Cqs of Civil Marriage

Question 1

What is meant by invariable consequences?

Answer 1

These consequences arise automatically by operation of law (ex lege). They apply regardless of the spouses’ wishes, and cannot be excluded, even through an antenuptial contract.

Question 2

What does the invariable consequence apply to?

Answer 2

These typically relate to the personal relationship between the spouses, such as the duty of support, mutual fidelity, and cohabitation.

Question 3

What is it meant by variable consequences?

Answer 3

The aspects of the marriage that the parties can regulate themselves, usually through an antenuptial contract.

Question 4

What does the variable consequences applies to?

Answer 4

These consequences mainly affect the spouses’ patrimonial relationship, such as the property system of the marriage (e.g., community of property, accrual system, or separate estates).

Question 5

What are the things that apply to the parties after they attain the status of being married?

Answer 5

1. Parties are no longer free to enter into a civil union with anyone else
2. Legal prohibitions arise regarding future marriages with certain relatives by affinity
3. The parties can inherit from the other party even when they don’t have a will.
4. Children who were born out of marriage automatically become children born within wedlock.
5. Both parents have full parental responsibilities and rights of children born of the marriage
6. Both husband and wife are the heads of the party.
7. A person who was a minor before marriage automatically becomes a major (and this status is retained).
8. The parties’ legal capacity to ACT is restricted if they are married in a community of property
9. Parties’ capacity to LITIGATE (locus standi in iudicio) is restricted if they marry in a community of property
10. The wife may take her husband’s surname, or add it to her own.
11. The parties’ status as TAXPAYERS is affected
12. Husband and wife can (in certain cases) not be compelled to testify against one another.
13. Special principles apply in the case of the insolvency of the spouses.

Question 6

What is meant by CONSORTIUM OMNIS VITAE?

Answer 6

This is the most important personal consequence. It implies that spouses are obliged to live together as husband and wife and includes everything associated with that.

Question 7

What does living together described as?

Answer 7

Consortium.

Question 8

What does Peter v Minister of Law and Order say about Consortium?

Answer 8

An umbrella term for all the legal rights of one spouse to the company, affection, services, and support of the other.

Question 9

What does Grobbelaar v Havenga say about Consortium?

Answer 9

“Companionship, love, affection, comfort, mutual services, sexual intercourse…

Question 10

What are the right and duties of corsotium?

Answer 10

Being loyal and faithful, supporting each other emotionally and financially, and engaging in sexual intercourse, etc. However, these rights and duties will depend on circumstances like age and others.

Question 11

What did the court say in the Dawood case?

Answer 11

Even though the constitution doesn’t say there’s a right to family life, in the case of Dawood, the court said that the right to dignity includes being able to live a full family life, and consortium omnis vitae is part of that.

Question 12

Can the right to consortium be protected directly?

Answer 12

You can’t go to court and ask a judge to force your spouse to love you, live with you, or treat you kindly.
Consortium rights can’t be enforced directly, like through an interdict or order.

Question 13

How is consortium protected indirectly?

Answer 13

It is only protected INDIRECTLY by way of a threat of divorce. The infringement of the consortium can be proof of irretrievable breakdown, which serves as a ground for divorce.

Question 14

What are the other rights related to the consortium that can be protected?

Answer 14

Domestic Violence Act → Protects against abuse or threats of harm.
Criminal law (e.g. rape) → Enforces personal bodily rights.
Delictual claims → You can sue for injuries or emotional harm in some cases.

Question 15

How can third parties infringe upon the consortium of the spouses?

Answer 15

Enticement: Convincing one spouse to leave the other.
Harbouring: Giving one spouse a place to stay to break up the marriage.
Adultery: Having an affair with someone’s spouse

Question 16

What can be done with the other party who is having an affair with your spouse? According to common law?

Answer 16

1. Patrimonial damages for LOSS OF CONSORTIUM – actio legis Aquiliae.
2. Satisfaction for CONTUMELIA (injury to self-esteem) – actio iniuriarum.