ZIMBABWE EZEKIEL GUTI UNIVERSITY

FACULTY OF LAW
BACHELLOR OF LAWS (HONOURS) DEGREE

STUDENT NAME REG NUMBER

ANOTIDA C NYABADZA R220393L
BENJAMIN T SHAKA R220362L
TANATSWA RUPEDZE R220464L
MUNASHE A MVURI R220442L
BIANCA L MUZHUNDUKI R220371L
TAKUDZWA C TARWIREI R220378L
PRECIOUS NYAMIMA R220397L
TANATSWA MUZONDIWA R220461L
TASHINGA SOFALINO R220410L
COURSE NAME FAMILY LAW: LLB 124
LECTURER’S NAMES MACHAKA J & KOZANAI R

DUE DATE: 24 NOVEMBER 2022

Question: 5. With the aid of examples and decided cases, write brief notes on each of the
following terms
a. Adulterine children.
b. Lying in Expense.
c. Breach of Promise.
d. Voidable marriage.
Introduction
The following essay is going to bring light on the issues to do with adulterine children,
Breach of promise to marry, lying in expense and Voidable marriage. Adulterine children
refers to children who are born of a mother who is has sexual intercourse with another man
who is not her husband. Breach of promise to marry refers to the obligation to repair the
damage caused where there is fault and this occurs when a person promises to marry another
and they backs out. Lying in expense refers to the money the court orders a party to pay
towards the expenses of a woman during her pregnancy and the birth of the child.

Adulterine children.
Adulterine is derived from the word adultery which is defined as voluntary sexual intercourse
between a married person and a person who is not their spouse. An adulterine child is a child
conceived in adultery.1Under customary law the father of a child born out of wedlock
(adulterine child) had no duty to maintain the child and had no rights of guardianship over the
child. Duty of maintenance fell on the guardian of the child's mother. The rights of
guardianship in custody were given to the father of the child only if he had paid chiredzwa
(amalobolo umtwana). However now in terms of the Maintenance Acts Chapter 5:09 2 defines
the husband of the wife as primarily responsible for the maintenance of the child not
belonging the original father but who was conceived out of adultery.
If the child is born to a married woman it’s presumed to be legitimate due to the maxim pater
est quem nuptiae demonstrant. Only the High Court can issue an order of illegitimacy if it is
proved that the man woman is married to could possibly be the father of the child.
Furthermore adulterine children could not inherit property however this has changed children
born in and out of wedlock now equally have the same rights. A relevant case is that of Bhila
v Master3 in which a Harare widow Ms Elsie Bhila was trying to bar her late husband s three
children (born out of wedlock) from inheriting from their father s estate however fortunately
the High court on 24 June 2015 ruled that children born in and out of wedlock now have the
same right to their parents s estate and property should be shared equally without
discrimination.

1
Kingsley Davis: The Family: The Forms of Illegitimacy published October 1939.
2
Maintenance Act [ Chapter 5:09].
3
Bhila v Master 195 (4) SA 29 (A) at 36(G-H).
Lying in Expense.
Lying in expenses refers to expenses related to the birth of the child 4. Lying in expense are
primarily for the benefit of the child, the same applies to maintenance of the mother during
the period immediately before and after the birth of the child 5. For example in both general
and customary law, a mother of a child born out of wedlock is entitled to recover lying in
expenses from the father of the child.6 It can only be claimed after the birth of the child. This
is revealed by the case of De Scuza vs Munjoma7 as it was noted that lying in expense may be
included in the damages awarded to the guardian of the woman in respect of her seduction,
however the court ruled that lying in expense could not be calculated until after the birth of
the child. Another customary law case, Nyoni vs Mamova8 decided that it is proper to include
an amount for the maintenance of the woman under the general head of lying in expenses.
Lying in expense include maternity home expenses, maternity clothing, clothing and food for
the child. For example in the case of Card vs Sparg, not entitled to claim from the defendant
a refund of the expenses she has incurred in respect of her own person such as maternity wear
and toiletries, and medical things.9In addition the case of Sager vs Bezuidenhout10 awarded
the woman lying in expense and these were heads of maternity home expenses medical
expenses maternity clothing expenses and food for the child.
A mother is entitled to claim what are known as 'lying in expenses', these are reasonable costs
a mother has incurred while pregnant to carry the baby and to prepare for the birth of the
baby. These expenses can only be claimed after the birth of the baby and once paternity has
been determined. Lying in expenses refer to doctor’s appointments, hospital expenses and
necessary toiletries for the baby. The expenses must be reasonable but relate to the baby only.
It does not include personal expenses of the mother, such as food and housing.

