An Introduction to Roman-Dutch Law/Book I/Chapter V

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2390850An Introduction to Roman-Dutch Law — Book I, Chapter V: MarriageRobert Warden Lee



The union of man and wife in marriage produces important consequences in the Law of Persons. In this chapter we shall consider: (1) the contract to marry; (2) the legal requisites of marriage; (3) the consequences of marriage; (4) antenuptial contracts; (5) the dissolution of marriage; (6) some miscellaneous matters relating to marriage.

Section 1. The Contract to Marry

The promise to marry. Marriage is commonly preceded by espousals,[1] which constitute a binding contract between the parties.[2] No form is prescribed for the contract.[3] Any persons competent to intermarry may validly engage themselves.[4] This excludes boys and girls below fourteen and twelve years of age respectively.[5] By the Dutch Law young persons who have passed this limit but not reached the age of twenty-five[6] (if males), of twenty (if females), cannot contract a valid engagement without the consent of father MARRIAGE 65 and mother, or of the survivor of them, and, failing these, of the majority of the friends and relatives,^ which con- sent, however, may be given ex post facto at any time before marriage.^ FaiHng such consent the engagement is invalid.* With it, the engagement is valid, subject however in this case, as in other contracts of minors, to restitutio in inte- grum on the ground of lesion ; * from which it follows that the engagements of minors are in no case finally binding unless and until ratified after full age.^ By the common law of Holland the consent of tutors was not required ; ® but the want of consent of tutors, no less than of parents, was a sufficient ground for the repudiation of the contract by either party.' An engagement lawfully contracted with the necessary consents cannot be broken off without just cause.^ If a person contracts more than one engagement ® we must distinguish whether the first engagement is clandestine or lawful. If the second engagement alone is lawful, it takes precedence of a previous clandestine engagement, which, as we have seen, is ineffectual to bind the parties. If the first engagement is lawful, a subsequent engagement is null and void." Under the Roman-Dutch Law the Courts used to decree specific performance of the marriage con- tract, and even declare a reluctant party married in

Perpetual Edict of Charles V, 4 Oct. 1540, Art. 17 (1 G. P. B, 

319) ; Oreefy. Verreaux (1829) 1 Menz. 151.

Hoola Van Nooten, vol. i, pp. 309 and 321 ; V. d. K. Th. 50. 
Voet, 23. 1. 20. 
  • Voet, 23. 1. 17 ; V. d. K. Th. 61.

« Cens. For. 1. 1. 11. 13. " Hoola van Nooten, vol. i, p. 304. ' Hoola van Nooten, op. cit. p. 328 ; Loenius, Decis. 4 and 54 ; V. d. K. Th. 53. Bynkershoek {Qitaest. Jur. Priv., lib. II, cap. iii) argues that the engagements of minors who have tutors are governed by the same rules as any other contracts of minors ; viz. (1) if made without consent of tutors they are absolutely void (but see above, p. 39) ; (2) If made with consent, the minor may nevertheless in a fit case obtain relief. This seems soxmd.

Voet, 23. 1. 12 ; Hoola van Nooten, vbi sup. ; V. d. K. Th. 60. 
  • Van Leeuwen, 1. 14. 11.

" Van Leeuwen, ubi sup. But the other party to the second engage- ment, if innocent, may maintain an action for damages. V. d. K. Th. 68.


absence.^ This practice is disused in the modern law,^ but an action lies for damages for breach of the contract to marry. Section 2. The Legal Requisites or Marriage Legal con- Assuming the consent of the parties as a necessary a vaM °^ condition of marriage, as of other contracts, we may lay marriage: (jown the essentials of a valid marriage as being: A. Capacity to marry and to intermarry. B. Consent of parents. C. Due observance of the necessary forms and cere- monies. We shall deal with these in order. A. Capa- A. Capacity to marry and to intermarry. The following parties. Cannot contract a vahd marriage: ^ viz. those who are (1) already married; * (2) under the age of puberty; (3) impotent; (4) insane; to whom the Roman-Dutch Law added (5) widows, so long as the question of their pregnancy remained undetermined.^ The following persons are precluded from intermarriage: viz. (a) persons within the prohibited degrees of relation- ship; ® (b) persons who have previously committed adultery together.

Cens. For. 1. 1. 11. 26 and 1. 1. 14. 9; Voet, loo. oit.; V. d. K. 

Th. 57. This was called ' met de handschoen trouwen '. Hoola van Nooten, vol. i, p. 332; (Cape) Bichter v. Wagenaar (1829) 1 Menz. 262; (Ceylon) Dormeux v. Kriekenheek (1821) Ramanathan, 1820-33, p. 23. " (Cape) Marriage Order-in-Council of 7 Sept. 1838, sec. 19, in force in the Colony from Feb. 1, 1839. The same enactment applied to British Guiana, but has now been repealed by Ord. No. 25 of 1901. See also Ord. No. 36 of 1903. In Ceylon the action to compel marriage was abolished by Ord. No. 6 of 1847, sec. 30 (re-enacted in sec. 21 of Ord. No. 19 of 1907). ' For Brit. Gui. see Ord. No. 25 of 1901, sec. 28. ^ But, Van der Keessel says {Th. 64-5), if a second marriage has been contracted in good faith, the first spouse being thought to be dead, the children of the supposed second marriage wiU be deemed to be legitimate. ^ Gr. 1. 6. 3; V. d. K. Th. 66-8; V. d. L. 1. 3. 6. s Gr. 1. 5. 5 ff.; Van Leeuwen, 1. 14. 12 ff.; Voet, 23. 2. 29 ff. ' Dig. 34. 9. 13; Nov. 134, cap. 12. (a. d. 556); Sohorer ad Gr. 1. 5. 18; Voet, 23. 2. 27; Eoht-reglement van de Staten-Generaal, 18 March, 1656, art. 83 (2 G.P.B. 2444); Placaet van de Staten van HoRandt, July 18, 1674 (3 G. P. B. 507); V. d. K. Th. 70; V. d. L. 1. 3. 6; Rechtsg. Obs., pt. 1, no. 11; Bynkershoek, Quaest Jur. Priv. lib. II, cap. X. Groenewegen, adopting a benignant interpretation MARRIAGE 67 To these two grounds of disability the commentators add others which at the present day are either obsolete or of diminished importance. For instance, the Civil Law ^ prohibited marriage between a female ward and her tutor or curator, or his son; and this prohibition, though con- sidered to be obsolete by Van Leeuwen,^ Groenewegen,^ Voet,^ and others, was accepted as existing law by Bynkers- hoek,* Van der Keessel,^ and Van der Linden.^ In the Cape Province the marriage of a guardian with his female ward requires the sanction of the Court.* By the Roman and Roman-Dutch Law a ravisher might not marry the woman whomhe hadravished.^ TheolddisquaHficationson the ground of differences of rehgion* are doubtless obsolete. of Cod. 9. 9. 26 (27), thought such marriages permitted (De leg. abr. adloc). See also ZypBuevs, Notitia Juris Belgici, f. 208. The matter is concluded for the modern law by the Placaats above cited, unless they are abrogated by disuse. For Cape Law see Daniel y. Daniel (1884) 2 S. C. 231. In Ceylon the rule has been declared to have no place. Robot V. de Silva [1909] A. C. 376. "• Dig. 23. 2. 62 and 64; Cod. lib. 5, tit. 6 (de interdioto matrimonio inter pupillam. et tutorem seu curatorem liberosque eorum). But a tutor might give his daughter in marriage to his ward. Dig. 23. 2. 64. 2. ^ Van Leeuwen, 1. 14. 13 and Cens. For. 1. 1. 13. 25; Groen. de leg. abr. ad Cod. vbi mup.; Voet, 23. 2. 25.

  • Bynkershoek, Qwiest Jur. Priv. lib. II, cap. iii, p. 219; V. d. K.

Th. 74; V. d. L. 1. 3. 6.

  • 1 Maasdorp, p. 19. In Brit. Gui. if the mother is alive and consents

it is unnecessary to apply to the Court for leave [G.]. = Cod. 9. 13. 1. 2; Voet, 23. 2. 26; Matthaeus, De crimin. ad Dig. 48, tit. 4, no. 16; Eoht-reglement van de Staten-Generaal, March 18, 1656, art. 85 (2 G. P. B. 2444); Placaat van de Staaten van Holland, Feb. 25, 1751 (8 G. P. B. 535). Groenewegen, whose book first appeared in 1649, i. e. before the Placaats, says {ad Cod. 9. 13. 1): Jure Canonico raptae raptori nubere licet, et hoc jure utimur. See also Zypaeus, Notitia Juris Belgici, pp. 207-8. This opinion, however, cannot stand ■ against the express language of the Placaat of 1751, which saves the punishments and penalties of ' the written law ' in the matter of abductio violenta (geweldaadige vervoeringen). See V. d. K. Th. 71. Van der Linden mentions further the case of persons of any age who have eloped together. ' There was a strong prohibition,' he says, 'in Holland, against marriages between persons who had eloped ' (Placaat of Feb. 25, 1751, tibi sup.),' which was afterwards considerably relaxed whenever the subsequent consent of parents was obtained.' Reso- lutie van de Staaten van HoUand, June 26, 1783 (9 G. P. B. 375). The case of elopement is in fact covered by the language of the Placaat of 1751. But in this case marriage is not prohibited, only penalized, V. d. K. Th. 72. « Voet, 23. 2. 26; Hoola van Nooten, vol. i, p. 393; V. d. K. Th. 73; V. d. L. 1. 3. 6. r2 68 THE LAW OF PERSONS Marriage The law of prohibited degrees was defined for Holland "°.*P!f- by the Political Ordinance of April 1, 1580,^ which forbids mitted J '■ 11JX9 within the marriage between: (1) ascendants and descendants,' Se^es!^*^ whether related by legitimate or illegitimate birth ;3 (2) collaterals of whom either is related to the common ancestor in the first degree of descent, e.g. brother and sister, uncle and niece, uncle and grand-niece, nephew and aunt.* In the latter class no distinction is made be- tween the whole and the half blood, and in both classes the prohibition extends to relations by marriage as well as to relations by blood and within the same degrees ; ^ that is to say, since a man may not marry his sister or sister's daughter, neither may he marry his sister-in-law or sister-in-law's daughter ; and so with all the other prohibited degrees of relationship. It must be observed, however, that though relationship by marriage is a dis- qualification within the prohibited degrees, this rule has no appMcation when more than one marriage intervenes

G.P.B. 330. 
Pol. Ord., Art. 5 ; Gr. 1. 5. 6 ; Voet, 23. 2. 30. 
Groen. de leg. ahr. ad Dig. 38. 10. 8 ; V. d. K. Dictat. ad Gr. 1. 5. 6. 
  • Pol. Ord., Arts. 6-7 ; Gr. 1. 5. 7-8 ; Voet, 23. 2. 31-2.

