________________________
THE DEVELOPMENT OF SOUTH AFRICAN MATRIMONIAL
LAW WITH SPECIFIC REFERENCE TO THE NEED FOR AND
APPLICATION OF A DOMESTIC PARTNERSHIP RUBRIC
submitted in partial fulfilment of the requirements for the degree
DOCTOR LEGUM
at the
Faculty of Law Department of Private Law University of the Free State
Bloemfontein Republic of South Africa
by
BRADLEY SHAUN SMITH
PROMOTER: THE HONOURABLE MR JUSTICE FDJ BRAND
Judge of the Supreme Court of Appeal and Extraordinary Professor of Private Law, University of the Free State
CO-PROMOTER: PROF DR JA ROBINSON
Professor of Law, North-West University
NOVEMBER 2009
For my grandfather, William Godfrey Holt Meintjes (1919 – 1985) who stimulated my interest in all things academic
ACKNOWLEDGEMENTS
______________________________________________________________
• To my promoters, Mr Justice Fritz Brand and Professor Robbie Robinson— thank you for your invaluable guidance and support: It was truly a privilege to be able to undertake this study under your supervision.
• To my colleagues at the Faculty of Law at the University of the Free State, thank you for your encouragement and advice. Thanks especially to Professors Rita-Marie Jansen, Johan Henning, Loot Pretorius, Neels Swanepoel, Elizabeth Snyman-van Deventer and Shaun de Freitas, and also to Messrs Brand Claassen, Kenneth Mould and Jaco de Bruin. A particular word of gratitude to Ms Hesma van Tonder, Information Officer at the UFS SASOL Library, for her sterling efforts.
• To my parents, André and Althia, my sisters Tarryn and Nicole, and the Coldman family: Thank you for your love and support.
• To my fiancée, Soekie: Thank you for your patience and faith in me—without you this would never have been possible!
• A final word to a number of my teachers at Christian Brothers’ College in Welkom and Grey College Bloemfontein: To Mesdames Laura James, and Heather Rudolph; Messrs Gary Cimma, Tony White, Pierre Hugo and Tommie Cronjé; and Brothers Terry Dowling and JC O’Neill: Thank you for being a source of inspiration over the years. I hope that this work in some way bears testimony to your individual influences on my life.
INDEX
______________________________________________________________________ PagePART 1:
BACKGROUND
CHAPTER 1: INTRODUCTION 1 1. CONTEXT 12. STRUCTURE OF THIS STUDY 5
3. METHOD AND SCOPE OF THIS STUDY 5
CHAPTER 2: LAYING THE FOUNDATION: THE HISTORICAL DEVELOPMENT OF
MATRIMONIAL LAW AND A JUXTAPOSITION OF MARRIAGE IN PRE-1994 SOUTH AFRICA WITH DEVELOPMENTS IN THE WESTERN LEGAL
TRADITION 7
1. INTRODUCTION 7
2. MARRIAGE IN EARLY TIMES 8
2.1 The Roman law marriage (iustum matrimonium): Marriage as a matter of social
significance 8
2.2 Germanic law (from that which is recorded until the 5th century AD) 16
3. THE CHANGING FACE OF MARRIAGE: A GLOBAL PHENOMENON CATEGORISED
BY A VACILLATION BETWEEN STATE AND RELIGIOUS CONTROL 18
3.1 The Roman Empire 18
3.3 The Middle Ages: The Roman Catholic Church transforms marriage into a
sacrament 23
3.4 The Reformation and one of its consequences: Roman-Dutch law 29
3.4.1 The birth of Roman-Dutch law 30
3.4.2 Religious upheavals intervene: The influence of Protestantism and
the resultant Lutheran and Calvinist models of marriage 33
3.4.2.1 The Lutheran social model 34
3.4.2.2 The Calvinist covenantal model 37
3.4.2.3 The Anglican commonwealth tradition 40
3.4.2.3.1 Introduction 41
3.4.2.3.2 The commonwealth tradition 45
3.4.2.3.3 The Stuart dynasty: Volatility and
absolutism 47
3.4.2.3.4 A remodelling of the commonwealth model 51 3.4.3 Moving ahead: Marriage as a contract in consequence of the Age of
Enlightenment 52
3.4.3.1 Reforms occasioned by the Enlightenment contractarian
model 57
3.4.3.1.1 The “first wave”: Gender equality and the
focus on the family 57
3.4.3.1.2 The Enlightenment model pressed further 58 3.4.4 Quaere: Same-sex marriage—a 21st century phenomenon? 61
3.4.5 Preliminary conclusions 65
3.4.6 Roman-Dutch law and marriage 69
3.4.7 South African law 76
3.4.7.1 The Dutch East India Company 76
3.4.7.2 The law of marriage in South Africa: 1652 – 1838 91
3.4.7.3 The influence of Christian Nationalism 99
3.4.7.4 The winds of change prior to 1994 107
3.4.7.5 Preliminary conclusions 111
4. ASCERTAINING THE ESSENCE OF THE PRE-1994 CIVIL MARRIAGE IN SOUTH
5. CONCLUSION 118
CHAPTER 3: ASSESSING THE NEED FOR AND FORMAT OF A DOMESTIC
PARTNERSHIP RUBRIC AND ATTENDANT LEGISLATION IN SOUTH AFRICA: THE DEMOCRATIC CONSTITUTIONAL DISPENSATION AND ITS BROADENING EFFECT ON MARRIAGE AND THE CONCEPT OF
CONSORTIUM OMNIS VITAE 123
1. INTRODUCTION 123
2. EXPANDING MARRIAGE TO INCLUDE CUSTOMARY MARRIAGES 125
3. GAY AND LESBIAN LIFE PARTNERS PAVE THE WAY TOWARDS SAME-SEX
MARRIAGE 126
4. “PURELY RELIGIOUS ‘MARRIAGES’” THAT DO NOT COMPLY WITH SOUTH
AFRICAN MARRIAGE LEGISLATION 134
5. CONCLUSION 140
PART 2:
THE
LEGAL
POSITION
OF
LIFE
PARTNERS
IN
CONTEMPORARY SOUTH AFRICAN FAMILY LAW
CHAPTER 4: TERMINOLOGY, PARAMETERS AND CRITERIA 147
1. INTRODUCTION TO PART 2 147
2. TERMINOLOGY 148
2.1 Terms that are acceptable in a South African context to describe persons
who are involved in non formalised permanent marriage-like relationships 149 2.1.1 The terms “(extramarital) cohabitation” and “cohabitation” 149
2.1.2 The term “life partnership” 150 2.1.2.1 Life partnership in the wide and narrow senses 151 2.1.2.1.1 Life partnership in the wide sense 151 2.1.2.1.2 Life partnership in the narrow sense 152 2.1.2.1.3 The reason for distinguishing between
life partnerships in the wide and narrow
senses 153
2.1.2.2 Parameters of and criteria for life partnerships in the
narrow sense 154
2.1.3 The term “domestic partnership” 160
2.2 Inaccurate and unacceptable terms 161
2.2.1 The so-called “common-law marriage” 161
2.2.1.1 South African law currently recognises civil marriages, marriages under the Civil Union Act 17 of 2006 and
customary marriages 161
2.2.1.2 The term creates unnecessary confusion between the parties involved in as far as their respective legal rights
and obligations are concerned 164
2.2.1.3 “Common-law marriage” from the parties’ perspective 165
2.2.1.4 Case law 165
2.2.1.5 Conclusion 174
2.2.2 The term “concubinage” 174
2.2.3 The terms “de facto marriage” and “putative marriage” 175
2.3 Conclusion—the term “life partnership” 182
3. CONCLUSION 183
CHAPTER 5: THE JUDICIAL RECOGNITION OF LIFE PARTNERSHIPS IN SOUTH
AFRICA 185
1. INTRODUCTION 185
3. TRACING THE RECOGNITION OF TWO FUNDAMENTAL CHARACTERISTICS OF MARRIAGE WITHIN THE CONTEXT OF NON-FORMALISED INTERPERSONAL RELATIONSHIPS: THE RECIPROCAL DUTY OF SUPPORT AND CONSORTIUM
OMNIS VITAE 204
3.1 Introduction 204
3.2 Breaking the mould: Recognising a reciprocal duty of support in same-sex
