UNIT 5 : THE LEGAL CONSEQUENCES OF MARRIAGE

5. 0 Introduction

As soon as a marriage is solemnised, legal consequences follow, but because of the nature of
marriage, the consequences differ. The consequences can be far reaching and they directly
affect the person and the property of the spouses. Some of the consequences are invariable
and they come into being automatically by operation of law and cannot be excluded by the
parties. On the other hand, there are variable consequences which come about as a result of
an agreement between parties to a marriage. This is normally in an antenuptial contract.
Generally speaking, the personal consequences are invariable while the proprietary ones are
variable.

5.1 THE INVARIABLE CONSEQUENCES

1. The Status of the Spouses

2. The legal capacity to act
3. Consortium Omnis Vitae
4. Donations between spouses
5. Duty of support

5.1.1 The Status of the spouses

The parties graduate from being bachelor and spinster to ‘being married’. In other words, their
legal status changes. This affects their rights and duties both in relation to each other and in
relation to society. This means that among other things;

(a) Neither of them can marry anyone else while the marriage subsists;
(b) A relationship of affinity is established between each spouse and the blood
relations of the other;
(c) A right of intestate succession arises between the spouses;
(d) A reciprocal duty of support is created;
(e) The parties’ legal capacity to act may be affected in some instances;
(f) Although the husband used to be recognised by law as the head of his family, this
is no longer the position. Now both parties are heads of the family;
(g) The wife, if she wishes, may take the husband’s surname;
(h) A spouse who was a minor before marriage automatically becomes a major upon
marriage;
(i) The parties’ capacity to litigate (locus standi in judicio) is affected;
(j) Children born of both parties before marriage become legitimate. Note ---- this
excludes those born of one spouse and a third party;
(k) Both parties become guardians of their children;
(l) The the wife acquires the domicile of her husband.
Domicile – Legal residence of an individual or family. A residence at a particular
place accompanied with an intention to remain there for an unlimited time or the
residence where an individual has a permanent home or principal establishment and
to where whenever they are absent, they intend to return.
(l) Citizenship of spouses? It does not change automatically.

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5.1.2 Spouses legal capacity to act

5.1.2.1 Majority

 A spouse who was a minor before marriage automatically becomes a major upon
marriage. This means that there is no need to be assisted by a parent even where a spouse
is below the age of 21.
 After dissolution by either death or divorce, the spouses below 21 years retain the status
of majority. However, if the marriage is annulled, they revert to their minority status.
Remember the difference between termination and annulment.

5.1.2.2 Marital Power

 In the past there used to be a legal concept called marital power. It gave a husband power
over the person and property of his wife. There were some remedies available to wives,
whose husbands abused this power, but they seemed inadequate and as result marital
power was repealed in 2006 through the Legal Capacity of Married Persons Act No.9 of
2006. Marital power is repealed in Part II, section 3 of the statute.

5.1.2.3 Joint management (administration)

 Parties married in community of property share the administration of the estate. In other
words, they share duties and obligations and this would affect their capacity to act. For
example, a spouse married cannot conclude certain transactions without the consent of
his/her spouse, while in certain instances they only have to consult each other before doing
certain things that would affect the assets of the joint estate negatively.

5.1.3 Consortium Omnis Vitae

Definition of Consortium

Consortium was defined as follows by Erasmus J. in the case of Peter v Minister of Law
and Order 1990 (4) SA 6 at 9

An abstraction comprising the totality of a number of rights, duties and

advantages accruing to spouses of a marriage….These embrace intangibles
such as loyalty and sympathetic care and affection, concern…as well as
the more material needs of life, such as physical care, financial support,
the rendering of services in the running of the common household or in a
support-generating business….

Basically it is a concept that includes a number of rights and duties accruing to spouses. These
include the intangibles – loyalty, sympathetic care and affection and material ones such as
physical care, financial support and so on.

Cronje, on the other hand defines it as a number of legal objects of the same kind as opposed
to Erasmus J in Peter v Minister of Law and Order.

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In Grobbler v Havenger 1964 (3) SA 522 at 525 it was held that the following are essential
to spouses in marriage and they constitute consortium; love, sexual intercourse,
companionship, affection, comfort and mutual services.

The concept of consortium is therefore obviously confined to the relationship between

husband and wife.

It is from this concept where an invariable consequence of marriage that the parties live
together comes. A marital relationship brings about a duty of cohabitation and fidelity.

Van Oosten v Van Oosten 1923 CPD 409

Parties were married in community of property. On the day they got married, defendant
maliciously deserted the plaintiff and never returned to him. Defendant admitted having
married plaintiff and that she left him on the day of the marriage but said that they had lived
together before marriage and two children were born out of the illicit intercourse between
them, and that they got married to legitimize the children. She further went to explain that
before the marriage they agreed not to live together.

