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History of Marriage and Divorce – Genealogy
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Marriage Laws Pre 1972
Since the days of Roman law marriage in the Western world has been defined as the legally recognised union of one man and one woman, to the exclusion, while the marriage lasts, of all others. Polygamous unions, being fundamentally opposed to our conception of matrimony, are not recognised as valid marriages. Thus, Bantu customary unions, though by no means without legal effect (see Bantu law), are not marriages in the eyes of South African law. The same is true of a 'marriage' according to Moslem or Hindu rites, even though contracted in India or Arabia, where such marriages are legally recognised. The crucial test in each case is whether the union is potentially polygamous, in other words, whether, according to the rules of the law in question, the 'husband' is permitted to take unto himself another wife while the 'marriage' subsists. Whether or not he has in fact availed himself of this opportunity does not affect the issue.
As marriage is the foundation of the family, which is the basic unit of society, the institution of marriage has always enjoyed the special favour and protection of the law. Covenants calculated to restrain marriage or to lead to the break-up of an existing marriage by divorce or separation are invalid, as being opposed to public policy. On the same ground, conditions in general restraint of marriage in a last will are struck out. Exceptions apply in respect of restraints on the remarriage of widows and widowers and of partial restraints on marriage, such as marriage out of a particular race, religion or nationality (for instance, 'Jewish faith and race' clauses).
Espousals
In the nature of things, marriage is preceded by a contract of engagement – a contract to marry, a betrothal, espousals. Espousals do not require any formalities and may be contracted in any way: orally or by letter, by telegram or on the telephone. Minors require the consent of their parents or legal guardians. Espousals may be cancelled at any time by mutual consent. Either party may terminate the contract unilaterally on the ground of fraud or for any other good reason, e.g., the man discovers after the engagement that the woman has led a dissolute life. Impotence and serious hereditary disease are also grounds for the repudiation of espousals. The sanction for unjustified breach of promise is an action for damages. The wronged party recovers compensation for his or her pecuniary loss as well as for the hurt to his or her feelings. A promise of marriage by a married person is invalid. The mere fact that it is made conditionally upon the existing marriage being dissolved does not redeem it. The promise will, however, give rise to an action for damages if the plaintiff was ignorant of the subsisting marriage of the defendant.
In Roman law a betrothal gave no action for breach of promise, it being considered contrary to the public interest to force a person, directly or by the threat of an action for damages, to proceed to marriage if he or she no longer felt so inclined. Modern opinion is reverting to the view that breach of promise actions are, on the whole, undesirable, and they have been abolished by statute in England (1970) and several American jurisdictions, including the State of New York.
Prohibited degrees
Ascendants and descendants in the direct line – father and daughter, grandfather and granddaughter, and so forth – may not marry each other. Collaterals are prohibited from intermarrying if either of them is related to their common ancestor in the first degree of descent. Thus a man may not marry his sister, half-sister, niece or grand-niece. There is, on the other hand, no obstacle to marriage between cousins, including first cousins. As regards relations by marriage, a man may marry his deceased or divorced wife's sister, aunt or niece; but he may not marry his former wife's mother or her daughter by a previous husband. The same rules apply as between a woman and her former husband's relations.
Mixed marriages
Under the Prohibition of Mixed Marriages Act (No. of 1949) marriage is prohibited between Whites and non-Whites-Bantu, Asiatics and Coloured persons. Before that there was no legal obstacle to intermarriage between White and non White, though no machinery for the purpose existed in the Transvaal. There is no prohibition of intermarriage between the different non-White races.
The marriage ceremony
The formalities of marriage are regulated by the Marriage Act (No. 25 of 1961) and the Marriage Amendment Act (No. 51 of 1970). In order to be valid the ceremony must be performed by a marriage officer before two witnesses. The parties must be personally present – marriage by proxy is not permitted in South African law. Magistrates and Bantu commissioners are ex officio marriage officers. Clergymen must be appointed as marriage officers by the Minister of the Interior before they may perform marriage ceremonies. The parties can choose whether they want to be married in secular form by a magistrate or in religious form by a clergyman of their faith. No preliminary formalities, such as banns, notices of intention to marry, or marriage licences are prescribed. After the ceremony the parties and the witnesses are required to sign the marriage register, but omission to do so does not affect the validity of the marriage.
Minors' marriages
In Roman-Dutch law the earliest age at which a person could marry was 14 years for boys and 12 for girls, legal age of puberty since the days of ancient Rome. Today the earliest age at which a minor can legally marry in South Africa is 18 for boys and 12 for girls. A minor desirous of marrying at an earlier age must obtain, in addition to the consent of his parents or legal guardian, permission in writing from the Minister of the Interior, which is not readily granted. Boys and girls above the ages of 18 and 15 respectively, may marry provided they obtain the consent of their parents or, if they have no parents, of their legal guardian. If parents or guardians are absent or otherwise incapable of consenting, the Commissioner of Child Welfare may authorise the marriage.