^ This is expressly enacted by Pol. Ord., Art. 8, by which ' it is for- bidden and interdicted for a man to marry blood relations of his deceased wife or for a woman to marry blood relations of her deceased husband '. But inasmuch as the Ordinance goes on to specify ' namely ' the cases enumerated in Arts. 8 to 11 (Vide Gr. 1. 5. 10-12), it was doubted whether the prohibition of the Ord. extended in regard to collateral affinity beyond the cases specifically stated. With regard to the ascending and descending lines of affinity no such doubt arose, a man being by universal consent prohibited from marrying his stepmother or mother-in-law, step-daughter or daughter-in-law; just as a woman from marrying her step-father or father-in-law, step-son or son-in-law. (Pol. Ord., Arts. 5 and 8 ; Gr. 1. 5. 10 ; Voet, 23. 2. 30). Nor were any exceptions admitted in the second degree of afSnity. In the third degree doubts arose, which were variously resolved. Thus the question of marriage with a deceased wife's brother's or sister's daughter re- mained open until definitely disallowed by the Publicatie van de Staten van Hollandt of May 21, 1664 (3 G.P.B. 606) ; Van Leeuwen, 1. 14. 13. Van Leeuwen gave an opinion in favour of marriage with a deceased wife's maternal aunt (Cens. For. 1. 1. 13.21). Van der Linden, however (1. 3. 6), says that the same prohibitions apply to affinity as to blood relationsMp and, since dispensations are no longer accorded, the modern law may be taken to be settled in this sense, subject to statutory modifications, where they exist. See on the whole subject, Loenius, Decis., Gas. 7, pp. 39-62; Eechtsg. Obs., pt. 4, no. 3 ; Hoola van Nooten, vol. i, pp. 383 S. MARRIAGE 69 between the intending spouses.^ Thus by the Dutch law a man might not marry his deceased wife's sister,^ but there was no reason why he should not marry his deceased wife's brother's widow.* In the colonies the matter of prohibited degrees has in part or in whole been regulated by statute.* ^ In other words, my wife's affines are not my affines so as to bring them within the prohibited degrees (Van Leeuwen, 1. 14. 13 and Gens. For. 1. 1. 13. 23), at all events in the collateral line. Voet, 23. 2. 33.

Pol. Ord., Art. 10. 
Gens. For. 1. 1. 13. 24 ; Voet, 23. 2. 33 ; Rechtsg. Obs. uU sup., 

p. 20 ; Hoola van Nooten, vol. i, p. 387. ^ For the Cape see Act No. 40 of 1892, which enacts (sec. 2) that : ' it shall be lawful for any widower to marry the sister of his deceased wife, provided such sister be not the widow of a deceased brother of such widower, or to marry any female related to him in any more remote degree of affinity than the sister of his deceased wife save and except any ancestor of or descendant from such deceased wife '. By sec. 4 nothing in the Act contained ' shall be deemed to legalise or render valid the marriage of a man with the sister of a wife from whom he has been divorced '. Sir A. P. S. Maasdorp has some remarks on this Act (1 Maasdorp, p. 17), which are stated by a writer in 8. A. L. J., vol. xxix, p. 130, to rest upon a misapprehension. In the Transvaal Province by Law No. 3 of 1871, sec. 4, 'Under the prohibited degrees of blood relationship are included : (a) all persons in the ascending and descending line ad infinitum, and in the collateral line to the third degree inclusive, consequently uncle and niece, aunt and nephew, whether by blood or marriage; (b), first cousins when both the parents of the one are related to both the parents of the other, as own brothers and sisters. The law is silent as to the prohibited degrees of affinity, which therefore depend upon the common law. It follows that marriage with a deceased wife's sister is not allowed ; and a man who has carnal intercourse with his wife's sister is guilty of incest. B. v. Paterson [1907] T. S. 619. In the Orange Free State, by Ord. No. 31 of 1903, sec. 1, 'Marriage is prohibited between all persons related to one another in the following degrees of consanguinity or affinity : (1) In the ascending and descend- ing lines between persons related to one another either by legitimate or illegitimate birth, or by marriage. (2) In the collateral degrees, (a) Between brother and sister by birth legitimate or illegitimate ; (6) (As amended by Ord. No. 27 of 1906) between uncle or great-uncle and niece or great-niece by birth legitimate or illegitimate; (c) Between aunt or great-aimt and nephew or great-nephew by birth legitimate or illegitimate. (3) (a) Between cousins whose fathers are brothers and whose mothers at the same time are sisters by birth legitimate or illegitimate ; (b) Between cousins of whom the father of the one is brother of the mother of the other and at the same time the mother of the one is sister of the father of the other by birth legitimate or illegitimate. Sec. 2. No marriage shall be deemed unlawful by reason only that the persons contracting such marriage are related to one another in any B. Consent of parents.

B. Consent of parents. In the oldest Germanic law the consent not alone of parents but also of other near relatives, was a necessary, or at all events usual, preliminary of marriage. 'Intersunt parentes et propinqui,' says Tacitus, 'ac munera probant.'[7] In Holland a case is cited as late as the year 1422 in which parents had incurred a penalty for having given their minor daughter in marriage without the consent of relatives and of the authorities of the town.[8] In the sixteenth century the matter was regulated by two statutory enactments: viz. the Perpetual Edict of Charles V of October 4, 1540, and the Political Ordinance of the States of Holland and West Priesland, of April 1, 1580.

The Perpetual Edict (Art. 17) runs as follows:[9]

provisions of the perpetual Edict of October 4, 1540, Art. 17.

'And whereas, daily, many inconveniences are caused in our realm in consequence of secret marriages, which are contracted between young persons without the advice counsel and consent of friends and relatives of both sides, we observing that according to the precepts of the written law such marriages are not in accordance with honour and due obedience, and generally come to a bitter end, Will, Ordain and Decree that in case any one shall take upon himself to solicit and induce any young girl not exceeding the age of twenty years by promise or otherwise, to contract marriage with him, or shall in fact contract marriage with her without the consent of the father or mother of the said girl, or of the majority of the friends and relatives, in case she had no father or mother, or of the judicial authorities of the place, such man shall at


no time be entitled to take or receive any douarie or other benefit (whether by way of ante-nuptial contract, by the custom of the country, by testament, gift, transfer or otherwise in what manner soever) out of the goods which the said girl may leave behind, even though he may, after the marriage has been completed, have obtained the consent of the father and mother, of the aforesaid friends and relatives, or of the Court ; of which circum- stance we wlQ that no regard should be had in this matter. In hke manner if any girl or woman take upon herself to contract marriage with a young man not exceeding the age of twenty-five years, without consent of father or mother, or of the nearest friends and relatives, or of the judicial authorities of the place, such woman shall never be entitled to take or acquire any douarie or other benefit out of the goods which such man may leave behind (whether by way of ante-nuptial contract, by the custom of the country, by testament, gift, transfer or cession, in what manner soever), even though she may, after the marriage has been consummated, have obtained the consent of father or mother, of the aforesaid friends and relatives, or of the judicial authorities ; of which circumstance we will that no regard should be had. Further, we forbid all our subjects to be present, to consent or agree to such marriages, contracted without the consent of the judicial authorities, or to receive, entertain, or lodge in their houses persons so married, under penalty of one hundred gold CaroH or other severe punishment in the discretion of the Court. We forbid also all Notaries to receive any ante-nuptial contract or other promise to effect such marriage under pain of deprivation of office and, moreover, of being punished at discretion. Commanding aU our ofiicers and fiscals to take good care to have this ordinance observed and maintained, and to punish the contraveners of the same without favour or dissimulation.' The above enactment, it will be noticed, penahzes marriages contracted without the necessary consents, without, however, annuUing them. This further step was taken by the PoHtical Ordinance of April 1, 1580, Tte Pro-

1 11 1 n J. 1 visions of 

which by Art. 3 ^ provides that banns shall not be the PoUti- granted or proclaimed if those that apply for the same l^^^^f^""' are beneath the proper age, viz. twenty-five for young AprU i, xr «o n ,1 1580, Arts.

1 G. p. B. 331 ; Gr. 1. 5. 14-15 ; Voet, 23. 2. 11. 3 & 13. 72 THE LAW OF PERSONS 

men, and twenty for young women, imless they produce to the magistrate or minister of rehgion the consent of their parents or the survivor of them (if they have any) ; and by Art. 13 declares ' null and void and of no effect marriages not contracted and celebrated ' as required by the Ordinance, and adds an express reservation of the provisions of the Perpetual Edict relating to the marriage of minors and the penalties therein contained.^ With The com- regard to the interpretation of these two enactments and fi'^t f their combined effect very divergent views have been of these entertained. As regards minors who have parents or me^ta : parent yet living the law seems plain. Such young per- (a) As re- SOUS can neither engage themselves ^ nor contract a vahd fentof °° marriage,^ without the consent of parents or parent.* parents ; If both parents are Hving the consent of both is required, but in case of difference of opinion between them the will of the father, as the head of the family, prevails over that of the mother.* If the father is dead the mother's consent is necessary, and sufificient,^ even though she has contracted a second marriage. Consent may be express or tacit, the latter when a parent knows of the intended marriage and does not forbid it. Such a case might arise if, through fraud or mistake, the pubhcation of banns had taken place without previous proof of parental consent as required by the Pohtical Ordinance, and the parents nevertheless acquiesced in the banns when they came to know of them.^ Indeed, in the absence of fraud on the part of one or both of the spouses, pubhcation of banns is deemed to be notice to the parents,* and a marriage thereafter concluded is valid, even though, through care- lessness on the part of the marriage-officer or other person

1 G. P. B. 334. 

" Voet, 23. 1. 20 ; V. d. L. 1. 3. 2. ^ Van Leeuwen, 1. 14. 6 ; Willenburg v. Willenburg (2) (1908) 25 S. C. at p. 910 ; 3 Buch. A. C. 409.

  • Grandparents are not included. V. d. K. Th. 77.

° Voet, 23. 2. 13. 'Ibid. ' Voet, 23. 2. 14. » Voet, 23. 2. 18. » Voet, loc. cit. {ad fin.); Johnson v. Mclntyre (1893) 10 S. C. 318. But there is no presumption of notice in case of marriage by special licence under Cape Act No. 9 of 1882. MARRIAGE 73 responsible, the parents may in fact not have consented to the marriage or even have known of it. In any event, ratification by the parents or parent after marriage, so far as concerns the validity of the marriage, and the legitimacy of the children, has the same effect as a previous consent ; but no ratification after marriage can reheve from the penalties imposed by the Perpetual Edict, this being excluded by the express terms of the Edict itself.^ If parents frivolously and unreasonably withhold their consent, it would seem just that the Court should have power to override their veto. Such is the opinion of Voet,^ which Van der Keessel accepts.* But only very pecuUar circumstances would justify overriding the parental authority.* An insane parent, so far as concerns consent, is treated as non-existent, and the same consent, if any, is required and sufficient as would be sufficient if he or she were already dead.* A minor who has married with consent, and who becomes widowed before reaching the usual limit of full age, may remarry without consent. Such at least was the law in the province of Holland, in regard to females and males ahke.® Thus far we have spoken of the consent of parents Or other relatives.