Plaintiff took exception to defendant’s plea saying that the agreement is contra bonos mores.
It was held that indeed the agreement is contra bonos mores as it goes towards undermining
the very object of marriage; that one of the natural results of marriage is that the parties after
marriage should live together.

Defendant’s plea was set aside and the defendant was given leave to file a new plea.

QUESTION ---- Don’t you think that sexual intercourse is the most important aspect of
marriage?

ANSWER ---- In Ainsbury v Ainsbury 1929 AD 109 it was stated that it is not the only
conjugal right that emanates from marriage. Other rights such as company and support are
important.

In Peter v Minister of Law and Order it was emphasised that sexual intercourse is one of
the most important aspects of marriage, to an extent that damages for loss of services and
support arising from the death of a wife can be claimed as loss of consortium.

In King v King 1947 (2) SA 517 it was said that sexual intercourse in marriage should become
less important with age, especially where one of the spouses is in a poor state of health. And
in such cases other aspects of consortium should be more important.

How is Consortium protected?

Consortium is not protected by compelling compliance. For instance, using violence to

prevent a spouse from seeing a lover or locking him or her up to prevent him or her from
leaving. Further, a spouse cannot force him/herself on the other to be serviced, or being given
conjugal rights.

Sexual Offences Act No. 29 of 2003

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Section 3(1) – It is unlawful to have a sexual act in any coercive circumstances.

Coercive circumstances are described in section 2 - Interpretation

Section 4(1) – Anyone who compels another person to engage in a sexual act with him/herself
commits an offence.

It is protected indirectly by the threat of divorce.

Further, an aggrieved spouse cannot compel his spouse by judicial decree to honour her
conjugal obligations.

How is this done?

An aggrieved party would seek an order for restitution of conjugal rights failing which a
divorce on the ground of malicious desertion.

Examples of behaviour that amount to malicious desertion and affects the consortium of
spouses:

 Failure of husband to establish a suitable home within his means where his wife can
live with him;
 Failure of a wife to join her husband in the home which he has established;
 Leaving the matrimonial home without good cause and with the intention of
terminating the common life;
 Continuous moodiness, quarrelsomeness, excessive intake of strong liquor, subjecting
the wife to abuse and humiliation by others;
 Unreasonable refusal of marital (sexual) privileges.

Protection of the marriage relationship against third parties

 Can Consortium be protected by interdicting adultery?

Where a third party intentionally interferes with the consortium of the parties by committing
adultery, a court cannot interfere with a spouse’s personal freedom by interdicting him from
committing adultery nor can it interdict a third party from committing adultery with him,
although it does in exceptional cases such as where a court sees that by stopping the potential
adulterer in his wicked tracks, the marriage may be saved.

However, an aggrieved spouse may sue the third party for damages for alienation of affection.
In other words, an action for damages lies against a third party who intentionally interferes
with the consortium by committing adultery with one of the spouses or enticing him away
from his partner. Such a person has to compensate the cheated spouse for the contumilia
(insult) he has inflicted upon him. Hence it was stated by Blackwell J in Rosenbaun v
Margolis 1944 WLD 147 at 151 that

A husband has a right to the consortium of his wife and the wife
to the consortium of her husband, and …each has a cause of a
action against a third party who, without justification, destroys that
consortium.

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The quantum of damages is assessed by the court with reference to all the circumstances,
some of which may be aggravating and others mitigating.

See H R Hahlo ‘Interdicting Adultery’ (1969) 86 SALJ 267

Viviers v Kilian 1927 AD 449

Valken v Berger 1948 (3) SA 532
Strydom v Saayman 1949 (2) SA 736
Foulds v Smith 1950 (1) SA 1
Potgeiter v Potgeiter 1959 (1) SA 36
Bruwer v Joubert 1966 (3) SA 334
Smit v Arthur 1976 (3) SA 378
Wassener v Jameson 1969 (2) SA 343 (w)

Applicant’s wife was in an adulterous relationship with the respondent. Applicant asked for
an interdict restraining the respondent from continuing to commit adultery with his wife. The
question was whether the South African law recognises the remedy of interdict against
committing adultery.

In this case it was not necessary to decide on this one because the marriage had irretrievably
broken down and the applicant had irretrievably lost his wife’s consortium and there was no
point in granting an interdict in trying to save it.

It was held that the only remedy available would be an action for damages against the third
party.

In Exparte A.B. 1910 TPD 1332 it was stated that adultery is not a delict in respect of which
the other spouse can claim compensation from the guilty spouse. Such an interdict interferes
with and restricts the rights and freedom that the third party ordinarily has of using and
disposing of his body as he chooses.

Sanctions are divorce or judicial separation.

Amra v Amra & Another 1971 (4) SA 409

Applicant applied, inter alia, for an interdict restraining her husband from committing
adultery with the second respondent whom he intended to marry according to Muslim rites.
The court refused to grant the interdict but granted one restraining her husband from entering
into a polygamous marriage.