Refusal of the parents can only be overruled by the Supreme Court. Lack of parental consent renders the marriage voidable at the instance of the aggrieved parents or parent. If the parents do not avail themselves of this right, the marriage holds good, but the major spouse can at no time take any financial benefit from the estate of the erstwhile minor, be it by community of property, antenuptial contract, testament or otherwise. The whole matter is regulated exhaustively by the Marriage Act of 1961.
Invariable consequences of marriage
Marriage creates a status recognised and protected by law. Its essential consequences cannot be varied by the parties by mutual agreement. Thus they cannot effectively stipulate before the marriage that they will not live together, or that the husband shall be entitled to keep a mistress, or that either of them shall give the other a divorce on request.
The husband has the final say in all matters concerning the common life, but may not enforce his decisions by applying physical restraint to his wife, nor has he, in modern law, a right of chastisement over her. As long as the marriage subsists, she shares legally his domicile, but in modern South African law she does not automatically assume his nationality.
Spouses are under reciprocal duties to support each other in illness and health. Normally, the duty to maintain his wife and family devolves upon the husband as the main breadwinner; but if he is an invalid or, owing to no fault of his, unemployed while his wife has means or is able to work, the duty of support devolves upon her. Where the husband, though able to do so, neglects or refuses to maintain his wife and children, the magistrate's court (maintenance court) will grant her a maintenance order which will be enforced, if necessary, by deductions from his wages or, in the final resort, by imprisonment.
Another invariable consequence of marriage is the prohibition of donations between spouses. This prohibition originated in Roman law and was, at one time, fairly common on the Continent, but has disappeared from most modern systems of law, though not from the South African. Contrary to widely held views, the purpose of the prohibition is not so much to protect the creditors of the spouses against fraudulent donations – the provisions of the Insolvency Act are designed for this purpose – but to protect the spouses against their own generosity. The Roman lawyers felt, rightly or wrongly, that, if donations between spouses were fully permitted, the stronger or more rapacious spouse might be tempted to enrich himself at the expense of the other. The rule prohibiting donations is of little practical importance where the marriage is in community of property. As everything belongs to both spouses in common, there is, legally, no room for a donation. The position is otherwise where the marriage is out of community of property. If one of the spouses makes a substantial donation of money, shares or real estate to the other, the donor can at any time revoke his or her gift. The same is true of a gratuitous release from a debt. Moderate donations on proper occasions – birthdays, wedding anniversaries, Christmas celebrations – are not touched by the rule. Statutory exceptions apply to life insurance and endowment policies. A prohibited donation becomes confirmed if the donor spouse dies before the donor spouse, without having revoked the gift. If the donor spouse dies first, the donor spouse can still revoke the gift.
Community of property and the marital power
In the absence of an antenuptial contract, marriage in South African law results in universal community of property and profit and loss. The wife becomes subject to her husband's marital power. Community of property and profit and loss, with subjection of the wife to her husband's marital power, was the matrimonial regime of Holland as early as the 13th century. Modern European legal systems do not have universal community of property on South African lines. England, Scotland, the majority of the states of the United States, Rhodesia, and the common law provinces of Canada have complete separation of goods. A number of countries, including France, and several states of the United States (so-called 'community-jurisdictions'), including California and Louisiana, have community of profit and loss. Several continental countries, including the Netherlands and Germany, have deferred community or participation systems. During the marriage each spouse owns and administers independently of the other whatever he or she has brought into the marriage or acquired thereafter. On dissolution of the marriage by death or divorce, there is sharing. Thus, in the Netherlands, the estates of the spouses are pooled and shared, substantially, as if they had been married in universal community. In Germany, only the profits made by the spouses during the marriage are pooled and shared. It will be seen that under such a system the wife retains her own property and independence during the marriage, but that there is participation in each other's estate when the marriage is dissolved, thus combining the advantages of a system of separation of goods with those of a community system.
As the words 'community of property and profit and loss' indicate, the community system of South African law is all-embracing. 'Whatever either spouse brings into the marriage or acquires during the marriage in any manner whatsoever falls into the joint estate: wages, fees and royalties; pensions and retirement benefits; gifts and inheritances; dividends and interest; lottery wins and gambling gains. A person who gives or bequeathes property to a married person may prescribe that it shall be excluded from the community and, where the wife is the donor, from the marital power. Special rules apply to life insurance and endowment policies which a husband has ceded to, or effected in favour of, his wife.
Together with the assets, the liabilities of both spouses, whether antenuptial or postnuptial, and however incurred, become common.
