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07 Invariable consequences of marriage

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Invariable Consequences of
Marriage
Invariable consequences apply to all marriages
1) Status
Upon marrying the parties’ status changes:
1) Neither spouse may marry someone else during the subsistence of the marriage
2) A right of intestate succession is created
3) Extra-marital children the couple may have had before the marriage become legitimate
4) The spouses are the guardians of children born of the marriage
5) Spouses’ capacity to act is restricted if they marry in community of property
6) A minor gains majority status if he/she marries
2) Headship of the Family
It used to be under the common law that the husband was the head of the family and by virtue of
this position the husband had decisive say in matters concerning the common life of the spouses.
However since the abolition of the husband’s marital power in respect of marriages contracted
after November 1984 (s13 Matrimonial Property Act), it was inevitable that the husband’s
position as head of the family would come under further consideration.
This has happened, and the husband’s position as head of the family has been abolished by s30 of
the General Law Fourth Amendment Act
It would be unconstitutional otherwise because it constitutes unfair discrimination on the grounds
of sex and gender.
3) Family Name
It is the social custom of the land for the wife to adopt the family name or surname of the
husband together with the designation of “Mrs”.
According to s26(1) of the Births and Deaths Registration Act however, the wife is not obliged
to use her husband’s surname and may use her maiden name or any other surname which she
bore before her marriage, or have her surname double-barrel.
Children take the surname of the father if they are legitimate, and take the name of the mother
if they are extra-marital.
A husband does not have the same choices: if he wants to assume his wife’s surname he must
apply to the Director-General of Home Affairs for permission (this may be unconstitutional on
grounds of discrimination based on gender and sex)
3) Consortium omnis vitae
A large part of married life is covered simply by the term consortium omnis vitae which is an
“abstraction comprising the totality of a number of rights, duties and advantages accruing to the
spouses of a marriage” Grobbelar v Havenga
This totality comprises: companionship, love, affection, comfort, mutual services, sexual
intercours
It is accepted that the parties retain their individuality after the marriage but they are bound to
each other by legal, moral, ethical and religious ties
In general, we may summarise these by saying that a clear duty to live together as husband and
wife, to be faithful to one another and to give each other loyalty and support can be recognized.
It is not possible to claim specific performance of the duties of cohabitation: fidelity, loyalty,
assistance and support (other than financial/material support), nor is it possible to obtain an
interdict either to force the party to comply with these duties or to abstain from breaching
them.

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o However when a third party infringes the consortium by adultery, enticement or
harbouring, the aggrieved party may claim for satisfaction against that party (delict
iniuria). Cannot sue spouse for non-patrimonial loss, only a third party.
The only steps which the law allows is either for the aggrieved spouses to leave the other who
has made married life dangerous or intolerable or to sue for divorce if the non-compliance with
the duties flowing from the marriage leads to an irretrievable breakdown of the marriage (loss of
consortiumcan be used as a reason for irretrievable breakdown (s4))
Patrimonial loss all quantifiable monetary loss (medical costs)
Non-patrimonial loss harm suffered of intangible variety (loss of life expectancies)
CASE: Van der Westhuizen v Van der Westhuizen (1996)
Facts: The plaintiff was the wife, Mrs van der Westhuizen, who sued the defendants: her husband
(Mr van der Westhuizen) and the woman with whom Mr van der Westhuizen was having an affair
with, who had been employed by the plaintiff to work in the van der Westhuizen’s shared
business. The plaintiff had sued for divorce but this case in particular was for the issue of delict
against the plaintiff because she alleged before the affair began she and her husband had a
“good marriage…were very close…and very happy”, however after beginning the extra-marital
relationship, he became violent and drank a lot. The affair had started after 2 years of marriage
and the defendant had even brought his mistress into the “common home”.
The plaintiff thus sued for damages for alienation of affection, adultery, loss of consortium and
contumelia (affront/insult/ignominy).
The court ruled there was nothing to mitigate the second defendant’s conduct because she was
aware of the marriage, she saw them daily and knew they were happy, flaunting the adulterous
relationship humiliated the plaintiff, the relationship continued despite the plaintiff requesting
they stop, the plaintiff lost her job and her husband became violent towards her, the second
defendant moved into the common home and she was generally very insensitive
Result: The court (CPD) awarded R20 000 for damages for this matter, which the court described
as “a disgraceful case of conscious and deliberate desecration of the marriage relationship”.
4) Household Necessaries
Husband and wife have the same rights with respect to household necessaries.
Spouses are jointly and severably liable for household necessaries.
These are everyday items needed for the running of a household, such as food, clothing, medical,
dental and utilities (lights and water).
The factors to determine whether something is a household necessary are:
1) Practices and customs in the area
2) Social status of the family
3) Income
NOTE: what might be a household necessary for some might be a luxury for others, so the concept can be
limited or extended by the necessity of the item for a specific family.
The duty to purchase the household necessary is linked to the duty to maintain
Sometimes it differs, such as with litigation where the duty to support is no necessary
Food is a household necessary but does not fall under duty of support.
Remedies for dealer if husband will not pay for household necessaries bought by wife
1) Negotiorum gestio
2) Undue enrichment
Liability is important because both spouses are liable for the purchase of household necessaries.
4.1) Liability for household necessary marriage in community of property
Even if a person is not the one who incurred the debt, there will still be liability
The ordinary principle was that the joint estate was liable for all household necessaries although
the husband as the sole administrator of the joint estate was the only spouse against who any

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Invariable Consequences of Marriage Invariable consequences apply to all marriages 1) Status Upon marrying the parties’ status changes: 1) Neither spouse may marry someone else during the subsistence of the marriage 2) A right of intestate succession is created 3) Extra-marital children the couple may have had before the marriage become legitimate 4) The spouses are the guardians of children born of the marriage 5) Spouses’ capacity to act is restricted if they marry in community of property 6) A minor gains majority status if he/she marries 2) Headship of the Family ▪ ▪ ▪ ▪ It used to be under the common law that the husband was the head of the family and by virtue of this position the husband had decisive say in matters concerning the common life of the spouses. However since the abolition of the husband’s marital power in respect of marriages contracted after November 1984 (s13 Matrimonial Property Act), it was inevitable that the husband’s position as head of the family would come under further consideration. This has happened, and the husband’s position as head of the family has been abolished by s30 of the General Law Fourth Amendment Act It would be unco ...
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