Voet, 23. 2. 19 ; V. d. K. Th. 75. In the absence of consent or 

ratification the marriage will be declared void by the Court on the application of an aggrieved parent 'si rigido jure uti velit'. Voet, 23.2.11; Van Leeuwen, 1. 14. B ; Johnson v. Mclntyre, ubi sup.; Willenburg v. Willenburg (1909) 3 Buoh. A. 0. at p. 423. It follows that marriages contracted without consent of parents are voidable, not void. Further, they are voidable by the parent only, not by the parties or either of them, i. e. not on the ground of minority merely apart from fraud {S. A. L. J., vol. xxviii, p. 480) ; and by the parent (semble) only during the minority of the married child. Ibid.

Voet, 23. 2. 22 ; Schorer ad Gr. 1. 5. 16. In Brit. Gui. the minor 

may appeal to the Court against the refusal of parents to consent. Ord. No. 25 of 1901, sec. 31 ; Be petition of Victorina Chaises (1912) Brit. Qui. Off. Gaz., vol. xxxv, p. 1445.

V. d. K. Th. 76. * Voet, uhi sup. 
V. d. K. Th. 82. Cod. 5. 4. 25 is not followed in R.-D. L. At 

the Cape, any person desirous of marriage to whose marriage con- sent is necessary, but cannot be given or is withheld, may apply by petition to the Chief Justice. Marr. 0. in C. 1838, sec. 17. « Cens. For. 1. 1. 13. 11 ; Voet, 23. 2. 17. The Echt-Reglement of March 18, 1656 (2 G. P. B. 2439) contains an express provision to this effect for the Generaliteyts Landen. 74 THE LAW OF PERSONS or of a surviving parent. But what if both parents are dead? The Political Ordinance (Art. 3) does not require the consent of relatives.'^ Inasmuch, however, as Art. 17 saves the operation of the penal clauses of the Perpetual Edict, it has been thought that a marriage of minors whose parents are both dead, if contracted without the consent of friends and relations, or, if these disagree amongst themselves or unreasonably withhold their consent, of the Court, though not void, is nevertheless penahzed. This is the view of Grotius,^ whose opinion seems to have prevailed. Voet* and Bynkershoek,* however, agree in thinking that the penalty of the Edict is only preserved by Art. 13 of the Pohtical Ordinance so far as the enacting clause of the Edict is also retained. Since, therefore, the Pohtical Ordinance requires no con- sent of relatives, neither can it be supposed to retain the penalty attached by the Edict to marriages contracted without such consent. Grotius treats the consent of the nearest relatives as necessary, if the penalty is to be avoided, though he expressly says that the marriage of minors is not void by reason of its being prohibited by their guardians or relatives.^ (b)Aare- The argument founded upon the language of the Per- sent of petual Edict clearly fails in regard of the consent of tutors, tutors; for the Edict does not penalize marriages contracted without such consent. In view of this fact, it seems impossible to say that the common law of Holland made the consent of tutors a necessary condition of a vahd marriage of a minor whose parents were dead,* nor, apart from general or local legislation, can the penalty of the Edict be extended to a case to which it does not in terms apply.' It is plain, however, from Van der Keessel ^ that

Voet, 23. 2. 16. ^ Qj. i §_ 3_ s Voet, ubi sup. 
  • B3aikerslioek, Quaest. Jur. Priv., lib. II, cap. iii.
  • Gr. vbi sup.
  • Gr. uhi sup. and Schorer ad loo. ; Van Leeuwen, 1. 14. 9 ; Voet,

23. 2. 16 ; V. d. L. 1. 3. 6 ; Hoola van Nooten, vol. i, p. 307. ' Van Leeuwen {ubi sup.) applies it, but with hesitation. In any event consent of guardians will be easily inferred. Ibid. 8 V. d. K. Th. 125. the consent of guardians or relatives, and often of both, was very generally required by the local statutes, if not for the validity of the marriage, at all events for the avoidance of the penalty.[11] On the other hand the law of Zeeland, which penalized and also anulled marriages contracted without such consents, seems to be mentioned as exceptional.[12]

The statutory penalty does not attach the spouse who is a minorWith regard, more particularly, to the statutory penalty, it must be noticed that it attaches only to the person of full age of either sex who inveigles a minor of the other sex into marriage. Such person is not allowed to take any benefit from the property of the minor spouse, whether present or future, whether by gift, legacy, inheritance, or in what way soever. One effect of this is that the major spouse takes no advantage from the mar- riage by way of community of property, nor, where this exists, by ante-nuptial contract.[13] But the minor spouse is not penalized,[14] so that where both spouses are minors the penalty is not incurred.

Consent of parents when the spouses are of full age, It remains to speak of the requirement of consent of parents when the parties to the marriage are of full age. This case is provided for by the Political Ordinance (Art. 3) in the following terms:[15]

'But if any young man or young woman being above the age of twenty-five and twenty respectively and having parents, apphes for the aforesaid Sunday banns without 76 THE LAW OF PERSONS is easily presumed, and may not be withheld unreason- ably. C. The formal require- ments of marriage. producing evidence of their parents' consent, the aforesaid Magistrates or Ministers of Religion shall, before the proclamation of such banns, be bound to summon the parents of the appUcant before them, and in case the parents refuse or fail to appear within fourteen days after the service of the summons upon them, such refusal shall be held for consent, and the said Magistrate or Ministers of Religion may then forthwith proceed to the aforesaid proclamations and banns ; but if the parents appear and allege any reasons why they will not consent to the desired marriage, and cannot be persuaded thereto by the Magis- trate or Minister of Rehgion, the aforesaid Magistrate or Ministers may not marry such young people or join them in wedlock, before they are directed to do so by the College of Magistrates after enquiry into the circum- stances.' From the above-cited passage it is plain that though the consent of parents was required in the case of the marriage of major children, such consent was easily presumed and might not be unreasonably withheld. If consent was withheld the Court determined whether the grounds of refusal were sufficient.^ In the modern law the consent of parents is not necessary when the parties to the marriage are of full age. C. The formal requirements of marriage. In early times, Grotius tells us, marriages were perfected with little or no ceremony.^ The blessing of the Church was not always invoked. To provide against the scandals consequent upon such a state of things the Political Ordinance, by Art 3,* for the first time gave statutory authority to the canonical practice of pubhcation of banns. ' Those who after the pubhcation of these presents shall desire to enter upon marriage shall be bound to appear before the Magistrate or Ministers of Rehgion in the towns or places of their residence, and there apply for the granting to them of three Sunday or market banns, to be made in ^ Van Leeuwen, 1. 14. 6 ; Hoola van Nooten, vol. 1, p. 311 ; V. d. K. Th. 78-81 ; V. d. L. 1. 3. 6. Van Leeuwen (1. 14. 7) specifies the circumstances which the judge will usually take into consideration.

Gr. 1. 5. 16 ; Van Leeuwen, 1. 14. 3. 

^ 1 G. P. B. 331. MARRIAGE 77 the Churches or from the Council-House or other places where justice is administered, on three successive Sundays or Market Days : which banns shall be granted and made to the end that any one who wishes to advance any let or hindrance, whether of blood, affinity or pre-contract of marriage, by reason of which the marriage should not go forward, may do so.' If no such let or hindrance was alleged, the marriage was shortly afterwards celebrated by a minister of rehgion or by the magistrate. In the latest Dutch Law the civil marriage was indispensable, a rehgious ceremony being left to the option of the parties.^ With regard to the solemnization of marriage at the present day the reader is referred to the statute law of the several colonies.^ Section 3. The Legal Consequekces of Marriage The legal consequences of marriage may be considered, The legal first, in relation to the personal status and capacity of the q°^Jgg ^f wife ; secondly, in respect of the property of the spouses, marriage ; A. Effect of marriage on the personal status and capacity A. Effect of the wife. This consists principally in the marital "/age^as re- power of the husband over the wife,* with its consequences, garde the , . - . n personal which are as follows : status and L The wife acquires the rank or dignity of the husband, capacity which after the husband's death she retains durante wife: viduitate. She acquires also her husband's forum and (a) rank, . . '- forum, and domiCll. domioil ; . Though she may have been of full age before marriage, (b) she be- on marriage she is deemed to be a minor under the ^"^o'on guardianship of her husband, the paternal power ceasing.* marriage ; Like a minor, she has no independent persona standi

V. d. K. Th. 84 ; V. d. L. 1. 3. 6 (ad fin.). 
(South Africa) 1 Maasdorp, chap, iv, and Nathan, Common Law 

of 8. A., vol. i (2nd ed.), p. 224 ; (Ceylon) Ord. No. 19 of 1907 ; (British Guiana) Ord. No. 25 of 1901.

V. d. L. 1. 3. 7. 

" Voet, 23. 2. 40. s Gr. 1. 5. 19 ; Van Leeuwen, 1. 6. 7. 78 THE LAW OF PERSONS (c) hus- band ad- mimsteis wife's pro- perty ; (d) does not render an ac- count ; (e) con- tracts in his wife's name ; in judicio. She must sue or be sued assisted by her husband.-^ . As administrator of his wife's property the husband may aKenate and encumber it as he pleases without her consent.^ This applies even to property which she has kept out of community. The wife, on the other hand, may not alienate or encumber her property without his consent,^ unless in due course of trade.* . The husband is not compellable to render an account of his marital administration,® nor to indemnify the wife or her heirs for his negligence.* . The husband may contract in his wife's name, and render her liable or entitled * under contracts so made. The wife cannot, without the consent of her husband, render herself civiUy liable by her contracts ^ except in cases in which a minor would be liable. ■^ But she does incur a natural obhgation, which is a good foundation for a contract of suretyship, and will exclude the condictio indebiti in case she has paid money in ptu-suance of such obligation, after her husband's death.-'^ Contracts made without her husband's authority being civilly void, neither wife nor husband can be sued upon them either dming the marriage or after its determination.^^ Subsequent ratification by the husband, however, has the same effect as antecedent authority, and so also, it seems, has tacit acquiescence.-^^

Gr. 1. 5. 22-23 ; Van Leeuwen, ubi sup. ; Voet, 6. 1. 14 ff., 

and 23. 2. 41 ; V. d. K. Th. 95. But a woman married out of com- munity who has the management of property is entitled to sue in her own name without the assistance of her husband. Boyes v. Verzigman (1879) Buch. 229. ^ Gr. 1. 5. 22 ; Schorer ad Gr. 2. 48. 2 ; Van Leeuwen, ubi sup.; Voet, 23. 2. 58 ; 23. 4. 21 ; 23. 5. 7 ; V. d. K. Th. 92. This extends to donations to third parties unless fraudulent. Voet, 23. 2. 54.

Gr. 1. 5. 23 ; Van Leeuwen, 2. 7. 8. * Gr. loc. cit. 
Sande, Decis. Fris. 2. 4. 1. « V. d. K. Th. 91. 

' Gr. 1. 5. 22 ; 3. 1. 30 ; V. d. L. 1. 3. 7. » Gr. 3. 1. 38.

Gr. 1. 5. 23 ; Voet, 23. 2. 42. 

" Voet, 23. 2. 43. ^' V. d. K. Th. 96. Secus if payment has been made during his life- time without his authority. Voet, 12. 6. 19.

