estate / 2 = accrual claim Commencement value – usually state value in anc, deemed nil if liabilities are more than assets, if no value is declared it is deemed to be nil. Assets which do not form part of accrual:  non patrimonial damages a spouse received during marriage  assets excluded in the anc, proceeds of such assets also excluded  an inheritance, legacy or donation one spouse receives from a 3rd party  donations inter vivos – between living spouses ADVANTAGES OF THE ACCRUAL SYSTEM: 1. spouses share in the accrual of each others estate 2. whatever amassed prior to marriage is not shared 3. spouses are not liable for each others debts 4. spouses free to enter into contracts 5. administration of each others estate is uncomplicated 6. DISADVANTAGES – spouses have to enter into an anc to apply this system to their marriage, spouses do not share each others credit-worthiness, and accrual upon dissolution calculation is complicated. ALTERATION OF MATRIMONIAL SYSTEM: Court will only approve if – sound reasons are given, notice of change been given to all creditors and debtors, no other person will be prejudiced. Procedural requirements: 1. notice – must be given to registrar of deeds Downloaded by: SUCCESS01 | Distribution of this document is illegal S - The Marketplace to Buy and Sell your Study Material 2. financial position of the spouses – sufficient information regarding assets and liabilities must be provided to enable court to judge whether or not sound reason for change 3. sound reasons 4. absence of prejudice – no other person must be prejudiced 5. domicile and residence – particulars of domicile and residence must be provided EX PARTER BURGER - application in terms of section 21(1) of the matrimonial property act. the applicants were married out of cop in 1970. They later applied in terms of section 21(1) of the matrimonial property act for leave to introduce the accrual system as from the date of their marriage. The order was granted. The judge was satisfied that A proposed action. He was satisfied that sound reasons for the proposed change were given. The one applicants assets exceed his liabilities by 3.2 million whereas his spouses assets exceed her liabilities by R125 000. plainly therefore the parties desire to ensure that in the event of dissolution of the marriage the second applicant is accorded a fair share of the amount by which the first applicants estate has appreciated in value since they were married. HONEY V HONEY – an informal alteration of the matrimonial property system is not permitted. The parties married out of cop. Prior to their wedding they concluded an anc which inter alia provided that the marriage would be subject to the accrual system. A few years later they entered into a further contract, which was naturally executed but not registered in the deeds registry. Nor was the contract concluded with leave of the court in terms of section 21(1) of the matrimonial property act. The latter contract excluded the accrual system as from the date of the couples wedding. It further listed the party’s respective assets. The wife subsequently sued for divorce, the accrual in her estate was larger than in her husband’s estate. Her husband maintained that the postnuptial contract was void ab initio, alternatively, that it was voidable and based his claim to share in his wife’s accrual on the anc. The court held that the postnuptial contract was void and unenforceable as between the parties inter se. THE DISSOLUTION OF A CIVIL MARRIAGE – GENERAL WAYS IN WHICH A MARRIAGE MAY DISSOLVE: Death of one or both of the spouses, annulment of a voidable marriage, by divorce. THE DISSOLUTION OF A CIVIL MARRIAGE – BY DEATH Death dissolves both marriage and community of property. THE DISSOLUTION OF A CIVIL MARRIAGE BY DIOVRCE – THE GORUND FOR DIVORCE. Divorce act now regulates divorce and its consequences. It provides for 3 no fault ground of divorce namely:  irretrievable breakdown of the marriage – section 4  the mental illness or the continuous unconsciousness – section 5 IRRETREIVABLE BREAKDOWN – Section 4(1) 2 requirements – marriage relationship must no longer be normal; there must be no prospect of restoration of a normal marriage relationship between spouses. SCHWARTZ V SCHWARTZ –irretrievable breakdown of marriage The appellant and his wife were happily married until she became aware of his extra marital relationship with another woman (Miss Lintvelt). The appellant left the matrimonial home, moved in Downloaded by: SUCCESS01 | Distribution of this document is illegal S - The Marketplace to Buy and Sell your Study Material with his mistress and sued for a divorce on the ground of irretrievable breakdown of marriage. The appellant’s wife admitted that the marriage had broken down, but denied that the breakdown was irretrievable and that there was no reasonable prospect of restoring a normal marital relationship. She testified that she still loved her husband and was prepared to take him back. The court a quo held that the appellant had not proved irretrievable break down and that a divorce could therefore not be granted. He successfully appealed against this decision. in determining whether a marriage has reached such a state of disintegration that there is no reasonable prospect of the restoration of a normal marriage relationship between the parties it is important to have regard to what has happened in the past than is, history of relationship up to date of trial and also to the present attitude of the parties to the marriage relationship as revealed by the evidence. SWART V SWART –irretrievable breakdown of a marriage The plaintiff left the spouses joint household after the defendant assaulted her. The parties had only been married for a short time. Both of them sued for divorce. They agreed that their marriage had broken down irretrievably but differed on the issue of whether the defendant had to pay maintenance to the plaintiff. As maintenance, the plaintiff claimed an amount for day to day expenses and payment of her medical expenses. The court granted a divorce order to the plaintiff and held that she was entitled only to payment of medical expenses. In order to assess the probability of a successful reconciliation being effected, the court also has to consider the reasons that prompted the plaintiff to sue for a divorce, and the parties conduct. Only when the court had determined that there is no reasonable prospect of reconciliation will it find that the marriage has broken down irretrievably and grant a decree of divorce. The court looks at the objective scantiness and surmounts ability of the reasons why a divorce was applied for to ascertain whether the marriage in question can still is saved. It was held that misconduct can be taken into account, but not at the expense or fairness. The court further held that only misconduct which has a bearing on the breakdown of the marriage is relevant. If the misconduct of one party was gross and especially if the other party was prepared to reconcile fault assumes greater relevance. In this case both the subjective and objective approach. SMIT V SMIT – the relationship between sections 4 and 5 of the divorce act. The appellant instituted divorce proceedings in terms of section 4 of the divorce act after his wife had been physically disabled for 6 ½ years and had been in an institution for infirm persons for approx. 5 ½ years. He did not allege that he no longer loved his wife. He argued that because of her condition ,he enjoyed virtually no consortium privileges , no real marriage relationship existed between them and there was no prospect of restoration of a normal marital relationship. The appellant was unsuccessful in the court a quo. His appeal to the full bench was successful. If a person wants to divorce his or her unconscious or mentally ill spouse, the question arises whether the divorce claim action must be instituted in terms of section 5 of the divorce act or whether section 4 of the divorce act must be invoked. Conflicting judgments have been delivered on this issue. (Dickinson v Dickinson – section 4, krige v smit – section 5) Hahlo 351 – whenever a spouse is mentally ill or continuously unconscious within the meaning of section 5 the likelihood is that the marriage will also have broken down irretrievably within the meaning of section 4. even when the breakdown of a marriage was due to mental illness or continues unconsiness, a decree of divorce can be granted on the grounds of irretrievable breakdown under section 4.