D.S and Another v G.R.M (50056/11) [2013] ZAGPPHC 23 (5 February 2013)

D.S and Another v G.R.M (50056/11) [2013] ZAGPPHC 23 (5 February 2013)

The court found that both the first applicant and the respondent bona fide believed they were lawfully married under customary law, despite the subsistence of the first applicant's civil marriage. This belief rendered their relationship a putative marriage, which, although void ab initio, attracts proprietary consequences. Alternatively, the relationship could be regarded as a universal partnership. In both scenarios, the law entitles the respondent to an equal share of the joint estate acquired during the relationship. The respondent's claim to half the value of the house and other assets is justified by her contributions and the absence of any agreement to the contrary. The court...

Citation
[2013] ZAGPPHC 23
Parties
Applicant: D S; Applicant: MJS S; Respondent: G R M
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
5 February 2013
Case Number
50056/11
Procedural Posture
Civil Application / Final Judgment
Outcome
The purported customary marriage between the first applicant and the respondent is declared null and void. The joint estate is to be divided equally. Each party is to pay their own costs.
Judges
MNGQIBISA-THUSI
Legal Topics
Customary Marriage, Putative Marriage, Universal Partnership, Division of Property
Family and Children Civil Procedure Customary Marriage Putative Marriage Universal Partnership Division of Property

Case Brief

Summary, issues, holding and outcome

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Parties

D S

Applicant

MJS S

Applicant

G R M

Respondent

Procedural Posture

Civil Application / Final Judgment

Legal Issues

  1. 1 Whether the customary marriage between the first applicant and the respondent is valid.
  2. 2 Whether the respondent is entitled to a share of the joint estate acquired during the purported marriage.
  3. 3 How the assets and liabilities accrued during the purported marriage should be divided.

Ratio Decidendi

The court found that both the first applicant and the respondent bona fide believed they were lawfully married under customary law, despite the subsistence of the first applicant's civil marriage. This belief rendered their relationship a putative marriage, which, although void ab initio, attracts proprietary consequences. Alternatively, the relationship could be regarded as a universal partnership. In both scenarios, the law entitles the respondent to an equal share of the joint estate acquired during the relationship. The respondent's claim to half the value of the house and other assets is justified by her contributions and the absence of any agreement to the contrary. The court...

Court Disposition

The purported customary marriage between the first applicant and the respondent is declared null and void. The joint estate is to be divided equally. Each party is to pay their own costs.

Orders

  • The purported customary marriage between the first applicant and the respondent is declared null and void.
  • The joint estate of the first applicant and the respondent is to be divided equally.