Module 4- Engagements, universal partnerships and domestic partnerships

Question 1

How do you solve relationship problems of your client?

Answer 1

To solve relationship problems of your client you need to
1. Find the nature of the relationship
2. Identify the different remedies that are available and what can I bring claim with them
3. Identify the requirements to claim for the remedies
4. Do the facts meet the requirements

Question 2

Which law are engagements governed by?

Answer 2

Engagements for purposes of civil marriages in South Africa are governed by common law.

Question 3

What is a legal definition of an engagement?

Answer 3

An engagement is an agreement between two people, that at some stage they will get married within a reasonable time and that they will not do anything to jeopardies the marriage. There is an implied agreement, that the parties will not become intimately involved with other people and will not conduct themselves in a manner that threaten the prospects of a happy future marriage.

Question 4

What are the requirements for a valid legal engagement?

Answer 4

• The parties must be able to enter to the agreement
• They must both consent to be married

Question 5

What is the capacity to fulfill an engagement contract determined by?

Answer 5

The capacity to conclude a contract of engagement is determined by the person’s general capacity to perform juristic acts. The capacity to become engaged matches the person’s capacity to marry the other party

Question 6

To be capable of entering a valid agreement you must?

Answer 6

• You must not be married to someone else
• Must be over the age of puberty (girls under age of 12 and boys under age of 14).
• If they are younger than boys are younger than 18 and girls younger than 15 must have permission from parents and require the permission of the Minister of Home Affairs to conclude a civil marriage.
• The may not be in prohibited degrees of relationship (related)

Question 7

How can the termination of the engagement contract happen?

Answer 7

• When the parties get married, the contract is fulfilled
• Both parties agree amicably to end the engagement
• When one of the parties dies
• When one of the parties ends the engagement for good reason (iusta causa)
• When one party ends the engagement without a good reason

Question 8

What happens due to termination that is iusta causa?

Answer 8

Unilateral but justified termination based on iusta causa (a fact or occurrence which renders the prospect of successful marriage unlikely) may result in lawful result in lawful termination by one party even though the other party still wants to get married

Question 9

What happens when an engagement is terminated without iusta causa?

Answer 9

If the party ends an engagement without iusta causa or if one party cheats then there is a breach of promise and you can go to court to obtain certain legal remedies for this. The guilty party is the party that doesn’t have iusta causa to end the relationship.

Question 10

What is the difference between a normal contract and an engagement contract?

Answer 10

In a normal contract there would be a remedy to fulfil the contract duties, however in a promise contract there isn’t this now but there was in Roman Dutch time. For breach of promise you can have both contractual and delictual damages but can’t in normal contracts

Question 11

What are the remedies for breach of promise contract?

Answer 11

• Special common law remedies for the return of gifts
• Contractual damages for breach of contract
• Delictual damages for actio iniuriarum (delictual action for harm to personality rights)

Question 12

What law deals with the exchange of engagement gifts?

Answer 12

It is customary though not legally necessary, that engaged parties exchange various types of gifts at the commencement of and during the subsistence of the engagement. If the losses suffered by breach of contract are only to do with engagement gifts then the South African common law provisions govern and settle the matter

Question 13

What are the special common law remedies for a breach in promise?

Answer 13

• Small tokens of affection don’t need to be returned
• Arrhae sponsilitiae are tokens of engagement and have to be returned
• Sponsilitiae largitas are gifts that the party bought for the other that were meant to be used in the future marriage and have to be returned

Question 14

What does special remedies for a breach in promise mean?

Answer 14

Special common law remedies for a breach in promise means the innocent party keeps the gifts well and the guilty party has to return the gift.

Question 15

What is actio iniuriarum?

Answer 15

Its an action of delict for the harm someone has done to their personality right, their reputation, feelings or heartbreak. .

Question 16

If delictual damages is proven what does the court award?

Answer 16

If this is proved by the claimant the court will award you money a solatium, an amount of money to console the injured feelings or reputation.

Question 17

What case is used to show what evidence is needed for actio iniuriarum?