Voet, 23. 2. 42. MARRIAGE 79 

. Though a wife's contract cannot be enforced against (f) wife's her, she may, if she pleases, confirm it after her husband's °^" , ,,,„.. contracts death and enforce it agamst the other contractmg party, may be . The contracts of a wife, as of a minor, are in certain after^hus- cases legally operative. Thus : (a) She may enter into band's a unilateral contract which is solely to her advantage. ,^f Her husband reaps the benefit, and payment must be are in made to him, and not to the wife without his knowledge.^ 7^ei^ (b) Husband and wife are rendered liable by the wife's cases contracts, though made without the husband's authority t:^eT Viz. or ratification, to the extent of their enrichment — that is, (") if uni- to the extent to which he or she has taken a benefit and'ad- under the contract.^ vantage- (c) A wife who is authorized or permitted by her hus- /^> y g^. band to carry on the business of a pubhc trader binds richment herself and her husband by her trade contracts.* It (^)^f the makes no difference whether she is above or below the wife is a normal limit of full age.^ The wife's authority to bind ™ ^^ ' herself or her husband ceases if the husband has revoked his consent. Such revocation must be communicated to third parties and cannot be made to their prejudice in respect of transactions already begun.* {d) A wife may bind herself and her husband by contracts (S) if inci- incidental to the household. This authority results from t^e home- the wife's position as domestic manager and cannot be told. taken from her except by judicial decree and pubhc ^ Voet, 23. 2. 43. Van Leeuwen (1. 6. 7), citing Stockmans, Decis. no. 52, says that the wife's contracts do not revive upon the dissolu- tion of the marriage, but this must be understood to mean ' do not revive against her will '. ^ Voet, 23., 2. 44.

Gr. 1. 6. 23 (ad fin.) ; Voet, 23. 2. 43 ; V. d. L. 1. 3. 7. 
  • Gr. 1. 5. 23 ; Van Leeuwen, 1. 6. 8 and 2. 7. 8 ; Voet, 23, 2. 44 ;

V. d. L. vbi sup. ^ Voet, loc. cit. ^ Voet, loc. cit. ' Gr. uhi sup. ; Van Leeuwen, vAi sup. ; Voet, 23. 2. 46 ; Mason V. Bernstein (1897) 14 S. C. 504. The wife is only liable to the extent of a half, and if community of property and of profits has been excluded may claim indemnity from her husband or his heirs. V. d. K. Th. 99. When a wife has been deserted by her husband, and buys necessaries for herself and her chil(b:en, she is liable to the extent of one-half only, even though the tradesman when supplying the goods stated that he would not give credit to the husband. Grassinan v. Hoffman (1885) 3 S. 0. 282. 80 THE LAW OF PERSONS notification.^ It is for the judge- to say whether a par- ticular contract falls within the permitted class. Much depends upon the custom of the country, the husband's condition and resources, and the previous course of dealing. It is all one whether the wife has purchased goods for domestic use, or borrowed money for the purpose of doing so.* (h) Ex- 8- As above observed, the wife is entitled* and bound H"*°*,. by the husband's post-nuptial contracts. She is liable biiity for for them to the fullest extent during the continuance of the marriage, and after its determination to the extent of one-half.^ B. Effect B. Ejfect of marriage in respect of the property of the spouses. By the common law of Holland, in the absence of ante-nuptial contract, marriage creates ipso jure a com- husband's contracts, of mar- riage as perty of munity of goods {communio bonorum — gemeenschap van

  • '^^ goederen) between the parties.® This community is often

spouses. , J. . Com- spoken of as statutory, not that it was introduced by any mumty of specific statute, but because its existence is recognized by numerous ancient statutes and privileges,' as forming ^ Gr. ubi sup. i 't welok een man niet en kan beletten, ofte hy most sijn vrouw oock dat bewint reohtelick verbieden, ende 't selve doen afkondighen. The meaning of ' reohtelick ' appears from Voet (23. 2. 46), who says : nisi hujusoemodi rei domesticae cura ac circa earn contrahendi lioentia ad mariti desiderium uxori publica magi- stratus auctoritate justas ob oausas interdictum sit. Does this hold good to-day ? " When the trial is by judge and jury it would be for the judge to say whether the contract in question could, in law, come within the permitted class ; and this being decided affirmatively, for the jury to say whether in fact it did so. ' Voet, ubi sup.

  • Gr. 2. 11. 17 ; 3. 1. 38 ; V. d. K. Dictat. ad loc. ; i. e. she is entitled

after the dissolution of the marriage to the extent of one-half. « Gr. 1. 6. 22 ; Voet, 23. 2. 52 ; V. d. L. ubi sup. ; unless com- munity of goods and of profit and loss has been excluded. V. d. K. Th. 93. Even when community of profit and loss has been excluded, she is liable, after her husband's death, to the extent of one-half for goods applied to the maintenance of the family, retaining, however, a right of recourse against the husband's heirs. Cens. For. 2. 1. 11. 7. « Gr. 2. 11. 8 ; Voet, 23. 4. 1 ; Hoola van Nooten, vol. i, p. 399 ; V. d. K. Th. 216. The historical origin of community of goods has been much discussed. See Voet, 23. 2. 66, and authors there cited. For the results of modern research see Fock. And., vol. ii, pp. 164 S. ' Hoola van Nooten, vol. i, pp. 401 and 408. Many of these are collected in Rechtsg. Obs., pt. 2, pp. 90 S. MARRIAGE 81 an integral part of the law of the country. As such it is a purely Germanic institution, and derives nothing from the law of Rome. The effect of community, where it its effects. exists (for in Ceylon ^ and British Guiana ^ it exists no longer) is to create a joint fund under the administration of the husband, consisting (with some exceptions) of all the property of both the spouses, as well existing at the Includes time of the conclusion of the marriage as after-acquired.^ P'^°P^'"*y' It extends to all property of the spouses,* wherever situated,^ immovable as well as movable, and to jura in personam, or rights arising from obhgations, as well as to jura in rem. Conversely, the lawful liabilities of the andlia- spouses, whether ante-nuptial or post-nuptial, are also ^oth^' °* charged upon the community and go to diminish' the spouses j joint estate.^ Community begins when marriage begins, i.e. so soon as the necessary rites or ceremonies have ^ Ceylon, Matrimonial Eights and Inheritance Ordinance (No. 15 of 1876), sec. 8 : 'There shall be no community of goods between husband and wife, married after the proclamation of this Ordinance, as a conse- quence of marriage.'

Brit. Gui., Ord. No. 12 of 1904, sec. 6. In Natal by Law No. 22 

of 18B3, sec. 2, community of goods does not attach to any spouses married elsewhere than in South Africa, unless the spouses by agree- ment exempt themselves from this law.

Voet, 23. 4. 30 ; V. d. K. Th. 91-92 ; V. d. L. 1. 3. 8 ; Hoola 

van Nooten, vol. i, p. 408. This is expressed in the proverb : Man ende wijf hebben geen verscheyden goet. Anton. Matthaeus, Paroem. no. 2.

  • With some exceptions, however: viz. (1) Feuds (in the Dutch Law);

(2) Property burdened with a fidei-commissum, except only as regards the profits until the f.-c. takes effect, Gr. 2. 11. 10 ; Voet, 23. 2. 71 ff. ; V. d. K. Th. 220-1 ; (3) Jewels, &o., given by the bridegroom to the bride on marriage. Van Leeuwen, 4. 24. 13 ; (4) Clothes, Hoola van Nooten, vol. i, p. 411. ° Voet, 23. 2. 85 and 23. 4. 29 ; unless the law of the lex situs requires a more formal mode of transfer, in which case a personal action lies to compel transfer in due and solemn form. Chiwell v. Carlyon (1897) 14 S. C. at p. 66. ° ' Die den man of de vrouw trouwt, trouwt ook de schulden.' Gr. 2. 11. 12 ; V. d. K. Th. 222 — so much so that an ante-nuptial stipulation to the contrary is void in law, unless community of goods is also excluded. Voet, 23. 2. 80. A married woman therefore may be utterly ruined by her husband's extravagance, but the remedy is in her own hands, viz. to apply to the Court for a separation of goods (boedelscheiding) and, if necessary, to have the husband interdicted as a prodigal. Gr. 1. 5. 24 ; Voet, 23. 2. 52 ; Hoola van Nooten, vol. i, p. 417 ; V. d. L. 1. 3. 7 (in fin.). 1713 G 82 THE LAW OF PERSONS ends on dissolu- tion of marriage whereon ante-nup- tial lia- bilities, still undis- charged, burden the ori- ginal debtor alone. been performed ; ^ it persists during its continuance and ends upon its dissolution. Thereupon the common fund is divided ipso jure into two equal shares, one of which vests in the surviving spouse, without regard to the amount which such spouse may have contributed, the other of which vests in the testamentary or intestate successors of the deceased.^ On the dissolution of the community post-nuptial liabilities attach to the extent of one-half to each moiety of the now divided estate.* Ante-nuptial liabiHties on the other hand, which have not been discharged during the marriage, revert exclu- sively to the side from which they originally came.* Community of goods being an institution of the Roman- Dutch common law, aU marriages are, in the absence of proof to the contrary, presumed to have been contracted in community,^ and the legal consequences of community follow, except so far as they are excluded expressly or by necessary impHcation. They attach not only to a first, but also to a second or subsequent marriage,* subject, however, to certain rules and restrictions to be presently mentioned. There are, nevertheless, certain cases to which the rule of community does not apply. These are : (1) when the parties are within the prohibited "■ Gr. 1. 5. 17 ; 2. 12. 5 ; Neostad., de pact, antenupt. Obs. 15-17; Van Leeuwen, 4. 23. 3. ^ Gr. 2. 11. 13. Children who have received advances must bring them into collation for the benefit of the joint estate before division. Ibid. ; V. d. K. Th. 223.

Gr. 1. 5. 22 ; V. d. K. Th. 93 and 223. Creditors may sue the 

husband or his heirs for the whole debt, the wife or her heirs only for half. The husband (or his heirs) has recourse against the wife (or her heirs) to the extent of one-halt. Gr. 2. 11. 17 ; Voet, 23. 2. 52 and 80. If the husband is insolvent the creditors may proceed by right of surro- gation against the wife for the recovery of half the debt. Voet, ibid.

