Introduction to Family Law
Dawood v Minister of Home Affairs
Links marriage and dignity
Consortium omnis vitae as crucial part of marriage
o rights and duties arising from marriage, such as love, companionship,
cohabitation, intimacy
Private and public importance of marriage
o Social institution
o Special, but not exclusively so
Protection of marriage from unjustified state interference
Children in Family Law
LvH
Minor parents-to-be
Father (A) of mother-to-be (M) wanted to prohibit would-be father (F) from
contacting her
M lived at home with her parents
When natural guardian fulfilling functions, no room for interference by court
Question whether A was exercising authority reasonably
F character of ill-repute; drugs user, admission to psychiatric hospital
A had been exercising authority reasonably
Should child being born illegitimate be a factor?
o No, may not happen, and even if contact allowed no guarantee of marriage
between its parents
FS v JJ
Rights of unmarried fathers
Best interests of child paramount
o Evidenced in this case by psychologists’ reports
Importance of mediation in family matters
Grootboom
Duty of care for child falls on parents
Introduction to Marriage Law
Excell v Douglas
Requires valid civil marriage
Must be a joint household for spouses to be able to bind each other contractually for
necessaries
Duty of support if couples separated
o However, does not apply if one couple is at fault and wants to claim support
If spouse has provided allowance, cannot have unjustified enrichment claim brought
by third party
Reloomel v Ramsey
Valid civil marriage
Joint household
, Spouses can bind in contract only if items purchased are necessaries
o What constitutes necessaries determined by standard of living
Spouses cannot forbid purchase of necessaries, not bound in agency
Even if one spouse temporarily absent, duty still exists
Gumede v President RSA
Monogamous customary marriages should be deemed to be in community of property
(excluding ANC)
Retrospective
S 8(4)(a) of RCMA permitted courts to transfer assets in divorce per s 7(3) of Divorce
Act
o S 7(3) usually only applicable to those out of community of property and
married before MPA, however limitations do not apply in case of customary
marriages (although is this the case too with when legislation came into effect,
or does this still only apply to those married before the accrual system?)
Women married in terms of customary law always have s 7(3) benefit, common law
not, incongruent with s 9(1) - Heaton
Family Support Duties
Bannatyne v Bannatyne
Gendered nature of maintenance system
Economic impact of divorce, husbands tend to leave marriage richer than wives
Necessity of maintenance to relieve this financial burden
Gammon v McClure
Spouse liable for unjustified enrichment if third party has supported needy spouse
Subsists as long as marriage lasts
Management of the Joint Estate
Distillers’ Corp v Modise
Limits of reasonableness in ascertaining whether party was forbidden to stand surety
Court found that Distillers’ Corp had been bona fide third party in trusting Modise
However, criticised by commentators who think Corp should have investigated
Visser v Hull
In the Visser v Hull case67 Mr Visser ‘sold’ the family home to his cousins. The house
was worth R98 000, but the sale price was only R10 500. The court decided that this
was really a donation68 (of about R87 500). It seemed to the court that a donation of
this value was prejudicial to Mrs Visser’s interests in the joint estate and that the
donation therefore fell within the scope of section 15(8). In terms of section 15(3)(c),
this donation required Mrs Visser’s consent.
Bopape v Moloto
Dawood v Minister of Home Affairs
Links marriage and dignity
Consortium omnis vitae as crucial part of marriage
o rights and duties arising from marriage, such as love, companionship,
cohabitation, intimacy
Private and public importance of marriage
o Social institution
o Special, but not exclusively so
Protection of marriage from unjustified state interference
Children in Family Law
LvH
Minor parents-to-be
Father (A) of mother-to-be (M) wanted to prohibit would-be father (F) from
contacting her
M lived at home with her parents
When natural guardian fulfilling functions, no room for interference by court
Question whether A was exercising authority reasonably
F character of ill-repute; drugs user, admission to psychiatric hospital
A had been exercising authority reasonably
Should child being born illegitimate be a factor?
o No, may not happen, and even if contact allowed no guarantee of marriage
between its parents
FS v JJ
Rights of unmarried fathers
Best interests of child paramount
o Evidenced in this case by psychologists’ reports
Importance of mediation in family matters
Grootboom
Duty of care for child falls on parents
Introduction to Marriage Law
Excell v Douglas
Requires valid civil marriage
Must be a joint household for spouses to be able to bind each other contractually for
necessaries
Duty of support if couples separated
o However, does not apply if one couple is at fault and wants to claim support
If spouse has provided allowance, cannot have unjustified enrichment claim brought
by third party
Reloomel v Ramsey
Valid civil marriage
Joint household
, Spouses can bind in contract only if items purchased are necessaries
o What constitutes necessaries determined by standard of living
Spouses cannot forbid purchase of necessaries, not bound in agency
Even if one spouse temporarily absent, duty still exists
Gumede v President RSA
Monogamous customary marriages should be deemed to be in community of property
(excluding ANC)
Retrospective
S 8(4)(a) of RCMA permitted courts to transfer assets in divorce per s 7(3) of Divorce
Act
o S 7(3) usually only applicable to those out of community of property and
married before MPA, however limitations do not apply in case of customary
marriages (although is this the case too with when legislation came into effect,
or does this still only apply to those married before the accrual system?)
Women married in terms of customary law always have s 7(3) benefit, common law
not, incongruent with s 9(1) - Heaton
Family Support Duties
Bannatyne v Bannatyne
Gendered nature of maintenance system
Economic impact of divorce, husbands tend to leave marriage richer than wives
Necessity of maintenance to relieve this financial burden
Gammon v McClure
Spouse liable for unjustified enrichment if third party has supported needy spouse
Subsists as long as marriage lasts
Management of the Joint Estate
Distillers’ Corp v Modise
Limits of reasonableness in ascertaining whether party was forbidden to stand surety
Court found that Distillers’ Corp had been bona fide third party in trusting Modise
However, criticised by commentators who think Corp should have investigated
Visser v Hull
In the Visser v Hull case67 Mr Visser ‘sold’ the family home to his cousins. The house
was worth R98 000, but the sale price was only R10 500. The court decided that this
was really a donation68 (of about R87 500). It seemed to the court that a donation of
this value was prejudicial to Mrs Visser’s interests in the joint estate and that the
donation therefore fell within the scope of section 15(8). In terms of section 15(3)(c),
this donation required Mrs Visser’s consent.
Bopape v Moloto