Answer 17

In the case of Van Jaarsveld v Bridges the court held that the plaintiff could only succeed in bringing the actio iniuriarum if the manner in which the engagement was broken off was objectively insulting and humiliating

Question 18

What was found in the case of Van Jaarsveld v Bridges in dealing with delicts?

Answer 18

In the case of Van Jaarsveld v Bridges the court stated that the manner of ending the engagement must have been objectively insulting, this wasn’t meet in the case as the party ended the engagement over text and their isn’t anything insulting out of falling out of love

Question 19

What is contractual damages due to a breach of engagement?

Answer 19

Contractual damages for breach of contract remedies principles are found in the Guggenheim v Rosenbaum case. If a person is liable under a contract (ex contract) the other party can claim specific performance and can claim damages. The contractual damages are for the financial losses.

Question 20

What are the two types of contractual damages?

Answer 20

• Prospective losses (positive interesse) by trying to put the parties in the position they would have been in if the marriage wasn’t broken
• Actual losses (negative interesses) compensates for wasted expenses undertaken to prepare for the marriage

Question 21

What are is the Roman-Dutch law of marriages that is no longer in existence?

Answer 21

In Roman-Dutch law courts could order specific performance in a contract of engagement. They obliged couples to marry, the Cape Colony, the specific performance remedy, was abolished by the state in 1838. It would be contra bonos mores to enforce an engagement to enter into another contract a marriage.

Question 22

What is the case that stopped positive interesse and what did it say?

Answer 22

In the Van Jaarsveld v Bridges heard in 2010 by the Supreme Court of Appeal the court stated that any claim for prospective losses should no longer be available as it treats an engagement like a commercial contract and it is not available for divorce. This means contractual damages for breach of contract can only claim on actual losses, negative interesse.

Question 23

Why was positive interesse hard to enforce?

Answer 23

It is never easy to calculate damages on the basis of positive interesse. It would be particularly difficult to do this in the context of engagements, this leads to many predictions and guesses on the length and extent of the marriage

Question 24

What is the general purpose of an engagement?

Answer 24

The general purpose of the engagement period is to allow the parties to discover under the official protection of the law and within a socially acceptable framework, whether or not they can pursue their relationship in a manner that will be successful in the formal bonds of marriage.

Question 25

What is the fate of children in an engagement?

Answer 25

The fate of children born during an engagement is the same as children born of unmarried parents.

Question 26

What does the case of Van Jaarsveld v Bridges state about the unwillingness to marry?

Answer 26

In the case of Van Jaarsveld v Bridges its noted that unwillingness to marry is itself clear evidence of a breakdown of the engagement and it would be illogical to attach more serious consequences to an engagement than to a marriage

Question 27

What are the rights that married spouses have?

Answer 27

Married spouses have a right to spousal support; they become the intestate heirs of their spouses and the atrial property will be divided between the spouses when the marriage ends according to the rules of matrimonial property law. These rules protect the spouses economic interests.

Question 28

What are the difference between the rights of unmarried and married couples?

Answer 28

Unmarried cohabitation does not give rise these automatic consequences and economically vulnerable domestic partners do not have the same kind of legal protection as those who are married

Question 29

What is a universal partnership?

Answer 29

A universal partnership is an agreement between parties where they will enter into an adventure where they will all contribute and at the end of the partnership they will share the profits

Question 30

Where can universal partnerships be found?

Answer 30

Universal partnership can co-exist between people in an engagement, in a domestic partnership and can sometimes be found in some marriages but not always. It can also be between people not in an intimate relationship

Question 31

What are ways in which a universal partnership can be established?

Answer 31

Universal partnership contracts can be in writing, which is easy to prove. It can be an oral contract and evidence can help prove it, like in the Cloete v Maritz case, where both sides are heard in testimonies. It can be a tacit/silent agreement that is proven by conduct of the parties.

Question 32

When can a universal partnership be deduced?

Answer 32

A universal partnership can be deduced from the circumstances where domestic partners live together as husband and wife for many years.

Question 33

When will the court find that a partnership agreement exists?

Answer 33

A court will find that a partnership agreement exists if the evidence shows that it is more probable that there was a contract. The court will reach a conclusion about what the terms of the contract would probably have been by looking at the couple’s history, conduct and circumstances.