life partnerships prior to the validation of same-sex marriage 206
3.2.1 The Langemaat case revisited 206
3.2.2 The Satchwell judgments 212
3.2.3 Further implications of the contractual duty of support: The Du Plessis
case 219
3.2.4 Conclusion 224
3.3 Heterosexual life partners and the reciprocal duty of support—Volks NO
v Robinson 2005 (5) BCLR 446 (CC) 225
3.3.1 A critique of the approach in Volks NO v Robinson 232 3.3.1.1 Critical aspect 1: The “choice argument” and the broader
“family law-based” approach 233
3.3.1.2 Critical aspect 2: The value of the existence of a factual
duty of support 243
3.3.1.3 Critical aspect 3: The anomaly surrounding the perceived
curative effect of the extension sought 260
3.3.1.4 Critical aspect 4: The true ambit of the term “permanent
life partnership” 265
3.3.2 Conclusions and suggestions in the light of the critical aspects highlighted
in respect of Volks 271
3.3.2.1 The contractual duty of support 271
3.3.2.2 The “choice argument” and the reciprocal duty of
support: Developing the “contextualised choice model” 272
3.3.2.3 Terminology 275
3.3.2.4 The positive law position 275
3.4 Further developments pertaining to the existence and role of a reciprocal duty of
support in homosexual relationships 277
3.4.1 The role of the reciprocal duty of support within the context of a claim
3.4.1.1 Introduction: The Gory case 277 3.4.1.1.1 The Constitutional Court’s finding regarding
the (un)constitutionality of the Act 280 3.4.1.1.2 Retrospective impact of relief 281 3.4.1.1.3 The impact of the validation of same-sex
marriage 282
3.4.1.1.4 The order 284
3.4.1.2 The anomaly created by the Gory case 285
3.4.1.3 Conclusion 300
3.4.2 The relevance of a (reciprocal?) duty of support within the context of
insurance agreements 301
3.4.2.1 The facts 301
3.4.2.2 Observations 303
3.5 Some recognition for heterosexual life partners: The Pension Funds Act 24
of 1956 305
3.6 Conclusions regarding the reciprocal duty of support in non-formalised life
partnerships 307
3.7 Consortium omnis vitae 309
4. MISCELLANEOUS DEVELOPMENTS RELATING TO THE POSITION OF LESBIAN
COUPLES OCCASIONED BY THE SOUTH AFRICAN COURTS 315
4.1 The ability of lesbian permanent life partners to adopt children jointly 315 4.2 The position of a lesbian life partner whose partner has given birth to a child
conceived by artificial insemination 324
4.2.1 Introduction 324
4.2.2 Subsequent developments 327
4.2.2.1 The constitutionality of the Act and the so-called “choice
argument” 330
4.2.2.2 Practical consequences of section 40 of the Act: An analysis of the Act’s differential treatment of heterosexual married and unmarried couples; male and female same-sex couples and relationships involving persons who have legally
altered their sex description 335
4.3.1 Conclusion: The “choice argument” 353 4.3.2 Conclusion regarding adoption within the context of life partnerships 353 4.3.3 Conclusions regarding artificial fertilisation and life partners 353
5. CONCLUSION 358
CHAPTER 6: PROTECTION PROVIDED BY THE LAW OF OBLIGATIONS AND
DEVELOPMENTS OCCASIONED BY THE LEGISLATURE 361
1. INTRODUCTION 361
2. PROTECTION PROVIDED BY THE LAW OF OBLIGATIONS 362
2.1 The law of contract 362
2.1.1 The “cohabitation contract” 362
2.1.1.1 Enforceability 362
2.1.1.2 Contents of the agreement 365
2.1.2 The application of the universal partnership in the context of family law 367
2.1.2.1 Hypothetical recognition 371
2.1.2.2 Lack of practical recognition: Problems posed by the
universal partnership 372
2.1.2.3 Conclusion 381
2.2 Other protection 382
2.2.1 Unjustified enrichment 382
2.2.2 Proprietary estoppel (also known as estoppel by encouragement or
estoppel by acquiescence) 384
2.2.3 The constructive trust 388
2.2.4 Will 390
2.3 Conclusion 390
2.4 An interesting (and uncertain) situation: The application of the putative spouse doctrine to life partnerships in the wide sense and to bigamous marriages 391
2.4.1 Comparative analysis 392
2.4.1.1 The United States of America 393
2.4.1.1.2 Texas and Illinois 397
2.4.1.1.3 Louisiana 403
2.4.1.1.4 States that have enacted legislation based on the Uniform Marriage and Divorce Act,
1973 404
2.4.1.2 France 405
2.4.2 South African case law 407
2.4.2.1 Problematic aspects of the Zulu case 408
2.4.2.2 Conclusion 413
2.4.3 Developing the common law: A hypothetical approach towards solving
future problems in cases similar to Zulu 414
2.4.3.1 Introduction 414
2.4.3.2 A summary of comparative law 415
2.4.3.3 Conclusions based on comparative analysis 418
2.4.3.3.1 General principle 418
2.4.3.3.2 Additional factors 419
2.4.3.4 A suggested solution 427
2.4.3.4.1 Developing the common law 427
2.4.3.4.2 An alternative to developing the common law: The principles of South African matri-
monial property law 433
2.4.3.4.3 Conclusion 441
2.5 Conclusion: Common law protection 442
3. RECOGNITION OF LIFE PARTNERSHIPS BY THE SOUTH AFRICAN LEGIS-
LATURE 443
3.1 Introduction 443
3.2 An overview of the legislative enactments that have taken place since 1994 that
deal with life partnerships 445
3.2.1 Maintenance legislation 445
3.2.2 Domestic violence and sexual offences 445
3.2.3 Children 446
3.2.4 Labour and social security law 446
3.2.6 Tax law 450
3.2.7 Insolvency 450
3.2.8 Membership of Boards or appointment as Commissioners in terms of
specific legislation 452
3.2.9 Miscellaneous 456
3.2.10 Developments that are expected in future 457
4. CONCLUSION 457
PART 3:
APPLICATION OF THE RUBRIC
CHAPTER 7: THE MODIFICATION AND CALIBRATION OF THE DRAFT DOMESTIC
PARTNERSHIPS BILL, 2008 IN ACCORDANCE WITH THE BEHESTS
OF THE DOMESTIC PARTNERSHIP RUBRIC 461
1. INTRODUCTION TO PART 3 OF THIS STUDY 461
2. BACKGROUND TO THE DRAFT DOMESTIC PARTNERSHIPS BILL, 2008 462
3. ASCERTAINING THE AMBIT OF DOMESTIC PARTNERSHIPS UNDER THE BILL 465
3.1 The preamble to the Bill 465
3.2 Ascertaining the ambit of persons who are covered by the Bill in greater
detail: Age, prohibited degrees and so-called “care partners” 467
3.3 Conclusion 475
4. THE INTERRELATIONSHIP BETWEEN THE BILL AND THE CURRENT LEGAL
POSITION PERTAINING TO LIFE PARTNERSHIPS 476
4.1 Introduction 476
4.2 Ascertaining the impact of the 2008 Bill on the current legal position 477
4.2.1 Domestic partnerships vis-à-vis marriage 477
4.2.2.1 The registered domestic partnership 477
4.2.2.2 The unregistered domestic partnership 479
4.2.2.2.1 Should these discrepancies be rectified? 481
4.2.2.2.2 Conclusion 489
4.2.3 Domestic partnerships vis-à-vis pre- and post Civil Union Act legislation 489
5. ASSESSING THE NEED FOR THE MODIFICATION OF THE FORMAL AND
SUBSTANTIVE REQUIREMENTS FOR ENTERING INTO AND RECOGNITION OF