  • Gr. 2. 11. 15 ; Van Leeuwen, 4. 23. 6 ; Hoola van Nooten, vol. i,

p. 415 ; V. d. K. Th. 224. According to Voet (23. 2. 80), if the husband (or his heirs) has discharged the whole of an ante-nuptial debt, he (or they) has (have) regressus against the wife or her heirs in respect of one-half. Schorer {ad Grot, ubi sup.) takes the same view. Van der Keessel {ubi sup.) dissents. See Loenius, Decis., case 99, and Boel's Excursus. ^ Fame v. Tulbagh Divisional Council (1890) 8 S. C. 72. « Van Leeuwen, 4. 23. 5 ; V. d. K. Th. 219. MARRIAGE

Ante-nup- tial con- tracts : degrees (But community continues so long as they are Cases in innocently ignorant of their relationship. If one party ^^^^ comes to know of it and conceals it from the other, com- munity of munity continues so far only as it is advantageous to |°ex-^ the innocent party — i.e. there is community of gains, but "i^ded. not of loss.) ; (2) when a minor has married without the necessary consents ;i (3) (most important of all) when community is excluded by ante-nuptial contract, of which we are next to speak.^ Section 4. Ante-nttptiax, Contracts No persons need marry in community of goods unless they wish to do so. It is always open to the spouses to exclude or modify the common law by ante-nuptial contract.^ ' Ante-nuptial contracts, being of wide appli- cation,' says Van der Keessel, ' can scarcely be otherwise defined than as agreements between future spouses and other interested persons regarding the terms or con- ditions by which the marriage should be regulated.' * According to Van der Linden, to be valid such a contract must be in writing ® and contained in a pubHc instrument,

Supra, pp. 72 S. Van der Linden (1. 3. 8) adds ' when the parties 

have eloped ' (Placaat van de Staaten van Holland, Feb. 25, 1751 ; 8 G. P. B. 536). In all these cases one or both of the spouses are pre- cluded by way of penalty from taking any benefit under the marriage, whether by community or by ante-nuptial pact. Hoola van Nooten, vol. i, pp. 419-20. The general opinion is that the Edict of 1540 operates to the disadvantage of the major spouse only. Groen. ad Gr. 2. 11. 8 ; Van Leeuwen, 4. 23. 3 ; Voet, 23. 2. 20. Van der Keessel {Th. 218) dissents. ^ Community may also be put an end to by boedelscheiding, which may be decreed on the ground of prodigality {supra, p. 81, n. 6), or in the event of judicial separation (V. d. K. Th. 231. Vide infra, p. 99). The curious custom which allowed the wife to repudiate the community and by consequence the debts by ' going out before the bier ', (Gr. 2. 11. 18-19 ; Hoola van Nooten, vol. i, p. 463), is said by V. d. K. (Th. 226), to be 'multis statutis concessum,' and, therefore, does not make common law. ' Gr. 2. 11. 8 ; V. d. K. Th. 227. * V. d. K. Th. 228. ' V. d. L. 1. 3. 3. Writing was not necessary by the common law. Gr. 2. 12. 4 ; Cens. For. 1. 1. 12. 9 ; Voet, 23. 4. 2 ; V. d. K. Th. 229. Van der Linden's opinion that writing was necessary in his day is based upon certain Ordinances requiring ante-nuptial contracts to be sealed. But perhaps merely verbal agreements are not thereby forbidden. The authors of the Bechtsg. Obs. (pt. 2, no. 35) agree with Van der G2 Is writing necessary to their validity ? 84 THE LAW OF PERSONS Registra- tion of ante-nup- tial con- tracts. Who maybe parties. Such con- tracts serve two purposes. although, he adds, ' registration in Court is not required, since the law on this point as enacted by the placaat of July 30, 1624, has never been observed in practice.' ^ In the practice of Cape Colony writing was invariably employed, and by Act 21 of 1875, sec. 2, an ante-nuptial contract requires to be executed before a notary and two witnesses (underhand documents not being entitled to registration) and registered in the office of the Registrar of Deeds,^ and a duplicate or notarial copy of the contract must be left in the office of the Registrar of Deeds for general information. It is to be noted, however, that the absence of registration only affects the vaMdity of the contract as regards creditors. An unregistered contract cannot operate to their prejudice so as to deprive them of any rights which they would have in the absence of ante- nuptial contract by the common law. As regards the parties to the contract, however, and persons claiming through them, as well as others taking a benefit under it, the contract holds good in the absence of registration and even (semble) though not reduced to writing.^ In this connexion it should be observed that the parties to an ante-nuptial contract may be not only the spouses but also any relatives or others who may be disposed to exercise any liberality towards them.* In fact the con- tract often serves a double purpose : first, its obvious one. Linden, as also de Haas in his note to Cens. For. {ubi sup.). Van der Keessel {ubi sup.) and Hoola van Nooten (vol. i, p. 442) do not consider writing indispensable. But satisfactory proof, and therefore the presence, at the least, of competent witnesses is necessary, if an ante-nuptial contract is to affect creditors. Voet, 23. 4. 3-4 ; V. d. K. ubi sup. ; Holl. Cons., vol. iv, no. 35.

Groen. de leg. abr. ad Cod. 5. 12. 1, ult. ; Voet, 23. 4. 4 and 60. This 

statute did not, however, require registration in all cases, but only when tte ante-nuptial contract created a f.c. or prohibition of alien- ation of immovable property. In Brit. Gui. an ante-nuptial contract need not be notarially executed [G.]. ^ At the Cape the combined effect of Act 21 of 1875, sec. 7, and of Ord. 27 of 1846, sec. 1, is that ante-nuptial contracts executed in the Cape Province must be registered within a certain specified time of execution, but not necessarily before marriage. See S. A. L. J. (1912), vol. xxix, p. 39.

Voet, 23. 4. 2 and 4 ; 1 Maasdorp, p. 49. 

« Voet, 23. 4. 10-11. MARRIAGE 85 to exclude or modify the incidents of marriage at the common law ; and secondly, if desired, to regulate the devolution of the property contributed to the marriage after the death of one or both of the spouses. In this latter event the contract plays the part of what in English Law is called a marriage-settlement. Generally speaking, any condition whatever may be what introduced into a marriage contract provided that it is *^™1 ° ^ may be not contrary to law or good morals.^ Some stipulations inserted in are disallowed as contrary to the legal nature of marriage, t^fcon? Such are conditions : (1) that the husband shall be under tracts? the guardianship of his wife ; ^ (2) that a second wife Certain shall take more than a child's portion under the first stipula- marriage ; ^ (3) that donations shall be permitted or naTper-" legacies not permitted between the spouses.* Provisions mitted. to the effect : (4) that the husband shall not change liis domicU without his wife's consent ; * and (5) that a husband shall not represent his wife in Comrt, but that she shall have a persona standi of her own,^ though con- demned by Voet, are allowed by Van der Keessel.^ The last of these indeed is so far from being open to objection at the present day, that where there is exclusion of com- munity and of the marital power, the yriie has as full capacity to appear in Court, whether as plaintiflE or defen- dant, as if no marriage had taken place.* A stipulation that a wife should share in profits but not in losses, though condemned by Grotius ^ and Neostadius,^" is in Van der Keessel's ^^ opinion free from objection.

Voet, 23. 4. 19 ; Hoola Van Nooten, vol. i, pp. 457-8 ; V. d. K. 

Th. 228, and 233 fF. ; V. d. L. 1. 3. 4.

Voet, 23. 4. 20. ^ Gr. 2. 12. 6. This only applies where 

the lex hac ediotali is unrepealed. Cod. 5. 9. 6.

  • Voet, libi sup. ; Hall v. Hall's Trustee and Mitchell (1887) 3 S. C. 3.

° Voet, ubi sup. ; Hoola Van Nooten, ubi sup. ° Voet, ubi sup. and 5. 1. 14^15. ' V. d. K. Th. 228, and Dictat. ad loc.

Boyes v. Versigman (1879) Buch. 229. ' Gr. 2. 12. 9. 

^^ Neostad. de pact, antenupt. Obs. 21 {in notis). " V. d. K. Th. 249 ; for, as he says : creditoribus etiam nihil nooet, cum lucrum intelligi nequeat, nisi damno prius deduoto. 86 THE LAW OF PERSONS Per- mitted stipula- tions fall into cer- tain de- fined of nar- rower or wider extent. To undertake a detailed discussion of the various ante-nuptial stipulations which are or may be made is beyond our scope. We shall indicate, however, the principles which govern the interpretation of such agree- ments, and mention the objects usually aimed at and the effect produced. So far as they are directed to the modification or exclusion of the common law they fall into weU-defined groups according as the exclusion is more or less complete ; and in this connexion it must be remem- bered that ante-nuptial contracts are strictly construed, and that the presumption is in favour of the continuance of the common law in aU cases where its exclusion is not clearly expressed or imphed.^ The consequences of marriage in community have been seen to be mainly two : viz. community of goods (which extends not only to goods brought into the marriage, but also to subsequent acquisitions^ and profits), and the mari- tal power. Now, any or all of these consequences may be excluded by ante-nuptial contract. Thus the parties may : . Exclude (a) community in respect of goods brought into the marriage, leaving it unimpaired as regards (6) post- nuptial acquisitions, (c) profits and losses, and (d) the marital power. Such is the effect of a stipulation which does not exclude community of goods in terms, but pro- vides that ' the goods brought into the marriage shall return to the side whence they came '.^ . Exclude community of goods, whether (a) brought into the marriage, or (6) after-acquired (other than ' profits '), leaving unimpaired (c) the community of profit and loss, and (d) the marital power. . Exclude community of goods whether (a) brought into the marriage, or (6) after-acquired (not being profits), and (c) community of profit and loss, leaving only {d) the marital power.

Gr. 2. 12. 11 ; V. d. K. Th. 251. 

^ By ' subsequent acquisitions ' is here meant " subsequent acquisi- tions ' not referable to the head of profits. This will be explained below. " Voet, 23. 4. 46 ; Hoola van Nooten, vol. i, pp. 450-1. MARRIAGE 8? . Exclude all community (a), (6), and (c) and the marital power {d) as well.^ In speaking of the legal consequences of marriage (sec. 3, In ante- supra) we used the phrase ' community of goods ' in the oontraJts sense of the statutory community of the common law 'com- with aU its consequences. This exists independently of ^odL*^is any contract. But in ante-nuptial contracts the phrase contrasted . . „ , with oom- acqurres a narrower meamng, -viz. community of goods munity of whether (a) brought into the marriage, or (b) after- PJ°^* ^°*^ acquired (other than ' profits '), but not (c) community of profit and loss. Accordingly, where community of goods (alone) is expressly excluded, the phrase is understood in the narrower sense, and community of profit and loss is tacitly reserved ; ^ and, conversely, where community of profit and loss is expressly reserved, community of goods (in the narrower sense) is tacitly excluded.^ It is necessary, therefore, to determine with some precision the meamng of ' profits ' or ' acquests ', as they are also '^'^ . called. Briefly, the phrase includes all post-nuptial ac- of profit': quisitions, which the law does not attribute to one spouse ^hat the alone. Thus it comprises: (1) the fruits* and other *j^*°" profits of all the goods belonging to the community or to either spouse severally, whether originally brought into the marriage or acquired subsequently ; (2) all profits accruing from the work, labour, industry, or skill of either of the spouses ; ^ (3) official and other salaries ; (4) rights ^ A writer in the S. A.L.J. (1912), vol. xxix, p. 37, criticizes the phrase ' exclusion, of the marital power ', and says ' It is certain that the marital power . . . cannot be entirely excluded by an ante-nuptial contract '. The phrase, however, is now statutory (Administration of Estates Act, 1913, sec. 83 (2) ), and means, I suppose, ' the marital power which the husband by law possesses over the property and the estate oi his wife ' (see Precedent of ante-nuptial contract, Appendix B to this book (infra, p. 109), clause 5). Hoola van Nooten (vol. i, p. 453) gives a clause of similar import,, viz., ' dat gemeenschap van goederen en van winst en verlies uitgesloten zal zijn; en dat de man geen recht zal hebben om de goederen van zijne vrouw te alieneeren, of te bezwaaren '. ^ Gr. 2. 12. 11 ; Voet, 23. 4. 28. = Voet, ibid.

