About this module
Family Law teaches how the law treats marriage and other family relationships: how a marriage is formed, what it does to the spouses and their property, how it ends, and what happens to children and money when it does. It also covers civil unions, customary, Muslim and Hindu marriages, life partnerships and domestic violence. Educational tool, not legal advice. All law is South African.
Level: usually first or second year (LLB). Prior knowledge: Module 2 (Law of Persons: status, capacity, minority, parental responsibilities) and Module 3 (Law of Contract), because engagements and antenuptial contracts are contracts.
How this guide teaches. Each chapter starts with a problem, gives the big picture, teaches the rules with case boxes (the legal issue, what the court held, and why it matters), lists common mistakes, sums up in short, and ends with practice questions, flashcards and a quiz.
Split from Module 2. Family Law used to be listed with the Law of Persons. It now has its own module, as most universities and the main textbooks treat it.
Common cases and how they are checked
| Chapter | Case | What it is used for | Status (27 October 2026) |
|---|---|---|---|
| F1 Engagement | Van Jaarsveld v Bridges [2010] ZASCA 76; 2010 (4) SA 558 (SCA) | Breach of promise: actual losses only, sentimental damages need contumelia | Read on SAFLII |
| F9 Patrimonial consequences | Botha v Botha [2006] ZASCA 6 | Forfeiture under s 9: only the three listed factors; not cumulative; two-step approach | Read on the SA Law Library |
| F9 Patrimonial consequences | EB (born S) v ER (born B); KG v Minister of Home Affairs [2023] ZACC 32; 2024 (2) SA 1 (CC) | Redistribution under s 7(3) extended to marriages after 1984 and to death | Read on SAFLII (last 6% not read) |
| F11 Children | S v M [2007] ZACC 18; 2008 (3) SA 232 (CC) | Section 28(2): best interests are paramount but not absolute | Read on SAFLII (last 6% not read) |
| F11 Children | F v F [2005] ZASCA 123; 2006 (3) SA 42 (SCA) | Relocation of a child: the approach and the weight of the other parent's bond | Read on SAFLII |
| F12 Other marriages | Mayelane v Ngwenyama [2013] ZACC 14; 2013 (4) SA 415 (CC) | A further customary marriage needs the first wife's consent (Xitsonga law, developed) | Read on SAFLII (last 23% not read) |
| F12 Other marriages | Women's Legal Centre Trust v President [2022] ZACC 23; 2022 (5) SA 323 (CC) | Non-recognition of Muslim marriages is unconstitutional; interim relief | Read on SAFLII (last 5% not read) |
| F12 Other marriages | Minister of Home Affairs v Fourie [2005] ZACC 19; 2006 (1) SA 524 (CC) | Same-sex couples may not be excluded from marriage | Described from summaries; full text could not be opened |
| F13 Life partnerships | Bwanya v Master of the High Court [2021] ZACC 51; 2022 (3) SA 250 (CC) | Surviving permanent life partners: maintenance and intestate succession | Read on SAFLII (last 24% not read) |
| F13 Life partnerships | Butters v Mncora [2012] ZASCA 29; 2012 (4) SA 1 (SCA) | Universal partnership between cohabitants | Read on SAFLII |
| F14 Domestic violence | Omar v Government of the RSA [2005] ZACC 17; 2006 (2) SA 289 (CC) | The suspended warrant of arrest under the Domestic Violence Act is constitutional | Read on SAFLII |
Module blueprint
The module follows a marriage through its life, then looks at the other forms of family life the law recognises.
| Chapter | Question it answers | Outcome |
|---|---|---|
| F1 Engagement | What is an engagement, and what happens if it is broken? | FL1 |
| F2 Requirements for a valid civil marriage | What makes a civil marriage valid? | FL2 |
| F3 Void, voidable and putative marriages | What if a requirement is missing? | FL3 |
| F4 Invariable consequences | What does every marriage do, whatever the property system? | FL4 |
| F5 Marriage in community of property | How is the joint estate shared and managed? | FL5 |
| F6 Out of community and the accrual system | What do antenuptial contracts do, and how is the accrual calculated? | FL6 |
| F7 Changing the property system | Can spouses change their property system during the marriage? | FL7 |
| F8 Death and the grounds for divorce | How does a marriage end, and when will a court grant a divorce? | FL8 |
| F9 Patrimonial consequences of divorce | Who gets what: forfeiture, redistribution and pensions? | FL9 |
| F10 Spousal maintenance | When must one ex-spouse support the other? | FL10 |
| F11 Children | How are care, contact and maintenance decided? | FL11 |
| F12 Civil unions, customary, Muslim and Hindu marriages | Which other marriages are recognised, and how? | FL12 |
| F13 Life partnerships | What rights do unmarried partners have? | FL13 |
| F14 Domestic violence | How does the law protect people from abuse at home? | FL14 |
| Skills Lab | How is a divorce started and settled? | FL15 |
Learning outcomes. By the end, you can:
- FL1: explain the engagement and the claims that follow a breach.
- FL2–FL3: test a civil marriage for validity and state the effect of a defect.
- FL4–FL7: explain the consequences of marriage, the property systems and how they can be changed.
- FL8–FL10: identify the grounds for divorce and advise on forfeiture, redistribution, pensions and maintenance.
