FAMILY LAW

ASSIGNMENT 1
Student Number: 202083853
Lecturer: Mr P. Shoopala
Question 1
Stacey and Kevin were married and after nine years into their relationship they experience marital
problems and they separate. While Stacey is still married to Kevin lawfully she starts a romantic
relationship with her friend, Essme. When Kevin hears about the affair he initiates a divorce between
him and Stacy and meanwhile the divorce proceedings are not finalized Essme proposes to Stacey. The
divorce proceedings takes longer than expected and Stacey being terrified that Stacey might cancel their
engagement she proceeds and to tell Essme that the divorce has been finalized and in good faith they
get married. On their honeymoon Essme finds out that Stacey is still legally married to Stacey.

Stacey has misrepresented herself to Essme when she told Essme that the divorce proceedings were
finalized. It was unlawful of Stacey to conceal the fact that she was still legally married to her husband,
Kevin.

The marriage between Essme and Stacey is null and void.

Void marriage: it is a marriage which simply never came into existence1, because2

 It did not comply with the formal requirements for a valid marriage or
 It did not comply with the material requirements for a valid marriage.

These are several grounds on which a marriage can be declared void if the material grounds are not
met:3

 One of the parties is already a party to another civil marriage, a customary marriage or a civil
union with someone else
 The parties are related to each other within the prohibited degrees of relationship
 One of the parties is below the age of puberty
 One of the parties is permanently ill

As a general rule non-compliance with the material requirements for a valid marriage renders the
marriage void.

Consequences of a void marriage:4

 No consequences of a valid marriage as it is void ab initio.

1
Usebiu, L. (2013). Family Law Study Guide: Centre for External Studies. P. 37
2
Usebieu, L. (2013). P. 37
3
Heaton, J. (2010). P. 35
4
Heaton, J. (2010). P. 35
 Injured party may institute a delictual action, in Arandse v Roode 1989 1 SA 763(C), the Court
ruled that the plaintiff could obtain damages for injury resulting from her deception as to the
fact that the marriage was a nullity and damages for seduction resulting in her loss of virginity
and diminished chances of making a suitable marriage.
Question 2
Malakia Ishekwa a sergeant of the Namibian Police Force meets a lady who goes by the name of
Grace Isaaks (28). They start a relationship and after four years they get engaged. During one of
his investigations in a fraud case he finds a picture of a woman who looks very similar to Grace
Isaaks. After doing more investigations he discovers that Grace’s real names is Selma Haufiku
(32) who has been involved in multiple fraud cases and is wanted in South Africa for fraud from
her previous company.
Grace Isaaks fraudulently misrepresented herself to her fiancé, by making him believe that she
was someone else. She lied about her real names, age and concealed her criminal records.
Error in persona : this means that there is a case of mistaken identity regarding the person to
whom a party becomes engage to.
Misrepresentation: when one of the parties to the contract makes a false
representation/omission or does not correct an impression to the other concerning facts which,
had the other known the truth, would have resulted in the contract not being concluded at all
or else concluded on different terms, they are said to have misrepresented themselves. 5
Material misrepresentation renders engagement either void or voidable. 6 If a material
misrepresentation have taken place the engagement is voidable at the moment the other party
is misled. 7 The affected party would have to consider the severity of the misrepresentation and
decide whether to continue or cancel the engagement.8

Termination of an engagement can be on the following grounds: 9

 Marriage
 Death of either parties
 A mutual agreement to terminate the engagement
 Withdrawal of parent consent where one of the parties is a minor
 A unilateral and justified termination by one party based on a sound reason(justa causa)
Malakia Ishekwa can breach the promise based on unilateral termination because it is based on
justa causa. In this case the revoked party is not guilty of breach of promise and therefore is
not held accountable for damages or satisfaction. His fiancé, grace Isaaks is not who she
pretends to be. She has went up to the extent of making a new birth certificate to change her

5
Usebiu, L. (2013). Family Law Study Guide: Centre for External Studies. p.15
6
Heaton, J. (2013). South African Family Law: Lexis Nexis. P.7
7
Usebiu, L. (2013). P. 16
8
Heaton, J. (2013). South African Family Law: Lexis Nexis. P. 7
9
Usebiu, L. (2013). P. 18
identity so that she could avoid being convicted by the law for the serious crimes she of fraud
that she has committed. A justa causa is best expressed as an occurrence which happens after
the engagement has been entered into and which according to human experience, can
seriously minimize the chances of a happy and a lasting marriage. If it was that Grace Isaaks had
decided to tell her fiancé the truth about her identity and criminal records it would have been
up to Malakia to conclude or cancel the contract. In the case of Krull v Sangerhaus 1980 SA 229,
the parents of the spouses had a disagreement over the reception of the wedding and the court
found it to have been a frivolous circumstance that did not warrant the repudiation.

Justa cause include :10

 Becoming sterile or impotent

Breach of promise
If a party commits a breach of promise, terminating the engagement without a justa causa or
violating the commitments implicit in the engagement, the other party is allowed to withdraw
from the engagement.11

10
Heaton, J. (2010). P, 1
11
Heaton, J. (2010). P, 1
Bibliography

 Heaton, J. (2010). South African Family Law. Lexis Nexis