DOMESTIC PARTNERSHIPS AND INVESTIGATING THE ROLE (IF ANY) TO BE
PLAYEDBYTHEPUTATIVESPOUSEDOCTRINE 490
5.1 Can the putative spouse doctrine in principle be applied to relationships other than
marriage? 490
5.1.1 Introduction 490
5.1.2 Could the reasoning in Ellis apply in South Africa? 492
5.1.3 Preliminary conclusion 496
5.2 Applying these principles to domestic partnerships under the Domestic Partner-
ships Bill, 2008 496
5.2.1 Grounds that do not (presently) nullify the domestic partnership ab initio
under the Bill 496
5.2.1.1 Non-registration / defective registration of a domestic
partnership 496
5.2.1.2 Prohibited degrees of affinity or consanguinity 499
5.2.2 Grounds that do lead to nullity under the Bill 502
5.2.2.1 “Polygamous” or “bigamous” domestic partnerships 502
5.2.2.2 Age 514
5.2.3 Miscellaneous modifications required for entering into a registered
domestic partnership 514
5.2.3.1 Witnesses 515
5.2.3.2 Incompetent registration officer 517
5.2.3.3 Prescribed documentation 517
5.3 Conclusion 518
6. THE RECOGNITION OF THE CONCEPT OF CONSORTIUM OMNIS VITAE WITHIN
6.1 Introduction 519 6.2 The current legal position pertaining to consortium and life partnerships 520 6.3 Searching for common ground between marriage and the domestic
partnership 520
6.3.1 The point of departure 520
6.3.2 Assessing the similarity between marriage and registered domestic
partnerships 522
6.3.2.1 Similarities between the consequences of marriage and those of the registered domestic partnership that are
occasioned by the Domestic Partnerships Bill, 2008 522 6.3.2.2 A few of the more significant differences that exist
between marriages and registered domestic partnerships
in terms of the 2008 Bill 525
6.3.2.3 Conclusion 529
7. THE PROPERTY REGIME OF THE REGISTERED DOMESTIC PARTNERSHIP AND
MATTERS RELATED THERETO 531
7.1 Introduction 531
7.2 The policy considerations that should in terms of the rubric underpin the framework governing the proprietary consequences of the registered
domestic partnership 532
7.2.1 The proposals in the 2003 Discussion Paper 534
7.2.2 The proposals in the 2006 Report 535
7.2.2.1 Introduction 535
7.2.2.2 The provisions of the 2008 Bill 536
7.2.2.2.1 Deviation from the default regime 537 7.2.2.2.2 Deviation in principle, but deviation in
practice? 538
7.2.2.2.3 Preliminary conclusion 558
7.3 Application of these findings 559
7.3.1 General 559
7.3.2 Notarial execution 559
7.3.3 Registration of domestic partnership agreements and witnessing
7.3.4 The supervisory role of the Courts 565 7.3.4.1 Alteration of the property regime and division of joint
property 565
7.3.4.2 Extension of matrimonial property law to registered domestic partnerships—the “contextualised choice
model” revisited 567
7.3.4.3 Conclusion 583
7.4 Conclusion 588
8. THE LEGAL CONSEQUENCES OF REGISTERED DOMESTIC PARTNERSHIPS
589
9. THE TERMINATION OF THE REGISTERED DOMESTIC PARTNERSHIP AND
MATTERS RELATED THERETO 591
9.1 Introduction 591
9.2 Circumstances leading to termination 591
9.2.1 Termination by mutual agreement 591
9.2.1.1 Discretion to enter into a “termination agreement” 594 9.2.1.2 The formalities pertaining to the termination of a
registered domestic partnership 594
9.2.1.3 Responsibility to notify interested parties of termination 601
9.2.1.4 Conclusion 601
9.2.1.5 A further benefit: The Deeds Registries Act 47 of 1937 602
9.2.2 Termination by order of Court 604
9.2.2.1 Circumstances in which a Court order is required 604
9.2.2.2 The welfare of minor children 605
9.2.2.3 Termination of registered domestic partnership by Court order where a partner refuses to cooperate 613 9.2.2.4 Extension of matrimonial property law by Court order 617
9.3 Consequences of termination 618
9.3.1 Inter-partner maintenance beyond termination of the partnership 618 9.3.2 Maintenance of a surviving registered domestic partner and
intestate succession 623
9.3.4 Time limits for applications by registered domestic partners 627
9.3.5 Property division 633
9.3.5.1 Aligning clause 22 with clause 18 as well as with the
time limit imposed by clause 23 634
9.3.5.2 The quantum and merit processes 634
9.3.5.3 The application of the redistribution competency:
Guidance from the (divorce) Courts 636
9.3.5.4 Deferral of claims 640
9.3.5.5 A note on the constitutionality of the redistribution
competency 641
9.3.5.6 The amended version of clause 22 643
9.4 Conversion of a registered domestic partnership into a marriage and vice
versa? 645
9.5 Conclusion 647
10. MISCELLANEOUS AMENDMENTS TO MARRIAGE AND CIVIL PARTNERSHIP
LEGISLATION THAT WILL BE NECESSITATED BY THE ADVENT OF THE
REGISTERED DOMESTIC PARTNERSHIP IN SOUTH AFRICA 647
10.1 Interaction with marriage and civil partnership legislation 647
10.2 The Wills Act 7 of 1953 652
10.3 Conclusion 653
11. THE UNREGISTERED DOMESTIC PARTNERSHIP 654
11.1 Introduction 654
11.2 Part I of chapter 4: “Property division after termination of unregistered domestic
partnership” 654
11.2.1 Clause 26 of the Bill 654
11.2.2 Identifying the correct threshold criterion 657
11.2.3 The indicators listed in clause 26(2) 664
11.2.4 Formal requirements 665
11.2.5 Prohibited degrees of affinity and consanguinity and so-called
“care partners” 665
11.2.6 Calibration with other legislation 666
11.3 Part II of chapter 4: “Maintenance after termination of an unregistered domestic
partnership” 669
11.3.1 Introduction 669
11.3.2 Maintenance after separation 669
11.3.2.1 Introduction 669
11.3.2.2 The effect of a purely religious marriage on a
maintenance order 672
11.3.2.3 Conclusion 674
11.3.3 Maintenance after the death of an unregistered domestic
partner 676
11.4 Intestate succession 681
11.5 Time limits within which unregistered domestic partners are required to bring an
application for the relief provided by the Bill 689
11.6 Property division 690
11.7 “Contracting out” 695
11.8 Other claims based on a reciprocal duty of support 696
11.9 Consortium omnis vitae 697
11.9.1 Introduction 697
11.9.2 Constitutional considerations 700
11.9.3 Conclusion: Consortium omnis vitae inter partes 705
11.9.4 Consortium omnis vitae, the unregistered domestic
partnership and the “choice argument” 706
12. THE FINAL FACET OF THE RUBRIC: CALIBRATING THE MODIFIED DOMESTIC PARTNERSHIPS BILL WITH LEGISLATION DEALING WITH LIFE OR DOMESTIC
PARTNERSHIPS 707
12.1 Introduction: Assessing the need for reform and determining the principles that should guide the way forward in compliance with the rubric’s calibration
injunction 707
12.2 Giving effect to these principles 712
12.2.1 Acts that are self-sufficient and therefore do not require alignment
with the Bill 712