- FL11: apply the best-interests standard to care, contact, relocation and child maintenance.
- FL12–FL13: explain the recognition of civil unions, customary, Muslim and Hindu marriages and life partnerships.
- FL14: explain the protection available under the Domestic Violence Act.
- FL15: identify the parts of a divorce summons and settlement agreement.
F1: Engagement
Problem. Lindiwe and Pieter get engaged in July and set a wedding date in January. In December, Pieter ends the engagement by text message. Lindiwe has paid a deposit for the venue and resigned from her job to move to his town. She wants R40 000, her lost salary, the income she would have shared as his wife, and damages for her hurt feelings.
The big picture. An engagement is an agreement to marry each other in future. It is a contract, but courts will not force anyone to marry. If one party ends it without just cause, the other may claim some losses, and, only in limited cases, sentimental damages. The Supreme Court of Appeal has questioned whether the old action should survive at all.
F1.1 What an engagement is
An engagement is an agreement between two people to marry each other. The usual requirements of a contract apply: consensus, capacity, legality and possibility (Module 3, C1). So:
- a minor needs the consent of their guardian, as for any contract (Module 2, P6);
- a person who is already married cannot validly become engaged to someone else, because the agreement is contrary to public policy;
- there are no formalities: an engagement may be oral.
F1.2 Ending an engagement
An engagement ends by marriage, by agreement, by death, or when one party cancels it. Cancellation is lawful if there is just cause: something that would make a marriage unwise, such as serious misconduct, a serious illness concealed from the other party, or a fundamental change in circumstances. A party who cancels without just cause commits a breach of promise.
Courts will never order specific performance: no one can be forced to marry.
F1.3 Claims after a breach
Van Jaarsveld v Bridges [2010] ZASCA 76; 2010 (4) SA 558 (SCA)
- Legal issue: What may a party claim when an engagement is broken off without just cause?
- Held: The court said that "engagements are outdated and do not recognise the mores of our time" but reached no "definite conclusion" on whether the action should be abolished (para 3). An engagement is better seen as a time to decide whether to marry, and unwillingness to marry "is clear evidence of the irretrievable breakdown of the engagement" (para 6). Sentimental damages under the actio iniuriarum require a contumelious (insulting) breach; hurt feelings are "not enough" (para 4). Courts should not speculate about prospective losses such as the support a spouse would have received (para 10). Actual losses in preparing for the marriage are easier to justify, if they were within the parties' contemplation, and benefits received must be set off (para 11). (Harms DP)
Engagement gifts. Gifts made in contemplation of the marriage (including the ring) may generally be reclaimed from a party who broke the engagement without just cause. Ordinary gifts are not returned. Check the rules in your textbook.
Back to the problem. Lindiwe has a reasonable claim for the deposit and, if within the parties' contemplation, her lost salary from resigning. Courts will not speculate about the income she would have shared as his wife (Van Jaarsveld para 10). A text message ending the engagement is not in itself insulting, so sentimental damages are unlikely.
In short. An engagement is an agreement to marry; there is no specific performance. Cancellation without just cause is a breach. After Van Jaarsveld, a claim is realistic only for actual wedding-related losses within the parties' contemplation; prospective losses are speculative, and sentimental damages need a contumelious breach.
Common mistakes
- Saying a court can order a party to go through with the wedding.
- Claiming the lifestyle the marriage would have brought (prospective loss).
- Treating hurt feelings alone as enough for sentimental damages.
F1 practice
- A 17-year-old gets engaged without telling her parents. Is the engagement valid? Answer: no; as a minor she needs her guardian's assistance to contract (Module 2, P6).
- A man ends his engagement after discovering his fiancée had hidden a serious criminal conviction for fraud. Breach of promise? Answer: probably not; serious concealed misconduct can be just cause.
- After a broken engagement, the woman claims the share of his estate she would have received under a marriage in community of property. Answer: a prospective loss; courts will not speculate about it (Van Jaarsveld para 10).
Flashcards
| Front | Back |
|---|---|
| Engagement | An agreement between two people to marry each other in future |
| Formalities for an engagement | None; it may be oral |
| Can a married person become engaged? | No; the agreement is contrary to public policy |
| Specific performance of an engagement | Never ordered: no one can be forced to marry |
| Just cause | A reason that makes the marriage unwise, such as serious concealed misconduct |
| Van Jaarsveld v Bridges | SCA 2010: actual losses only; prospective losses speculative; sentimental damages need contumelia |
| Sentimental damages after a breach | Only for a contumelious (insulting) breach under the actio iniuriarum |
| Prospective losses | Not awarded: too speculative (Van Jaarsveld para 10) |
| Actual losses | Wedding-related losses within the parties' contemplation, less benefits received |
| Engagement gifts | Gifts in contemplation of marriage may be reclaimed from the party in breach |
Quiz
- In Van Jaarsveld v Bridges, the SCA held that sentimental damages require: (a) hurt feelings (b) a contumelious breach (c) a written engagement. Answer: (b).
- Prospective losses, such as the support a spouse would have received, are: (a) always awarded (b) not awarded because they are speculative (c) awarded only for minors. Answer: (b).
- A court may order a party to marry: (a) never (b) if the engagement was in writing (c) if the other party is pregnant. Answer: (a).