Family Law · Lexicon

Lexicon

Key terms explained in plain language — filter by letter or search below.

Engagement (betrothal): A contract between two persons to marry each other on or within a reasonable time of a future date. It must meet the ordinary contractual requirements (capacity, consensus, lawfulness) but can never be enforced by specific performance — the law will not compel anyone to marry. Its only legal fallout is the possibility of lawful termination and a limited claim for actual wasted expenses on breach.
Breach of promise: The wrongful (unjustified) repudiation of an engagement. After Van Jaarsveld v Bridges the innocent party may recover only actual, proven patrimonial loss (e.g. wedding expenses already incurred); claims for prospective benefits of the intended marriage and for sentimental (delictual) damages are no longer available.
Arrhae sponsalitiae: Gifts given as an earnest to confirm an engagement — classically the engagement ring — made on the implied condition that the marriage will follow. If it does not, they are generally returnable, and the party who unjustifiably breaks the engagement may forfeit the ring they gave. Contrast sponsalitia largitas (ordinary gifts made in contemplation of marriage).
Requirements for a valid civil marriage: Four requirements: (a) capacity to act (age and mental capacity); (b) consensus (a genuine agreement to marry each other); (c) lawfulness (no existing marriage and not within the prohibited degrees of relationship); and (d) the prescribed formalities under the Marriage Act 25 of 1961. Failure of a requirement renders the marriage void or voidable.
Consensus: The genuine, serious agreement of both parties to marry each other. It is destroyed by error in negotio (mistake about the nature of the act) or error in persona (mistake about the other party's identity), rendering the marriage void. A mistake about an attribute (wealth, chastity) does not vitiate consensus. Marriages induced by duress or misrepresentation are voidable.
Void marriage: A marriage that never existed in law. No court order is needed to declare it a nullity and no marital consequences ever arose. Causes include a marriage below the age of puberty, a prohibited degree of relationship, an existing marriage (bigamy), or the absence of an authorised marriage officer.
Voidable marriage: A marriage that is valid until set aside by a court at the instance of the aggrieved party, producing all normal consequences until annulled. Causes include minority without parental consent, material mistake, duress or misrepresentation, and (at the instance of the innocent spouse) impotence or a concealed pregnancy by another man.
Putative marriage: A void marriage that at least one party entered in the bona fide (honest) but mistaken belief that it was valid. Despite being void, the law protects the bona fide party: the children are legitimate and the patrimonial consequences follow as if the marriage were in community of property (unless a valid antenuptial contract existed).
Consortium omnis vitae: The totality of the marriage relationship — companionship, love, affection, comfort, cohabitation, mutual services and sexual intercourse. It is an invariable consequence of marriage (it cannot be excluded by agreement) and is protected by law; a spouse may in appropriate cases claim for loss of consortium caused by a third party's wrongful act.
Marital power: The now-abolished common-law power of a husband to act as guardian of his wife and administrator of her property. It was abolished for marriages after 1984 by the Matrimonial Property Act 88 of 1984 and, for all marriages, by the General Law Fourth Amendment Act 132 of 1993. Spouses are now equal, each with full capacity to act and litigate and an independent domicile.
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. Both spouses are jointly and severally liable to third parties for such debts, so a creditor may claim the full amount from either spouse.
In community of property: The default matrimonial property regime where no antenuptial contract is executed. All assets and liabilities (before and during the marriage) merge into a single joint estate owned by both spouses in equal, undivided half-shares, and divided equally on dissolution. The spouses are jointly liable for the estate's debts; certain acts require s 15 consent.
Antenuptial contract (ANC): A contract concluded before the marriage by which the spouses regulate their matrimonial property — typically to marry out of community of property. To bind third parties it must be notarially executed and registered in a deeds registry. Since 1 November 1984 an ANC includes the accrual system unless it is expressly excluded.
Accrual system: A regime (Chapter I of the Matrimonial Property Act 88 of 1984) combining separate estates during the marriage with sharing of growth at the end. At dissolution, the spouse with the smaller accrual claims half the difference between the two accruals. Accrual = net end value minus the CPI-adjusted commencement value. Inheritances, donations, non-patrimonial damages and ANC-excluded assets are excluded.
Section 15 consent: Under the Matrimonial Property Act 88 of 1984, spouses married in community of property administer the joint estate equally, but the other spouse's consent is required for the most important acts — alienating or mortgaging joint immovable property, entering credit agreements, binding oneself as surety, and dealing with major investments. Section 15(9) protects a bona fide third party who was unaware that consent was needed and absent.
Irretrievable breakdown: The principal ground for divorce (s 4 of the Divorce Act 70 of 1979): the marriage has reached such a state of disintegration that there is no reasonable prospect of restoring a normal marriage relationship. The s 4(2) examples (one year's separation, adultery, habitual criminality) are guidelines/evidence, not requirements (Schwartz v Schwartz).