12.2.1.1 The Immigration Act 13 of 2002 712
12.2.1.3 The Rental Housing Act 50 of 1999 713 12.2.1.4 The Diplomatic Immunities and Privileges
Amendment Act 35 of 2008 713
12.2.1.5 The Maintenance Act 99 of 1998 714
12.2.2 Cases of uncertainty 714
12.2.3 Acts that should be aligned with the Bill 715
12.2.4 An Act that requires special attention: The Children’s Act 38 of
2005 722
12.2.5 Facilitating the process of “cross-pollination”: Clause 26 of the Bill 741
12.3 Conclusion 741
13. CONCLUSION 742
PART 4:
COMPLETING THE PICTURE
CHAPTER 8: EVALUATING THE CONTINUED NEED FOR THE CIVIL UNION ACT OF 2006 AND A NOTE ON THE WAY FORWARD FOR SOUTH
AFRICAN FAMILY LAW 747
1. INTRODUCTION TO PART 4 747
2. SAME-SEX MARRIAGE IN SOUTH AFRICA 748
2.1 The South African Law Reform Commission 748
2.2 The Legislature’s response to Minister of Home Affairs v Fourie: The Civil
Union Act 17 of 2006 750
2.3 Summary of marriage and analogous interpersonal relationships that are
currently recognised in South African law 752
2.3.1 Civil marriages 752
2.3.2 Marriages under the Civil Union Act 17 of 2006 752
2.3.3 Customary marriages 752
2.3.4 Civil partnerships 753
2.3.6 Domestic or life partnerships 754
2.3.7 Graphic illustration 754
2.3.8 Conclusion 755
3. THE LEGAL POSITION IN THE NETHERLANDS 756
3.1 Civil marriage 757
3.2 Registered partnership 758
3.3 Contract 760
4. EVALUATION OF THE CURRENT POSITION IN SOUTH AFRICA 761
4.1 Important similarities and differences between South Africa and the
Netherlands 761
4.2 The case for retaining the Civil Union Act of 2006 764
4.3 The case for repealing the Civil Union Act of 2006 766
4.3.1 The nature of the institution of civil marriage in South Africa 766 4.3.1.1 The wording of the Civil Union Act creates uncertainty 768 4.3.1.2 The anomalies pertaining to heterosexual life partners 769 4.3.1.3 The concept “civil union” is purely semantic and in fact
meaningless 771
4.3.2 The effect of repealing the Civil Union Act on Bilchitz and Judge’s
“transformative" perspective 773
4.3.3 Countering Bilchitz and Judge’s additional reasons for asserting that the
Marriage Act should be repealed 775
4.3.4 Preliminary conclusion 782
5. IS THERE STILL A NEED FOR THE CIVIL PARTNERSHIP? 783
6. THE COURSE OF ACTION SUGGESTED 785
7. TYING UP THE LOOSE ENDS—THE IMPACT OF THE DOMESTIC PARTNERSHIP
LEGISLATION MODIFIED ACCORDING TO THE RUBRIC 788
8. DIVERGING PERSPECTIVES ON THE WAY FORWARD 790
8.2 A brief note on the way forward 792 8.3 Conclusion 801 9. CONCLUSION 801 CHAPTER 9: CONCLUSION 805 SUMMARY / OPSOMMING 813 BIBLIOGRAPHY 819 KEY TERMS 849
CASE LAW CONSULTED 851
LEGISLATION CONSULTED 861
PART 1
BACKGROUND
CHAPTER 1:
INTRODUCTION
______________________________________________________________________ 1. CONTEXThe scale and scope of the complexities surrounding the issue of recognising and regulating relationships in South Africa between people who live together “as husband and wife”1 without concluding a State-sanctioned marriage have only fairly recently become prominent features of legislative and judicial developments and academic discourse.2 Although many terms are used in order to categorise these relationships,3 for the purposes of this introductory paragraph the parties involved in such relationships will be referred to as “domestic partners” and the resulting phenomenon as a “domestic partnership.”
The uneasy relationship between law and family life beyond the confines of marriage in the traditional sense has at times vacillated between moralistic disapproval of4 and later
1
See Drummond v Drummond 1979 (1) SA 161 (A) at 167 (A) – (B) where the phrase “living together as man and wife” was explained as denoting "the basic components of a marital relationship except for the formality of marriage." This phrase should be interpreted broadly to include same-sex couples—see Schwellnus 1995: 134.
2
See for example Hahlo 1972: 321 et seq; Thomas 1984: 456, 457; Goldblatt 2003: 610 et seq; Schwellnus 1994 (in general) and 1995: 133 et seq; Singh 1996: 317, 318; Lind 2005: 108 et seq; Labuschagne 1989: 649 et seq.
3
See 2 in Chapter 4 below.
4
Volks NO v Robinson 2005 (5) BCLR 446 (CC) at par [124] and [167]. In the early seventies Hahlo (1972:
321) remarked that: “No doubt because South Africans are a moral people, there are not many cases on concubinage in our law.” In 1995 Schwellnus (1995: 134) made the telling statement that “[i]n South Africa cohabitation is not as common as in Europe, as a consequence of South Africa’s conservative and
plain disregard for heterosexual cohabitation and its legal consequences,5 while same-sex relationships in particular were for the most part subjected to unadulterated hostility.6 It is therefore patent that the provision of an effective and suitable framework within which all permanent domestic partnerships could be accommodated has traditionally7 constituted one of the most challenging issues with which family law has had to contend.
Towards the latter half of the previous century, a more accommodating yet marginalising attitude towards heterosexual unions was adopted, with the ostensible approach towards persons living together out of wedlock apparently being to tolerate the phenomenon while neither proscribing nor promoting it.8 The gateway to full legal recognition of an intimate relationship was however limited to civil marriage.9 Indeed, in Calvinistic background [see 3.4.7.3 in Chapter 2 for a discussion of the influence of Calvinism and Christian Nationalism in South Africa], although the numbers of cohabitees have been increasing in South Africa since 1980 at the rate of 100% per year. It is likely that the South African figures will be comparable to the current figures in England in 10-20 years.” For an example of the earlier disapproval of such relationships in English case law (per Louw J in Farr v Mutual & Federal Insurance Co Ltd 2000 (3) SA 684 (C) at 687 (J) – 688 (B)), see Gammans v Ekins [1950] 2 All ER 140 (CA), where Asquith LJ, in referring to heterosexual cohabitants, said: “To say of two people masquerading, as these two were, as husband and wife—there being no children to complicate the picture—that they were members of the same family, seems to me an abuse of the English language. . . ” (at 142).
5
Thomas 1984: 456. Van der Vyver and Joubert 1991: 449, 450 concede that while relationships between unmarried persons could potentially be as strong or even stronger than those between spouses, the lack of formal recognition of and obligations resulting from such relationships meant that it was quite understandable why South African law dissuaded parties from living together without being married.
