CASE FACTS / APPLICABLE TO

F:- Defendant concluded engagement & then later denied all

knowledge of its existence & court deemed such conduct iniuria
Court decided there should be a clear distinction between:-
* Claim for damages for breach of contract
* Claim for satisfaction for iniuria
Guggenheim vs Rosenbaum - Which may be brought in same action
# Damages to be calculated on basis of positive & negative
interest
A:- Termination of Engagement , Consequences of
termination of engagement

F:- Act amended to include marriage of same-sex couples.

Until Act is amended further – same-sex partners who don’t
wish to have a religious marriage ceremony, wont be able to
Fourie vs Minister of Home Affairs get married.
A:- Lawfulness of persons of the same-sex to marry

F:- The concept of the duty to speak was discussed

A:- Requirements for a valid engagement
Schnaar vs Jansen

F:- Applicant wanted marriage declared null & void, because the
marriage took place in a garden – The judge found nothing wrong
Ex Parte Dow with a marriage in a garden – application failed
A:- Prescribed marriage formalities (during ceremony)
F:- Applicant & her deceased husband went through marriage
ceremony solemnised in accordance with Islamic rites by a priest
who was not duly appointed as a marriage officer. (neither spouse
was aware of that fact) They had 7 children – children couldn’t
inherit from father because was seen as born from unmarried
Moola vs Aulsebrook parents. Argument was that marriage was putative marriage even
though statutory requirements for solemnisation of marriage had
not been complied with – Application was granted.
A:- Requirements for a putative marriage

F:- Parties entered into Muslim marriage. No evidence that they

intended to comply with the Marriage Act / est what those req are.
They didn’t think that the priest that solemnised their marriage was
a marriage officer. Applicant sought an order declaring that union
Solomons vs Abrahams between parties was a putative civil marriage & that the children
born thereof was legitimate. The appellate division stated that the
declaratory orders sought by applicant are refused.
A:- Requirements for a putative marriage

F:- Court stated that consortium between husband & wife is an

abstraction compromising totally of number of rights, duties &
Grobbelaar vs Havenga advantages accruing to spouses
A:- Consortium omnis vitae

F:- Court stated that the word “consortium” is used as an umbrella

word for all the legal rights of one spouse to the company,
Peter vs Minister of Law & Order affection, services & support of the other
A:- Consortium omnis vitae
 F:- Deals with basis of one spouse’s liability for goods other spouse
purchased on credit while there was no common household
between them. One spouse has capacity to bind other & if marriage
is in comm. of prop., the joint estate, for household goods only if 3
req are met:-
* Must be valid marriage between partners
Excell vs Douglas * Parties must share joint household
* Transaction in Q must relate to household necessaries
If req met – binds spouse in contractual nature
But once joint household comes to an end – one spouse cant bind
other in contractual nature
A:- Household necessaries – Termination of joint household

F:- Factors which have to be taken into account such as spouse’s

standard of living etc. Should court take subjective / objective
approach. In this case took subjective = viewed from perspective of
the dealer. Takes into account factors of which the dealer was
aware / ought to have been aware.
Reloomel vs Ramsay (Objective approach = court takes into account all other factors
without paying attention to what dealer knew about factors.
A:- Household necessaries – How its determined whether
something is a household necessary

F:- After divorce, father accepted to pay maintenance & keep

children on his medical scheme. But, failed to pay maintenance, so
went to Maint Court to reduce payment amount. Succeeded. But
still failed to make payment & took children of his medical scheme,
refusing to pay for their medical cover.
The constitutional court held that contempt of court proceedings
Bannatyne vs Bannatyne are appropriate constitutional relief for the enforcement of a claim
for the maintenance of children (if the legislative remedies are in
some way deficient)
A:- The Maintenance Act 99 of 1998 (enforcement of
maintenance orders)

F:- Supreme court of Appeal held that the creditors of spouses

married in com. of prop. can look to estates of both spouses for
recovery of joint debt. (even separate assets can be attached)
Du Plesiss vs Pienaar A:- Marriage in com. Of prop. – Attachment of separate
assets

