PVL2601 Family Law Lecture Notes

Comprehensive vocabulary flashcards covering South African family law, including civil marriages, putative unions, matrimonial property systems, divorce consequences, customary marriages, civil unions, life partnerships, and children's rights.

Civil Marriage

The legally recognised voluntary union of one man and one woman to the exclusion of all other persons.

Consanguinity

Blood relationships created by birth, where the parties share at least one ancestor.

Affinity

The relationship which comes into being between a married person and the blood relations of his or her spouse.

Void Civil Marriage

A marriage that has never come into existence because of non-compliance with legal requirements, being void ab initio and not legally binding.

Ex parte Dow

A case establishing that the solemnisation of a civil marriage in a garden instead of a church, religious building, public office, or private dwelling house with open doors does not render the marriage void.

Voidable Civil Marriage

A marriage in which grounds are present, either before or at the time of the wedding, on the basis of which the court can be requested to set the marriage aside.

Stuprum

A ground for annulment where the wife is pregnant with another man's child at the time of the wedding without her husband's knowledge.

Venter v Venter

A case holding that if one of the parties fraudulently concealed sterility at the time of entering into the civil marriage, the other party may have the marriage annulled.

Putative Civil Marriage

A marriage that exists when one or both of the parties enter into a civil marriage while being unaware of a defect that renders the marriage void.

Bam v Bhabha

A Supreme Court of Appeal decision confirming that children born of a putative marriage are born of married parents and that both parents have full parental responsibilities and rights.

Consortium Omnis Vitae

An invariable consequence of marriage described as an umbrella concept comprising the totality of legal rights of one spouse to the company, affection, services, and support of the other.

Grobbelaar v Havenga

A case defining consortium omnis vitae as an abstraction comprising the totality of rights, duties, and advantages accruing to the spouses of a marriage, including companionship, love, and affection.

Reyneke v Reyneke

A case where a husband deliberately impoverished himself to avoid maintenance, wherein the court held it can only grant a maintenance order if satisfied the person claimed from is able to pay.

Negotiorum Gestio

A ground of third-party liability that arises when one person manages or promotes the interests of another without the latter's consent.

Household Necessities

Items and services needed in running the joint household, for which spouses married in community of property are jointly and severally liable.

Reloomel v Ramsay

A case concerning the purchase of a dress on credit where the court applied the subjective approach, evaluating only the facts the dealer was aware of or reasonably expected to know, to determine liability for household necessaries.

Lex Domicilii Matrimonii

The law of the husband's matrimonial domicile at the time of the marriage, which governs the patrimonial consequences of that marriage.

Fideicommissum

A benefit bequeathed to a person (fiduciary) subject to the condition that upon the occurrence of a specified event, such as the death of the fiduciary, the inheritance passes to another person.

Usufruct

The right granted by an owner to a non-owner to use and enjoy the owner's property for a specific period, typically for the holder's lifetime.

Section 18(a) of the Matrimonial Property Act

A statutory provision establishing that non-patrimonial damages received by a spouse become that spouse's separate property.

Du Plessis v Pienaar

An SCA decision confirming that creditors of spouses married in community of property can sue the joint estate, and separate assets are not protected or excluded from the joint estate upon insolvency.

Marital Power

A common law power abolished by Section 11 of the Matrimonial Property Act and replaced under Section 14 with equal administration of the joint estate.

Actio Pauliana Utilis

A common law remedy allowing a spouse to recover a joint estate asset from a third party if the other spouse fraudulently alienated it, or obtain recourse upon dissolution.

Antenuptial Contract

A formal written agreement executed before marriage before a notary and two witnesses and registered in the Deeds Office, excluding or modifying the common law or statutory patrimonial rules of marriage.

Complete Separation of Property

A matrimonial property system out of community of property and community of profit and loss without the accrual system, where each spouse retains their separate assets and liabilities.

Accrual

The net amount by which the value of a spouse's estate at the dissolution of the marriage exceeds the net value of that estate at the commencement of the marriage.

Reeder v Softline

A case establishing that pending dissolution of the marriage or a Section 8 court order, a spouse holds merely a contingent right to share in the accrual of the other spouse's estate.

Section 21 of the Matrimonial Property Act

The statutory provision allowing spouses to jointly apply to the High Court for permission to alter their matrimonial property system by entering into a postnuptial notarial contract.

