The core
Consortium Omnis Vitae
Marriage creates a physical, moral and spiritual community of life.
What it means
Consortium omnis vitae is an abstract concept describing the totality of the marriage relationship: companionship, love, affection, comfort, mutual services, sexual intercourse and cohabitation — the whole community of life spouses share. It is protected by the law.
Protection of consortium
A third party who intentionally infringes the marriage relationship may be liable. A spouse may sue for loss of consortium caused by a third party's wrongful act — e.g. where serious injury permanently incapacitates the other spouse, depriving the plaintiff of companionship and support. The adultery claim against the third party has since been abolished (DE v RH).
Dependants' action and loss of support
A spouse has an enforceable right of support against the other. If a third party wrongfully kills a breadwinning spouse, the surviving spouse (and dependant children) have a dependants' action against the wrongdoer for loss of support — this is a separate cause of action from the estate's own claim. The claim is not for loss of consortium, but for the material loss of the financial support the deceased would have provided. Note: this is entirely distinct from the abolished adultery claim, which was about consortium, not material support.
State interference with cohabitation
In Dawood v Minister of Home Affairs the Constitutional Court held that the state's power to refuse a spouse a visa/permit which would prevent the couple from living together infringes the right to dignity and the right to family life. State action that prevents spouses from cohabiting must be constitutionally justified.
Key Rule
Consortium omnis vitae = the whole community of married life (companionship, cohabitation, support, intercourse). It is an invariable consequence — it arises by law and cannot be contracted out of. A dependants' action for loss of support lies against a wrongdoer who kills the supporting spouse.
Common Mistake
Treating consortium as one narrow right. It is an umbrella concept for the entire bundle of intangible benefits of the marriage relationship. The dependants' action (loss of support) is distinct from the abolished adultery claim (loss of consortium).
Leading Cases
Peter v Minister of Law and Order1990 (4) SA 6 (E)The leading definition of consortium omnis vitae — "an abstraction comprising the totality of a number of rights, duties and advantages accruing to the spouses of a marriage" (per Erasmus J).
Facts. A spouse was deprived of the comfort and society of the other by a wrongdoer's conduct and claimed for loss of consortium.
Legal question. Can a spouse claim for loss of consortium caused by a third party's wrongful act?
Judgment. The court articulated the classic definition of consortium in the context of a claim arising from interference with the marriage relationship.
Significance. The standard authority for what consortium omnis vitae means. Note that the scope of third-party claims for interference with consortium is contested, and the adultery-based claim was later abolished in DE v RH.
Exam tip. Use for the protective dimension of consortium; contrast with the abolished adultery claim (DE v RH).
Grobbelaar v Havenga1964 (3) SA 522 (N)Classic recognition of consortium and the historical delictual claim arising from interference with the marriage relationship.
Facts. A spouse sought a remedy against a third party arising from interference with the marriage relationship.
Legal question. Is the consortium omnis vitae protected against wrongful interference?
Judgment. The court recognised consortium and the availability of a remedy for its infringement.
Significance. A classic statement of consortium omnis vitae as a protected interest of marriage.
Exam tip. Use to define and locate consortium; note the adultery-based limb was later abolished in DE v RH.
Dawood v Minister of Home Affairs2000 (3) SA 936 (CC)State action preventing spouses from cohabiting infringes the right to dignity and to family life — a visa refusal that keeps spouses apart must be constitutionally justified.
Facts. Foreign spouses of South African citizens were denied temporary residence permits, forcing families to live apart or abroad. Section 25(9)(b) of the Aliens Control Act 96 of 1991, read with s 26(3) and (6), conferred a discretion on officials with no guidance as to how it should be exercised — the constitutional flaw at the heart of the case.
Legal question. Does the Constitution protect diverse forms of family life, and may a statute confer an unguided discretion whose exercise can arbitrarily separate family members?
Judgment. The Constitutional Court declared s 25(9)(b) read with ss 26(3) and (6) inconsistent with the Constitution and invalid, and suspended the declaration for 24 months for Parliament to fix it. As interim relief it granted a mandamus: officials were directed not to refuse or decline to extend permits to the affected applicants unless "good cause" for refusal is established. Note it did not read words into the Act.
Significance. Articulates the constitutional concept of the family, and is a leading authority on the requirement that a statute conferring a rights-limiting discretion must give guidance for its exercise.
Exam tip. Use as authority for the broad constitutional conception of family, and for the unguided-discretion point. Describe the remedy accurately — a suspended declaration of invalidity plus an interim "good cause" mandamus, not a reading-in (contrast Gory and Du Toit, which really do insert statutory words). Pairs with developments from Volks to Bwanya.