Nominally, the husband's marital power extends over his wife's person and property. As far as person goes, this means little today, except that the wife may not sue or be sued without her husband's assistance. The days when a husband could direct his wife's personal life or apply ‘moderate chastisement' to her are past. The proprietary aspects, on the other hand, are formidable. By virtue of his marital power the husband is the sole administrator of the joint estate. His powers of disposition at common law are practically unlimited. Without his wife's knowledge and consent and without being obliged even to render account to her, he may sell, give away or hypothecate (i.e. mortgage or pledge) any property, movable or immovable, irrespective of whether he or his wife has brought it into the community or acquired it for the community during the marriage. His contracts, however foolish or wasteful, are binding on her, without the possibility of redress, both during the marriage and after its dissolution.
The corollary of the husband's dictatorial powers over community assets is the legal incapacity of the wife, who is reduced to a legal position little better and in many ways worse than that of a minor. Without her husband's assistance, she cannot bind herself in contract. Nor can she effectively alienate or hypothecate community assets. Payment to her, unless it reaches her husband, does not release a debtor. There are two time – hallowed exceptions. First, by virtue of her position as manageress of the joint household, the wife can bind her husband's credit for food, clothing and other necessaries for the household and its members. Secondly, a woman who with her husband's consent carries on a public trade or profession can bind both her husband and herself by contracts and other transactions within the scope of that trade or profession.
Dark as the overall picture of the wife's subjection to her husband's powers in matters contractual and proprietary is, it is not, however, altogether devoid of relieving features. While the husband may freely make donations out of the joint estate to third persons, without requiring his wife's consent, she (or her heirs) may recover such donations from him or the donees if the donations were made by him in deliberate fraud of his wife (or her heirs), e.g., if he gave away large portions of the joint estate to his mistress or to children of an earlier marriage of his. And if the husband by his prodigality or poor administration threatens to reduce her to destitution, she may apply for protection to the court, which may make whatever order is appropriate in the circumstances:
interdict him from further administration; order separation of goods; restrain him from disposing of specified assets. In extreme cases, the husband may be interdicted as a prodigal and the wife appointed as his curatrix. If the husband mala fide or unreasonably refuses to assist his wife in a legal transaction or lawsuit, the court may authorise her to act on her own. In addition, there are now a number of statutory provisions restricting the husband's powers and increasing those of the wife. The main provisions of this kind are found in the Matrimonial Affairs Act (No. 37 of 1953). Result of the labours of the Women's Legal Disabilities Commission, appointed in 1946 under the chairmanship of Mr. Justice P. 5. Twentyman Jones, this Act is intended to provide enhanced legal status for the wife. It had been advocated in Parliament for many years by Mrs. Bertha Solomon.
As regards immovables, the Act lays down a procedure by which land and other immovable property forming part of the community which the wife has brought into the marriage, or which have been paid for out of her earnings, or which have come to her during the marriage by gift or inheritance, or which have been purchased out of the proceeds of any of the aforementioned categories, can be protected against disposition by her husband. On application by the wife or the husband, the fact that the property in question falls into one of these classes will be registered against the title – deeds. Once this has been done, the husband is no longer able to alienate, hypothecate or otherwise burden the property without his wife's written consent.
As regards movable property, the Act provides, inter alia, that the husband may not, without the written consent of his wife, collect or take earnings due to her from her employer; receive or take any compensation awarded to her in respect of personal injuries; withdraw or take any deposit standing in her name in the Post Office Savings Bank, a building society or a bank; alienate or pledge any shares held by her in a building society; receive or take any dividends on or the proceeds of building society shares; alienate or pledge any tool or implement of trade with which his wife is earning remuneration (say, her typewriter or sewing-machine). The wife's legal capacity is correspondingly enhanced. Thus, even a wife who is married to her husband in community and subject to his marital power, can, without his consent open and operate on a current or savings account with a bank, and her husband may not, without her written consent, demand from her bank particulars concerning her deposits. She still requires her husband's consent, however, before she may overdraw on her account. Though protected against the husband's dispositions, the aforementioned items nevertheless remain part of the community estate and are liable to attachment for community debts, with the sole exception of the husband's bottle-store debts.
Antenuptial contracts
By means of an antenuptial contract it is possible to exclude community of property and of profit and loss as well as the marital power, and to provide for marriage settlements. Theoretically, it is possible to insert succession clauses in an antenuptial contract, but in modern practice this is hardly ever done. It would appear that approximately a third of all marriages in South Africa are by antenuptial contract. Spouses married by the standard type of antenuptial contract are substantially in the same position as spouses married under English law – there is complete separation of goods. In order to be fully effective, an antenuptial contract must be notarially executed before the parties marry and must be tendered for registration in the Deeds Registry Office within two months of its execution. Where the marriage is contracted outside South Africa, the parties must have the contract attested by a notary or his nearest local equivalent and tender it for registration in a deeds registry in the Republic within six months of its execution. If one of the parties is a minor, the consent of his or her natural or legal guardian is required. Postnuptial contracts are not permitted in South African law. They used to be allowed in Natal, but this was changed in 1956. The court may permit the postnuptial registration of an antenuptial contract if the parties are able to satisfy it that they agreed prior to their marriage to exclude community of property and profit and loss and the marital power; that their failure to execute a formal antenuptial contract was due to excusable ignorance; and that they came to court immediately they discovered the true position.
