Invariable Consequences of Marriage Invariable consequences apply to all marriages 1) Status Upon marrying the parties’ status changes: 1) Neither spouse may marry someone else during the subsistence of the marriage 2) A right of intestate succession is created 3) Extra-marital children the couple may have had before the marriage become legitimate 4) The spouses are the guardians of children born of the marriage 5) Spouses’ capacity to act is restricted if they marry in community of property 6) A minor gains majority status if he/she marries 2) Headship of the Family It used to be under the common law that the husband was the head of the family and by virtue of this position the husband had decisive say in matters concerning the common life of the spouses. However since the abolition of the husband’s marital power in respect of marriages contracted after November 1984 ( s13 Matrimonial Property Act) , it was inevitable that the husband’s position as head of the family would come under further consideration. This has happened, and the husband’s position as head of the family has been abolished by s30 of the General Law Fourth Amendment Act It would be unconstitutional otherwise because it constitutes unfair discrimination on the grounds of sex and gender. 3) Family Name It is the social custom of the land for the wife to adopt the family name or surname of the husband together with the designation of “Mrs”. According to s26(1) of the Births and Deaths Registration Act however, the wife is not obliged to use her husband’s surname and may use her maiden name or any other surname which she bore before her marriage, or have her surname double-barrel. Children take the surname of the father if they are legitimate, and take the name of the mother if they are extra-marital. A husband does not have the same choices: if he wants to assume his wife’s surname he must apply to the Director-General of Home Affairs for permission (this may be unconstitutional on grounds of discrimination based on gender and sex) 1
3) Consortium omnis vitae A large part of married life is covered simply by the term consortium omnis vitae which is an “abstraction comprising the totality of a number of rights, duties and advantages accruing to the spouses of a marriage” Grobbelar v Havenga This totality comprises: companionship, love, affection, comfort, mutual services, sexual intercours It is accepted that the parties retain their individuality after the marriage but they are bound to each other by legal, moral, ethical and religious ties In general, we may summarise these by saying that a clear duty to live together as husband and wife, to be faithful to one another and to give each other loyalty and support can be recognized.
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- Spring '16
- Matrimonial Property Act, Household necessaries, Mrs van der Westhuizen