4
https://www.kevinhickeylaw.com/legal-blog/lying-in-expenses-not-automatic-award-in-paternity-cases
accessed on 24 November.
5
Per Zietsman J in Card v Sparg at p.671. See also Lourens vs van Biljon 1967 (1) SA 703 (T) where Jansen J
put it as follows, “it is clear from these cases and the authorities which they quote, that the right of woman to
claim maintenance before, during and after the confinement is in the interest of the child and further that this
right to maintainance is then regarded as part of the lying in expenses” (at p.713).
6
Thomas Graeme Duncan: The Digest of South African Case Law published in 1926. Pg. 595.
7
De Scuza vs Munjoma 1951 SRN 260.
8
Nyoni vs Mamova 1949 SRN 216.
9
Card vs Sparg 1984 (4) SA 667 at p671 while summarising the decision of Erasmus J in Sager vs
Bezuidenhout.
10
Sager vs Bezuidenhout 1980(3) SA 1005 at p.1009.
Breach of Promise to marry.
A promise is a declaration or assurance that one will do something or that a particular thing
will happen. A breach is an act of breaking or failing to observe an agreement. Breach of
promise to marry entails the obligation to repair the damage caused where there is fault and
this occurs when a person promises to marry another and then backs out. 11 With regards to
breach of promise to marry, one is not compelled to marry but instead can sue for breach of
promise to marry with no just cause. 12 Both the delict and remedy for breach of promise to
marry is sui generis.
The nature and form of an action for breach of marriage promise is contractual. Recoverable
damages include compensatory damages for injury to the feelings and health of the plaintiff
as well as to his or her reputation. A plaintiff may also recover damages for any financial loss
resulting from the breach, comparable to the recovery in a breach of any other contract
action, in addition to compensation for loss of advantages that would have stemmed from a
marital relationship with the defendant.13 The manner in which the promise was broken is
crucial and the test for sentimental loss applies. A relevant case is that of Bull v Taylor
whereby a woman cohabitated with a man for seven years while he promised to marry her
then breached the promise to marry and she sued after years.14
The action is available for both sexes but the “courts are somewhat reluctant to award
substantial damages to a man.15The plaintiffs in most cases relating to breach of promise were
women. This relates closely to the position occupied by women in earlier society. Women
had very little economic independence, could not work in many of the professions, and were
often seen as inferior to men and reliant on a future husband for financial support. If a man
terminated a prospective marriage in the 19th century, this would have had a huge impact on
a young lady's own position in society and the termination of the engagement would have
caused great humiliation and shame. The need for an action to protect women from
11
Dennis Bates: Breach of Promise to Marry: A History of How Jilted Brides Settled Scores published on April
19, 2014. See also Ernest Cockle: Cases and Statutes on the Law of Evidence published in 1915 pg. 504.
12
Allison GeduldI; Marianne Dircksen: De Jure (Pretoria) vol.46 n.4 Pretoria Apr. 2013. See also See H.
Hahlo: The South African Law of Husband and Wife, p. 47 (4th ed. 1975).
13
law.jrank.org/pages/4851/Breach-Marriage-Promise-Damages.html accessed on 23 November 2022.
14
Bull v Taylor 1965 (4) SA 29 (A) at 36(G-H). See also Bridges v Van Jaarsveld 2008 JOL 22795 (T) 55 in
which Bridges allegedly sold her house and gave up her singing career in view of her prospective marriage to
Van Jaarsveld. Arrangements had already been made for the reception and the relocation to Van Jaarsveld's
farm near Patensie when her prospective husband decided to terminate the engagement and informed her of his
decision via mobile text message. Basing her claim on the action for breach of promise Bridges claimed more
than R1 million, which was later amended to R600, 000. The court a quo awarded a reduced amount of R282,
413 as damages and satisfaction. See also Mazarire v Magoronga 1992 (1) ZLR 282 (SC) at 255 F-G.
15
H. Hahlo: The South African Law of Husband and Wife, p. 55 (4th ed. 1975).
associated humiliation, reflects the social circumstances and morals of a bygone age. The
action for breach of promise was based on a pre-constitutional heterosexual definition of
marriage but today a woman is no longer dependant on a husband for her livelihood or status
and the social assumptions on which the action for breach of promise were based are simply
no longer valid. With the emergence of the twentieth century vision of South African women
as self-sufficient, energetic and competent, the breach-of-promise action has undoubtedly
been turned into "an anachronism, a musty bit of common law machinery.