  • Gr. 2. 12. 12 ; Voet, 23. 4. 32 ; Hoola van Nooten, vol. i, p. 427.

The profits of goods subject to fidei-commissum are included under the term 'fruits ' (Gr. 2. 11. 10) ; also the benefit of a usufruct. V. d. K. Th. 253. ' Voet, ubi sup. 88 THE LAW OF PERSONS under contracts concluded by the husband, or by the wife within the limits which the law allows ; ^ (5) property purchased stante matrimonio with common moneys,^ and even with the money (or with the proceeds of the sale of the property) of one of the spouses ; except that in the last case the matter must be adjusted between the spouses on the dissolution of the marriage.^ what it On the other hand, the term ' profits ' does not include : ^°Tde* (*) property which became due to one or other of the spouses before marriage ; * (6) accessions (e. g. by alluvion or increased value or otherwise) to the separate property of husband or wife ; (c) inheritances, legacies, or gifts accruing after the marriage to either spouse.®, With regard to this last group considerable difference of opinion existed whether it fell within the definition of ' profits ' or not. Most jxu:ists answered the question in the nega- tive.® Voet distinguishes according as such acquisitions are derived from strangers or from parents or relations, to whom there is a right of intestate succession. In his view, in the first case they are ' profits ', in the second not so.' It is with regard, more especially, to such acquisitions as these that it becomes important to deter- mine whether an ante-nuptial contract falls within the first or the second of the four classes mentioned above. ^ Hoola van Nooten, vhi sup.

Voet, 23. 4. 33. 

^ Voet, 23. 4. 35 ; i. e. the thing purchased remains common, but the spouse with whose money it was purchased is credited as against the other spouse with the money so expended. However, property purchased stante matrimonio will not become common if the husband intended to acquire it exclusively for himself or for his wife. V. d. K. (Th. 254) dissenting from Voet (23. 4. 34). Clothes are a case in point. Van Leeuwen, 4. 24. 14.

  • Voet, 23. 4. 39 ; e. g. bought before marriage, delivered after

marriage. V. d. K. Th. 254. The same rule applies to a res litigiosa adjudicated to one of the spouses after marriage, even though proceed- ings may have commenced after marriage. Voet, 23. 4. 40. ^ Anton. Matthaeus, Paroemiae, no. 3 (Erfnis is geenwinste) ; Van Leeuwen, 4. 24. 6 ; V. d. K. Th. 252. ' Gr. 2. 12. 11 {ad fin.), and Schorer ad loc. ' Voet, 23. 4. 43. Matthaeus (vbi sup., sees. 4-7) is of the same opinion with regard to legacies, but holds that an inheritance never comes under the head of ' profit '' losses ' aiARRIAGE 89 Community of profit implies also community of loss, so that if either of these is named the other is taken to be implied.^ As between themselves, indeed, the spouses may make any terms they please, e. g. to share the profits, but to throw all the losses on the husband's estate.^ But such a clause will not avaU against creditors who, where there is community of profits, are entitled, at all events, to enforce half the amount of their claim against the wife's estate. The word ' losses ' is no less wide in its application than What is the word ' profits '. Without attempting a complete ^^°^^^^ enumeration of possible cases of loss, it is enough here to t^e term say generally that it mcludes all post-nuptial donations, unless clearly in fraud of the wife, made by the husband of the common property or of the separate property of either spouse ; ^ all commercial losses which do not attach to the separate property of one of the spouses only ; * and all UabUities arising out of the post-nuptial contracts of the husband, and also of the wife so far as she is competent to bind her husband by her contracts.^ But the term ' losses ' does not cover the ante-nuptial debts or Habilities of either spouse,* nor (semble) KabiUties arising ex delicto,' nor loss or deterioration of property belonging exclusively to one of the spouses ; * nor necessary expenses.*

Cens. For. 1. 1. 12. 18 ; Voet, 23. 4. 48. ^ q^^^^ jp^^ i i 12. H. 

» Voet, 23. 2. 54. • * Voet, 23. 4. 49. ^ Hoola van Nooten, vol. i, pp. 431 £E. « Voet, 23. 4. 50. ' In other words, the joint estate is not chargeable, aa between the spouses, with pecuniary liabilities arising ex delicto. See Boel ad Loen. , no. 99, p. 640 ; V. d. K. Th. 94 and 225, and Lorenz ad V. d. K. Th. 94; Nathan, Common Law of S.A., vol. iii, pp. 1547-8. Infra, p. 279, n. 2. ^ Voet, 23. 4. 49 ; V. d. K. Th. 257 ; unless the loss or deterioration in question is imputable to the fault of the other spouse. Voet, 24. 3. 2 1 . Useful and voluptuary expenses incurred by one spouse in respect of the other's property must be made good so far as the property is found at the dissolution of the marriage to have been thereby increased in value. Voet, 25. 1. 3-4 ; V. d. K. Th. 257. Any excess of value over outlay is reckoned as profits and accrues to the joint account of the spouses, if community of profits is not excluded — otherwise to the hus- band. Voet, ibid. ° Voet, 25. 1. 2 ; V. d. K., ubi sup. Necessary expenses are such as are required to preserve property from depreciation. Useful expenses 90 THE LAW OF PERSONS Various The above explanation will enable the reader to dis- termsin tinguish the effect of a clause excluding community of tM^con? goods only (class 2, supra), and of a clause excluding both

  • P'^^g^^ community of goods and also community of profit and

as regards loss (class 3, supro). The effect of a clause excluding effects. community of goods only is that the spouses are not liable (a) Ex- ^Q creditors for each other's ante-nuptial debts.^ On ' com- dissolution of marriage each of them is credited as between ™"°^*y °* themselves with what he or she brought into the marriage/ only; plus subsequent acquisitions not being 'profits', plus half the net balance, if any, of profits over losses. Each of them is debited with half the net balance, if any, of losses over profits,* and by consequence with haK the outstanding post-nuptial debts. All this as between the spouses. The creditors may, if they please, recover the whole of their claim from the husband ; in which case he has the right of recourse against his wife to the extent of half. They may also, if they choose, after the husband's death recover one-half,* but not more, directly from the wife. If during the marriage the husband has apphed his wife's property in paying his own ante-nuptial debts, the money so applied constitutes as between the spouses a first charge * upon the net balance, if any, of profits over losses ; that is to say, the wife is first credited with increase the value of the property, though their omission would not render it less valuable. Voluptuary expenses add to its amenity, but do not render it more profitable — speciem omant non fructum augent. Voet, 25. 1.1, 3-4. ^ Voet, 23. 4. 50 (because post-nuptial debts count as ' damnum ', ante-nuptial not) ; V. d. 'K.Th. 255.

Gr. 2. 12. 14 ; Voet, 23. 4. 31 ; V. d. K. th. 256. 
Voet, 23. 4. 48. 

^ Gr. 1. 5. 22. In an action against her for such haU, the plaintiff must aver and prove that the claim had been duly lodged with the person vested with the administration and distribution of the common estate and had not been satisfied. Faure v. Tulbagh Divisional Council (1890) 8 S. C. 72 ; and see Sichel v. De Wet (1885) 5 E. D. C. 88.

  • Voet, 23. 4. 50. Voet says that in the absence of provision to the

contrary, the wife's property may siante mairimonio be taken in execu- tion for the husband's ante-nuptial debts. Van der Keessel [Th. 255) dissents. But if done by the husband's direction, it seems to be a logical consequence of the marital power. MARRIAGE

it, and the remainder of such balance is then divided between the spouses. The wife cannot claim repay- ment until aU post-nuptial creditors have been fully satisfied.^ The effect of a clause excluding community both of goods and of profit and loss ^ is that the spouses are not hable to creditors for each other's debts, ante- or post- nuptial.' On dissolution of the marriage each of them is credited with what he or she brought into the marriage, plus subsequent acquisitions from all sources whatever. Lastly, by the exclusion of community of goods and of profit and loss and of the marital power (class 4, supra) a wife is, as regards her property, in the same position as if the marriage had not taken place.* She may contract, and, according to modern practice, sue and be sued in her own name. If the husband has afienated her property without her consent she may vindicate it from the ahenee.^ But if notwithstanding the ante-nuptial contract ^ Voet, 24. 3. 21. But she may resume such of her property as exists in specie on the dissolution of the marriage, subject to the obliga- tion of satisfying creditors pro semisse. Neostad. de pact, antenupt. Obs. 9, note A ; and the husband is not entitled to deduct expenses, Van Leeuwen, 4. 24. 13. " Kersteman says (Woordenboek, sub voo. Huwelyhsche Voorwaarde p. 195) that an ante-nuptial' pact of this character must be registered, ' Except that the wife is liable even solvio matrimonio to creditors pro semisse in respect of debts for household expenses (Voet, 23. 4. 52 Van Leeuwen, 4. 24. 3 ; Neostad. de pact, antenupt., Obs. 9, note (d)) with a right of regressus against the husband. V. d. K. Dictat. ad Gr. 2. 11. 17.

  • Sometimes this is expressed. So in Ruperti's Trustees v. Ruperli

(1885) 4 S. C. 22, the wiie reserved to herself free control over her property ' as fully and effectually as if no marriage had taken- place '. Held, that she had no tacit hypothec upon her husband's insolvent estate for money lent by her to her husband before his insolvency. ^ Voet, 23. 4. 21 and 23. 5. 7 ; Groen. de leg. ahr. ad Inst. 2. 8. pr. The effect is the same if the power of alienation is expressly taken away, or if the husband has been judicially interdicted. Gr. 1. 5. 24. Van Leeuwen, however (4. 24. 4), says that except in the case mentioned by Grotius, the alienation of the wife's property by the husband, notwith- standing the stipulation to the contrary, will hold good as regards third parties, saving to the wife an action against the husband or his heirs. Van der Keessel {Th. 97-8) lays down the same rule as regards the aliena- tion of movables or of bonds to bearer, but not as regards immovables. If Van Leeuwen is right, no ante-nuptial pact can exclude the husband's power of administration and of alienation, so far as concerns third (b) exclu- sion of com- munity of goods and of profit and loss ; (c) exclu- sion of com- munity of goods, and of profit and loss and also of the marital power of adminis- tration. 92 THE LAW OF PERSONS the wife has suffered her husband to alienate her property, she may sue him in respect of it, and prove against his estate in concurrence with, but not in preference to, other unsecured creditors.-^ The wife, From what has been said it is evident that, ante-nuptial fa^notTpre- Contracts notwithstanding, a wife, generally, stands in no ferredto position of advantage with regard to her husband's band's^ creditors, but rather the reverse. In this respect she is creditors ; j^q^ gQ ^g^ situated as she was under the late Roman Law, which gave her a tacit hypothec over all the property of her husband in security of her dos, and a preference over all creditors, ante- and post-nuptial, secured and unsecured, aUke.^ In the Roman-Dutch Law the right of hypothec and preference is disused.® It is competent, however, by express stipulation to provide that the wife but in ' shall reserve to herself her right of dos, legal hypothec,* certain and preference ', but only provided that she shares haa right neither in community of goods nor of profit and loss.® The °*P^^" same result foUows, without express agreement in that lerence ' ^ ° and legal behalf, when, in addition to the exclusion of community, ypot ec. |.jjgj,g j^g ei^}jer : (a) exclusion of profit and loss together with a clause that the wife shall keep her own goods {dat de vrouw haare goederen zal behouden ; ut mulier dotem salvam habeat) ; * or (6) an option left to the wife whether she wiU share in profit and loss, or have her own goods parties. Ontwerp, art. 349, is to the same effect. But in the modern law it is otherwise. Mostetfs Trustees v. Mostert (1885) 4 S. C. 35. ^ 1 Maasdorp, p. 64.