Miller J. stated that an interdict cannot be granted to a spouse who wishes to prevent, or to
put a stop to an existing adulterous association between his or her spouse and a third party.

QUESTION ----- Is it fair that the aggrieved can only make a claim from a third party
and not from a blameworthy spouse?

Conclusion

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Adultery is generally not interdicted. The remedy available to the aggrieved spouse is divorce
or judicial separation. As regards third parties, they will be liable to damages.

Duty of conjugal Fidelity

 This includes the principle that neither spouse can marry anyone else while their marriage
still subsists. It also includes the duty to afford each other conjugal rights or sexual
intercourse exclusively. In other words, none of the parties should have sexual relations
with other people.
 Sexual intercourse with third parties breaches the duty of conjugal fidelity and amounts
to marital offence of adultery which is a ground for divorce.
 And note that this is not a right, but a privilege which is suspended if the other party suffers
from ill health or is unable to afford such (e.g. if one spouse works far from home and
perhaps only goes home monthly).

Gregory v Gregory 1963 – 66 LLR 191

2. Prohibition of Donations between Spouses

This invariable consequence of marriage was conceived by the Romans primarily to protect
an affectionate spouse from an over-abundance of generosity. The prohibition also came about
as a way of protecting creditors from spouses which could freely make donations to each
other.

Legal meaning of ‘donation’

It does not mean it is wrong for a man, for instance, to give his wife a present. But, any
transaction that a spouse makes gratuitously (unreasonably, unnecessarily, without need) or
liberally such that it confers an economic benefit upon the other spouse, with the result that
the giver becomes poorer and the receiver richer, is a donation and is thus prohibited.

Exceptions

 Gifts which do not make the donor poorer or the donee richer – e.g. a donation
which goes through a spouse but is meant to be enjoyed or benefit the latter’s
indigent relations.
 Prenuptial gifts which have actually been transferred from the donor to the donee
before marriage.
 Insurance policies covering a spouse’s life.
 Donations which will only be effected after death or divorce, the latter is only valid
if divorce is imminent.
 Gifts not induced by liberality e.g. remuneratory or reciprocal gifts or those
prompted by motives other than generosity Maintenance, personal and household
allowances, contributions to household expenditures.
 Gifts such as birthdays or anniversaries presents provided they are reasonable.
 Petty donations – meant to discourage spouses from keeping records of minor
disbursements on each other’s behalf.

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See H. R. Hahlo ‘The Gift that Isn’t’ (1962) 79 SALJ 6

Kay v Kay 1961 (4) SA 257

The husband failed to discharge the onus of showing that the property registered in
the wife’s name was sheer liberality.

Biljon v Biljon 1961 (2) PH B17 (D)

It was stated that the test to apply is whether a transaction was one which arose from
sheer liberality or was inspired by disinterested kindness.

In this case, a husband paid R1510 towards the price of a house which was also his
home. The house was registered in the wife’s name. He later claimed the money saying
it is classified under prohibited donations and he is revoking it. Evidence showed that
the transaction was carried out for a number of reasons:-

 He had a desire to secure a measure of protection for himself in case he got

into debt again;
 He was compensating his wife for her services in saving her maintenance
money and donating it to him;
 Also by increasing the deposit he was actually reducing the amount of the bond
instalment which he would have had to pay.

It was held that the payment of the R1510 was not a prohibited donation. It was a
remuneratory donation which was not given out of liberality nor disinterested
kindness. The husband gave the wife residence because he considered it his duty to
provide a home for his wife and family.

Meyer v Meyer 1944 TPD 73

The defendant (husband) transferred a farm to his wife (plaintiff) by means of a deed
of sale, in order to protect his wife and children as he was gambling away his money.
The husband later wanted the farm returned saying that the farm was a donation
between spouses and therefore prohibited.

It was similarly held that the inducing factor in the transaction was not liberality or
generosity, but to safeguard the future of his wife and children.

Jansen v Van der Spuy 1970 (1) PH A20 (T)

The defendant was a widow who lived in a house purchased under a contract of sale.
In terms of the contract she paid a deposit of R400 and the balance of R2600 was
payable over 18 months,

She later got married and her husband died five years later. They lived together in the
house until the deceased died. During the marriage the deceased paid her R2600 and
explained that it was a donation to her.

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Apparently the deceased had made a will which showed that R2600 was owed to him
and that only R400 of it was given to the wife. In other words, the R2200 was not
given to the wife.

The executor of the deceased’s estate claimed repayment of the amount of R2200 and
the defendant showed that the amount claimed was not a loan but a gift of a
compensatory nature because, amongst other things, the deceased actually wished to
establish a common household and indeed lived in such a common household.

It was held that the money cannot be recovered as it is not a prohibited gift between
spouses.

Wagener v Wagener 1928 WLD 306 – Small payments made to a spouse from time
to time.