F:- The merger of liabilities applies to antenuptial debts as well

as debts incurred during the subsistence of the marriage.
The spouses are joint debtors, therefore one spouse who is
married in community of property cannot stand surety for the
Nedbank vs van Zyl other spouse’s debts because those debts are joint debts, and
in our law a person cannot stand surety for his or her own debt,
even if the spouse has assets falling outside of the joint estate
A:- Marriage in comm. of prop – Liabilities

F:- Court recognised difference between claim & right. Also

provides authority for fact that the accrual & accrual claim rate is to
the value of the estate & not the assets in the estate.
Reeder vs Softline A:- When & how accrual takes place – Distinction between
claim & right
 F:- Judge of Appeal, Corbett = To determine whether a marriage
has reached such a state of disintegration that there is no
reasonable prospect of restoration of a normal marriage relationship
– Its important to have regard to what has happened in the past
(history up to trial) & also present attitude of parties to marriage as
Schwartz vs Schwartz revealed by evidence at trial.
A:- Irretrievable breakdown of the marriage as ground for
divorce – test to determine if the consortium has been
terminated / violated

F:- Judge Flemming = Particular marriage has broken down when

one spouse no longer wishes to continue marriage relationship, it
indicates marital breakdown.
Formation of an intention to sue for divorce = subjective element
Court will look at scantiness & surmountabillity of reasons why
Swart vs Swart divorce was applied for = Objective element
A:- Irretrievable breakdown of the marriage as ground for
divorce – test to determine if the consortium has been
terminated / violated

F:- Court was prepared to recognise existence of the power to

refuse a decree of divorce
Smit vs Smit A:- Does court have discretion to refuse a decree of divorce

F:- Factors prescribed in Sec 9 of Divorce Act need not all be

present and need not be viewed cumulatively. The court also
held that no-fault divorce did not do away with fault as a factor
in respect of forfeiture orders. Further, it is submitted that an
order for forfeiture of benefits may only be granted if the court
Wijker vs Wijker is satisfied that in the absence of the order, one spouse will be
unduly benefited in relation to the other.
A:- Forfeiture of patrimonial benefit – Justness & fairness is
no reason to deviate from matrimonial property system

F:- Benefits which can be forfeited in case of marriage out of com

of prop includes the right to share in the accrual of the other
spouse’s estate, benefits by virtue of a succession clause &
Watt vs Watt marriage settlements
A:- Benefits which can be forfeited

1. F:- Appellate division held that the wording of Sec 7(4) is wide
enough to cover the performance of the “ordinary duties” of a
housewife
A:- Redistribution of assets – Nature of contribution to
the maintenance / increase of other spouse’s estate –
Ordinary Duties of a housewife contribution

2. F:-Court held that a conservative approach to conduct should be

adopted. Only if the breakdown of the marriage resulted from
misconduct pf 1 party only is this a factor that has to be taken
into account
Beaumont vs Beaumont
A:- Redistribution of assets – Other considerations court
takes into account - Misconduct

3. F:- Court declined to accept one-third starting point. According to

court, when the court has to decide what amount has to be
transferred – it has to make an assessment of what is just.
A:- Redistribution of assets – Criterion for est the extent
of the redistribution
 F:- Appellate division stated that the only positive act constitutes
contribution . To refrain from action doesn’t qualify as a contribution
to growth / maintenance of other spouse’s estate
Kritzinger vs Kritzinger A:- Redistribution of assets – Nature of contribution to the
maintenance / increase of other spouse’s estate –
Contribution is a positive act

F:- Appellate division made it clear that contribution need not be of

monetary nature.
A:- Redistribution of assets – Nature of contribution to the
Katz vs Katz maintenance / increase of other spouse’s estate –
Contribution need not be of monetary nature

F:- Judge Berman didn’t support the modern trend. If a husband

can afford to have his ex-wife not work after divorce & she didn’t
work prior to divorce, & particularly if his misconduct caused
breakdown of the marriage – he should maintain her without her
having to work. Judge said that the position would be different in
Grasso vs Grasso the case of childless couples or where the husband didn’t earn
enough to support two separate homes after divorce
A:- Maintenance of spouses – the move away from
permanent maintenance

