A PROMISE TO MARRY

In this article the legal consequences of breaking off an engagement will be discussed. Is it a contract, and if it is, can you institute a claim for damages due to a breach of this contract?

In order to enter into a valid engagement to be married the following requirements must be met:

  • Both parties must have the capacity to act, which generally means that parties must be older than 18 years or if they are minors, that they have the necessary consent from their guardians.
  • Both parties must voluntarily consent to the engagement. A material mistake, such as the identity of either of the parties, will render the engagement void. There must also be no misrepresentations made by either of the parties; in other words, where it would have resulted in the contract not being concluded, had the other party known the truth.
  • Both parties must be permitted by law to marry each other. For example, you may only be engaged to one party, unless a polygamous engagement applies under African Customary Law.
  • One may not marry a sibling.

It is important to note that there is no law in South Africa that requires an engagement before marriage.

Once a date for the marriage has been determined, there is a reciprocal duty to marry on that date, unless the date is changed by mutual agreement. Further, if no date has been determined, it is presumed that the marriage will take place within a reasonable time. Nevertheless, either of the parties may terminate the engagement, which may or may not attract a claim for damages or return of gifts.

An engagement can be terminated in the following ways:

  • Marriage
  • Death of either parties
  • Mutual agreement
  • Withdrawal of parental consent
  • Breach of promise
  • Termination by one party that is justified and based on sound reasons

It is important to establish whether there is a just cause for cancellation. If there is, the engagement may be validly terminated. A reason such as sterility or criminal activity, if it was only brought to the attention of the other party after agreeing to marry, may provide enough grounds to break off the engagement. If both parties agree to terminate the engagement, all gifts given in anticipation of the marriage, including the engagement ring, must be returned.

If one party breaches the promise to marry without justifiable reasons, the innocent party can, according to our law, institute a claim for damages, provided that the losses were within the contemplation of the parties. The innocent party can claim expenses incurred in anticipation of the wedding, thus placing the innocent party in the financial position he or she would have been had the engagement never been entered into. Further, the innocent party may keep or claim back the engagement ring as part of costs incurred.

In the case of Van Jaarsveld v Bridges, the court decided that a party cannot successfully institute a claim for prospective losses on the basis of a breach of promise to marry, because an engagement is not an ordinary contract in the context of contractual damages and should therefore not be placed on a rigid contractual footing. This means that a party may not institute a claim for damages placing him or her in the position he would have been had they gone through with the marriage. Previous court judgements indicate that compensation will be awarded at the discretion of the court and that each case must be evaluated on the basis of its individual circumstances.

In conclusion, it is important to note that a promise to marry is an agreement which attracts legal consequences; therefore one should not be hasty when deciding to ask the big question.

Bibliography:

Van Jaarsveld v Bridges 2010 (4) SA 558 (SCA).

Cloete v Maritz 2013 (5) SA448 (WCC).

Bull v Taylor 1965 (4) SA 29 (A).

Georgina Guedes, 23 October 2013, Mail and Guardian, “Five fallacies about engagement rings”.

A Guide to Divorce and Separation in South Africa, “Engagement and the Law”.

Ronald & Bobroff, “The engagement”.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.

FREEDOM OF TESTATION AND MAINTENANCE CLAIMS

Is a testator entitled to disinherit a child and if so, will the child have a claim for maintenance against the estate?

Freedom of testation is the liberty of a testator to choose how to bequeath his/her estate, and govern how his/her property is transmitted after his/her death. The law of succession then, is at least in part concerned with the preservation of a testator’s wishes, even if it additionally serves a social function related to the family and economic structures of society. In principle South Africa propagates total freedom of testation.

The general approach in South African law is that agreements or clauses which attempt to limit freedom of testation are not enforceable. Further, once the testator’s wishes have been ascertained, a court is ordinarily bound to give effect to these wishes. Our baseline is allowing for much liberty and autonomy in the law of succession.

However, freedom of testation has never been unfettered. Both the common law and statutes, such as the Maintenance of Surviving Spouses Act 27 of 1990, impose restrictions on the testator. Bequests which are manifestly illegal or contra bonos mores (against good morals) will be regarded as invalid. Further, spouses and children may be disinherited in terms of the will but they may still have a legitimate claim for maintenance against a testator’s estate which cannot be disregarded.

There is furthermore a presumption against disinheritance, and courts will usually prefer a softer construction of a testator’s will in this respect. This is based on an assumption that a parent is not likely to disinherit a child. However, it is important to note that if it is explicit or clear in a testator’s will that a child is disinherited, then this will not constitute an impermissible exercise of freedom of testation; rather, a testator is given the liberty to lawfully do so.

South Africa gives fairly broad freedom to testators. Testators can generally dispose of their estates as they desire, subject only to certain restrictions mentioned above. Further, testators are not required to give reasons for their decisions in this regard, and are not accountable to their families for testamentary choices.

Nonetheless, the parental duty to maintain children will pass to the estate upon death, as confirmed in Carelse v Estate De Vries (1906) 23 SC 532. The minor child’s claim for maintenance is endorsed as settled law and a common law restriction on freedom of testation.

It should be noted that the child’s claim for maintenance and education is not to be confused with a legitimate portion as it does not entitle a minor to a set portion of the estate or, put differently, does not presumptively limit the testator’s ability to divide her estate as she or he desires. As such a testator could potentially disinherit a child without this impacting the common law claim the child will have against the estate.

Currently, South African law also provides for the surviving spouse to exercise a claim for maintenance against the deceased’s estate. The parental (and spousal) duty then does not merely extinguish upon death. The provision of maintenance for children gives effect to children’s rights as provided for by the Constitution, and affording this maintenance claim to protect dependants is wholly justifiable. This does not however entail that children should be entitled to a legitimate portion or forced heirship generally, as this would constitute an overly extensive constriction on freedom of testation.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.