Dissolution of the marriage by death
Where the marriage was in community of property, the surviving spouse takes half of the joint estate. The other half goes to the heirs of the first-dying spouse. Where the marriage was by antenuptial contract, the surviving spouse takes whatever marriage settlements he or she is entitled to in terms of the contract. If the first-dying spouse does not leave a will, the surviving spouse succeeds to him or her in accordance with the provisions of the Succession Act (No. 13 of 1934). There is, however, nothing to preclude a man or woman from disinheriting his or her spouse. The result may be that, unless the marriage is in community of property or there arc substantial marriage settlements, the surviving spouse is left destitute. In this event, he or she is not even entitled to maintenance out of the estate of the first-dying, however wealthy the latter may have been. The surviving spouse may remarry as soon as he or she pleases, but will normally be required to make the necessary provision for minor children of the first marriage.
Divorce
There are four grounds for divorce in South African law: adultery; malicious desertion; incurable insanity, the afflicted spouse having been detained in a mental institution in South Africa for a continuous period of not less than 7 years; imprisonment for 5 years, after a declaration of habitual criminality. Where the divorce is based on adultery, malicious desertion and, perhaps, imprisonment, the divorce court can award the innocent spouse maintenance until death or remarriage. An order of forfeiture of the financial benefits derived from the marriage may be made against the guilty spouse. In deciding to whom the custody and guardianship of minor children of the spouses is to be awarded, the courts are guided primarily by what is best for the children. Questions of innocence and guilt are of secondary importance. The burden of maintaining the minor children after the divorce falls on both spouses, in accordance with their means. After the divorce the wife, whether she be the innocent or the guilty party, is free to retain her married name or assume any surname she bore previously. Adultery used to be a crime in Roman Dutch law, but is so no longer. Nor is there anything in the law today to preclude the guilty spouse from marrying his or her paramour. The innocent spouse has, however, an action for damages against the third party with whom his or her spouse has committed adultery – often colloquially referred to as the 'co-respondent'. Normally this action is coupled with the action for divorce, but the innocent spouse may forgive his or her spouse and still bring the action for damages against the latter's paramour.
Nullity and annulment
Whereas a divorce is based on something which happened during the marriage, a decree of nullity or an annulment is granted on the ground of a defect or obstacle which existed at the time of the marriage. A decree of nullity is made in respect of a marriage which is null and void from the beginning, such as a bigamous marriage. Other examples are a marriage contracted without the prescribed formalities, a marriage contracted by an insane person, a marriage within the prohibited degrees of relationship, a mixed marriage, and a marriage contracted by a boy below the age of 18 or a girl below the age of 15 with out the consent of the Minister of the Interior having been obtained. If one party or both parties to a void marriage were bona fide – for instance, the girl did not know that the man with whom she went through a form of marriage was married – children of the union will be legitimate (so-called putative marriage).
Among the factors which render a marriage liable to annulment are lack of parental consent to a minor's marriage and duress. Mistake as to a spouse's age, name, religion, nationality, qualities or fortune, even if induced by fraud, do not render the marriage liable to annulment. Thus a man cannot have a marriage set aside if he discovers, after the marriage, that the girl who presented herself to him as a virgin was in fact a divorcee or an ex-prostitute. Nor can a woman have her marriage annulled if she finds out that the man who represented himself to her as a respectable man of means is in fact an impecunious ex-convict. A marriage may, however, be annulled at the instance of either spouse if at the time of the marriage the other party was, unknown to him or her, incurably impotent (sterility not accompanied by impotence is not sufficient); and at the instance of the husband if at the time of the marriage his wife was, unknown to him, pregnant by another man.
Separation
Separation lies somewhere between a living marriage and a divorce. In order to obtain a decree of judicial separation, the plaintiff must prove adultery or malicious desertion or show that, on account of the defendant's unlawful conduct, life together has become dangerous or intolerable to him or her. As a rule the action is based on physical or mental cruelty. A decree of judicial separation does not sever the marriage tie and does not permit adultery, but authorises the spouses to live apart. Judicial separation was taken over from the law of the medieval Church, which regarded marriage as indissoluble. Up to this day it is the only matrimonial remedy open to Roman Catholics who do not wish to offend against the canons of their creed. A voluntary deed of separation is sometimes entered into by spouses who wish to separate, but do not want to wash their dirty linen in public. Like a judicial order of separation, a deed of separation, usually (but not necessarily) entered into in notarial form, is a licence for living apart, but no more.