F:- Held that no national earning capacity will be attributed to a

woman who doesn’t have skills to enable her to be trained /
retrained for a job after divorce
Permanent maintenance wont be awarded to a woman who can
Kroon vs Kroon support herself. But may be rewarded rehabilative maintenance for
a period sufficient to enable her to find a job.
A:- Maintenance of spouses – the move away from
permanent maintenance

F:- Courts normally accept that both spouses have to adopt a lower
standard of living after divorce. It is a question of balancing up the
needs of both parties & making an equitable distribution of the
Pommerel vs Pommerel available income.
A:- Maintenance of spouses – the move away from
permanent maintenance

F:- Court provided nearly complete list of factors to be considered

in deciding what is the best interest of the child regarding custody
McCall vs McCall A:- Interests of children of divorcing parents – Criterion of
“the best interests in the child”

F:- Case contains guidelines in when a family advocate ought to

investigate the arrangements regarding the child.
The judge indicated that a family advocate ought to apply for an
order authorising an enquiry if it is envisaged that:-
* Custody of a young child wont be awarded to the mother
* Siblings will be separated
Van Vuuren vs van Vuuren * Custody will be awarded to a person other then the parent
* An arrangement regarding custody or access will be made
which is prima facie not in the child’s interest
A:- Statutory protection of the child’s interest – The
Mediation in Certain Divorce Matters Act 24 of 1987

F:- As the quality of a parent’s role is not simply determined by

gender, a father can be just a good a “mother” as the child’s
biological mother, and conversely, the mother can be just as good
Krugel vs Krugel a “father” as the child’s biological father
A:- Aspects regarding the position of the children the court
may regulate – Joint custody
Daniels vs Campbell F:- A surviving spouse in a monogamous Muslim marriage qualifies
as a “spouse” & “survivor” ito the Intestate Succession Act &
Maintenance of Surviving Spouses Act. This only applies to spouses
in monogamous Muslim marriages although in future polygamous
marriages could also possibly apply to spouses who institute claims
ito the Maintenance of Surviving Spouses Act
A:- Muslim Marriages – Statutory recognition
 CASE FACTS / APPLICABLE TO

F:- Applicant wanted marriage declared null & void, because the
marriage took place in a garden – The judge found nothing wrong
Ex Parte Dow with a marriage in a garden – application failed
A:- Prescribed marriage formalities (during ceremony)
Void, voidable and F:- Applicant & her deceased husband went through marriage
ceremony solemnised in accordance with Islamic rites by a priest
putative marriages who was not duly appointed as a marriage officer. (neither spouse
Requirements for a was aware of that fact) They had 7 children – children couldn’t
putative (assumed, Moola vs inherit from father because was seen as born from unmarried
acknowledged, accepted) Aulsebrook parents. Argument was that marriage was putative marriage even
though statutory requirements for solemnisation of marriage had
marriage not been complied with – Application was granted.
A:- Requirements for a putative marriage

Patrimonial consequence Applicant entered into Civil Marriage ICOP. Husband already in
Civil marriage ICOP with another woman, Only discovered at
of a putative marriage husband’s death – Due to her not knowing, she claimed marriage
Zulu vs Zulu to be putative and she was entitled to ½ estate – Court dismissed
application. No matrimonial system can operate in a void marriage

Household necessaries F:- Deals with basis of one spouse’s liability for goods other
spouse purchased on credit while there was no common
– Termination of joint household between them. One spouse has capacity to bind other
household & if marriage is in comm. of prop., the joint estate, for household
goods only if 3 req are met:-
* Must be valid marriage between partners
Excell vs * Parties must share joint household
Douglas * Transaction in Q must relate to household necessaries
If req met – binds spouse in contractual nature
But once joint household comes to an end – one spouse cant bind
other in contractual nature
A:- Household necessaries – Termination of joint
household

