Family Law (PVL2601) - Comprehensive Review

Vocabulary practice flashcards covering South African family law, including civil marriages, matrimonial property regimes, dissolution by death and divorce, civil unions, customary marriages, religious marriages, life partnerships, and children's rights and parental responsibilities.

Civil marriage

A monogamous union entered into by persons of the opposite sex, governed by the common law and various statutes, which confers legal status and consequences that cannot be altered or excluded by the spouses.

Lucidum intervallum

A temporary period of sanity or mental clarity during which a mentally ill person possesses the legal capacity to enter into a valid civil marriage.

Error in personam

A material mistake concerning the identity of the other party to a marriage, which excludes agreement (consensus) and renders the civil marriage voidable.

Error in negotio

A material mistake concerning the legal nature of the juristic act itself, such as believing the ceremony is an engagement rather than a marriage ceremony, which excludes agreement and renders the marriage voidable.

Simulated civil marriage

A marriage of convenience concluded for an ulterior motive where the parties nevertheless possessed the true intention to enter into a civil marriage, rendering the marriage legally valid as affirmed in Martens v Martens.

Prenuptial stuprum

Extramarital sexual intercourse committed by a woman with a third party prior to entering into marriage, which renders the marriage voidable if she is pregnant by another man at the time of the wedding and fraudulently conceals this from her husband.

Duress (in marriage law)

Unlawful threat or force used to compel a party to consent to a civil marriage, which vitiates free consent and renders the marriage voidable (e.g., Smith v Smith).

Undue influence (in marriage law)

A situation where one party's choice is improperly influenced and they are persuaded to enter into a civil marriage as a result of that influence, rendering the marriage voidable.

Consanguinity

The relationship between persons who are related to each other by blood, occurring either in the direct line of descent or in the collateral line.

Affinity

The legal relationship created by a valid marriage between a spouse and the blood relatives of the other spouse.

Direct line consanguinity rule

The rule prohibiting blood relatives in the direct line (ascendants and descendants, such as parents, grandparents, children, and grandchildren) from ever marrying one another.

Collateral line consanguinity rule

The rule prohibiting blood relatives in the collateral line from marrying each other if either of them is related to their common ancestor or ancestors within the first degree (such as brothers, sisters, nieces, nephews, aunts, and uncles).

Direct line affinity rule

The legal rule prohibiting persons related to each other by affinity in the direct line (such as a person and their ex-spouse's parents or their stepchildren) from marrying one another.

Collateral line affinity rule

The legal rule permitting persons related to each other by affinity in the collateral line (such as a person and their brother-in-law, sister-in-law, or their ex-spouse's cousins) to enter into a valid marriage.

Void civil marriage

A purported marriage that never comes into existence legally (void ab initio) due to non-compliance with fundamental formal or material requirements, producing no marital status changes or matrimonial property consequences.

Voidable civil marriage

A marriage in which a defect existed at the time of its conclusion, but which remains fully valid and enforceable with all consequences of a valid marriage until it is set aside and annulled by a court order.

Putative marriage

A void civil marriage where a defect rendered the union null and void at its conclusion, but where one or both spouses were bona fide and completely unaware of the defect at the time of entering the marriage.

Impotence

The inability of a person to engage in sexual intercourse, which renders a civil marriage voidable if the condition existed prior to the marriage and the plaintiff spouse was unaware of it, provided it is not temporary or curable.

Sterility

The inability to procreate or conceive children despite being capable of sexual intercourse; does not affect the validity of a civil marriage unless it was fraudulently concealed prior to the ceremony.

Invariable consequences of marriage

Legal consequences that attach automatically by operation of law (ex lege) upon the conclusion of a civil marriage and cannot be altered, excluded, or waived by the spouses.

Variable consequences of marriage

The patrimonial consequences of marriage regarding the spouses' assets and liabilities, which the parties can choose and regulate through an antenuptial contract.

Consortium omnis vitae

The totality of the marital relationship and companionship between spouses, encompassing mutual love, affection, society, emotional support, and cohabitation.

Reciprocal duty of support

The mutual invariable legal duty between spouses to maintain each other according to their respective means and financial needs, based on the existence of a valid civil marriage.

Household necessaries

Everyday goods and services required for the maintenance and management of the joint household, including food, clothing, accommodation, and medical services, for which spouses are jointly and severally liable.

Universal community of property

The primary default matrimonial property system in South African law wherein spouses become tied co-owners in equal, undivided, and indivisible half shares of all assets and liabilities acquired prior to and during the marriage.

Antenuptial contract

An agreement entered into by prospective spouses prior to their marriage for the purpose of excluding or modifying the common-law and statutory property consequences of marriage.

Informal antenuptial contract

An antenuptial agreement between spouses that has not complied with the statutory formalities of notarial execution and Deeds Office registration, rendering it binding only between the spouses (inter partes) and invalid against third parties.

Section 88 of the Deeds Registries Act 47 of 1937

The statutory provision allowing spouses to apply to the High Court for authorization to execute and register an antenuptial contract postnuptially where terms were agreed upon prior to the marriage.

