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This premier medico-legal Practice was established in 1974 and has grown to become the oldest and one of the largest specialist Plaintiff Personal Injury and Medical Negligence Practice in South Africa. Its founder, Ronald Bobroff, was President of the Law Society of the Northern Provinces - governing more than 60% of all attorneys, is current President of SAAPIL, and has served as chairman of numerous local and provincial law councils. He has also served as a guest lecturer at the University of the Witwatersrand Medical School. The Practice incorporates a significant number of the most innovative, creative and productive lawyers currently to be found in South Africa.

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Invariable Consequences of Marriage

1. The meaning of "invariable consequences of marriage"
  • Some consequences of marriage come into being automatically by operation of law (ex lege) and cannot be excluded by the parties.
  • Other consequences of marriage can be agreed upon and/or excluded beforehand by the parties in an ante-nuptial contract.
2. Status of spouses
Examples of which the status of the parties is changed by marriage:
  1. Neither spouse may marry anyone else while still married.
  2. The prohibition resulting from affinity, continue even after the marriage ends.
  3. A right of interstate succession is created between the spouses.
  4. Extra marital children of the couple are legitimated by the marriage.
  5. Both spouses are guardians of their children.
  6. A spouse's capacity to act is restricted if they are married in Community of Property.
  7. A minor becomes a major when he marries and stays a major even if the marriage is dissolved.
3. Consortium omnis vitae
  • Marriage creates a consortium omnis vitae between husband and wife.
a) How was this concept defined in Grobbelaar v Havenga?
"An abstraction comprising the totality of a number of rights, duties and advantages accruing to the spouses of a marriage". This comprises companionship, love, affection, comfort:
b) What did the court in Peter v Minister of Law and Order say about consortium?
The word is used as an umbrella term for all the legal rights of one spouse to the company, affections and support of the other.
  • Thus all the objects of the rights emanating from marriage can collectively be grouped under the concept consortium.
  • A spouse cannot enforce his right to consortium, and his only recourse is divorce (i.e. divorce the spouse because he is not been given love, affection, etc.).
4. Reciprocal maintenance

1. Duty of Support
From its beginning until its termination, marriage imposes a reciprocal duty of support on spouses, provided the spouse who claims maintenance is in need of maintenance and the spouse from whom it is claimed is able to provide it.
a) This duty is reciprocal:
Both spouses must maintain each other. The duty applies to both in proportion to their individual means. If both have means, they must contribute pro rata towards the maintenance and running of the joint household.
c) 3 Requirements for the duty of support:
  1. Valid marriage.
  2. Person claiming it must need it.
  3. Person from whom claimed must be able to provide it.
d) Reyneke v Reyneke:
No 3 H became unable to work and received a lump sum disability payment. H then intentionally impoverished himself to frustrate his wife's claim for maintenance. Her application for maintenance was dismissed because H was unable to pay.
  • If one spouse claims maintenance and the other can't pay, the claim for maintenance will fail.
  • The duty applies not only to the husband but to both spouses in proportion to their means.
e) Maintenance includes provision of accommodation, clothing, food, medical services and other necessaries.
The extent of the duty is determined by the social status of the parties, their means/ income and the cost of living.
f) If a creditor wants payment, where must payment come from?
i) The parties are married in community of property.
Joint Estate.
ii) The joint estate is insufficient.
If one or both possesses assets which do not form part of the Joint Estate, debts can be recovered from such assets on a pro rata basis.

iii) The parties are married out of community of property. From the spouse who incurred the debt.
Spouses are jointly and severally liable for debts incurred by either of them for household necessaries.
  • The question arises whether a third party who provides items which are required for one spouse's maintenance can hold the other spouse liable on some other ground.
  • Two other possible grounds have been suggested: negotiorum gestio and undue enrichment.
  • Undue enrichment arises if one person obtains a patrimonial advantage at the expense of another, in the absence of a recognized legal ground justifying the enrichment.
  • Negotiorum gestio refers to the situation where one person promotes the interests of another without his consent.
  • However, because negotiorum gestio requires the third party to act with the specific intention of promoting the interests of the spouse who is obliged to pay maintenance, this ground will seldom be used.
  • Instead, undue enrichment will be relied on.
g) When is the duty of support terminated?
Usually on death or divorce.
  • However, in terms of the Divorce Act, the court granting the divorce can grant an order for maintenance to be paid after divorce.
  • Similarly, in terms of the Surviving Spouse Act, a surviving spouse can be maintained out of the estate of his deceased spouse.
  • Where the marriage still exists, the duty of support may be terminated only if the spouses no longer live together and if the spouse who claims maintenance is the one who causes the separation.
    • If the separation is due to H's fault, his obligation to maintain W remains.
    • If the parties reached mutual agreement to live apart, W is entitled to receive maintenance.
    • If the separation is due to fault on W's part, she loses her right to maintenance.
  • The duty of support can be enforced in the High court or in the Maintenance court, regardless of whether the parties are married in or out of community of property.
BANNATYNE V BANNATYNE