6
South African law has for the most part been far more tolerant of heterosexual relationships—see
National Coalition for Gay and Lesbian Equality v Minister of Home Affairs 2000 (2) SA 1 (CC) at par [42]. A
good example of a judgmental approach adopted to homosexuality occurs in the pre-Bill of Rights decision of Van Rooyen v Van Rooyen 1994 (2) SA 325 (W) at 329 (I) – 330 (A) where, in the context of divorce and the possibility of the mother of the children who was involved in a lesbian relationship being granted rights of access to her children, Flemming DJP stated that “[t]he signals are given by the fact that the children know that, contrary to what they should be taught as normal or what they should be guided
to as to be correct (that it is male and female who share a bed), one finds two females doing this and not
obviously for reasons of lack of space on a particular night but as a matter of preference and a matter of mutual emotional attachment. That signal comes from the fact that they know the bedroom is shared. It
is detrimental to the child because it is the wrong signal.” (emphasis added). As far as gay men were
concerned, pre-1994 South African law criminalised sodomy between such persons even if this took place in private between consenting adults—see National Coalition for Gay and Lesbian Equality and Another v
Minister of Justice and Others 1999 (1) SA 6 (CC) at par [11].
7
See Thomas 1984: 456, 457 for examples of conflicting considerations in pre-democratic South Africa.
8
While the law did not proscribe heterosexual cohabitation, it certainly did not encourage it either—see Van der Vyver and Joubert 1991: 450; Volks NO v Robinson 2005 (5) BCLR 446 (CC) at par [160].
9
the three intervening centuries between the first Dutch settlement at the Cape of Good Hope in 1652 and the advent of the democratic constitutional era in 1994,10 the monogamous marriage between a man and a woman was the only form of marriage that was fully recognised by South African law.11 It is therefore not surprising that in the early seventies Hahlo described the legal position in South Africa as follows:
There is no ‘law of concubinage’ in the same sense as there is a ‘law of husband and wife’, for while marriage is a recognized legal relationship, concubinage is not. [The legal position at the time therefore needed to be analysed with reference to] the application of general rules of law to the factual situation known as concubinage.12
It goes without saying that the exclusive position enjoyed by monogamous civil marriage did not take cognisance of the multifarious nature of South African society and without doubt reflected the collective legal viewpoint of the minority of South African citizens.13 Gay and lesbian couples were also left out in the cold: As far as male homosexual unions were concerned, such relationships were not only severely stigmatised, but the act of sodomy remained a crime well into the 1990’s.14 Although lesbian sexual conduct was not criminalised, this did little to alleviate the stigmatisation to which the parties to such relationships were also subjected. Gay and lesbian couples were obviously also prevented from marrying one another.
The advent of a democratic constitutional era in South Africa in 1994 began to place increasing pressure not only on the paramountcy enjoyed by civil marriage, but also on
10
These developments will be discussed in Chapters 2 and 3 that follow.
11
National Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs and Others 2000 (2)
SA 1 (CC) at par [36]; Du Plessis v Road Accident Fund 2004 (1) SA 359 (SCA) at par [12]; Fourie v Minister
of Home Affairs 2005 (3) SA 429 (SCA) at par [2] and SALRC 2006: 3 and 108. As De Vos (2004: 188)
explains, although some form of recognition of customary law was provided by the Black Administration
Act 38 of 1927, customary law was not readily applied as it had to be proven by expert evidence in Court.
12
Hahlo 1972: 321.
13
Pre-democratic South African law blatantly disregarded the marriages of the majority of South Africans— see Chapters 2 and 3 as well as the minority judgment of Sachs J in Volks NO v Robinson 2005 (5) BCLR 446 (CC) (at par [160]) where this fact is emphasised.
14
See in general National Coalition for Gay and Lesbian Equality and Another v Minister of Justice and
the denial of automatic legal consequences for heterosexual or homosexual non-formalised permanent domestic partnerships.15 Furthermore, by weight of sheer statistics, if it is borne in mind that the incidence of such relationships involving persons over the age of 14 almost doubled between the Census periods of 1996 and 2001,16 that a more than significant number of adult women in all race groups in South Africa are unmarried,17 and that marriage is no longer perceived as an automatic or essential option for intimate couples or family formation,18 the lack of legal recognition of domestic partnerships is simply untenable.
Against this backdrop, the Bill of Rights in post-1994 South Africa has sparked a flurry of judicial and legislative activity which, in the words of Sachs J in Minister of Home
Affairs v Fourie (Doctors for Life International, Amici Curiae); Lesbian & Gay Equality Project v Minister of Home Affairs19 “led to a patchwork of laws that did not express a coherent set of family law rules.” This study attempts, with specific reference to permanent domestic partnerships, to provide a more consistent, coherent and less-complex legal framework by virtue of the application of a robust domestic partnership rubric.
15
See Chapter 3 where the developments in this regard are discussed.
16
See SALRC 2006: 21. These statistics prompt Lind (2005: 108) to describe cohabitation as an “endemic social phenomenon.”
17
According to the SALRC (2006: 22 (and note 18)) only 40% of African and Coloured women are married, while approximately 60% of White and Indian women are married. Although it is certainly true that the fact that they are unmarried does not imply that they cohabit, it is safe to assume (particularly on the basis of the Census statistics) that a significant number of these unmarried women do. In addition, the SALRC (2006: 21 (note 16)) mentions that the incidence of cohabitation where one of the cohabitants is married to someone else is also difficult to determine due to the fact that societal attitudes may discourage such persons from revealing the true state of affairs.
18
See SALRC 2006: 24 et seq; and Schwellnus 1994: 2 who refers to Glendon’s findings that “geographic mobility, the declining influence of formal religion, the transformation of socio-economic roles of women, greater longevity and the increased control over the reproductive processes are just some of the factors that have had an influence on the changing institution of marriage and family formation.”
19
2. STRUCTURE OF THIS STUDY
This study is divided into four Parts. In Part 1, the development of South African matrimonial law is analysed with a view to ascertaining the need for legislation to govern formalised and non-formalised permanent domestic partnerships and, if such legislation is indeed found to be necessary, establishing a rubric according to which the same should be crafted. The second part of the study attempts—on the basis of an in-depth analysis of case law, common law and existing legislation—to identify certain fundamental principles which should be embodied in South African domestic partnership legislation. In Part 3 the rubric is put into action, in accordance with which (i) the conclusions reached and principles formulated in Part 2 will be transposed onto prototypical legislation in the form of the draft Domestic Partnerships Bill of 2008, and (ii) the newly-modified Bill will be calibrated with attendant legislation. The final Part of the study (Part 4) attempts—in the light of the domestic partnerships legislation developed in Part 3—to evaluate the case for retaining the Civil Union Act 17 of 2006 in the interests of a less complex and more effective body of South African family law. The study will conclude with a consideration of the way forward for South African family law and the significance of this study in this regard.
3. METHOD AND SCOPE OF THIS STUDY
While this study focuses on the need for legislation to govern formalised and non-formalised domestic partnerships, it is important to note that such legislation cannot function effectively unless it co-exists with marriage in a broader interpersonal relationships framework. To this end, a detailed historical and comparative analysis of the development and current legal position pertaining to marriage and analogous relationships and their potential impact on and interrelationship with domestic partnership legislation is required. The focus, however, remains on the legal position of
non-marital unions. The result is that, while the current legal position pertaining to
according to South African law (such as religious marriages) must of necessity be
considered, the further development of the legal position pertaining to such marriages
falls beyond the scope of this study.