Question 34

What are the two kinds of universal partnerships?

Answer 34

• Societas universorum bonorum- this includes all property and doesn’t distinguish between property for household use, they don’t have to contribute to the business side of things, it can be entirely domestic. This is found in Butters v Mncora case
• Societas universorum quae ex quastu veniunt- this includes only property in a commercial venture both partners have to contribute to the business side of relationship

Question 35

What are Robert Joseph Pothiers 3 requirements for universal partnership?

Answer 35

• Each party must contribute something such as money, expertise, work or skill
• Partnership is for the joint benefit of all the partners
• The aim is to make a profit

Question 36

What is are the facts and outcome of the Butter v Mncora case?

Answer 36

In Butter v Mncora the Supreme Court of Appeal judgement. Mr Butters and Ms Mncora lived together as husband and wife for almost 20 years, they never got married although they were engaged. At the start of the relationship Mr Butters worked as a postal technician, during the relationship Mr Butter started a business that was a huge success. Ms Mncora quit her job at that time. After 20 years Mr Butter secretly married a third party. Ms Mncora claimed a half share of all Mrs Butters wealth on the grounds that they had entered into a universal partnership and this was a fair division of the assets. Due to societas universorum bonorum the court decided to award Ms Mncora an equitable share of the partnership assets amounting to 30% of the assets.

Question 37

What were the adjustments made to Pothiers requirements in the Butters V Mncora?

Answer 37

• Contributions- Household and caring work which women typically perform are valued as contributions
• Profit- not only in the sense of making money but also saving expenses and running a joint household

Question 38

What was found in Isaacs v Isaacs case in a universal agreement?

Answer 38

This is found in in Isaacs v Isaacs the court held that in the absence of express agreement about how the partnership assets should be divided, they should be divided in proportion to the partners contribution. Since both partners had devoted all their available time to the success of their joint enterprise, the court ruled that they should share equally.

Question 38

What happens if Pothiers requirements are met?

Answer 38

If Pothiers requirements are met then when an universal partnership ends the partnership also ends and the assets are divided between the partners. The division can be according to an agreement or if there is no agreement the division of the assets will be based on each partner’s contribution.

Question 39

What is found in Isaacs v Isaacs case due to universal agreements?

Answer 39

This is found in Isaacs v Isaacs the court held that in the absence of express agreement about how the partnership assets should be divided, they should be divided in proportion to the partners contribution. Since both partners had devoted all their available time to the success of their joint enterprise, the court ruled that they should share equally.

Question 40

What is the minority judgement in Volks NO v Robinsin?

Answer 40

In the minority judgement in Volks NO v Robinson, the judge highlighted the relationship-induced dependence that might arise as a consequence of domestic partnership agreements. The court observed that it would be appropriate for Parliament to pass legislation regulating domestic partnerships so as to ensure that economically vulnerable partners are not unfairly taken advantage of. Such as the Domestic Partnerships Bill, 2008

Question 41

What does the Domestic Partnership Bill seek to achieve?

Answer 41

The Domestic Partnerships Bill, 2008 which seeks to achieve the rights of equality and dignity for people in domestic partnerships

Question 42

Are domestic partnerships the same as engagements?

Answer 42

Domestic partnerships are not the same as engagements or universal partnerships as they are not contracts or marriages, they however can co-exist with them but don’t always.

Question 43

What are domestic partnerships?

Answer 43

Domestic partnerships are cohabitation relationship, unmarried intimate partners living together (vat-en-sit). This form of relationship is increasing in South Africa. They can be monogamous or not. They can be same-sex or opposite sex couples. They can involve permanent living arrangements or not. They can be invalid or unrecognized marriages and are not common law marriages.

Question 44

How do couples gain pro rata duty of support?

Answer 44

When people marry or enter into civil partnerships in terms of the Civil Union Act certain legal consequences arise automatically, the spouses will always have pro rata duty of reciprocal support and they will share all their property in a joint estate unless they exclude community through an antenuptial contract

Question 45

What happens in domestic relationship in respect to children?