Facts: When the parties were divorced, the settlement agreement provided for payment of maintenance to the wife and children, and the husband undertook to keep the children on his medical aid. The husband did not pay maintenance regularly and removed the children from the medical aid. The husband applied to the maintenance court for a reduction order, which was granted, replacing the High Court order. When the husband again fell into arrears, the wife applied for a contempt of court order in the High Court. It was refused. The wife applied to the constitutional court for the contempt order on the grounds that the High court had neglected to take into account the children's constitutional rights (what was in their best interests).

Held: The court granted her special leave and also upheld her appeal against the high court.

This decision is to be welcomed as it shows the serious light in which the constitutional court views non-compliance of maintenance orders.

2. Purchase of household necessaries
  • Although the duty of support in many instances overlaps the duty to contribute to household necessaries, it differs in other respects from that duty.
  • Litigation costs (duty of support) are not household necessaries.
  • Food and veterinary services (household necessaries) are not part of duty of support.
  • Things which are both household necessaries and which fall into the duty of support are accommodation, food, clothing, medical and dental services.
  • The spouses have the same rights as far as purchasing household necessaries is concerned, regardless of the matrimonial property system that operates in the marriage.
  • As we stated earlier the spouses are jointly and severally liable for household necessaries irrespective of which spouse was the purchaser.
  • Thus, it is still important to determine whether a particular item is a household necessary.
i.e. (1) if they are married out of community of property, the purchasing spouse binds himself and the other spouse.
     (2) if they are married in community of property the purchasing spouse binds himself and the joint estate.
  • If the item is not a household necessary only the spouse who incurred it is liable for the debt, unless the party can rely on undue enrichment or negotiorum gestio.
a) What are the requirements for capacity to purchase household necessaries? (Excell v Douglas)
  1. There must be a valid marriage.
  2. There must be a joint household.
  3. Item purchased must be a household necessity.
  • The basis on which one spouse can bind the other is contractual (Excell v Douglas)
  • If one of these requirements is not present, the one spouse cannot bind the other in contract for household necessaries.
  • The capacity to conclude binding contracts for household necessaries is dependant on the existence of a joint household.
  • Where no joint household exists, the purchasing spouse may still bind the other spouse, but the basis of liability will no longer be one spouse's capacity to bind the other in contract.
  • However, the spouse may be liable on some other basis (undue enrichment or negotiorum gestio).
b) What are the two requirements for negotiorum gestio?
  1. The shopkeeper (gesto) must have intended to promote the interest of the other spouse.
  2. The shopkeeper must not have acted against the express prohibition of the spouse.
c) How does negotiorum gestio work?

The dealer provides goods on credit to the wife after termination of the joint household. The dealer is actually fulfilling the other spouse's duty of support.

THUS: if the spouse who is liable for support forbids the trader from providing goods on credit to his spouse, negotiorum gestio cannot be used. The trader can still sue the spouse, but it will be on the basis of undue enrichment.

d) How does undue enrichment work?
The trader provides goods on credit to the spouse, which goods are required for his maintenance; the spouse is being enriched by not paying the trader for goods he would have had to buy.

Therefore, in summary:
  1. if the parties no longer live together, the basis on which a spouse binds the other spouse is no longer contractual, but rather on the basis of duty of support (Excell v Douglas).
  2. If the husband caused the break-up, or they parted amicably, the wife can still bind the husband's credit and the trader can sue him on negotiorum gestio or undue enrichment, depending on the facts.
  3. If the wife caused the break-up, the husband cannot be sued by the trader for goods bought by his wife.
  4. If the article bought is not a household necessary, the parties are not jointly and severally liable. Only the spouse who entered into the contract is liable.
e) Household necessaries are the everyday items which are necessary to housekeeping.