In closing, cognisance must be taken of the fact that the comprehensive and effective regulation of formalised and non-formalised domestic partnerships involves a wide range of policy and legal considerations and embodies the application not only of virtually every aspect of private law (contract, delict and succession to name but a few) but also of many aspects of public law such as constitutional and criminal law. For this reason, while it must be conceded from the outset that this study is voluminous, a comprehensive analysis of the multitudinous and interrelated issues at hand makes this unavoidable.
CHAPTER 2:
LAYING THE FOUNDATION: THE DEVELOPMENT OF
MATRIMONIAL LAW AND A JUXTAPOSITION OF MARRIAGE IN
PRE-1994 SOUTH AFRICA WITH DEVELOPMENTS IN THE
WESTERN LEGAL TRADITION
________________________________________________________________
1. INTRODUCTION
his Chapter will attempt to analyse the historical development of the law of marriage as from Roman times until immediately before the advent of the democratic constitutional era in South Africa. Throughout the course of this Chapter the development of the major theological models of marriage in the Western legal tradition will simultaneously be traced with a view towards both illustrating the dynamic and ever-changing theological and legal nature of marriage and ascertaining the basic denominator that is common to marriage irrespective of the (theological) model encapsulating it or of the legal nature ascribed to it. In so doing the role played by State and Church in governing and regulating marriage will be examined, and the potential inter-relationship between legislation based on a robust domestic partnership rubric that co-exists with and complements the contemporary contractarian model of marriage that prevails in Western jurisdictions will be considered.
2. MARRIAGE IN EARLY TIMES
2.1 The Roman law marriage (iustum matrimonium): Marriage as a matter of social significance
Marriage in Roman law was a venerated institution,1 the significance of which can largely be attributed to the central role played by the family unit in Roman society.2 The central figure in the Roman familia was the paterfamilias or “father of the family”, who exercised lifelong paternal authority (patria potestas) over a considerable number of persons,3 including his cum manu wife and his children.4 The relevance and importance of marriage is illustrated by the fact that the wife acquired the honor matrimonii by virtue thereof, and that the existence of a valid Roman marriage was the major vehicle by which the patria potestas was established thereby enabling the children so born to continue their father’s family.5 Prior to the Christian influence marriage enjoyed societal rather than legal or religious significance, with the existence or otherwise of a marriage being determined on a de facto rather than de iure basis.6
1
The revered nature of marriage as an institution is illustrated by Modestinus (D 23.2.1) where he describes marriage as “[n]uptiae sunt coniunctio maris et feminae et consortium omnis vitae,
divini et humani iuris communicatio" (marriage is a joining of man and woman, a partnership in
the whole of life, a sharing of rights both sacred and secular)—as per Farlam JA in Fourie v
Minister of Home Affairs 2005 (3) SA 429 (SCA) at par [84]. Also see Campher v Campher 1978 (3)
SA 797 (O) at 798 (E) and Ex parte Inkley and Inkley 1995 (3) SA 528 (C). In the latter case, the definition quoted from Fourie is translated as “[m]arriage is the joining of a man and a woman in a consortium of every aspect of their lives, together with a communication of divine and human law” at 535 (H).
2
Van Warmelo 1957: 52; Van Zyl 1983: 9.
3
Sandars 1905: xxxviii, xxxix; Spiller 1986: 60; Van Warmelo 1957: 52; Van Zyl 1983: 87.
4
See G 1.55: “In potestate nostra sunt liberi nostri, quos ex justus nuptiis procreaverimus—Our children, begotten in lawful marriage, are in our power” per Sandars 1905: 20. The extent to which the paterfamilias exercised power over his son is illustrated in Inst. 1.9.3 and 1.12.4.
5
Campher v Campher 1978 (3) SA 797 (O) at 798 (G); Van Zyl 1983: 97.
6
Fourie v Minister of Home Affairs 2005 (3) SA 429 (SCA) at par [69]; Van Zyl 1983: 97. It is
interesting to note the parallels in this regard with modern-day South Africa, where, although compliance with any one of the three marriage statutes (i.e. the Marriage Act 25 of 1961; the
Recognition of Customary Marriages Act 120 of 1998 and the Civil Union Act 17 of 2006) is
required in order for any union to be recognised as a legal marriage for the purposes of South African law, there appears to be a tendency to recognise and apply certain consequences of marriage (such as the reciprocal duty of support) to non-formalised life partnerships or what may for the sake of convenience be termed “purely religious ‘marriages’” on a de facto basis—see
As is generally7 the case in present-day South Africa, marriage in Roman law was preceded by a contract of engagement (sponsalia). Originally regarded as a formal agreement, the agreement was usually concluded by the parents of the couple by way of oral promises that were enforceable. In later years the engagement came to be regarded as an informal one which was concluded by the parties themselves who presented one another with gifts (arrhae sponsalicia) as a pledge of engagement.8 The agreement to marry could not be enforced in the event of the marriage not taking place and, similarly, no claim for compensation in the form of damages could be instituted against a party who breached the betrothal.9 This did not however mean that the termination of an engagement was entirely without legal consequences, as liability for infamia could ensue, for example, where a person purported to enter into two simultaneous betrothals.10 It was also understood that the gifts proffered as pledge of the engagement would be forfeited by a party who terminated the engagement in a wrongful manner and that such a party would repay double the value of any such arrhae received by him or her to the “innocent” party.11
Both parties had to have the right to conclude a Roman marriage (the ius
conubii); a right reserved for persons who were Roman citizens (cives Romani).12 Over and above the aspect of citizenship, conubium also comprised an age requirement, namely that both parties must at least have attained the age of
Satchwell v President of the Republic of South Africa and Another 2002 (6) SA 1 (CC) at par [25]; Khan v Khan 2005 (2) SA 272 (T) at par [10]; Du Plessis v Road Accident Fund 2004 (1) SA 359
(SCA) at par [11] – [16].
7
The existence of a valid engagement is not regarded as an absolute prerequisite for a valid civil or customary marriage to take place—see (within the context of civil and customary marriages respectively) Cronjé and Heaton 2004: 2 and Jansen 2006: 31.
8
Van der Vyver and Joubert 1991: 458; Van Zyl 1983: 98.
9
Hahlo 1985: 1; Van Zyl 1983: 98.
10
D 3.2.1; Hahlo 1985: 1 (note 4); Van Zyl 1983: 98.
11
Van Zyl 1983: 98, 99; Spiller 1986: 61.