SICK LETTERS OR FAKE LETTERS?

This article deals with medical certificates and whether or not an employee is justified in taking the day off for an “illness”.

Angela informed her employer on Monday morning that she would be staying at home as she felt very sick and was unable to do her work in her condition. Angela only decided on Wednesday that she would go to the doctor because she knew she would be returning to work on Thursday, and therefore needed a medical certificate from the doctor so that her work would not deduct the money from her salary. However, Angela had a surprise waiting for her.

In terms of Rule 15(1) of the Ethical and Professional Rules of the Medical and Dental Professions Board of the Health Professions Council of South Africa a practitioner shall only grant a certificate of illness if such certificate contains the following information:

  • the name, address and qualification of the practitioner;
  • the name of the patient;
  • the employment number of the patient (if applicable);
  • the date and time of the examination;
  • whether the certificate is being issued as a result of personal observations by the practitioner during an examination, or as the result of information received from the patient and which is based on acceptable medical grounds;
  • a description of the illness, disorder or malady in layman's terminology, with the informed consent of the patient, provided that if the patient is not prepared to give such consent, the medical practitioner or dentist shall merely specify that, in his or her opinion based on an examination of the patient, the patient is unfit to work;
  • whether the patient is totally indisposed for duty or whether the patient is able to perform less strenuous duties in the work situation;
  • the exact period of recommended sick leave;
  • the date of issuing of the certificate of illness; and
  • a clear indication of the identity of the practitioner who issued the certificate which shall be personally and originally signed by him or her next to his or her initials and surname in printed or block letters.

If preprinted stationery is used, a practitioner shall delete words which are irrelevant. A practitioner shall issue a brief factual report to a patient where such a patient requires information concerning himself/herself.

The above is largely self-explanatory. Subrule (e) refers to those occasions where, for example, the employee has been off sick on Monday and Tuesday and then on Wednesday he goes to the doctor and informs the doctor that he has had flu since Monday and requires a sick note. The doctor is then required to write in the sick note, “I was informed by the patient that …”

An employer does not have to accept this as a genuine illness. The doctor is only telling you that the patient says he was ill. The doctor is not certifying that he made an examination and is able to confirm the illness. You would therefore be perfectly justified in informing the employee that the time taken off will be regarded as unpaid leave and that in future he should visit the doctor when he falls ill and not after he has recovered from the alleged illness.

Unfortunately for Angela her employer recently read an article informing him of his rights to deduct money from her salary because she failed to come to work on Monday and Tuesday and only went to see the doctor on Wednesday, and there was no way of ascertaining that she definitely was ill on those days.

In light of the above it would be wise for employees to see the doctor on the same day that they feel ill, and for employers to insist on seeing the medical certificate and examining it properly.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.

MAINTENANCE: NOT ONLY FOR CHILDREN

When the word “maintenance” is mentioned, many people think of women claiming maintenance for minor children, or alternatively, women claiming maintenance from their ex-husbands. However, in this article we will deal with parents claiming maintenance from their adult children.

Mike Larry received a summons from the Maintenance Court to appear three weeks later for a maintenance matter, however Mike had no children or wife and was quite confused, thinking that perhaps the Court had made a mistake. Mike attended the Maintenance Court in order to enquire whether there had been a mishap in the documentation. However, what Mike found out made his heart sink, and soon his bank account, too.

Mike’s father, Jermaine, had made an application at the Maintenance Court for maintenance from Mike as he had no job and therefore no income. Mike asked his lawyer whether this was even possible and the answer was affirmative.

According to the Maintenance Act 99 of 1998, parents and children have a reciprocal duty of support. A child has a duty to support his/her parents and grandparents, but always subject to the rule that support must be claimed from one’s nearest relatives first. The basis of a child’s duty to support their parents is the sense of dutifulness or filial piety (relating to or due from a son or daughter). In certain circumstances even minor children may have to support their parents. As always, the criteria which must be present is a need on the part of the person to be maintained, and the ability to support on the part of the person from whom support is claimed. A parent who claims support from a child must prove his or her need and the child’s ability to support the parent. As mentioned above, a more stringent criterion of need is applied to parents than to children; indigence on the part of the parent is stated to be a requirement.

Our authorities are not entirely clear on this point. In Oosthuizen v Stanley the court spoke of “the quality and condition of the persons to be supported”. In the same case it was pointed out that where a parent must be supported it is not only the parent’s own needs but also those of the parent’s dependents which must be considered. In Van Vuuren v Sam Rabie, the Judge referred to the same criterion but stressed that the support of parents must be confined to the basic needs which are food, clothing, shelter, medicine and care in times of illness. Relying on the case of Surdus v Surdus, the Judge said that, in assessing the quality and condition of life of the person to be supported, it is primarily his present, not his past situation which is considered, but that in assessing these the Judge should exercise his discretion. For instance, a previously wealthy parent who has fallen on hard times should not be compelled to eat peasants’ food. It has been argued that the criterion of need should not be so narrowly interpreted here as to destroy the whole concept of a reciprocal obligation.

However, the following can also be considered when a parent makes an application for maintenance from his/her child:

  1. Siblings;
  2. Extra income; and
  3. Quality of living.

In terms of the common law an extramarital child has a duty to support his/her mother, but whether or not he/she must support his/her father has yet to be decided. It can, however, be argued that an extramarital child would be liable to maintain his/her father in terms of Section 16 of the Children’s Act 38 of 2005.

In conclusion, if you feel you are being unfairly targeted for a maintenance claim, be sure to consult with your attorneys so they can inform you of your rights and responsibilities.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.