Defences available for breach of promise to marry.

Insanity constitute a good defences to a breach of promise action.16 Insanity of either party
occurring after the promise is a defence; the insanity of the plaintiff before the promise is
not.17 Drunkenness is also be a defence for a breach of promise to marry if either of the
parties say that they were drunk the time they made the promise. When an intoxicated person
enters into a contract, the contract can either be enforceable, meaning held to the fullest
extent of the law, or voidable by the intoxicated person. 18 Another defence for breach of
promise to marry is that of disgraceful and immoral and intolerable behaviour by one party.19

Voidable Marriage.
A voidable marriage is a marriage that can be cancelled at the option of one the parties
through annulment.20 A voidable marriage is a marriage valid for all purposes unless and until
a decree of annulment is obtained21. Until then, children are legitimate, reciprocal duty of
maintenance, husband’s domical, can inherit, sex with third parties is adultery. Only the
aggrieved party can bring the inaction. If persons abides by marriage, it is ratified and action
can only be brought during lifetime unlike for a void were even after death action can still be
brought. The marriage is valid but is subject to cancellation if contested in court by one of the
parties to the marriage.
16
www.lawreform.ie/_fileupload/consultation%20papers/wpbreachofpromise.htm accessed on 24 November
2022.
17
REPORT ON BREACH OF PROMISE OF MARRIAGE: LAW REFORM COMMISSION OF BRITISH
COLUMBIA. Pg. 7.
18
study.com/academy/lesson/incapacity-contracts-joint-obligation-contracts-with-intoxicated-persons.html
accessed on 24 November 2022.
19
Bhazuwere v Munene 1994 (2) ZLR 351 (S) it was held that the failure of a woman to tell the man that she
had previously had a child by another man could amount to a Justa causa for repudiating the promise to marry.
See also Muparanyama vs Mhuka 1992 SC 242
20
Corbet v Corbet [1971] P. 83, [1970] 2 All E.R. 33 the marriage involved a transgender hence in a jurisdiction
where it is not acceptable it’s a voidable marriage. see also Chiroto v Hunda (HC 2679/12).
21
Welshman Ncube: Family Law in Zimbabwe published by Legal Resources Foundation Harare, Zimbabwe
July 1989
By the term voidable specifically the subject to being declared void when one party is
wronged by the other thus a voidable contract. Marriage is valid until declared invalid thus
the ground of invalidation of marriage vary depending on state 22. Common grounds for
voiding a marriage include that one of the parties is below the age of consent thus a party was
incapable of consenting to marriage due to mental incapacity or mental illness, or a party was
physically incapable of entering into marriage due to impotence or venereal disease.
Examples of voidable marriages include intimidation or coercion by fear or duress, if one
party suffers from permanent importance, were a woman is pregnant at the time of marriage
by someone else through elicit intercourse and the husband is unaware of this, non-
consummation due to refusal wilful one by one party etc. Effect of an order of nullity on
voidable marriage results as parties as if never married at all.
Under common law children become illegitimate but by section 14 of the Matrimonial
Causes Act23 status of the children cannot be affected they still remain legitimate see
Chamboko vs Chamboko & Another24. In the case of Makova v Mkova25, the appellant married
a woman in a church wedding. Subsequently he had purported to enter into a customary law
marriage with the responded in terms of then African Marriages Act. In the marriage
certificate for this marriage, the responded was described as the appellant’s first wife. The
trial court decided that the marriage between the appellant and responded was null and void
on the grounds that it was bigamous. The trial court ordered a division of the matrimonial
property acquired during the marriage before it was annulled.