Pactum successorium

An agreement concerning the succession or devolution of a party's estate or inheritance, which is generally invalid in South African law but legally recognized when contained in an antenuptial contract.

Accrual system

A statutory matrimonial property system introduced by the Matrimonial Property Act 88 of 1984 under which spouses maintain separate estates during marriage, but upon dissolution share equally in the net growth of their respective estates.

Accrual

The net amount by which the end value of a spouse's estate at the dissolution of the marriage exceeds the commencement value as adjusted by the Consumer Price Index (CPI), minus excluded assets such as donations and non-patrimonial damages.

Actio Pauliana utilis

A common-law action available to a spouse to revoke or recover an asset alienated by the other spouse to a third party with the fraudulent intention of prejudicing the applicant spouse's rights in the joint estate or accrual claim.

Principle of immutability

The traditional common-law doctrine in matrimonial property law providing that once chosen upon marriage, the matrimonial property system remains fixed and cannot be changed during the subsistence of the marriage.

Section 21(1) of the Matrimonial Property Act 88 of 1984

The statutory provision permitting spouses to jointly apply to the High Court to alter their matrimonial property system postnuptially, provided there are sound reasons, sufficient notice to creditors, and no prejudice to any person.

Judicial separation

A formal court decree relieving spouses of their cohabitation duties without dissolving the marriage bond, abolished by section 14 of the Divorce Act 70 of 1979.

Extra-judicial separation

A private, contractual agreement between spouses to live apart and regulate their mutual affairs without a court order, which is valid and binding solely between the parties (inter partes).

Maintenance of Surviving Spouses Act 27 of 1990

An Act that affords a surviving spouse in a marriage dissolved by death a claim for reasonable maintenance needs against the estate of the deceased spouse if unable to provide for those needs from their own means and earnings.

Irretrievable breakdown of the marriage

The primary statutory ground for divorce under section 4 of the Divorce Act 70 of 1979, proven when the marital relationship is no longer normal and there is no reasonable prospect of the restoration of a normal relationship.

Section 5A of the Divorce Act 70 of 1979

The statutory provision empowering a court to refuse a decree of divorce if religious prescriptions prevent either spouse from remarrying until a religious divorce is granted by the other spouse.

Pension interest

The notional retirement fund benefit of a member spouse at the date of divorce, which is deemed to be an asset in that spouse's estate for the purpose of dividing matrimonial patrimony under section 7(7)(a) of the Divorce Act 70 of 1979.

Forfeiture of patrimonial benefits

A discretionary court order granted under section 9(1) of the Divorce Act 70 of 1979 directing that a spouse lose financial benefits accrued from the marriage to prevent them from being unduly benefited, having regard to the duration of the marriage, circumstances of breakdown, and substantial misconduct.

Redistribution of assets

A remedial judicial power under section 7(3) of the Divorce Act 70 of 1979 enabling the court to order the transfer of assets from one spouse to the other upon divorce in qualifying pre-1984 or pre-1988 marriages with complete separation of property where the applicant made a qualifying contribution.

Clean-break principle

The policy principle applied in divorce proceedings aimed at effecting a complete and final financial severance between former spouses to prevent ongoing financial dependency and future litigation.

Rehabilitative maintenance

Post-divorce spousal maintenance awarded for a limited, transitional period to enable a dependent former spouse to acquire skills, complete education, or enter the job market to become economically self-sufficient.

Token maintenance

A nominal or symbolic spousal maintenance order granted upon divorce to keep the maintenance order alive so that it may be varied or increased in the future under section 8 of the Divorce Act 70 of 1979 should circumstances change.

Guardianship (Children's Act 38 of 2005)

The parental responsibility and right to administer and safeguard a child's property, assist or represent the child in administrative, contractual, and legal matters, and give or withhold statutory consent (e.g., to marriage, adoption, or emigration).

Care (Children's Act 38 of 2005)

The statutory concept replacing common-law custody, encompassing the duty to accommodate the child, guide daily upbringing, maintain emotional and physical well-being, and make day-to-day decisions regarding the child.

Contact (Children's Act 38 of 2005)

The statutory concept replacing common-law access, denoting maintaining a personal relationship with the child through regular communication, visits, or virtual and physical presence.

Parenting plan

A formal written agreement between co-holders of parental responsibilities and rights that sets out how they will exercise their duties regarding care, contact, guardianship, and maintenance of a child.

Civil union

A monogamous voluntary union concluded by two persons of the same sex or opposite sex aged 18 or older in terms of the Civil Union Act 17 of 2006, designated as either a marriage or a civil partnership.

Customary marriage

A marriage concluded in accordance with customary law among indigenous African peoples in South Africa, recognized as a valid marriage under the Recognition of Customary Marriages Act 120 of 1998.

Life partnership

A relationship between two individuals who cohabit in a permanent domestic life partnership without having concluded a civil marriage, civil union, or customary marriage.