FAMILY LAW Unit 2

The engagement
 Introducton
An engagement is a promise to marry.
In relation to a Civil Marriage It is a contract between a man and a
woman to marry each other on a specifc or determinable date.
A valid engagement is not a prerequisite for the conclusion of a
valid marriage.
The fact that parties were never engaged does not afect the validity
of the marriage.
It is concluded by means of ofer and acceptance.
It can be concluded by representatives on behalf of the parties.
The parties should give their consent.
No special formalities are required for the conclusion of an
engagement. M v M 1991 (4) SA 587 D
The requirements for a valid engagement
1. Consensus
Engagement is based on consensus (agreement).
Material mistake excludes consensus and results in the
engagement’s being void.
Misrepresentation, duress and undue infuence render the
engagement voidable.
Cont…
Mistake
When there is an absence of agreement on material aspects
of the engagement, agreement is lacking and therefore no
contract exists.
Where there is a case of mistaken identity regarding the
person to whom party becomes engaged (error in persona).
Mistake with regard to the nature of the juristic act (error
in negotio) =informal agreement or joke.
Material mistake=engagement being void=neither party
has a claim for damages=breach of contract.
Cont…
Misrepresentation
When one party to the contract makes a false
representation to the other.
Material misrepresentation is one which seriously
jeopardise the possibility of achieving a happy and
harmonious marriage.
If is in connection with a signifcant personal quality of one
of the parties, such as impotence, sterility, mental illness,
or a serious physical or mental handicap is clearly material,
as is a misrepresentation regarding sexual promiscuity.
Cont…
Loss of virginity is unclear.
In view of society’s changed mores it seems that,
unless the absence of virginity was fraudulently
concealed, it does not afect consensus.
Read and note facts of Schnaar v Jansen 1924 NPD 218
A material misrepresentation constitutes ground for
setting the engagement aside regardless of whether or
not it was made innocently or intentionally.
Read and note facts of Thelemann v Von Geyso 1957 (3)
SA 39 (w)
2. Capacity to act
Both parties to the engagement must have the necessary
capacity to act.
Minors must obtain permission.
Ratifcation is also sufcient.
Both parents’ consent is required unless the court orders
otherwise, were sole guardianship has been granted to one of
the parents, or the child was born of unmarried parents and the
child’s father does not have parental responsibilities and rights.
If only one parent is alive, that parent’s consent is required. If
neither parent has guardianship the consent of the guardian
must be obtained.
Cont…
An emancipated minor also has to obtain the consent
of his or her parents or legal guardian.
A minor who was married but whose marriage has
been dissolved by death or divorce does not require
parental consent. Why..?
A boy below 18years and a girl below the age of 15
years must, in addition to the consent of his or her
parents or legal guardian, also obtain consent to the
marriage from the Minister of Home Afair.
Cont…
The engagement is conditional if s/he only has the
consent of his or her parents or legal guardian.
Obtaining ministerial consent is a suspensive
condition which results in the enforcement of the
engagement being obtained.
If a minor becomes engaged to a major without the
necessary parental consent, the major is bound and
liable under the agreement while the minor is not.
Cont…
Engagement seem to imply consent to the minor’s
future marriage.
Our courts have ruled before that parents may
withdraw their consent after the engagement but
before the marriage, the engagement is automatically
terminated and neither party has a claim for breach of
promise.
3.Lawfulness
Both parties must be unmarried for them to be married.
A promise by a married person to marry after obtaining
a divorce or after his or her spouse’s death is void
because is contra bones mores
Read Viljoen v Viljoen 1944 CPD 137; Friedman v Harris
1928 CP 43
If the unmarried party was unaware of the other party’s
marriage, s/he can sue the married party for contumelia
(insult). If aware, no damages nor satisfaction can be
claimed.
4. Possibility of performance
At the time of entering into the engagement the
parties must be in a position to conclude a civil
marriage with each other.
They must not be related within the prohibited degree
of relationship,
Neither of them may be below the age of puberty;
They must be of the opposite sex
And so on, check chapter 3 marriage impediments.
Consequences of engagement
If a date for marriage has been set, there is a reciprocal
duty to marry on that date.
The date can be changed by mutual agreement.
It is breach of contract if one party , without just
cause, refuse to marry on the agreed date;
And the other party refuses to accept this state of
afairs.
Cont…
An engagement can be concluded subject to
conditions.
Marriage will take place if an uncertain future event
occurs: ie
 Earns certain income, consent from parents or one
party obtains citizenship.
It becomes breach of promise if the parties enters into
a sexual relationship with or becomes engaged to a
third party.
It requires some level of faithfulness.
Terminaton of engagement
Grounds for termination of the engagement.
1. The couple’s marriage.
2. The death of either of the parties.
3. A mutual agreement to terminate the engagement.
4. Withdrawal of parental consent when one of the
parties is a minor.
5. A unilateral and justifed termination, based on a
sound reason (just causa).
6. Breach of promise.
Consequences of terminaton of the
engagement.
Injured party may claim damages and or satisfaction.
Breach of promise is breach of contract.
The injured party can claim damages for patrimonial loss
(expenses incurred).
It infringes his or her personality rights.
If accompanied by animus iniuriandi (intention of injuring a
person’s honour, dignity and reputation) it will be aniuria in
delict.
The injured person can invoke the actio
iniuriarum=action=solatium (satisfaction in money)=non
patrimonial loss..
Prove animus iniuriandi to claim actio iniuriarum.
Cont…
Damages for breach of promise, Read Guggenheim v
Rosenbaum 1961 (4) SA 21 (w)
Satisfaction for personality infringement, read Davel v
Swanepoel 1954 (1) SA 383 (A)
Return of the engagement gifts
If the parties mutually agree to terminate the
engagement or if the engagement is terminated due to
a justa causa, all gifts made with a view to the marriage
(sponsalitia largitas)this will include the engagement
ring must be returned.
Satsfacton and damage on the ground of
seducton
SA Law recognises an action for satisfaction and
damages on the ground of seduction.
Seduction is extra-marital sexual intercourse with
virgin (or a chaste woman)with her consent.
To be successful the woman must prove that she was a
virgin (please read M v M).
Sexual intercourse occurred as a consequence.
Action=2 claims=deforation and reduction of the
woman’s chances of entering into a suitable and
successful marriage.