[1] It may be defined as "that subdivision of material private law which researches, describes and regulates the origin, contents and dissolution of all legal relationships between: (i) husband and wife (including the parties to a civil union); (ii) parents, guardians (and other holders of parental rights and responsibilities) and children; and (iii) relatives related through blood and affinity.
The former concerned a relationship between one man and one woman who intended to marry but could not do so in terms of Roman law; the latter dealt with formally recognised marriages.
"[9] In light of recent constitutional developments in South Africa, this definition has been found to be inadequate, particularly as regards its assumptions against polygamy[10] and same-sex life partnerships: In Minister of Home Affairs v Fourie,[11] it was declared unconstitutional.
In Rattigan v Chief Immigration Officer, Zimbabwe,[29] Gubbay CJ described marriage as a juristic act sui generis.
It obliges the husband and wife to live together for life (more realistically, for as long as the marriage endures) and to confer sexual privileges exclusively upon each other [...].
To live together as spouses in community of life, to afford each other marital privileges and to be ever faithful, are the inherent commands which lie at the very heart of marriage.
[30]Although a Zimbabwean case, Rattigan is widely cited in South African jurisprudence; it continues: Marriages are almost invariably entered into by parties who have deep affection for one another and who intend to devote the remainder of their lives together.
Although the condition of matrimony does not, as a concept of law, make the spouses one flesh—una caro—it nonetheless embodies the obligations to found a home, to cohabit, to have children and to live together as a family unit.
[31]Gubbay also cited in Rattigan the words of Justice Field in Maynard v Hill,[32] which characterised marriage as an institution, in the maintenance of which in its purity the public is deeply interested, for it is the foundation of the family and of society, without which there would be neither civilisation nor progress [...].
[44] To prohibit such a relationship, and thus to impair the spouses in their duty of cohabitation, would be to frustrate them in their personal fulfilment, and hence would amount to a limitation on the right to dignity.
"[50] In Volks v Robinson, endorsing Dawood and enumerating these instruments, the court found that "there can be no doubt that our Constitution recognises the institution of marriage.
"[51] It cited a provision in the Bill of Rights which, "in substance,"[51] provides for "marriages concluded under any tradition, or a system of religious, personal or family law.
"[53] This is in line with the establishment of "a new legal landscape consistent with the values of diversity, tolerance of difference and the concern for human dignity expressed in the Constitution.
In Amod v MMVF, the action was for payment of damages and loss of support after the death of a spouse, married in terms of Islamic law and not registered under Marriage Act.
The Cape High Court found that the Intestate Succession Act,[78] in discriminating on grounds of gender and religion and marital status, was inconsistent with the Constitution.
In summary, the constitutional validity of polygamy has not been subject to judicial scrutiny—indeed, it has been avoided—and the current position is that Muslim marriages receive only limited recognition in South African law.
In Govender v Ragavayah,[83] the court dealt with an application for an order declaring a Hindu widow to be recognised as a spouse in terms of Intestate Succession Act.
It was requested of the court that it read-in partners in domestic partnerships or alternatively declare unconstitutional the relevant provision for its unjustifiable discrimination and its violation of the right to dignity.
The partners may jointly enter into contracts of sale and lease, as well as into a universal partnership, whereby they agree to put in common all their property, universorum bonorum: not only what they have but also what they later acquire.
Universal partnerships may be entered on either express or tacit terms, but both partners will be required to contribute, and the official objective is to make a profit.
[57] The foremost protection of gay, lesbian and bisexual people in South Africa is section 9 of the Constitution, which forbids discrimination on the basis of sexual orientation.
Same-sex partnerships also enjoy statutory recognition in South Africa, as of 30 November 2006, under the Civil Union Act, which provides for In the landmark case of Fourie, discussed above, four main arguments were made in opposition to the recognition of same-sex partnerships: These were all ultimately rejected, and the separate-but-equal approach strongly dismissed as historically "a threadbare cloak for covering distaste for or repudiation by those in power of the group subjected to segregation.
The following judgments, excluding the already-discussed Fourie, illustrate its development: It is unlikely, given the provisions of Civil Union Act and its recognition of same-sex marriages, that the court will hear very many such cases in the future.
The issue of misrepresentation by omission was raised in Schnaar v Jansen,[104] where one of the parties to the engagement omitted to mention The court held, however, that as none concerned a personal quality of hers, she was under no obligation to disclose these facts to her then-fiancé.
A mistaken impression as to "the nature, mental worth, appearance, status or financial position of the other does not constitute a ground for terminating the engagement and is, therefore, irrelevant.".
[108] According to Innocent P.Chigume, A serious argument concerning the matrimonial property system which is to operate in the marriage would probably also be considered a justa causa.
Sepheri v Scanlan[113] sets out some of the factors to be considered in assessing contractual damages, among them engagement for a long period of years, constant travel and possibly community of property.
An agreement was reached between the defendant and the plaintiff, acting in his capacity as father and natural guardian of his minor daughter, that the marriage would subsequently be registered according to the laws of South Africa.
The defendant subsequently repudiated his obligation to register the marriage, and the plaintiff claimed damages for seduction and breach of promise to marry.
The general rule is that all gifts, other than small tokens of affection and those which have been alienated or lost or consumed, must be returned if the engagement is terminated by mutual consent.