PVL2601 MEMORANDUM: Section 1 & 2

Answer 1

a) i) A minor. A minor has limited capacity to act. Therefore minors need

consent to marry. Minors can only enter into a civil marriage with the
consent of their parents/legal guardians. The presiding officer of the
Children’s Court may also consent to the civil marriage of a minor if either
or both of the minor’s parents or legal guardian is absent, mentally ill or in
any other way incompetent to consent, or if there is any good reason why
the minor cannot obtain consent of the parents or legal guardian. If a
parent, legal guardian or presiding officer of the Children’s Court refuses to
consent, the High Court may consent in terms of section 25(4) of the
Marriage Act if the refusal is without adequate reason and contrary to the
minor’s interests.

(See prescribed textbook pp 16-19 and study guide p 4.)

ii) The legal requirements for a civil marriage are as follows:

1) The parties must have the capacity to act.
2) There must be agreement between the parties to enter into a civil
marriage with each other.
3) The marriage between the parties must be lawful.
4) The prescribed formalities must be complied with.

(See prescribed textbook pp 14-31 and study guide p 3.)

b) i) Yes, because Lilly and Rootz are related by affinity in the collateral line.
ii) No, because an adoptive parent may not marry his or her adopted
child.
iii) Yes, because Weedz and Daizy are not related by either blood or
affinity.
 iv) Yes, because Daizy and Leafy are blood relations of one another in
the collateral line and are both related to the common ancestor (Mr and
Mrs Nursery) within the second degree.
v) Yes, because they are not related by either blood or affinity.

(See prescribed textbook pp 26-29 and study guide pp 6-9.)

Answer 2

a) Putative marriage.
b) A child born of a putative marriage is deemed to be born of married parents.
c) A putative marriage is void ab initio. However, it has some of the legal
consequences of a valid civil marriage for as long as at least one of the parties
is bona fide. The court cannot declare a putative marriage valid, because the
marriage is void.

As Mr and Mrs Arabidopsis were married without an antenuptial contract and

Mrs Arabidopsis was the only bona fide party, the marriage will be treated as
having been in community of property or rather as having been a universal
partnership if this is to the advantage of the bona fide party (Mrs Arabidopsis).

However, in terms of the decision in Zulu v Zulu, these rules do not apply if the
putative marriage was concluded while either of the parties was a spouse in an
existing, valid civil marriage in community of property. In such an event, the pre-
existing of the valid marriage in community of property renders the creation of
the joint estate between the parties to the putative marriage impossible, as all
the assets of the spouse who is validly married fall into the joint estate which
exists between him and his spouse in the valid civil marriage.

(See prescribed textbook pp 39-40 and study guide p 16.)

Answer 3
Sterility is when a person is able to have sexual intercourse but cannot procreate
and is thus infertile. If one of the parties fraudulently concealed his or her sterility, the
marriage is voidable, and the other party may have the marriage annulled. In Venter
v Venter it was held that if one of the parties at the time of the civil marriage
fraudulently concealed that he or she was sterile, the other party may have the
marriage annulled. In Van Niekerk v Van Niekerk it was held that the mere fact of
sterility renders the civil marriage voidable, regardless of whether or not it was
fraudulently concealed.

Impotence is when a person is unable to have sexual intercourse. A civil marriage is

voidable if one of the spouses was unaware of the impotence at the time of the
wedding. The exceptions are where the plaintiff was aware of the impotence,
condoned it, or the impotence is temporary or probably curable.

(See prescribed textbook p 36 and study guide pp 13-14.)

Answer 4

The High Court will approve the new system if the following conditions are met:

1) There is sound reason for the proposed change.

2) Notice of the proposed change has been given to all creditors of the spouses.
3) No other person will be prejudiced by the change.

(See the prescribed textbook p 106 and the study guide p 56.)

Answer 5

Because Mr and Mrs Yarrow were married out of community of property and profit
and loss after 1 November 1984 their marriage is automatically subject to the accrual
system.

The accrual in Mrs Yarrow’s estate is calculated as follows:

Net value on dissolution R250 000

Minus net commencement value -R 0

Minus assets excluded from accrual:

Donation between spouses (pearls) R15 000

Satisfaction R40 000

R55 000 -R55 000

Accrual R195 000

(R60 000 for damages to motor vehicle is NOT EXCLUDED because it is damages
for patrimonial loss.)

The accrual in Mr Yarrow’s estate is calculated as follows:

Net value on dissolution R500 000

Minus net commencement value as adapted by the CPI

(R100 000 x 2) -R200 000

Minus assets excluded from accrual:

Assets substituted for excluded assets

Inheritance R30 000

Sculpture excluded in anc R200 000

R230 000 -R230 000

Accrual R70 000

Because Mr Yarrow’s estate shows the smaller accrual, he has a claim against Mrs
Yarrow’s estate. His accrual claim is calculated as follows:

Mr Yarrow’s accrual claim = ½(R195 000 – R70 000)

=½ (R125 000)

Mr Yarrow is therefore entitled to R62 500.

(See prescribed textbook pp 95-100 and study guide pp 47-52.)