Reciprocal duties
The Equal Partners
Marriage imposes reciprocal, equal duties — the marital power is gone.
Invariable duties
- Cohabitation — to live together as spouses (though this is not enforceable by force)
- Fidelity — to be faithful to one another
- Reciprocal duty of support — each must maintain the other according to their means and needs
- Mutual respect and companionship — the personal obligations of consortium
Equality of spouses
The old marital power (the husband's guardianship over his wife and her property) was abolished by the Matrimonial Property Act 88 of 1984 (for marriages after 1984) and finally, for all marriages, by the General Law Fourth Amendment Act 132 of 1993. Spouses are now equal; each has full capacity to act, to litigate and to administer their property.
Domicile & status
A wife is no longer compelled to take her husband's domicile — each spouse retains an independent domicile. Marriage changes status (from unmarried to married) but does not diminish either spouse's capacity.
Key Rule
Duties: cohabitation · fidelity · reciprocal support. The marital power is abolished — spouses are equal, each with independent capacity and domicile.
Common Mistake
Saying the husband is the "head of the household" with power over his wife's property. The marital power was abolished in 1984 (and for all marriages in 1993).
Household
The Joint Household
Both spouses are liable for household necessaries.
Household necessaries
Both spouses are jointly and severally liable to third parties for debts incurred for household necessaries — goods and services reasonably required for the joint household (food, clothing, medical care, children's needs), judged by the family's standard of living and station in life (Reloomel v Ramsay). A creditor may sue either spouse for the full amount.
Right to the matrimonial home
Each spouse has a right of occupation of the matrimonial home. A spouse who is unlawfully ousted from the home by the other may seek a mandament van spolie — a speedy interdict restoring possession of the home, without needing to prove the underlying right of ownership. Importantly, excluding a spouse from the matrimonial home is a drastic order a court will not make unless continued cohabitation has become impossible — the spouse's right to remain in the home pending proceedings weighs more than ownership (Buck v Buck 1974
(1) SA 609 (R), followed in Oosthuizen v Oosthuizen 1986
(4) SA 984 (T)); in practice courts also consider whether alternative accommodation is available to the ousted spouse.
s 23 recourse — internal duty
The Matrimonial Property Act s 23 gives a spouse in a community of property a right to recourse against the other for debts the other ought personally to have borne but which were paid from the joint estate. Example: one spouse causes a delict; the victim recovers from the joint estate; the wrongdoing spouse must, on dissolution, compensate the other's half-share from what they retain.
Duty of support in action
The reciprocal duty of support means that within the household each spouse contributes according to their means. This duty underlies both the household-necessaries liability and later claims for spousal maintenance.
Key Rule
Both spouses are jointly and severally liable for household necessaries, measured by the family's standard of living. Each has a right of occupation of the matrimonial home — the mandament van spolie restores ousted possession, and exclusion from the home is a drastic order made only where cohabitation is impossible (Buck v Buck).
Common Mistake
Assuming only the spouse who bought the item is liable. For household necessaries both spouses are liable, and the creditor may claim the whole debt from either.
Leading Cases
Reloomel v Ramsay1920 TPD 371Standard of living / station in life is the measure for liability for household necessaries — a spouse may bind the other for goods reasonably required for the joint household.
Facts. A creditor sought to hold a spouse liable for goods supplied for the joint household.
Legal question. Are both spouses liable for debts incurred for household necessaries?
Judgment. The court recognised liability for household necessaries.
Significance. An early statement of the household-necessaries doctrine, now understood as joint and several liability of the spouses.
Exam tip. Use for household necessaries; remember the standard is what is reasonably required, judged by the family's standard of living.
Third parties
The Abolished Adultery Claim
A spouse can no longer sue the "third party" for adultery.
The old law
At common law an innocent spouse could sue the third party ("the other man/woman") for adultery, on two bases: contumelia (injury to dignity, an actio iniuriarum) and loss of consortium.
Abolition
In DE v RH the Constitutional Court (following the SCA) abolished the delictual claim for adultery against a third party. The Court held the claim is out of step with modern values: it is unfair to blame the outsider for a breakdown that is really the spouses' own responsibility, and it invades privacy and dignity. Adultery remains relevant only within the marriage — e.g. as evidence of irretrievable breakdown for divorce.
Key Rule
After DE v RH there is no delictual claim against a third party for adultery. Adultery still matters for divorce (irretrievable breakdown), not for suing the lover.
Common Mistake
Advising a client to sue their spouse's lover for damages. That claim was abolished in DE v RH — the remedy for adultery is divorce, not a delictual action.
Leading Cases