The Law of Marriage and Divorce
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Marriage Laws Pre 1972
Since the days of Roman law marriage in the Western world has been defined as the legally recognised union of one man and one woman, to the exclusion, while the marriage lasts, of all others. Polygamous unions, being fundamentally opposed to our conception of matrimony, are not recognised as valid marriages. Thus, Bantu customary unions, though by no means without legal effect (see Bantu law), are not marriages in the eyes of South African law. The same is true of a 'marriage' according to Moslem or Hindu rites, even though contracted in India or Arabia, where such marriages are legally recognised. The crucial test in each case is whether the union is potentially polygamous, in other words, whether, according to the rules of the law in question, the 'husband' is permitted to take unto himself another wife while the 'marriage' subsists. Whether or not he has in fact availed himself of this opportunity does not affect the issue.
As marriage is the foundation of the family, which is the basic unit of society, the institution of marriage has always enjoyed the special favour and protection of the law. Covenants calculated to restrain marriage or to lead to the break-up of an existing marriage by divorce or separation are invalid, as being opposed to public policy. On the same ground, conditions in general restraint of marriage in a last will are struck out. Exceptions apply in respect of restraints on the remarriage of widows and widowers and of partial restraints on marriage, such as marriage out of a particular race, religion or nationality (for instance, 'Jewish faith and race' clauses).
Espousals
In the nature of things, marriage is preceded by a contract of engagement – a contract to marry, a betrothal, espousals. Espousals do not require any formalities and may be contracted in any way: orally or by letter, by telegram or on the telephone. Minors require the consent of their parents or legal guardians. Espousals may be cancelled at any time by mutual consent. Either party may terminate the contract unilaterally on the ground of fraud or for any other good reason, e.g., the man discovers after the engagement that the woman has led a dissolute life. Impotence and serious hereditary disease are also grounds for the repudiation of espousals. The sanction for unjustified breach of promise is an action for damages. The wronged party recovers compensation for his or her pecuniary loss as well as for the hurt to his or her feelings. A promise of marriage by a married person is invalid. The mere fact that it is made conditionally upon the existing marriage being dissolved does not redeem it. The promise will, however, give rise to an action for damages if the plaintiff was ignorant of the subsisting marriage of the defendant.
In Roman law a betrothal gave no action for breach of promise, it being considered contrary to the public interest to force a person, directly or by the threat of an action for damages, to proceed to marriage if he or she no longer felt so inclined. Modern opinion is reverting to the view that breach of promise actions are, on the whole, undesirable, and they have been abolished by statute in England (1970) and several American jurisdictions, including the State of New York.
Prohibited degrees
Ascendants and descendants in the direct line – father and daughter, grandfather and granddaughter, and so forth – may not marry each other. Collaterals are prohibited from intermarrying if either of them is related to their common ancestor in the first degree of descent. Thus a man may not marry his sister, half-sister, niece or grand-niece. There is, on the other hand, no obstacle to marriage between cousins, including first cousins. As regards relations by marriage, a man may marry his deceased or divorced wife's sister, aunt or niece; but he may not marry his former wife's mother or her daughter by a previous husband. The same rules apply as between a woman and her former husband's relations.
Mixed marriages
Under the Prohibition of Mixed Marriages Act (No. of 1949) marriage is prohibited between Whites and non-Whites-Bantu, Asiatics and Coloured persons. Before that there was no legal obstacle to intermarriage between White and non White, though no machinery for the purpose existed in the Transvaal. There is no prohibition of intermarriage between the different non-White races.
The marriage ceremony
The formalities of marriage are regulated by the Marriage Act (No. 25 of 1961) and the Marriage Amendment Act (No. 51 of 1970). In order to be valid the ceremony must be performed by a marriage officer before two witnesses. The parties must be personally present – marriage by proxy is not permitted in South African law. Magistrates and Bantu commissioners are ex officio marriage officers. Clergymen must be appointed as marriage officers by the Minister of the Interior before they may perform marriage ceremonies. The parties can choose whether they want to be married in secular form by a magistrate or in religious form by a clergyman of their faith. No preliminary formalities, such as banns, notices of intention to marry, or marriage licences are prescribed. After the ceremony the parties and the witnesses are required to sign the marriage register, but omission to do so does not affect the validity of the marriage.
Minors' marriages
In Roman-Dutch law the earliest age at which a person could marry was 14 years for boys and 12 for girls, legal age of puberty since the days of ancient Rome. Today the earliest age at which a minor can legally marry in South Africa is 18 for boys and 12 for girls. A minor desirous of marrying at an earlier age must obtain, in addition to the consent of his parents or legal guardian, permission in writing from the Minister of the Interior, which is not readily granted. Boys and girls above the ages of 18 and 15 respectively, may marry provided they obtain the consent of their parents or, if they have no parents, of their legal guardian. If parents or guardians are absent or otherwise incapable of consenting, the Commissioner of Child Welfare may authorise the marriage.