CONCLUSION.

In conclusion the above essay dealt with issues to do with adulterine children, lying in
expense, breach of promise to marry and Voidable marriage.

22
Chiroto v Hunda (HC 2679/12)
23
Matrimonial Causes Act [ Chapter 5:13] section 14 at p.5
24
Chamboko vs Chamboko and Another 1998 (2) ZLR 516
25
Makova vs Makova 1998 (2) ZLR 82. See also Mandimika vs Mandimika and Another 1997 (2) ZLR 352
were the plaintiff and defendant had been married in Zimbabwe in terms of the Marriage Act. The plaintiff
brought an action of divorce from the defendant. The parties had drawn up a consent paper setting out the terms
on which the relationship was to terminate. It was clear that the marriage had irretrievably broken down.
However, before marrying defendant, the plaintiff had previously married another woman in Ghana. Other cases
to note includes Smith vs Smith 1961 and Rattigan and Others vs Chief officer and others 1994 ZLR 54
Bibliography

Books

Welshman Ncube: Family Law in Zimbabwe published by Legal Resources Foundation

Harare, Zimbabwe July 1989.

H. Hahlo: The South African Law of Husband and Wife

Dennis Bates: Breach of Promise to Marry: A History of How Jilted Brides Settled Scores
published on April 19, 2014

Ernest Cockle: Cases and Statutes on the Law of Evidence published in 1915

Thomas Graeme Duncan: The Digest of South African Case Law published in 1926

Kingsley Davis: The Family: The Forms of Illegitimacy published October 1939.

Journals

REPORT ON BREACH OF PROMISE OF MARRIAGE: LAW REFORM COMMISSION

OF BRITISH COLUMBIA

Allison GeduldI; Marianne Dircksen: De Jure (Pretoria) vol.46 n.4 Pretoria Apr. 2013.

Websites.
study.com/academy/lesson/incapacity-contracts-joint-obligation-contracts-with-intoxicated-
persons.html

www.lawreform.ie/_fileupload/consultation%20papers/wpbreachofpromise.htm

law.jrank.org/pages/4851/Breach-Marriage-Promise-Damages.html

https://www.kevinhickeylaw.com/legal-blog/lying-in-expenses-not-automatic-award-in-
paternity-cases

Case law.

Makova vs Makova 1998 (2) ZLR 82

Mandimika vs Mandimika and Another 1997 (2) ZLR 352
Smith vs Smith 196
Rattigan and Others vs Chief officer and others 1994 ZLR 54
Chamboko vs Chamboko and Another 1998 (2) ZLR 516

Chiroto v Hunda (HC 2679/12)

Corbet v Corbet [1971] P. 83, [1970] 2 All E.R. 33
Bhazuwere v Munene 1994 (2) ZLR 351 (S)
Muparanyama vs Mhuka 1992 SC 242
Mazarire v Magoronga 1992 (1) ZLR 282 (SC) at 255 F-G.
Bull v Taylor 1965 (4) SA 29 (A) at 36(G-H).
Bridges v Van Jaarsveld 2008 JOL 22795 (T) 55
Sager vs Bezuidenhout 1980(3) SA 1005 at p.1009.
Card vs Sparg 1984 (4) SA 667
Nyoni vs Mamova 1949 SRN 216
De Scuza vs Munjoma 1951 SRN 260
Lourens vs van Biljon 1967 (1) SA 703 (T)
Bhila v Master 195 (4) SA 29 (A) at 36(G-H).

Statutes.

Matrimonial Causes Act [Chapter 5:13]

Marriages Act [chapter 5:15]
Constitution of Zimbabwe (Amendment No 20) 2013