Ex parte Menzies

A case ruling that when spouses change their matrimonial property system from community of property to separation of property, tied co-ownership converts to free co-ownership with divisible shares.

Redistribution of Assets (Section 7(3) Divorce Act)

A discretionary court order transferring assets from one spouse's estate to the other upon divorce in complete separation marriages, based on equitable contribution to the other's estate.

Sithole v Sithole

A Constitutional Court judgment declaring Section 22(6) of the Black Administration Act and Section 21(2)(a) of the Matrimonial Property Act unconstitutional for maintaining discriminatory default out-of-community property regimes for black spouses.

Pension Interest

The benefit a spouse who is a pension fund member would have received if their membership had terminated by resignation on the date of divorce, deemed part of the member's estate on divorce under Section 7(7)(a) of the Divorce Act.

Pension Benefit

A withdrawal benefit that has already accrued to a pension fund member prior to the divorce proceedings.

Piercing the Trust Veneer

A court remedy disregarding the separate legal existence of a trust to treat its assets as personal property of a spouse when the trust is abused or operated as a sham.

Forfeiture of Patrimonial Benefits

A remedy under Section 9(1) of the Divorce Act where the court orders that a spouse forfeit patrimonial benefits of the marriage to prevent them from unduly benefiting, considering marriage duration, breakdown causes, and substantial misconduct.

Wijker v Wijker

A Supreme Court of Appeal case establishing that the three statutory factors for forfeiture of benefits—duration of the marriage, circumstances of breakdown, and substantial misconduct—need not all be present.

Token (Nominal) Maintenance

A minor maintenance order granted upon divorce where no immediate need exists, preserving the right to claim a larger, varied maintenance award in the future.

Rehabilitative Maintenance

Post-divorce spousal maintenance awarded for a fixed period to enable the recipient spouse to become self-sufficient through training, education, or employment.

Office of the Family Advocate

A statutory office established by the Mediation in Certain Divorce Matters Act 24 of 1987 to enquire into, report on, and make recommendations concerning the welfare and best interests of minor and dependent children.

Rule 43 Application

A High Court procedure enabling a spouse in pending divorce litigation to obtain quick interim relief regarding maintenance, litigation contributions, or child care and contact.

Civil Union

A voluntary, monogamous union solemnised and registered under the Civil Union Act of 2006 between two persons who are at least 18 years of age, whether of the same sex or opposite sex.

Mbungela v Mkabi

A Supreme Court of Appeal case holding that the formal handing over of the bride is not an essential requirement for a valid customary marriage and can be waived by agreement.

Gumede v President of the Republic of South Africa

A Constitutional Court decision declaring Section 7(1) of the RCMA unconstitutional regarding monogamous customary marriages, establishing that all such marriages are in community of property absent an antenuptial contract.

Section 7(6) of the Recognition of Customary Marriages Act

The requirement that a husband wishing to enter into a further customary marriage must apply to court for approval of a written contract regulating the future matrimonial property system of his marriages.

Women's Legal Centre Trust v President of the Republic of South Africa

A Constitutional Court judgment declaring the common law definition of marriage, the Marriage Act, and the Divorce Act unconstitutional for failing to recognise Muslim marriages and failing to provide for asset redistribution on their dissolution.

Cohabitation (Life Partnership)

A stable, monogamous, factual cohabitation relationship in which an opposite-sex or same-sex couple chooses to live together in a marriage-like union without entering into a legally recognised marriage.

Bwanya v Master of the High Court

A Constitutional Court judgment ruling that surviving partners in permanent opposite-sex life partnerships with reciprocal duties of support are entitled to claim maintenance under the Maintenance of Surviving Spouses Act and inherit intestate under the Intestate Succession Act.

Universal Partnership

An express or tacit agreement between two cohabiting persons to combine their property and efforts for joint benefit and profit, often used to claim patrimonial division upon dissolution of a life partnership.

Guardianship (Children's Act)

A parental responsibility and right that encompasses administering and safeguarding a child's property, representing or assisting the child in legal matters, and granting legal consents.

Care (Children's Act)

A parental responsibility and right that entails providing a child with suitable living accommodation, conditions conducive to health and development, and necessary financial and personal support.