Household necessaries F:- Factors which have to be taken into account such as spouse’s
standard of living etc. Should court take subjective / objective
– How its determined approach. In this case took subjective = viewed from perspective
whether something is of the dealer. Takes into account factors of which the dealer was
a household necessary Reloomel vs aware / ought to have been aware.
Ramsay (Objective approach = court takes into account all other factors
without paying attention to what dealer knew about factors.
A:- Household necessaries – How its determined whether
something is a household necessary

The Maintenance Act F:- After divorce, father accepted to pay maintenance & keep
children on his medical scheme. But, failed to pay maintenance, so
99 of 1998 went to Maint Court to reduce payment amount. Succeeded. But
(enforcement of still failed to make payment & took children of his medical
maintenance orders) scheme, refusing to pay for their medical cover.
Bannatyne vs The constitutional court held that contempt of court proceedings
Bannatyne are appropriate constitutional relief for the enforcement of a claim
for the maintenance of children (if the legislative remedies are in
some way deficient)
A:- The Maintenance Act 99 of 1998 (enforcement of
maintenance orders)
 Marriage in F:- The merger of liabilities applies to antenuptial debts as well
as debts incurred during the subsistence of the marriage.
community of The spouses are joint debtors, therefore one spouse who is
Property Nedbank vs van married in community of property cannot stand surety for the
other spouse’s debts because those debts are joint debts, and
Zyl in our law a person cannot stand surety for his or her own debt,
even if the spouse has assets falling outside of the joint estate
A:- Marriage in comm. of prop – Liabilities

Spouses married ICOP cannot stand surety for each others debts,
as those debts are joint debts, and you cannot stand surety for
De Wet v your own debt. Today spouses married ICOP have equal
Jurgens concurrent powers of administration i.r.o the joint estate

Alteration to matrimonial The court held that the matrimonial property system of spouses
can be altered retroactively by the court to create flexibility.
property system Ex Parte Krös

The court adopted a strict approach and held that the court does
Ex Parte not have the power to change the matrimonial property system
Oosthuizen with retroactive effect

The court held that if spouses want to introduce the accrual

system in terms of section 21(1) they must apply the
Ex Parte Burger “normal basis of the accrual system” as provided for in chapter I
of the Act.
The court held that spouses cannot change their matrimonial
property system without the court’s intervention,
Honey v Honey even if they are married out of community or property.

F:- Judge of Appeal, Corbett = To determine whether a marriage

has reached such a state of disintegration that there is no
reasonable prospect of restoration of a normal marriage
relationship – Its important to have regard to what has happened
Schwartz vs in the past (history up to trial) & also present attitude of parties to
Schwartz marriage as revealed by evidence at trial.
A:- Irretrievable breakdown of the marriage as ground for
divorce – test to determine if the consortium has been
terminated / violated

SCA confirmes Schwarst vs Schwarts view

Levy vs Levy

F:- Judge Flemming = Particular marriage has broken down when

one spouse no longer wishes to continue marriage relationship, it
indicates marital breakdown.
Formation of an intention to sue for divorce = subjective element
Court will look at scantiness & surmountabillity of reasons why
Swart vs Swart divorce was applied for = Objective element
A:- Irretrievable breakdown of the marriage as ground for
divorce – test to determine if the consortium has been
terminated / violated

(Jewish marriage) husband refused to grant the wife a

get. If not granted the get, the woman may not re marry.
If woman enters another marriage in such circumstances,
the other marriage is deemed void in Jewish religion.
Amar v Amar Judge issued divorce decree, but ordered the husband
who was unwilling to cooperate in giving the get, to pay
maintenance to his wife until such time as he granted the
get
 F:- Court was prepared to recognise existence of the power to
refuse a decree of divorce
Smit vs Smit A:- Does court have discretion to refuse a decree of
divorce
Forfeiture of bennefits F:- Factors prescribed in Sec 9 of Divorce Act need not all be
present and need not be viewed cumulatively. The court also
held that no-fault divorce did not do away with fault as a factor
in respect of forfeiture orders. Further, it is submitted that an
order for forfeiture of benefits may only be granted if the court
Wijker vs Wijker is satisfied that in the absence of the order, one spouse will be
unduly benefited in relation to the other.
A:- Forfeiture of patrimonial benefit – Justness & fairness
is no reason to deviate from matrimonial property system