Refusal of the parents can only be overruled by the Supreme Court. Lack of parental consent renders the marriage voidable at the instance of the aggrieved parents or parent. If the parents do not avail themselves of this right, the marriage holds good, but the major spouse can at no time take any financial benefit from the estate of the erstwhile minor, be it by community of property, antenuptial contract, testament or otherwise. The whole matter is regulated exhaustively by the Marriage Act of 1961.
Invariable consequences of marriage
Marriage creates a status recognised and protected by law. Its essential consequences cannot be varied by the parties by mutual agreement. Thus they cannot effectively stipulate before the marriage that they will not live together, or that the husband shall be entitled to keep a mistress, or that either of them shall give the other a divorce on request.
The husband has the final say in all matters concerning the common life, but may not enforce his decisions by applying physical restraint to his wife, nor has he, in modern law, a right of chastisement over her. As long as the marriage subsists, she shares legally his domicile, but in modern South African law she does not automatically assume his nationality.
Spouses are under reciprocal duties to support each other in illness and health. Normally, the duty to maintain his wife and family devolves upon the husband as the main breadwinner; but if he is an invalid or, owing to no fault of his, unemployed while his wife has means or is able to work, the duty of support devolves upon her. Where the husband, though able to do so, neglects or refuses to maintain his wife and children, the magistrate's court (maintenance court) will grant her a maintenance order which will be enforced, if necessary, by deductions from his wages or, in the final resort, by imprisonment.
Another invariable consequence of marriage is the prohibition of donations between spouses. This prohibition originated in Roman law and was, at one time, fairly common on the Continent, but has disappeared from most modern systems of law, though not from the South African. Contrary to widely held views, the purpose of the prohibition is not so much to protect the creditors of the spouses against fraudulent donations – the provisions of the Insolvency Act are designed for this purpose – but to protect the spouses against their own generosity. The Roman lawyers felt, rightly or wrongly, that, if donations between spouses were fully permitted, the stronger or more rapacious spouse might be tempted to enrich himself at the expense of the other. The rule prohibiting donations is of little practical importance where the marriage is in community of property. As everything belongs to both spouses in common, there is, legally, no room for a donation. The position is otherwise where the marriage is out of community of property. If one of the spouses makes a substantial donation of money, shares or real estate to the other, the donor can at any time revoke his or her gift. The same is true of a gratuitous release from a debt. Moderate donations on proper occasions – birthdays, wedding anniversaries, Christmas celebrations – are not touched by the rule. Statutory exceptions apply to life insurance and endowment policies. A prohibited donation becomes confirmed if the donor spouse dies before the donor spouse, without having revoked the gift. If the donor spouse dies first, the donor spouse can still revoke the gift.
Community of property and the marital power
In the absence of an antenuptial contract, marriage in South African law results in universal community of property and profit and loss. The wife becomes subject to her husband's marital power. Community of property and profit and loss, with subjection of the wife to her husband's marital power, was the matrimonial regime of Holland as early as the 13th century. Modern European legal systems do not have universal community of property on South African lines. England, Scotland, the majority of the states of the United States, Rhodesia, and the common law provinces of Canada have complete separation of goods. A number of countries, including France, and several states of the United States (so-called 'community-jurisdictions'), including California and Louisiana, have community of profit and loss. Several continental countries, including the Netherlands and Germany, have deferred community or participation systems. During the marriage each spouse owns and administers independently of the other whatever he or she has brought into the marriage or acquired thereafter. On dissolution of the marriage by death or divorce, there is sharing. Thus, in the Netherlands, the estates of the spouses are pooled and shared, substantially, as if they had been married in universal community. In Germany, only the profits made by the spouses during the marriage are pooled and shared. It will be seen that under such a system the wife retains her own property and independence during the marriage, but that there is participation in each other's estate when the marriage is dissolved, thus combining the advantages of a system of separation of goods with those of a community system.
As the words 'community of property and profit and loss' indicate, the community system of South African law is all-embracing. 'Whatever either spouse brings into the marriage or acquires during the marriage in any manner whatsoever falls into the joint estate: wages, fees and royalties; pensions and retirement benefits; gifts and inheritances; dividends and interest; lottery wins and gambling gains. A person who gives or bequeathes property to a married person may prescribe that it shall be excluded from the community and, where the wife is the donor, from the marital power. Special rules apply to life insurance and endowment policies which a husband has ceded to, or effected in favour of, his wife.
Together with the assets, the liabilities of both spouses, whether antenuptial or postnuptial, and however incurred, become common.
