Life Partnerships

Question 1

What are civil marriages

Answer 1

The Civil Marriages Act of 2008, requires for the marriages entered to be monogamous. Furthermore, to be by persons of the opposite sex

Question 2

What governs civil marriages

Answer 2

common law and legislation relating to civil marriages

Question 3

Define engagement

Answer 3

An agreement, or “a promise to marry” , to a civil marriage. An agreement made by a man and woman

Question 4

What are the requirements for a valid engagement

Answer 4

consensus
capacity to act
possibility of performance
lawfulness

Question 5

What is consensus

Answer 5

Is the meeting of the minds, by the parties, to the material elements(an agreement)

Question 6

How does the element of consensus play in a valid engagement

Answer 6

For an engagement to even exist, there needs to be a offer and acceptance

Question 7

Define capacity to act

Answer 7

Is a person’s ability to appreciate the legal obligations that come with their juristic act, t enter into an agreement. Also, their ability to cognitively enter into an agreement.

Question 8

Who doesn’t have capacity to act

Answer 8

mentally ill people
minors

Question 9

What is possibility to perform

Answer 9

People who not are able to enter into a civil marriage. Which excludes, minors below the age of puberty, mentally ill people, people who are already married, not the opposite sex

Question 10

When does a termination of an engagement happen

Answer 10

An engagement gets terminated when
(1) the parents of the minor withdraw the consent to their marriage
(2) Death of either of the parties
(3)when the parties come to a mutual agreement to end the engagement

Question 11

What is an unilateral termination of an engagement

Answer 11

When only one of the parties decides to terminate the engagement, for a justa causa. Whereby, the termination is lawful as it doesn’t constitute a Breach of promise

Question 12

Describe a Breach of promise

Answer 12

Is when a unilateral termination of an engagement is unlawful,
without a justa causa. Example, marrying a third party.

Question 13

Requirement for a justa causa

Answer 13

Has to be a condition or an event, by one of the parties, after the engagement was entered into. That affects any chances of a hypothetical marriage.

Question 14

What constitutes as justa causa

Answer 14

1. One of the parties becoming sterile or impotent
2. Developing a serious hereditary disease
3. becoming an alcoholic

Question 15

What are the consequences of termination of the engagement-breach of promise to marry

Answer 15

1. Delictual damages for personality infringement
2. Contractual damages for breach of promise

Question 16

When does delictual damages for personality infringement happen

Answer 16

If the termination wounds the dignity, or honour of the other party. The party that is injured can institute the actio iniuriarum

Question 17

what can a party claim under actio iniuriarum

Answer 17

sentimental damages or satisfaction.

Question 18

what does the wronged party have to prove for delictual damages for personality infringement

Answer 18

the wronged party has the onus to prove iniuria, injury, and also anumus iniuriandi, intention to injure. Regardless, of whether or not the termination of the engagement had a justa causa

Question 19

How does sentimental damages work

Answer 19

the court decides on the amount to be awarded as sentimental damages. Meaning that the amount cannot be calculated beforehand.

Question 20

Describe the manner that the court arrive at a decision for the amount for sentimental damages,for delictual infringement

Answer 20

1. the manner in which the termination occurred
   2.the motives behind the course of action
   3.the social standing of the parties
   4.the parties’ previous life experiences

Question 21

David v Swanepoel- delictual damages for personality infringement

Answer 21

the defendant had the plaintiff waiting. While they secretly married a third party, without terminating the engagement with the plaintiff. This prompt the court that there was serious iniuria

Question 22

How did the courts approach contractual damages for breach of promise

Answer 22

in the past, the courts awarded the wronged party contractual damages, if the other party had committed breach of promise. furthermore, the courts awarded the wronged party both the prospective loss and the actual loss

Question 23

Describe prospective loss.What are the consequences of prospective loss

Answer 23

the awarding of prospective loss meant that, the wronged party, in the same position that they would have been if the marriage took place.
Consequences-
Example,1. if the parties were to enter into community of property. The plaintiff, a woman, having no assets of their own outside the marriage, could be able to claim half of the man’s existing estate. As well as, half the net benefit the marriage, in community of property, would have conferred to her.
2. Also claim the maintenance she would have received during the course of the marriage. if the marriage was not in community of property, she would be entitled to claim all the gifts promised. Also, the maintenance she would have received during the marriage

Question 24

Describe how actual loss is instituted, contractual damages

Answer 24

the wronged party could claim, inter alia. meaning that all the expenses that were a result of the wedding, or wedding related.

Question 25

Describe Sepheri v Scanlan- contractual damages case

Answer 25

it is still advisable that, if one party seeks to extract himself or herself from the initial intention to conclude the relationship, this should be seen purely within the context of contractual damages

Question 26

Describe Van Jaarsveld v Bridges,in relation to breach of promise

Answer 26

the court held, in an orbiter dictum, “to recognise that the historic approach to engagements is outdated and does not recognise the mores of our time”. significantly, as divorce is no longer based on fault, it has become counterproductive to consider fault by imposing economic sanctions for breach of promise. furthermore, it is difficult to justify the commercialisation of an engagement, when a marriage does not result in a commercial relationship. The court rejected that when parties get engaged, the contemplate that breach of promise will result in the imposition of financial consequences. It is difficult to rationalise, inter alia, claims for prospective loss. As, it is difficult to make calculations on an assumption of the parties' future marriage outcome.

Question 27

Cloete v Maritz

Answer 27

although the statements by the Supreme Court of Appeal in Van Jaarsveld were not binding because they were obiter dicta, they had strong persuasive force. It pointed out that courts are obliged to develop the common law and to promote the spirit, purport and objects of the Bill of Rights. In doing so, they must have regard to prevailing mores and public policy. In keeping with the views in Sepheri and Van Jaarsveld the court held that the rule that a party who breaks off an engagement can be held liable on a rigid contractual footing does not reflect changed mores and public interest and is untenable in view of the values that underlie the Constitution. Applying the reasoning and guidelines set out in Van Jaarsveld, the court developed the common law to hold that a claim for contractual damages for prospective loss based on breach of promise is no longer recognised. It should be noted that the court only abolished the claim for contractual damages for prospective loss; it did not abolish the claim for contractual damages for actual loss or amend the legal position in respect of the latter type of claim. Nor did it amend the law relating to claiming sentimental damages. Although the judgment in Cloete is not binding throughout the country, it will in all probability be followed since it is based on guidelines set by the Supreme Court of Appeal