Answer 45

In domestic relationships parents have both parental rights and responsibilities for their children automatically

Question 46

How do domestic partnerships regulate their relationships duties?

Answer 46

Some couples who live together regulate the patrimonial aspects of their domestic partnerships through express contract. The contract and its terms should not be against public policy or contra bonos mores. Domestic partners can enter into a number of general agreements jointly. They can acquire rights and incur obligations jointly.

Question 47

What is contra bonos?

Answer 47

Contra bonos mores means against good morals. Contracts which are contra bonos mores are void and cannot be enforced

Question 48

When can their be a right to share in property in a domestic partnership?

Answer 48

If in domestic relationship parties can prove a universal partnership contract existed between them then they can have rights to share in property generated during partnership.

Question 49

What does a partnership agreement in a domestic partnership?

Answer 49

In a domestic partnership agreement they can have a formal written partnership agreement, that regulates the economic aspects of the partnership, support duties of the relationship and its future termination, responsibilities for the provision of household necessaries and ownership and use of assets during the relationship and afterward. Further domestic partners can promote financial security for their partner by providing benefits in a will.

Question 50

What are the rights and duties in relation to each other in a domestic partnership if there is no agreement between individuals?

Answer 50

• Succession
• Claiming maintenance from estates after death of partner
• Claims form the cause of death of their partner
• Duties to maintain during the relationship

Question 51

What are the succession rights of unmarried intimate partners?

Answer 51

• The right can come from testate succession due to a will made by their partner
• Intestate succession states that the rights of the child, spouse and unmarried domestic partners will automatically have the right to inherent

Question 52

In which cases was intestate succession extended?

Answer 52

Intestate succession was extended to same-sex couples in the constitutional court in the case of Gory v Kolver, Laubser v Duplan and to opposite sex partners in 2021 by the constitutional court in the case of Bwanya v The Master (CC)

Question 53

What does the maintenance of surviving spouses act state?

Answer 53

Maintenance of surviving spouses act states that if the partners have not inherited enough to maintain themselves, they have the right to claim from the deceased estates.

Question 54

Which cases highlight the rights of maintenance of surviving domestic partners?

Answer 54

This was not made available to domestic partners due to the Volks v Robinson 2005 (CC) opposite sex unmarried partners are not spouses for this purpose, however this right has been extended to opposite sex partners and further to same sex in the Bwanya 2021 case only if these are couples who have undergone reciprocal duties of support to each other.

Question 55

Can unmarried partners claim maintenance from third parties?

Answer 55

Claims for loss of support against a third party who caused the loss of the breadwinner. These are third party claims. Unmarried partners can claim if they have rights to support/maintenance from their deceased partners. This is granted to domestic relationships if they can prove they had a right to maintenance.

Question 56

Which cases give unmarried partners the right to claim maintenance from third parties?

Answer 56

These claims have been extended to opposite sex partners in Paixao v RAF and same sex partners in Verheem v RAF.

Question 57

What was found in the Paixao v Road Accident Fund case?

Answer 57

In Paixao v Road Accident Fund the court held that the partners had entered into a tacit agreement for mutual support. This meant the surviving partner has a legally enforceable right to claim support of the deceased partner who had been killed in a car accident.

Question 58

What are the requirements set out in the Paixao that allow unmarried partners to claim benefits?

Answer 58

The court ruled in the partners favour who can now claim benefits from the fund and the person could claim support providing that:
- The deceased had a duty to support the claimant
- This duty was legally enforceable
- The claimant’s right to support was worthy of legal protection, as determined by boni mores (the legal convictions of the community)

Question 59

What are ways duty to support can be proven in a domestic relationship?

Answer 59

The duties to maintain can be proven in a domestic partnership by a written or oral agreement to maintain one another. This can also be through a tacit agreement which is seen by their sharing behavior in the relationship. Courts found that such a duty exists between domestic partners but it has never been enforced after the end of the relationship in the form of a maintenance order in favour of one partner.

Question 60

Which Act made it legal for same sex couples to marry?

Answer 60

Same-sex partners were not able to marry before same-sex marriage was legalised through Civil Union Act in 2006.