In the past, the criticism levelled against marriages in community of property was mainly at the inferior position it placed the wife in by virtue of the marital power that was deemed to be coupled to the community system. On the other hand, the parties enjoyed economic equality although this advantage was enjoyed only on the dissolution of the marriage. During the marriage the husband, as administrator of the joint estate, had almost unlimited powers over the joint estate. The only consolation for the wife was the knowledge that she was a joint owner of an equal and undivided half share of all the assets and liabilities of the joint estate. The common law matrimonial community was undoubtedly a community of tied-up shares.
A number of couples when they are in love and want to get married rush off to the a marriage offer and don’t sign any sort of ante nuptial agreement. This can lead to a problem later and should be considered carefully. If you would like more information on this subject and any others affecting marriages, please contact us at http://www.just.co.za .
The family unit in customary law is the household (or”kraal” as it is most commonly referred to in the law reports). The family group of each wife forms a “house” as defined in the Black Administration Act. Whenever a man has more than one wife there are two or more” houses” in one household (or “kraal”). The concepts of both house and household being primarily of groups of persons it makes no difference whether the geographical place of residence is rural or urban. The senior in law is not necessarily the oldest, male member of the family but he will be the head of the household (or kraalhead) as referred to in a number of law reports.
If you want further information on this subject please visit our website.
The marriage of a missing person can be dissolved by the High Court if it grants an order presuming death. While the court has a discretion in the matter, it cannot grant the order on its own initiative. The order may be granted only on application by the surviving spouse/partner, either when the order for presumption of death is requested or at any time thereafter – that is at a later date by means of a separate application to the High Court.
Divorce is only an option for couples who were lawfully married and the divorce procedure is outlined elsewhere. The divorce process can be simple and a divorce settlement agreement is filed in the divorce court.
Cohabitation is quite different. Cohabitation is a stable monogamous relationship where a couple who do no wish to, or are not allowed to, get married, live together as spouses. This definition includes people of the same sex living together in a stable, exclusive relationship. Sometimes this definition is limited to couples of the opposite sex living together. Cohabitation is also referred to as living together, shacking-up, de facto marriage, quasi-marriage, common-law marriage, domestic partnership or private marriage.
The only distinguishing feature of living together is the fact that the couple is not legally married to each other. The term does not include non-sexual relationships.
A good family law firm and a good divorce attorney should be able to give you legal advice on customary family law.
The main principle of customary law holds for all tribes in Southern Africa. As there are a number of tribal variations attention is drawn to the fact that all examples are taken from the law of the Cape Nguni tribes including those in the Ciskei and Transkei. Where variations particular to other tribes arise the sources of the law of the tribe in question should be consulted. Statute law on such subjects as the application of customary law and the choice of law is of effect throughout South Africa.