12
G 1.56 et seq; Van Zyl 1983: 99; Spiller 1986: 63. Only privileged peregrini had the ius
connubium, but Ulpianus (5.4) mentions that others (such as Latini) could be granted the same—
puberty which was regarded as 12 years for girls and 14 years for boys.13 In addition, Roman marriages were required to be monogamous, and the parties could be precluded from marrying one another by virtue of the prohibited degrees of affinity or by social or moral constraints.14
In earlier times the wife (uxor) to a Roman marriage was placed under the authority or potestas of her husband or his paterfamilias (in the event of her husband himself being in potestas). Such a marriage cum manu consequently entailed that, although she was regarded as being the materfamilias, a wife in
manum viri found herself in the same position as if she were her husband’s (or,
where apposite his paterfamilias’s) daughter and her children’s sister.15 It is interesting to note that the husband acquired this position over his wife not in his capacity as husband, but as her father.16 As such, marriage implied drastic changes to the wife’s status, while the same did not occur in the husband’s case.17
Marriages cum manu took place in three forms, namely by confarreatio (the ritualistic religious marriage);18 or secularly by either coemptio (the fictitious agreement of sale by which the wife was “purchased” by her husband by way of
mancipatio)19 or usus (in terms of which manus was in effect established by way
of prescription by virtue of the wife having lived with her husband for one full
13
Inst.1.10 pr; and 1.10.22 pr.; C 5.4.24; Hahlo 1985: 1. Although invalid, a marriage involving an impubes was later validated once the appropriate age had been reached, provided that the
parties lived together with the intention of being married—see D 23.2.4 and Sandars 1905: 33. The distinction between the sexes regarding the age of puberty still obtains in present-day South Africa—see Eskom Holdings Ltd v Hendricks 2005 (5) SA 503 (SCA) at par [16]. In the latter case, Scott JA remarked that “[i]n passing, it is worthy of note that this gender-based distinction between girls and boys may well be unjustifiable. The more appropriate cut-off point would seem to be 14 years for children of both sexes…”
14
Inst. 1.10.1-3, 5-7, 9 and 12; G 1.58, 59; Van Zyl 1983: 100, 101. Consummation of the marriage
was not required—see D 35.1.15.
15
Maine 1901: 155; Van Zyl 1983: 103; Spiller 1986: 68; De Zulueta 1953: 34.
16
Maine 1901: 155.
17
Hahlo 1985: 1; Spiller 1986: 67, 68.
18
Maine 1901: 154; Sohm (translated by Ledlie) 1907: 453.
19
year).20 In each of these forms of marriage any property brought into the marriage by the wife or acquired during the existence of the marriage became that of the husband (or his paterfamilias).21 On the husband’s death, the Roman law of succession allowed a husband to appoint a tutor for his wife, and it regarded her as having a status similar to that of one of his daughters.22
A less formalistic view of marriage coupled with societal changes that led to the increased independence of women implied that the need for marriage with
manus began to dissipate,23 and Spiller24 mentions that by the second century AD it had been superseded by the marriage without manu (sine manu).25 This form of marriage was not an institution that was governed or regulated by the State, but instead was a private act that was brought about by the consent of the spouses coupled with an intention to marry.26 No public records of the marriage were required, and the marriage did not affect the status of the wife in any way.27 Despite the lack of formal legal requirements, marital ceremonies were often held, specifically as a way of evincing the parties’ unequivocal intention to marry one another.28
An obvious consequence of the marriage sine manu was that the wife (matrona)29 did not become part of her husband’s familia and was also not
20
G 1.109-114; Spiller 1986: 67; Van Zyl 1983: 102 (note 109). The law of the Twelve Tables permitted her to prevent the manus by living apart from her husband for three successive nights during that year (absentia trinoctium) see G 1.111; Spiller 1986: 67; Van Zyl 1983: 102 (note 109).
21
Campher v Campher 1978 (3) SA 797 (O) at 798 (H).
22 G 1.148; Spiller 1986: 68. 23 Van Zyl 1983: 103. 24 1986: 68. 25
This appears to have been facilitated by the fact that in the case of a marriage with manus established by usus, the wife prevented falling under the manus of her husband by ensuring that she vacated the matrimonial home for three consecutive nights each year. As a result of this marriage cum manu fell into desuetude and the absentia trinoctium fell away—see Van Zyl 1983: 103; Sohm (translated by Ledlie) 1907: 457.
26
Fourie v Minister of Home Affairs 2005 (3) SA 429 (SCA) par [69].
27
Fourie v Minister of Home Affairs 2005 (3) SA 429 (SCA) par [69]; Hahlo 1985: 2.
28
Spiller 1986: 67; Van Zyl 1983: 104.
29
Originally used to distinguish between a wife in manum (“uxor”) and one without, this term was later used for all married women—see Sandars 1905: 31.
subject to the potestas of her husband or his paterfamilias.30 Despite the existence of a rebuttable presumption that all property in the matrimonial home belonged to her husband,31 no community of property ensued in the marriage.32 The fact that marriage did not alter the status of the parties therefore permitted a wife to own her own property provided that she was sui iuris.33 If, on the other hand, she was under the potestas of her own paterfamilias, all property acquired during the marriage accrued to him.34 Donations between spouses (donatio inter
virum et uxorem) were as a rule prohibited and, at least initially, no right of
intestate succession was recognised in civil law.35
It is interesting to note a number of parallels that can be drawn between the Roman marriage in the classical period and modern-day South African family law: For instance, although this was not a requirement for the validity of a Roman marriage, the parties could enter into an agreement known as an instrumentum
dotale to govern the patrimonial consequences of their marriage.36 This agreement is comparable with the antenuptial contract encountered today.37 Secondly, Roman law dictated that, as an outflow of husband and wife’s duty to respect and revere one another (the duty of reverentia),38 it was not permissible to institute defaming actions against one another.39 This is still to some extent
30
Van Zyl 1983: 105; Spiller 1986: 68, 69.
31
Van Zyl 1983: 105.
32
Campher v Campher 1978 (3) SA 797 (O) at 798 (G).
33
A Roman citizen was sui iuris if he or she was not under the patria potestas or manus of anyone else—see Weber v Santam Versekeringsmaatskappy Bpk 1983 (1) SA 381 (A) at 403 (D).
34
Campher v Campher 1978 (3) SA 797 (O) at 798 (H); Hahlo 1985: 2; Van Zyl 1983: 105.
35
See Spiller 1986: 69, 70. As far as spouses were concerned, the following applied (see Van Zyl 1983: 205 et seq): The Twelve Tables confined the right to inherit intestate to a wife married cum
manu. This state of affairs was systematically refined by the praetor, who, by virtue of
praetorian edicta granted the husband or wife of the deceased the right to inherit intestate. Finally, the Roman law of intestate succession received a complete overhaul by Justinian in his
Novellae. Although the Novellae did not categorically provide for this, a surviving spouse could,
by virtue of the earlier developments, inherit intestate in the event of no blood relatives being able to inherit (cf Spiller 1986: 164, 165).
36
Hahlo 1985: 2; Van Zyl 1983: 104.
37
Van Zyl 1983: 104.
38
Spiller 1986: 69.
39
the position in South Africa today, where spouses are, as a matter of policy, not allowed to institute actions based on defamation against one another.40
It was customary for the paterfamilias (or another relative) of a woman who entered into marriage to provide a dowry (dos) for her husband in order for his wife to maintain a similar standard of living to that enjoyed by him and to contribute to the upbringing of the children and the maintenance of the joint household.41 By the time of Justinian’s reign this custom had evolved into a legal duty.42 Initially, the husband was entitled to the dos and its fruits, and could, in principle, dispose freely of movables forming part thereof,43 but an increasing divorce rate with the resulting greater prospect of remarriage required a curtailment of the husband’s powers. In this way the wife came to have a preferential tacit hypothec over her husband’s property so that the dos had to be returned to her unless the marriage had been dissolved by divorce due to her fault (in which case the dos or a part thereof was forfeited to the children while the husband retained the use thereof).44
In addition to the dos, it later became common for the husband to give a gratuitous marriage settlement to his wife as a type of “counter dos,” known as a
donatio propter (or ante) nuptias. A tacit condition of this donatio was that it
would only take effect when the marriage which constituted its causa followed,45 and it was given with the main aim of providing for the wife’s maintenance needs after the death of her spouse or after divorce.46 Although sometimes viewed as a
donatio for the benefit of the children subject to the usufruct of the wife rather
than a benefit for the wife per se, by the time of Justinian the dos and the donatio
40
See for example C v C 1958 (3) SA 547 (SR) at 548 (A) – 552 (F).