Nominally, the husband's marital power extends over his wife's person and property. As far as person goes, this means little today, except that the wife may not sue or be sued without her husband's assistance. The days when a husband could direct his wife's personal life or apply ‘moderate chastisement' to her are past. The proprietary aspects, on the other hand, are formidable. By virtue of his marital power the husband is the sole administrator of the joint estate. His powers of disposition at common law are practically unlimited. Without his wife's knowledge and consent and without being obliged even to render account to her, he may sell, give away or hypothecate (i.e. mortgage or pledge) any property, movable or immovable, irrespective of whether he or his wife has brought it into the community or acquired it for the community during the marriage. His contracts, however foolish or wasteful, are binding on her, without the possibility of redress, both during the marriage and after its dissolution.
The corollary of the husband's dictatorial powers over community assets is the legal incapacity of the wife, who is reduced to a legal position little better and in many ways worse than that of a minor. Without her husband's assistance, she cannot bind herself in contract. Nor can she effectively alienate or hypothecate community assets. Payment to her, unless it reaches her husband, does not release a debtor. There are two time – hallowed exceptions. First, by virtue of her position as manageress of the joint household, the wife can bind her husband's credit for food, clothing and other necessaries for the household and its members. Secondly, a woman who with her husband's consent carries on a public trade or profession can bind both her husband and herself by contracts and other transactions within the scope of that trade or profession.
Dark as the overall picture of the wife's subjection to her husband's powers in matters contractual and proprietary is, it is not, however, altogether devoid of relieving features. While the husband may freely make donations out of the joint estate to third persons, without requiring his wife's consent, she (or her heirs) may recover such donations from him or the donees if the donations were made by him in deliberate fraud of his wife (or her heirs), e.g., if he gave away large portions of the joint estate to his mistress or to children of an earlier marriage of his. And if the husband by his prodigality or poor administration threatens to reduce her to destitution, she may apply for protection to the court, which may make whatever order is appropriate in the circumstances:
interdict him from further administration; order separation of goods; restrain him from disposing of specified assets. In extreme cases, the husband may be interdicted as a prodigal and the wife appointed as his curatrix. If the husband mala fide or unreasonably refuses to assist his wife in a legal transaction or lawsuit, the court may authorise her to act on her own. In addition, there are now a number of statutory provisions restricting the husband's powers and increasing those of the wife. The main provisions of this kind are found in the Matrimonial Affairs Act (No. 37 of 1953). Result of the labours of the Women's Legal Disabilities Commission, appointed in 1946 under the chairmanship of Mr. Justice P. 5. Twentyman Jones, this Act is intended to provide enhanced legal status for the wife. It had been advocated in Parliament for many years by Mrs. Bertha Solomon.
As regards immovables, the Act lays down a procedure by which land and other immovable property forming part of the community which the wife has brought into the marriage, or which have been paid for out of her earnings, or which have come to her during the marriage by gift or inheritance, or which have been purchased out of the proceeds of any of the aforementioned categories, can be protected against disposition by her husband. On application by the wife or the husband, the fact that the property in question falls into one of these classes will be registered against the title – deeds. Once this has been done, the husband is no longer able to alienate, hypothecate or otherwise burden the property without his wife's written consent.
As regards movable property, the Act provides, inter alia, that the husband may not, without the written consent of his wife, collect or take earnings due to her from her employer; receive or take any compensation awarded to her in respect of personal injuries; withdraw or take any deposit standing in her name in the Post Office Savings Bank, a building society or a bank; alienate or pledge any shares held by her in a building society; receive or take any dividends on or the proceeds of building society shares; alienate or pledge any tool or implement of trade with which his wife is earning remuneration (say, her typewriter or sewing-machine). The wife's legal capacity is correspondingly enhanced. Thus, even a wife who is married to her husband in community and subject to his marital power, can, without his consent open and operate on a current or savings account with a bank, and her husband may not, without her written consent, demand from her bank particulars concerning her deposits. She still requires her husband's consent, however, before she may overdraw on her account. Though protected against the husband's dispositions, the aforementioned items nevertheless remain part of the community estate and are liable to attachment for community debts, with the sole exception of the husband's bottle-store debts.
Antenuptial contracts
By means of an antenuptial contract it is possible to exclude community of property and of profit and loss as well as the marital power, and to provide for marriage settlements. Theoretically, it is possible to insert succession clauses in an antenuptial contract, but in modern practice this is hardly ever done. It would appear that approximately a third of all marriages in South Africa are by antenuptial contract. Spouses married by the standard type of antenuptial contract are substantially in the same position as spouses married under English law – there is complete separation of goods. In order to be fully effective, an antenuptial contract must be notarially executed before the parties marry and must be tendered for registration in the Deeds Registry Office within two months of its execution. Where the marriage is contracted outside South Africa, the parties must have the contract attested by a notary or his nearest local equivalent and tender it for registration in a deeds registry in the Republic within six months of its execution. If one of the parties is a minor, the consent of his or her natural or legal guardian is required. Postnuptial contracts are not permitted in South African law. They used to be allowed in Natal, but this was changed in 1956. The court may permit the postnuptial registration of an antenuptial contract if the parties are able to satisfy it that they agreed prior to their marriage to exclude community of property and profit and loss and the marital power; that their failure to execute a formal antenuptial contract was due to excusable ignorance; and that they came to court immediately they discovered the true position.
