Aspects of Private Law
ASPL5111
LECTURER: PALISA LEMATLA
IIE ROSEBANK COLLEGE
Academic week 2| 26 Feb – 1 March
Rosebank College is an educational brand of The Independent Institute of Education (Pty) Ltd which is registered with the Department of Higher Education and Training as a private
higher education institution under the Higher Education Act, 1997 (reg. no. 2007/HE07/002). Company registration number: 1987/004754/07.
Learning Unit 1 outcomes:
LO1: Define Private Law.
LO2: Define the law of persons.
LO3: Explain legal concepts and how they relate to the law of persons
LO4: Identify the ways in which the Law of Persons overlaps with the other
branches of law
LO5: Define family law.
LO6: Explain family law concepts
What is family law?
Like the Law of Persons, Family Law also forms part of the objective law which
applies to everyone in South Africa
also forms part of Private Law and therefore regulates private law relationships.
The sources of South African Family Law:
Constitution
Statutory law
Common law
Definition: Family law is the branch of law that regulates the relationships
between children and their parents or other caregivers, called guardians and
which regulates marriages and other intimate relationships between adults.
Continued…
Family law determines whether or not an interpersonal relationship exists and if
so, which laws will apply to that relationship
also determine the rights and obligations that arise between the people between
whom the interpersonal relationship exists
interpersonal relationship is a legally significant relationship between two or more
people and between whom mutual rights and obligations exist as a consequence of
law
The law also regulates how the rights and obligations in terms of these
interpersonal relationships terminate
E,G: the rights and obligations between spouses (married people) terminate
UPON death or divorce
Interpersonal Relationship
Husband/Wife/Spouses: arises through marriage in terms of S.A law
Rights and duties: duty of reciprocal support, faithfulness, love, companionship
Parent and child:
Birth or adoption or surrogacy - Duty of reciprocal support, care, contact,
maintenance, guardianship
Fiancé and fiancée:
Engagement - Mutual faithfulness and love
The interpersonal relationship of marriage
marriage valid if it is entered into in terms of the Marriage Act of 1961, the Civil
Union Act of 2006 or the Recognition of Customary Marriages Act of 1998.
three matrimonial property regimes recognised in terms of South African Law
What are they?
the system that will determine how the property that they owned individually
before the marriage will be managed during the marriage and divided after the
marriage is terminated.
Continued…
Matrimonial property regimes are also referred to as matrimonial property
systems
in community of property and of profit and loss (ICP)
out of community of property excluding profit and loss and the accrual system
(OCP)
out of community of property excluding profit and loss with accrual system
In community of property and of profit
and loss (ICP)
the separate estates of the spouses that existed before marriage are joined to form
a joint estate v out of community of property, each spouse retains their personal
estates. In other words, “what is mine stays mine and what is yours stays yours.”
default matrimonial property regime because the spouses do not have to do
anything before this regime applies to their marriage.
Out of community of property excluding
profit and loss without the accrual system
the spouses must conclude a valid ante-nuptial contract (ANC)20 which will
regulate the patrimonial consequences of their marriage
As a consequence - the spouses will each retain their separate estates.
the ANC must specifically state that the accrual system is excluded
Out of community of property excluding
profit and loss with the accrual system
(OCP)
also brought about by a valid ANC, the parties will share in the growth of their
respective separate estates when the marriage dissolves by divorce or death.
legal consequences of the matrimonial
property regimes on the spouses’
contractual capacity:
ICOP
consent to contract: Consent is required. There are different types of consent
depending on the nature of the contract to be concluded.
WHY: If the property forms part of the joint estate, it is therefore the property of
both spouses
limited capacity to contract in respect of property that forms part of the joint
estate.
Cont…
joint estate is formed automatically when spouses marry w/o choosing to regulate
the patrimonial consequences of their marriage by entering into an ante-nuptial
contract (ANC).
The profits and losses brought into the marriage and incurred during the marriage
are shared by both spouses.
Each spouse is a tied co-owner of undivided equal shares in the joint estate
Consent is required to create debt for which the joint estate will be liable or to sell
property that forms part of the joint estate
OCOP/OCOP WITH ACCRUAL:
No consent is required for both as spouses retain own personal estate, however in
with accrual each spouse acquires a right to share in the accrual growth of the other
spouse’s estate at death or divorce
The impact of a valid marriage on the Law
of Delict
A spouse wanting to sue a third party for damages will require the consent of the
other spouse if the cause of action relates to property held in the joint estate.
Generally, a spouse will be able to sue on behalf the other spouse:
nomine officio capacity where the other spouse is unable to do so due to
incapacity - this is their official capacity as a representative of the other spouse
The impact of a valid marriage on the Law
of Succession
married spouses become automatic intestate heirs of the other and the share is
dependent on the matrimonial regime.
E.G ICOP: the surviving spouse entitled to their half of the joint estate. The other
half which belonged to the deceased spouse divided between the intestate heirs in
terms of the rules of intestate succession.
Children born of unmarried parents may also be intestate heirs based on the blood
relationship the deceased.
The impact of a valid marriage on the
children of the marriage:
Parents are validly married, they automatically acquire rights and responsibilities
in respect of the children born of the marriage. The status of the children will be
that of ‘children born of married parents
right of guardianship: child born of married parents will automatically have both
parents as guardians unless the right is removed by a court of law
In some instances, a court may appoint a person as the guardian of a minor child
Once a child reaches the age of majority, either by turning 18 years old or by
marriage, the parents cease to be the child’s guardian
Law of persons, family and legal Practice
Engaged couples who would like to regulate the patrimonial consequences of
their future marriage by an ante-nuptial contract, require the services of a legal
practitioner.
Life partners who are parents of children may require the assistance of a legal
practitioner in drafting a parenting agreement in the event that they separate.
Life partners may require the services of a legal practitioner to draft an agreement
which will become enforceable in the event of the relationship terminating or one
of the life partners dying. In the absence of an agreement but where there is
evidence of a reciprocal duty of support, the former life partners may sue each
other for benefits. A life partner may also sue a third party for example in terms of
a claim for loss of support, where the third party caused the death of the other life
partner upon whom the surviving partner was dependent.
Cont…
Married couples wanting to terminate their marriage usually consult an attorney,
especially when a settlement agreement is required, and matters are complex.
Married couples wanting to change their matrimonial property regime will also
require the services of a legal practitioner to bring an application before the high
court as well as draft a new ante-nuptial contract if one is necessary.
Surrogacy agreements to be concluded between commissioning parents and the
surrogate mother are best drafted by a legal practitioner. The surrogacy agreement
is only valid once approved by the high court.
The ways in which the Law of Persons
overlaps with the following branches of
law
A dispute concerning the ability of an unborn child to inherit will touch on both
the law of persons and the law of succession.
A dispute as to whether the unborn has a right to life will touch on both the law of
persons and fundamental rights.
A dispute as to whether a child born with physical and or deformities caused by
prenatal injuries due to the mother being involved in a motor vehicle accident
would touch on both the law of persons and the law of delict.
A dispute concerning mental capacity, insolvency, the emancipation of a minor or
any status affecting matter would touch on both the law of persons and the law of
contract