41
Campher v Campher 1978 (3) SA 797 (O) at 799 (A); Hahlo 1985: 2; Van Zyl 1983: 106, 107.
42
Van Zyl 1983: 106; Spiller 1986: 61.
43
Inst. 2.8 pr.
44
Hahlo 1985: 3; Van Zyl 1983: 108, 109.
45
Inst. 2.7.3.
46
were virtually equated with one another with the result that the rules governing the donatio were substantially similar to those governing the dos.47
Roman marriages were terminated by death (subject, initially, to a one-year period of mourning [annus luctus] by the wife),48 by divorce (effected by way of an act that reversed the act by which the marriage came into being),49 by loss of citizenship or as a result of a criminal sentence.50
As seen earlier, although no formal requirements were posed for the conclusion of a marriage, the intention of the parties was paramount. Mere cohabitation without the requisite intention to be married was neither essential nor sufficient to constitute a valid marriage.51 According to Sohm,52 parties who lived together in such unions (concubinatus) were nevertheless acknowledged by the law after the time of Augustus53 “as constituting likewise a mode of lawful union between a man and a woman for the purpose of permanent mutual companionship.” By the
47
Van Zyl 1983: 109.
48
See Hahlo (1985: 4) who mentions that this rule was aimed at preventing doubts as to the paternity of children born of the wife. Penalties were imposed in the event of a wife disregarding this rule and marrying another prior to the expiration of the one year period: She or her father could be rendered infamous with drastic social consequences—see Spiller 1986: 70, 71.
49
So, for example, Hahlo (1985: 3, 4) mentions that if the marriage had been concluded cum manu by way of confarreatio, it was terminated by disfarreatio; and if it was concluded by way of
coemptio or usus, it was terminated by remancipatio (resale). If the marriage was without manus, it was terminated either by mutual consent or by way of a unilateral repudiation by
either spouse or his or her paterfamilias—see Spiller 1986: 71. Divorce by mutual consent was eventually abolished by Justinian in 542 AD, only to be reinstated by his successor two decades later. Unilateral repudiation was initially permitted on rather feeble grounds, but later subjected to certain limitations in order to prevent abuse and to stem the tide of a high divorce rate—see Van Zyl 1983: 112.
50
Van der Vyver and Joubert 1991: 459; Spiller 1986: 71.
51
Sandars 1905: 31; Fourie v Minister of Home Affairs 2005 (3) SA 429 (SCA) at par [69].
52
Sohm (translated by Ledlie) 1907: 457. Also see Labuschagne 1989: 651 who states that although the laws passed by Augustus did not prohibit cohabitation, the law neither recognised nor regulated such relationships. She mentions further (at 655) that the emperors who succeeded Augustus not only recognised cohabitation, but in fact encouraged the same.
53
“Augustus” was the title assumed by Gaius Octavius Thurinus (the adopted son of Julius Caesar) who became the first Roman emperor in 27 BC and reigned until his death on 19 August AD—see Van Zyl 1983: 6; Hayes et al 1967: 34, 35; http://www.roman-empire.net/emperors/augustus.html (accessed on 15 July 2009).
time of Justinian54 the legal position was that, in order for it be worthy of recognition, the union had to be consensual (whether the union constituted a marriage or a concubinatus was determined solely by the parties’ intention in this regard), monogamous and entered into between persons who would otherwise be permitted to enter into a valid marriage.55 As a result, the parties had to be of marriageable age and not related in the prohibited degrees.56 Such a
concubinatus was regarded as being an inferior marriage (inaequale coniugium),57 with the result (inter alia) that the female cohabitant did not enjoy the status of a married woman and that the children of such a union did not fall under the potestas of the male cohabitant but were known as natural children (liberi naturales).58 Already as from the time of Constantine’s reign,59 the children born of a man and his concubine could be legitimated by subsequent marriage.60 A union that did not qualify as an inaequale coniugium enjoyed no legal recognition.61
As an outflow of the requirement of monogamy, a married man was not permitted to have a concubine.62 According to Van Zyl63 the institution of concubinatus fell into disrepute as a result of the Christian influence during the fourth century AD, and attempts were made to discourage such unions; particularly by restricting the rights of the offspring thereof. The concubinatus was however finally abolished
54
The Byzantine emperor Flavius Petrus Sabbatius Iustinianus reigned from 527 – 565 AD—see http://en.wikipedia.org/wiki/Justinian_I (accessed on 22 October 2009) and Hayes et al 1967:
905. 55 Labuschagne 1989: 658. 56 Spiller 1986: 74. 57 Labuschagne 1989: 651. 58
Sohm (translated by Ledlie) 1907: 457, 458; Van Zyl 1983: 90; Labuschagne 1989: 660.
59
Constantine reigned from 306 – 337 AD—see Spiller 1986: 20.
60
Spiller 1986: 74.
61
Labuschagne 1989: 659.
62
Sohm (translated by Ledlie) 1907: 458.
63
1983: 90; cf Labuschagne 1989: 661: “Volgens Jonkers [in his 1938 thesis entitled “Invloed van
het Christendom op de Romeinsche Wetgeving Betreffende het Concubinaat en de Echtscheiding”
at 103 et seq] wil dit voorkom asof daar nie gesê kan word dat die Christendom ‘n baie groot invloed op die konkubinaatsverhouding uitgeoefen het nie, hetsy ten aansien van die negering daarvan, hetsy ten aansien van die juridiese erkenning daarvan. Trouens die kerk het sekere konkubinaatsverhoudings erken.”
by the Byzantine emperor Leo VI (“the Wise”)64 in his 91st Novellae which states that
It shall not be lawful to keep Concubines. The law which authorized men who do not blush at such a connection to keep concubines was conducive to neither modesty nor virtue. Hence We do not permit the error of former legislators to disgrace Our government, and We hereby repeal this law forever. For, in accordance with the precepts which We have received from God, and which are becoming to Christians, We prohibit such a practice as being injurious not only to religion but also to nature. And, indeed, if you have a spring and the Divine Law invites you to drink from it, do you prefer to resort to a muddy pool, when you can obtain pure water? And even though you have no such a spring, you still should not make use of what is forbidden. It is not difficult to find a consort for life.65
2.2 Germanic law (from that which is recorded until the 5th century AD)66
Due to the dearth of reliable sources on the subject, primitive Germanic law cannot be conveyed with pinpoint clarity. The reason for this is that it was governed by tribal customary law which was handed down from generation to generation by word of mouth.67
Marriage in Germanic law was largely viewed as an agreement or transaction between families rather than the spouses themselves.68 Once a suitable suitor had been found, the marriage was preceded by negotiations between the
64
AD 19 September 866 – 11 May 912—see http://en.wikipedia.org/wiki/Leo_VI_the_Wise (accessed on 22 October 2009).
65
Per Labuschagne 1989: 661 (note 110).
66
Most of the available information regarding the early Germanic peoples is to be found in Julius Caesar’s De Bello Gallico and the writer Tacitus’s Germania (see in general Smith (ed) 1855), a work which appeared approximately 150 years after Caesar’s, and, interestingly, appears to have been written with a view towards highlighting the contrasts between the debased Roman society and the “virtuous” Germanic one—see Hahlo and Kahn 1968: 332 (note 1); Hayes et al 1967: 63.
67
Hayes et al 1967: 63; Hahlo and Kahn 1968: 342. As Hahlo and Kahn (1968: 342) state, this implies that “[a]ll statements about the laws of the early Germanic peoples are therefore of necessity generalizations.”
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