Dissolution of the marriage by death
Where the marriage was in community of property, the surviving spouse takes half of the joint estate. The other half goes to the heirs of the first-dying spouse. Where the marriage was by antenuptial contract, the surviving spouse takes whatever marriage settlements he or she is entitled to in terms of the contract. If the first-dying spouse does not leave a will, the surviving spouse succeeds to him or her in accordance with the provisions of the Succession Act (No. 13 of 1934). There is, however, nothing to preclude a man or woman from disinheriting his or her spouse. The result may be that, unless the marriage is in community of property or there arc substantial marriage settlements, the surviving spouse is left destitute. In this event, he or she is not even entitled to maintenance out of the estate of the first-dying, however wealthy the latter may have been. The surviving spouse may remarry as soon as he or she pleases, but will normally be required to make the necessary provision for minor children of the first marriage.
Divorce
There are four grounds for divorce in South African law: adultery; malicious desertion; incurable insanity, the afflicted spouse having been detained in a mental institution in South Africa for a continuous period of not less than 7 years; imprisonment for 5 years, after a declaration of habitual criminality. Where the divorce is based on adultery, malicious desertion and, perhaps, imprisonment, the divorce court can award the innocent spouse maintenance until death or remarriage. An order of forfeiture of the financial benefits derived from the marriage may be made against the guilty spouse. In deciding to whom the custody and guardianship of minor children of the spouses is to be awarded, the courts are guided primarily by what is best for the children. Questions of innocence and guilt are of secondary importance. The burden of maintaining the minor children after the divorce falls on both spouses, in accordance with their means. After the divorce the wife, whether she be the innocent or the guilty party, is free to retain her married name or assume any surname she bore previously. Adultery used to be a crime in Roman Dutch law, but is so no longer. Nor is there anything in the law today to preclude the guilty spouse from marrying his or her paramour. The innocent spouse has, however, an action for damages against the third party with whom his or her spouse has committed adultery – often colloquially referred to as the 'co-respondent'. Normally this action is coupled with the action for divorce, but the innocent spouse may forgive his or her spouse and still bring the action for damages against the latter's paramour.
Nullity and annulment
Whereas a divorce is based on something which happened during the marriage, a decree of nullity or an annulment is granted on the ground of a defect or obstacle which existed at the time of the marriage. A decree of nullity is made in respect of a marriage which is null and void from the beginning, such as a bigamous marriage. Other examples are a marriage contracted without the prescribed formalities, a marriage contracted by an insane person, a marriage within the prohibited degrees of relationship, a mixed marriage, and a marriage contracted by a boy below the age of 18 or a girl below the age of 15 with out the consent of the Minister of the Interior having been obtained. If one party or both parties to a void marriage were bona fide – for instance, the girl did not know that the man with whom she went through a form of marriage was married – children of the union will be legitimate (so-called putative marriage).
Among the factors which render a marriage liable to annulment are lack of parental consent to a minor's marriage and duress. Mistake as to a spouse's age, name, religion, nationality, qualities or fortune, even if induced by fraud, do not render the marriage liable to annulment. Thus a man cannot have a marriage set aside if he discovers, after the marriage, that the girl who presented herself to him as a virgin was in fact a divorcee or an ex-prostitute. Nor can a woman have her marriage annulled if she finds out that the man who represented himself to her as a respectable man of means is in fact an impecunious ex-convict. A marriage may, however, be annulled at the instance of either spouse if at the time of the marriage the other party was, unknown to him or her, incurably impotent (sterility not accompanied by impotence is not sufficient); and at the instance of the husband if at the time of the marriage his wife was, unknown to him, pregnant by another man.
Separation
Separation lies somewhere between a living marriage and a divorce. In order to obtain a decree of judicial separation, the plaintiff must prove adultery or malicious desertion or show that, on account of the defendant's unlawful conduct, life together has become dangerous or intolerable to him or her. As a rule the action is based on physical or mental cruelty. A decree of judicial separation does not sever the marriage tie and does not permit adultery, but authorises the spouses to live apart. Judicial separation was taken over from the law of the medieval Church, which regarded marriage as indissoluble. Up to this day it is the only matrimonial remedy open to Roman Catholics who do not wish to offend against the canons of their creed. A voluntary deed of separation is sometimes entered into by spouses who wish to separate, but do not want to wash their dirty linen in public. Like a judicial order of separation, a deed of separation, usually (but not necessarily) entered into in notarial form, is a licence for living apart, but no more.