Forfeiture of benefits F:- Benefits which can be forfeited in case of marriage out of com
of prop includes the right to share in the accrual of the other
spouse’s estate, benefits by virtue of a succession clause &
Watt vs Watt marriage settlements
A:- Benefits which can be forfeited

Redistribution of 1. F:- Appellate division held that the wording of Sec 7(4) is wide
enough to cover the performance of the “ordinary duties” of a
assets housewife
A:- Redistribution of assets – Nature of contribution to
the maintenance / increase of other spouse’s estate –
Ordinary Duties of a housewife contribution

2. F:-Court held that a conservative approach to conduct should

be adopted. Only if the breakdown of the marriage resulted from
misconduct pf 1 party only is this a factor that has to be taken
Beaumont vs into account
Beaumont
A:- Redistribution of assets – Other considerations court
takes into account - Misconduct

3. F:- Court declined to accept one-third starting point. According

to court, when the court has to decide what amount has to be
transferred – it has to make an assessment of what is just.
A:- Redistribution of assets – Criterion for est the extent
of the redistribution

F:- Appellate division made it clear that contribution need not be

of monetary nature.
A:- Redistribution of assets – Nature of contribution to the
Katz vs Katz maintenance / increase of other spouse’s estate –
Contribution need not be of monetary nature

Pension interests are part of the assets of the parties to

Maharaaj v divorce proceedings for purposes of the division of assets.
Maharaaj
F:- Judge Berman didn’t support the modern trend. If a husband
can afford to have his ex-wife not work after divorce & she didn’t
work prior to divorce, & particularly if his misconduct caused
breakdown of the marriage – he should maintain her without her
Grasso vs having to work. Judge said that the position would be different in
Grasso the case of childless couples or where the husband didn’t earn
enough to support two separate homes after divorce
A:- Maintenance of spouses – the move away from
permanent maintenance
 F:- Held that no national earning capacity will be attributed to a
woman who doesn’t have skills to enable her to be trained /
retrained for a job after divorce
Permanent maintenance wont be awarded to a woman who can
Kroon vs Kroon support herself. But may be rewarded rehabilative maintenance
for a period sufficient to enable her to find a job.
A:- Maintenance of spouses – the move away from
permanent maintenance

Kooverjee v
Kooverjee
“Whilst the section [s 7(2) of the Divorce Act 70 of 1979] may
envisage periodic payments these need not be equal. In principle
Zwiegelaat v there can be no objection to an order which in effect makes
Swiegelaar provision for fixed monthly payments but in respect of one or
more months makes provision for the payment of an increased
amount ...”.
F:- Courts normally accept that both spouses have to adopt a
lower standard of living after divorce. It is a question of balancing
up the needs of both parties & making an equitable distribution of
Pommerel vs the available income.
Pommerel A:- Maintenance of spouses – the move away from
permanent maintenance

F:- Court provided nearly complete list of factors to be considered

in deciding what is the best interest of the child regarding custody
McCall vs McCall A:- Interests of children of divorcing parents – Criterion of
“the best interests in the child”

F:- Case contains guidelines in when a family advocate ought to

investigate the arrangements regarding the child.
The judge indicated that a family advocate ought to apply for an
order authorising an enquiry if it is envisaged that:-
* Custody of a young child wont be awarded to the mother
Van Vuuren vs * Siblings will be separated
van Vuuren * Custody will be awarded to a person other then the parent
* An arrangement regarding custody or access will be made
which is prima facie not in the child’s interest
A:- Statutory protection of the child’s interest – The
Mediation in Certain Divorce Matters Act 24 of 1987

F:- As the quality of a parent’s role is not simply determined by

gender, a father can be just a good a “mother” as the child’s
biological mother, and conversely, the mother can be just as good
Krugel vs Krugel a “father” as the child’s biological father
A:- Aspects regarding the position of the children the
court may regulate – Joint custody

(v) Although the mother has the freedom to choose her own
Van Rooyen v lifestyle, her children’s best interests cannot be served by allowing
Van Rooyen them to be exposed to the sexual relationship she is having with
another woman.