How do we determine whether an item is a household necessary (i.e. what factors are taken into account) Reloomel v Ramsey:
Practices and customs of area, social status of family, income of family, standard of living.

THUS: What may be a household necessary for one family may be a luxury item for another.

The problem is which approach to take to these factors (subjective/objective).

f) What does the objective approach say?
The court weighs up all the relevant facts of the case to determine, whether according to THAT family, in light of their social standing etc the article is a household necessity, therefore it is irrelevant what the trader knew. The spouse will be liable to the trader.

NOTE: The spouse is liable despite notification to the trader.

g) What happens (if applying the objective approach) if the family already has an adequate supply of the article?
Then it is no longer a household necessity and the spouse is not liable for payment.

h) What does the subjective approach say?
The court views the matter from the trader's point of view and only takes into consideration the facts that the trader was aware of or which he could reasonable have been expected to be aware of.

Here it is irrelevant whether the family already has a sufficient supply of the household necessary. Also, if the spouse has notified the trader that his wife can't bind his credit, the trader can't sue the spouse.

There is doubt as to which approach will be followed in practice, but the subjective approach is more favourable to the trader and should therefore be used.

The court in Reloomel v Ramsey followed the subjective approach.

In Reloomel the husband was a reasonably well-off doctor. His wife bought dress fabric for a number of silk dresses. The court found that in view of their standard of living, the dresses were household necessaries.

There are several defences available to the spouse who is sued for the price of household necessaries.
  1. The court has revoked the wife's capacity to bind the husband's credit. This is a valid defence. Thus he is not liable. That would be where the court has declared her a prodigal.
  2. The husband says he has revoked his wife's capacity. He cannot do this (e.g. he has notified the trader that she no longer can buy good on credit). If the court adopts the subjective approach, the husband can't be sued. If the court adopts the objective approach, the husband can be sued despite the notification.
  3. The husband says he has made sufficient funds available to his wife. If the objective approach is followed, the defence will succeed. If the subjective approach is followed (as was in Reloomel v Ramsay), it is irrelevant that the husband has made sufficient funds available. He will be liable.
5. The Matrimonial Home
  • During the subsistence of the marriage, both spouses are entitled to live in the matrimonial home, and use the household assets irrespective of whether they are married in or out of community.
  • The owning or renting spouse may not eject the other spouse from the matrimonial home without providing him with suitable alternative accommodation.
  • Nor may the spouse eject the owning or renting spouse.
  • Marital guilt and the interests of the children play a role.
  • A spouse who is subjected to or threatened with domestic violence can invoke the provisions of the Domestic Violence Act to prevent the other spouse from entering the matrimonial home.
6. Parental Authority
The Children's Act:
  • No longer refers to parental authority;
  • Refers to parental responsibilities and rights;
  • Both parents are equal guardians over their legitimate children;
  • Thus the mother and father share parental power over the child.
7. Donations between spouses
  • At common law spouses were prohibited from making donations to each other.
  • S22 of the Matrimonial Property Act has changed that.
  • Spouses can now make donations inter partes.
  • However, spouses married in community of property can still not make donations to each other, unless the donor spouse donates one of his separate assets to the other spouse, subject to the provision that the donation must be excluded from the joint estate.
  • The reason for this is that spouses married in community share everything and a donation by one to the other will simply fall back into the joint estate.
  • S22 is retrospective in nature.
8. Family name
  • A wife can, but need not, assume her husband's surname on marriage.
  • A woman may keep her surname and add it to her husband's name to create a double-barrel surname.
  • A husband does not have the same choice regarding his surname.
  • If he wishes to assume his wife's surname he must apply to the director general of home affairs for permission.
9. Headship of the Family
  • In terms of the common law, the husband is the head of the home.
  • Thus, he has a final say in all matters concerning the common life of the spouses, such as where and in what style they will live.
  • This rule still forms part of our law, even though it is unconstitutional.
If you would like to get Ronald Bobroff & Partners Inc to assistance you with any Invariable Consequences of Marriage issues  contact us or call us on 011 880-6781 or on our 24hour toll free number 0860 100 184

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