Cod. 8. 17 (18) 12 ; Girard, p. 966. 

' Voet, 20. 2. 20. ' V. d. L. 1. 3. 4. It seems that in R.-D. L., contrary to the Roman Law, the wife's legal hypothec was in every case postponed to prior tacit or special conventional mortgages. GaiU, Pract. Observ. 2. 25. 10 ; Van Leeuwen, 4. 13. 14 ; Cens. For. 1. 1. 12. 3 ; Voet, 20. 2. 20 and 23. 4. 52. According to Van Leeuwen (ubi sup.), she comes in con- currently with other special and legal hypothecs ; by which he means, as the context shows, that she ranks with them in order of time. Qui prior est tempore potior est jure. But V. d. K. {Th. 263) insists that she is preferred to all creditors ante- and post-nuptial alike.

Groen. de leg. abr. ad Cod. 5. 12. 30 ; Cens. For. 1. 1. 12. 2 ; 

V. d. L. 4. 13. 14. « Voet, 23. 4. 52 ; V. d. K. Th. 247 ; Hoola van Nooten, vol. i, p. 452. MARRIAGE 93 back/ which option she has exercised after her husband's death so as to exclude community ; or (c) a clause prohibiting the husband from ahenating property brought into the marriage by the wife, and the husband has never- theless alienated the property, or part of it, without her knowledge and consent.^ In the last case she will also, it seems, be able to vindicate her property in the hands of third parties to whom the husband has made it over.^ But if the wife, having retained and reserved the possession and administration of her own property, knowingly allows her husband to deal with it, she will lose her hypothec and preference over creditors, just as if she had renounced these rights by a contrary stipulation.* The ante-nuptial pacts above described have all been Ante- directed to the exclusion or modification of the common contracts law consequences of marriage.^ It remains to speak of some- stipulations of another kind, namely those which may serve the be generically described as ' settlements '. Under this Pl""P°s<' head may be included : (1) gifts made to one or other of riage set- the spouses, but more especially to the wife, either by the husband or by some third party, and taldng effect imme- diately upon the conclusion of the marriage ; (2) contracts whereby the wife or husband is to receive something by way of gift at some future date, usually upon the death of the other spouse ; (3) provisions regulating the devolution ^ Gr. 2. 12. 10 ; Voet, 23. 4. 53 ; Neostad. depact. antenupt, Obs. 9 ; Groen. uU sup. ; V. d. K. Th. 250. ^ Van Leeuwen, 4. 13. 14 ; Neostad. op. cit., Obs. 21. ' Voet, 23. 4. 21 and 50. This consequence does not follow from a clause merely securing the wife's property to herself. De Haas ad Gens. For. 1. 1. 12. 5 ; Groen. de leg. abr. ad Cod. 6. 12. 30. But where there is exclusion of profit and loss such a clause gives her a tacit hypothec and preference over post-nuptial creditors. Groen. loc. cit. ; V. d. K. Dictat. ad Gr. 2. 12. 9. According to Van Leeuwen (4. 24. 4), even a prohibition of alienation by the husband will not entitle the wife to recover the property from third parties unless the prohibition has been publicly proclaimed (openbaarlyk afgekondigt). ^ Van Leeuwen, 4. 13. 14 ; MosteH's Trustees v. Mostert (1885) 4 S. C. 35. ^ Before passing to another part of the subject it may be well to warn the reader that every ante-nuptial contract raises its own problem of construction. The rules stated in the text must not be supposed to be inflexible. tlements. 94 THE LAW OF PERSONS of the property brought into the marriage (or part of it) upon the dissolution of the marriage by death. Morgen- To gifts of the first kind the old Dutch Law gave the ^^^^' name of ' morgengave ', a term applied originally to a gift by the husband to the wife on the morning after marriage.^ A provision which took effect only on the death of the husband or wife was known as ' douarie '.^ Prima facie there is no legal objection to any such settlement. The ante-nuptial pact which creates it is, at all events, binding upon the spouses. If made by third parties to either spouse, or by the wife to the husband, or by the husband so as to confer rights on the issue of the marriage, it would by the Dutch common law be good against creditors. But when a husband made a gift or promised a douarie to his wife the law was otherwise ; for by express statutory enactment her claim in this regard was only allowed to take effect when her husband's creditors had been fully satisfied. The law on this subject is contained in the Provisions Perpetual Edict of Charles V of October 4, 1540, Art. 6, Perjetual "^^^^ ™^^ ^S foUoWS : » Edict of ?'un^'^ ^' ' ^^^'"> whereas many merchants take upon themselves Art. 6. *o constitute in favour of their wives large dowers and excessive gifts and profit on their goods, as well in order to contract a marriage as to secure their goods with their aforesaid wives and children, and thereafter are found unable to pay and satisfy their creditors, and wish their wives and widows to be preferred before all creditors, to the great injury of the course of commerce : We will and ordain that the aforesaid wives, who henceforth shall contract marriage with merchants shall not pretend to, have, or receive any dowry {douwarie) or other profit on the goods of their husbands, or take part or portion in the profits made by the said husbands or during their marriage [sic], although they may have been inherited or given in ^ Hoola van Nooten, vol. i, p. 446 ; Wessels, Hist. R.-D. L., p. 463. Boey ( Woordentolk) says : ' Morgengaav is een gift die de Bniidegom aan de Bruid gewoon is te doen des anderen daags naa 't voltrokke huwelyk als een belooning van haer Maagdom.' V. d. K. Th. 258.

V. d. K. Th. 259 ; V. d. L. 1. 3. 4 : Wessels, uhi sup. 

" 1 G. P. B. 316. MARRIAGE 95 feud.i until such time as all the creditors of their aforesaid husbands shall have been paid or satisfied; whom we will in this matter to be preferred before the aforesaid wives and widows, saving to the latter their right of preference, to which they are entitled by reason of their marriage portion, brought by them into the marriage or given to them or coming to them by succession from their friends and relatives.' ^ The effect of the Placaat is: (1) that no ante -nuptial Its effect. contract can secure to a wife any property of the hus- band in competition with creditors; but (2) that, if she is content, by ante-nuptial contract, to forgo aU advantage from the husband's estate, she may keep her own property secure and tmimpaired and further enjoy in respect of it a preference over creditors and a tacit hypothec over her husband's goods. But she cannot have it both ways. If she claims to benefit financially by the marriage, she must also take her full share in its burdens. In order to secure her property against creditors it is necessary that she should be content to keep her estate entirely distinct from that of her husband. It must be observed that though the Placaat speaks expressly of ' merchants ', it has never been held to be so limited in its application.^ If the practice before the passing of this measure operated in prejudice of creditors, the enactment has in modern times been thought to be undtily oppressive to married women.* Accordingly, the law has in many of Legisia- the Colonies been altered by legislation in the direction of *'°°?" •' ° T rn marriage securing the validity of settlements. Thus in the Cape settle- Province the sixth article of the Perpetual Edict has been ^g®"*^ '" repealed by Act 21 of 1875, which, in its place, enacts in Africa. effect: (1) That no ante-nuptial contract shall be valid against creditors imless registered (s. 2); (2) that a settle- ment made with intent to defraud creditors shall be of no force or effect against creditors whose debts existed at the ^ Al waer 't soo dat By ghe-erft oft beleent waren. ^ See In re Insolvent Estate ChAapplni (1869) Buch. 143. ' V. d. K. Th. 262. ^ Wessels, Hist. R.-D. L., p. 464. 96 THE LAW OF PERSONS date of registration, if sequestration takes place within two years of the execution of the settlement (s. 3) ; (3) that where there is a covenant or agreement for a settlement any act done in pursuance thereof is, in like circumstances, invalid against creditors whose claim existed at the date of such act, for five years from the making thereof (s. 4) ; (4) that nothing in the Act contained shall protect any ante-nuptial contract or any provision in an ante-nuptial contract which apart from the act is void or voidable by reason of fraud (s. 11). The statute further enacts that if a life policy has been executed or ceded in pursuance of an antenuptial contract by one spouse in favour of the other, premiums paid by the settling spouse are not to be adversely affected by such spouse's insolvency (s. 6). Provisions similar to the above have been enacted also in the Transvaal ^ and in the Orange Free State. ^ Stipuia- Closely akin with, and sometimes indistinguishable regard^to from, the Settlements described in the preceding para- rights of graphs are pacts relating to future succession.^ These, SU.CC6SS10T1 upon as pointed out by Voet, may relate either : (1) to the death. succession of the spouses to each other ; * or (2) to the succession of a third party to the spouses ; ^ or (3) to the succession to the children of the marriage, parti- cularly in the event of their dying under age and there- fore intestate ; * or (4) to the succession to a third person who has become a party to the ante-nuptial contract.' Such agreements, though condemned by the pohcy of the Civil Law, were permitted by the law of Holland, if they formed part of an ante-nuptial settlement,* but not of any other act inter vivos.^ Can ante- This brings us to another topic. How far, if at all, contracts Can ante-nuptial contracts be revoked or modified by the be re- subsequent act of one or more of the parties ? By act voked or -^ i. "

Insolvency Law, No. 13 of 1895, sec. 39. ^ j^^^ j^g, 23, 1899. 

^ Voet, 23. 4. 57 (sec. 58 in the Paris ed. In the folio ed. sec. 57 is duplicated). « V. d. K. Th. 235-8. ^ V, d. K. Th. 239-40. « V. d. K. Th. 241-3. ' V. d. K. Th. 244-6.