Gumede v Pres
of RSA
Daniels v Daniels v Campbell- constitutional court held that a
Campbell surviving spouse in a monogamous Hindu & Muslim
marriage qualifies as a spouse and survivor in terms
of Intestate Succession Act and Maintenance of
Surviving spouse Act

Hassam v Cape HC extended application for Intestate

Jacobs succession act & Maintenance of surviving spouses
act to de facto Polygynous Muslim marriages
Ryland v Edros Contracts following from de facto monoganmous
Muslim marriages can be recognized and enforced
between parties, despite the fact that the marriage
is potentially polygynous
Amod v Surviving spouse has an action for loss of support.
multilateral SCA decision. Court held that the decisive issue is
motor vehicle not whether surviving spouse was lawfully married
accidents fund to deceased by whether deceased was legally
obliged to support surviving spouse in a relationship
which was worthy of protection and recognition in
terms of the common law. Should be legally
enforceable at common law.

Kahn v Kahn North Gauteng HC recognized duty of support in de

facto polygynous Muslim marriages. It was no longer
controa bones mores to recognize the duty of
support that flows from a Muslim marriage, even if it
is polygynous
AM v RM Court granted a Muslim woman’s application for
maintenance pendente lite in terms of rule 43 of the
Uniform Rules of court even though the spouses
never entered into a civil marriage
Hoosein v Muslim marriage declared valid i.t.o SA law, for
Dangor purposes on maintenance, and to have the non
recognition of Muslim marriages declared
unconstitutional
Ismail v Ismail Court held that contracts flowing from potentially
polygynos marriage could not be enforced.. court
rejected the finding
Govender v Court declared the word “spouse” includes the
Ragavayah surviving partner in a monogamous Hindu marriage

Singh v Wife wanted amongst other things, the Hindu

Ramparsad marriage declared valid and turned into a civil
marriage, so the wife can divorce the husband. Court
ruled that this was impossible, and the court cannot
convert a religious marriage into a civil marriage
 Constitutionality of not conferring spousal benefits to heterosexual
life partners, challenged. Court held that it was inappropriate to
impose a duty to support a partner, posthumously, if partner did
Volks v not have a duty to support whilst still alive. Excluding life partners
Robinson from statutory maintenance, is not unfair discrimination, as the
law legitimately distinguishes between heterosexual life partners
and spouses. Marriage is recognised internationally as an
institution
Langemaat v Min A dependent is someone who relies on another for
of Safety and Sec maintenance, this includes a same sex partner, By
excluding them, and denying access to medical care it
is discriminatory.
Volks v Robinson Constitutionality of not conferring spousal benefits to
heterosexual life partners, challenged. Court held that
it was inappropriate to impose a duty to support a
partner, posthumously, if partner did not have a duty
to support whilst still alive. Excluding life partners from
statutory maintenance, is not unfair discrimination, as
the law legitimately distinguishes between
heterosexual life partners and spouses. Marriage is
recognised internationally as an institution
Satchwell v A same sex life partner’s benefits may not be
President of RSA excluded, if a duty to support was undertaken

Nat. coalition of The denial of exemptions regarding immigration

gay and Lesb permits to forgeiners who are same sex partners, for
equality v Min of permanent residence in A, was declared
Home affairs unconstitutional
Du Plessis v Road SCA extended the commonlaw action for damages for
accident fund loss of support to a surviving same sex partner, whos
partner had undertaken to support him
Farr v Mutual & Court held that phrase “a member of the policy
Federal holder’s family in an insurance policy included the
policy holders long standing same sex life partner
J v Director gen Two lesbian partners had twins due to assisted
development reproduction. Woman wanted to be registered as
home affairs “mother” and “parent” Dir Genl refused. Court
ordered the registration as requested
Du Toit v Min of Child care act failed to make provision for same sex life
welfare partners to be adoptive parents

Gory v Kolver Exclusion of same sex life partners from intestate

inheritance was declared unconstitutional> Due to
same sex life partners, not being allowed to enter in a
valid marriage, they had to be afforded the same
privelages