PVL2601: QUESTION AND ANSWER SESSION

17 and 23 JUNE 2021

THE INVARIABLE CONSEQUENCES OF A CIVIL MARRIAGE

1. Important terms:

1.1. Invariable-That cannot be changed

1.2. Consortium omnis vitae= The consortium is a legal relationship with binding

rights and duties.

▪ The consortium is a legal relationship with binding rights and duties.

▪ An important invariable consequence (personal consequence) of a union is the

creation of a consortium omnis vitae.

I m por tant cas es

Wi ese v Mool ma n G robbel aar v Pe ter v Mi nis te r of

Have nga Law and Orde r

B ro ad, inde f inab le An ab st ra ction con so rt ium omn is

con cept tha t comp rising t he vitae

ne ve rt he less has a t ota lit y o f a number o f is u sed “a s an

we ll- right s, du ties an d umb re lla wo rd fo r a ll

un de rstood mean ing ad van tage s accruing t he lega l right s of on e

t o t he spou se s o f a spou se to t he

ma rriage . ” Th is compan y, af fe ct ion ,

comp rise s se rvices and suppo rt

compan ion sh ip , love, o f

a ffe ct ion , t he o the r”

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 comfo rt, mutua l

se rvices and se xua l

int ercou rse

2. Spousal maintenance

Reciprocal duty of support between spouses=spouses have a legal obligation to

financially support each other.

▪ A valid civil marriage, spouses have a reciprocal duty of support towards each

other.

▪ The spouse claiming maintenance must need it.

▪ The other spouse must be able to provide for maintenance (must be able to

afford the spousal maintenance).

- Reyneke Reyneke:

- Husband deliberately impoverished himself to avoid paying spousal

maintenance.

- Court held that it can only grant a maintenance order if it is satisfied

that the person from whom maintenance is claimed is able to pay for

it.

3. Liability against 3rd parties:

A 3rd party who supplies goods to a spouse, may hold the other spouse liable for the

debt

▪ Unjustified enrichment: when one is enriched at the expense of the other.

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 ▪ Negotiorum gestio: when one promotes the interests of the other, without the

latter’s consent.

4. Household necessities

▪ Spouses have the responsibility of managing the common(joint) household.

▪ Household necessities are items and services needed in running the joint

household.

▪ Important to know difference between duty of support and household

necessities.

4.1. Debts incurred for household necessities:

▪ Modern day relevance: was the debt incurred for household necessities or

something else.

▪ Capacity to incur debts for household necessities:

- Valid civil marriage.

- Joint household.

- Transaction must be related to household necessities.

❖ Roloomel v Ramsay: wife bought a dress on credit. Husband was a well-off

doctor. Court used two tests to determine if an item is a household

necessity.

❖ Objective approach: court considers all relevant facts of the case to

determine if a spouse acted within his/her capacity. ( court looks at family’s

social background, standard of living, supply the family already has).

❖ Subjective approach: considers only facts the dealer was aware of or of

which he/she could reasonably have been expected to be aware of. Used

in Roloomel v Ramsay.

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 ❖ Voortrekkerwinkels (Ko-operatief) Bpk v Pretorius -Objective

approach: -a husband would not be liable if he could show that there was

already an adequate supply of the specific commodity in the house.

5. Revocation/ limitation of a spouse’s capacity to purchase household

necessities.

i. Court order: the court can suspend the capacity of a spouse married in

community of property to deal with the joint estate.

ii. By other spouse: here the abovementioned objective and subjective

approach plays a role.

iii. The purchase was not necessary because one spouse had made

sufficient funds available to the other: this defence was rejected in

Reloomel v Ramsay. A subjective approach was used.

6. Maintenance Act 99 of 1998

▪ Maintenance complaint and maintenance enquiry:

Duties Maintenance Duties: Maintenance Powers Maintenance

officer investigator court

▪ Investigates ▪ May be required ▪ To issue a

complaints to locate a direction

▪ Decides person who is compelling an

whether or not to liable for electronic

institute a maintenance; or communications

maintenance who can provide service provider

enquiry to supply

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 ▪ Investigates: relevant information it can

substitution or information. use to trace a

discharge of a ▪ Gather person.

duty to pay information ▪ Grant an interim

about the or final

identification, maintenance

whereabouts order

and financial ▪ Can grant default

position of the judgment

person liable for

maintenance.

7. Orders the maintenance court can make

▪ Grant a maintenance order and state conditions of payment.

▪ Can replace an existing order with a new one (variation).

▪ May grant an order for periodical payments or lumpsum payments.

8. Enforcement maintenance order

▪ Civil sanctions

- A writ of execution (attachment of property)

- Attachment of emoluments (commonly known as garnishee)

- Attachment of any present or future debt owing or accruing to the maintenance

debtor.

- Furnishing personal details of the debtor to credit bureau.

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 - PT v LT: civil enforcement of a maintenance order must occur in terms of the

maintenance order

▪ Criminal sanctions

- Criminal charges.

- Contempt of court-defaulter may be committed to prison.

9. The matrimonial home

▪ Spouses have the right to live in the matrimonial home.

▪ Neither spouse may evict the other from the matrimonial home, or disturb

his/her possession, or use, of the residence.

▪ Where one spouse threatens the other’s undisturbed possession and use of the

matrimonial home, or household effects, the threatened spouse can apply for a

court interdict to prevent this.

10. Donation between spouses

- It is allowed.

11. Family name

▪ Wife may assume husband’s surname.

▪ Husband, if he wants to assume wife’s surname, must first request

permission to the Director-General of Home Affairs.

12. Head of the family

▪ Common law: Husband is head of the family.