Forfeiture of benefits: An order under s 9 of the Divorce Act that a spouse forfeit the patrimonial benefits of the marriage. The court asks (1) whether the party will in fact be benefited, and (2) whether, given the duration of the marriage, the cause of breakdown and any substantial misconduct, that benefit would be undue (Wijker v Wijker). A spouse forfeits only a gain, never their own contribution.
Redistribution order: An order under s 7(3)-(6) of the Divorce Act transferring assets from one spouse to the other to reflect the applicant's direct or indirect contribution to the other's estate. It is available only for marriages out of community concluded before the statutory cut-off (and old customary marriages), and is a broad, equitable discretion (Beaumont v Beaumont).
Pension interest: A spouse's interest in a pension fund, which the Divorce Act (s 7(7)-(8)) deems part of that spouse's assets on divorce. The court may order the fund to pay a portion to the other spouse, giving effect to the clean-break principle.
Spousal maintenance: Post-divorce maintenance under s 7(2) of the Divorce Act. There is no automatic right; the court exercises a discretion weighing the parties' means, earning capacities, needs, ages, the duration of the marriage, their standard of living and conduct. It may be rehabilitative, permanent, token or refused.
Best interests of the child: The paramount standard in every matter concerning a child — s 28(2) of the Constitution and s 9 of the Children's Act 38 of 2005 — assessed against the factors in s 7 of that Act. It outweighs (does not merely feature alongside) competing adult interests, and the child has a right to participate under s 10.
Parental responsibilities and rights (PRR): The bundle recognised by s 18 of the Children's Act 38 of 2005, comprising care (day-to-day care, replacing 'custody'), contact (a personal relationship, replacing 'access'), guardianship (administering the child's affairs and consenting to major acts) and maintenance. A person may hold full or only specific PRR.
Unmarried father's rights (s 21): An unmarried father acquires full parental responsibilities and rights if he was living with the mother in a permanent life-partnership at the child's birth; or, regardless of cohabitation, if he consents to be identified as the father, contributes (or tries) to the child's upbringing, and contributes to maintenance for a reasonable period. This occurs automatically, without a court order.
Guardianship: The component of parental responsibilities and rights concerned with administering a child's property and legal affairs and giving consent to major acts — the child's marriage, adoption, a passport, removal from the Republic, and litigation. Consent to the most serious acts generally requires the agreement of all guardians.
Civil union: A union of two persons of any sex (18 or older) registered under the Civil Union Act 17 of 2006 as either a marriage or a civil partnership. It has the same legal consequences as a civil marriage under the Marriage Act and is dissolved under the Divorce Act. The Act followed Minister of Home Affairs v Fourie.
Customary marriage: A marriage recognised under the Recognition of Customary Marriages Act 120 of 1998. Section 3 requires both parties to be 18 or older, both to consent, and the marriage to be negotiated and entered into or celebrated per customary law. It is in community of property unless an ANC is concluded, may be polygynous (further wife by a s 7(6) court-approved contract), and need not be registered to be valid.
Lobolo: The property (traditionally cattle, now often money) which a prospective husband or his family undertakes to give the bride's family in a customary marriage. While central to custom, lobolo is not a statutory validity requirement under s 3 of the RCMA — though it is usually present and evidences the negotiation of the marriage.
Domestic partnership (cohabitation): Two people living together as a couple without marrying. South African law has no 'common-law marriage': cohabitation creates no automatic duty of support or property sharing. Partners protect themselves by a cohabitation contract or by proving a universal partnership. Case law now extends some rights — e.g. intestate succession and maintenance for permanent life partners (Bwanya v Master of the High Court, departing from Volks v Robinson).
Universal partnership: A societas universorum bonorum — a partnership that cohabitants (or spouses) may prove existed between them, entitling a party to a share of what they built together. It requires the usual partnership essentials (each contributes; the object is joint benefit; it is a legitimate partnership) and is a key remedy for cohabitants who have no automatic proprietary rights.
Protection order: The central remedy of the Domestic Violence Act 116 of 1998. A complainant (or someone on their behalf) applies to the Magistrate's Court; on prima facie evidence the court grants an interim order (often ex parte) with a return date, and thereafter a final order. It can prohibit further violence, contact or entry, and is backed by a suspended warrant of arrest — breach is a criminal offence (Omar v Government of the RSA).
Domestic violence: Broadly defined by the Domestic Violence Act 116 of 1998 to include physical, sexual, emotional, verbal and psychological abuse, economic abuse, intimidation, harassment, stalking, property damage and unlawful entry — and, after the Domestic Violence Amendment Act 14 of 2021, controlling/coercive behaviour, spiritual abuse and elder abuse. It arises within a widely-defined domestic relationship (spouses, partners, family, co-parents, co-residents, dating).