Voet, 2. 14. 16. 9 Voet, 23. 4. 59 (60). inter vivos they cannot be altered at all;[16] by testament, modified by the parties? within limits, they may, provided such an intention is clearly expressed or implied by the will.[17] Of course, if property has been contributed to the marriage by a parent or other third party with an added provision that it is to revert to the giver or go over to another specified person, it cannot be affected by the testamentary dispositions of the spouses.[18] When the question relates to property brought into the marriage by the spouses, and the ante-nuptial contract has provided for mutual succession, or at all events for the succession of one to the other, alteration or revocation by will is permitted, but it must be Only by mutual will. a mutual will of the two spouses. Further, such a will is merely 'ambulatory' in effect, i. e. revocable at any time before death. Therefore, either spouse may by Which however, may in turn be revoked pro tanto by either of the spouses alone. a subsequent will, without the concurrence or even knowledge of the other, revoke so much of the joint will as concerns himself or herself alone and revert to the dispositions contained in the original contract. Indeed, even after the death of the first spouse, the survivor has the same right of repudiating the joint testament, conditionally, however, upon declining all benefit under it.[19]

When the spouses have by ante-nuptial contract provided that some third person or persons shall succeed to the several shares on the dissolution of the marriage, both spouses by mutual will or a surviving spouse by his or her separate will may freely depart from this agreement. A joint will is in fact merely two wills of two persons disposing of two estates.[20] But the law is otherwise if the intended successor was a party to the ante-nuptial contract and acquired a contractual right under it.[21] When the future succession to children is the subject of the 98 THE LAW OF PERSONS Divorce a vinculo matri- monii. nuptial pact, in Holland not only might the spouses (or the survivor of them) alter the arrangement by testament, but the children, having reached the age of testamentary capacity, might do the like after their parents' death. They might also freely alienate the property by act inter vivos. This must be understood, of course, only where there was no fideicommissum in favour of ulterior successors.^ When a third person has become a party to the contract and has undertaken to leave his own property in a particular way, such undertaking has the force of a contract, and can only be revoked with the consent of the other parties to the agreement.^ With this we leave the subject of ante-nuptial contracts, referring the reader for fuller information to Voet's title 23. 4 {de pactis dotalibus) and to the other works in which this topic is fully considered.^ Section 5. Dissolution of Marriage Divorce a vinculo matrimonii is decreed by the Court at the suit of a plain tiflE of either sex on the ground of : (1) adodtery ; * or (2) malicious desertion;^ to which some authorities, by an extensive interpretation, add (3) sodomy ; * and (4) perpetual imprisonment. Relief may, in the discretion of the Court, be refused on the ground of : (a) adultery on the part of the plaintiff ; ^ (&) condonation ; (c) collusion or connivance.® Divorced persons are free to marry again, except that persons who have committed adultery together are prohibited from intermarriage.^"

Gr. 2. 29. 3 ; Voet, 23. 4. 66 (67). ' Voet, 23. 4. 67 (68). 

^ See particularly Neostadius, Observationes rerwm jvdicatarum de pactis antenuptialibus.

  • Gr. 1. 5. 18 ; Van Leeuwen, 1. 15. 1 ; Voet, 24. 2. 5.
Voet, 24. 2. 9. 

« Schorer a*Gr. uU sup. ; V. d. K. Th. 88 ; V. d. L. 1. 3. 9. ' V. d. K. Th. 89 ; V. d. L. loo. cit. ; Jooste v. Jooste (1907) 24 S. C. 329 ; which discusses also the procedure to be followed in case of malicious desertion. * Voet, 24. 2. 5-6. " 1 Maasdorp, p. 82 ; Hasler v. Hasler (1896) 13 S. C. 377. ^" Supra, p. 66. As to custody of children see Van Leeuwen, 1. 15. 6. MARRIAGE 99 The guilty party to a divorce is, after judicial sentence, penalized by loss of all the advantages of the marriage, whether arising from community of goods or from ante- nuptial contract.^ Judicial separation a mensa et thoro is decreed by the Separa- Court on the groimd of cruelty or for other sufficient mensa et cause.^ The result is to relieve the parties from the per- thoro. sonal consequences of marriage, but not to dissolve the marriage tie. As regards the effect of such a decree upon the proprietary rights of the spouses the Dutch authorities are by no means agreed.^ In the modern practice the matter is very much in the discretion of the Court. An order is usually made, if asked for, directing a division of the common estate, or a rescission of an ante-nuptial con- tract which confers a benefit on the guilty spouse, condi- tionally, however, on the innocent spouse renouncing any corresponding advantage. The effect of such a decree is to dissolve the community, and to free each spouse from liability for the other's debts subsequently contracted.* Further, in the event of the husband's insolvency the wife ranks as a preferred creditor for half of the common estate.^ A decree of alimony to the wife lies in the discretion of the Court.® A decree of nuUity of marriage '^ is granted : (1) when Decree of the parties have married within the prohibited degrees ; Carriage. (2) at the suit of a parent when minors have married without the necessary consent ; (3) in case of impotency

Van Leeuwen, 4. 24. 10 ; V. d. K. Th. 88 ; Celliers v. Celliers 

[1904] T. S. 926. But the Court will not deprive the guilty party of the share of the joint' estate which he or she may have contributed. Ibid.

Gr. 1. 5. 20 ; Van Leeuwen, 1. 15. 3 ; Voet, 24. 2. 16. 
Schorer ad Gr. 1. 5. 20 ; Voet, 24. 2. 17 ; V. d. K. Th. 90. As to 

the effect, if any, of separation by mutual consent, see Schorer uhi sup. ; Voet, 24. 2. 18 ; and for South African Law 1 Maasdorp, p. 76.

  • 1 Maasdorp, p. 77.
Luzmoor v. Luzmoor [1905] T. H. 74. ' To ascertain what this 

half share amounts to, the debts of the common estate up to the date of the order of the Court must, of course, be first deducted, and she will be entitled to half of what remains.' Per Smith J.

Voet, 24. 4. 18. 

' Voet, 24. 2. 15. h2 100 THE LAW OF PERSONS existing antecedently ^ to the marriage ; (4) in case of ante-nuptial stuprum followed by pregnancy of the wife, unknown to the husband and not condoned by cohabita- tion with knowledge of the facts ; ^ (5) in case of insanity.^ Miscel- laneous matters relating to mar- riage : A. Dona- tions be- tween spouses. B. Boedel houder- schap. Section 6. Miscellaneoits Mattees relating to Marriage In this section we shall deal with various matters relating to marriage, but not specially connected with one another. These are : (A) Donations between the spouses ; (B) Boedelhouderschap, and continuation of community after the death of one spouse ; (0) Second marriages. (A) Donations between the spouses. In the Civil Law such gifts were prohibited by custom,* and were regulated by a Senatus Consultum passed on the proposition of Antoninus (CaracaUa) in the year 206 A. d. ® The rule passed into the Roman-Dutch Law.® It follows that a spouse donee has no dominium and cannot give a valid title to third parties. But such gifts, if validly executed, are confirmed by the death of the donor.' Once a donation is confirmed, the donee acquires the right to keep the gift, if it has been transferred, or to demand it, if it has not. The gift may be revoked, and is ipso jure void, if the donee predeceases the donor. (B) Boedelhouderschap. In certain cases the community which exists between the spouses (or would have existed if the common law had not been excluded) is continued ^ Van Leeuwen, 1. 15. 5 ; Voet, 24. 2. 16. See Jones & Ingram, Leading Cases in South African Law (pt. 1, Persons), p. 64. ^ Voet, 24. 2. 15 ; Nel v. Nel (1841) 1 Menz. 274 ; Horak v. Horak (1860) 3 Searle 389. ' Prinsloo's Curators bonis v. Crafford and Prinsloo [1905] T. S. 669. ^ Dig. 24. 1. 1. ^ Dig. 24. 1. 32. pr. As to the effect of this S. C. see Roby, Roman Private Law, vol. i, pp. 159 ff., and Girard, p. 945. « Gr. 3. 2. 9 ; Van Leeuwen, 4. 24. 14 ; Voet, 24. 1. 17 ; V. d. K. Th. 486 ; Van der Byl's Assignees v. Van der Byl (1886) 5 S. G. at p. 176. ' Dig. 24. 1. 32. 2 ; Cod. 5. 16. 1 ; Voet, 24. 1. 4 ; provided that the estate of the donor is not then insolvent. Voet, 24. 1. 6. For excep- tions to the rule prohibiting donations between spouses see 1 Maasdorp, pp. 32-3. MARRIAGE 101 ' / / (or called into existence) ^ between a surviving sppusa- and the heirs of the deceased. This result .jilay>6e effected : (1) by the ante-nuptial contract or mutual testament of the spouses ; ^ (2) (under a local custom or statute) by the separate will of the deceased spouse,* ia which the survivor is appointed executor of the will and administrator of the joint estate during the minority of the children in both cases there must be an express direction in the wiU that the community is to continue, or come into existence ; (3) by operation of law. This takes place in one case only ; viz. ' if the surviving father or mother, being at the same time guardian of the children, fails to draw up an inventory or make to them the " proof " or buy out their interest (noch aan dezelven bewijs, vertigting of uitkoop doet). The consequence is that the community of goods continues between the survivor and the children, and to the advantage of the latter, who enjoy the half of all the profits that accrue to the estate after the death of their deceased parent, but not to their prejudice, inasmuch as all losses are borne by the surviving parent.' So the law is stated by Van der Linden, who adds : ' At least this rule applies when local statutes have not provided differently on this point '. Van der Keessel, however, regards this penal and one- sided community as resting, in every case where it occurs, on local custom only, and, in accordance with a principle laid down by himself in an earlier Thesis, takes Grotius to task for inferring a rule of common or general law from a number of particular instances of merely local applica- tion.® However this may be, it appears from the above authors as well as from Grotius, Schorer, and Bynkershoek,®

V. d. K. Th. 267 and 144. = V. d. K. Th. 266-7. 
V. d. K. Th. 269. 

^ V. d. L. 1. 5. 4 (based on Juta's translation). See also Van Leeuwen (4. 23. 7), who says that the law ' has been introduced in favour of the innocence of young children, and as a punishment of wicked parents '. ^ y. d. K. Th. 270-1. ° Gr. 2. 13. 2-3 ; and Schorer ad loc. ; Bynkershoek, Quaest. Jur. Priv., lib. Ill, cap. x ; Voet, 24. 3. 36 ; Natal Bank, Ltd. v. Bood [1910] A. C. 570 ; in appeal from the Transvaal S. C. [1909] T. S. 243. 102 THE LAW OF PERSONS that when the community continues at the desire of the parties concerned, viz. by virtue of an ante-nuptial contract or mutual will, or, where permitted, by the wiU of the deceased, or by agreement between the parent and the children, being of full age, it continues for all purposes, or at all events for the purpose of profit and loss ; and that the one-sided community above described, arises not by act of party, but ipso jure, i.e. only when the survivor, being under a duty to do so, neglects to make an inventory or to assign to the chil- dren their share of the joint estate. Finally, it is to be observed that, where Boedelhouderschap exists, it is not determined by the remarriage of the surviving spouse.^ This gives rise to difl&cult questions as to the respective shares, when the community eventually determines, of the children of the first marriage, the remarrying parent, and the second wife (or husband). For the resolution of these problems the reader is referred to Van der Keessel, Theses, 273-6. In the Cape Province, however, such difficulties can scarcely arise, in consequence of the statutory provisions to be presently mentioned. C. Second (C) Second marriages. In the Civil Law second marriages entailed numerous penalties, which, says Van der Linden, have not been adopted by us.^ He excepts from this state- ment lex 6 of the relevant title in the Code, which is called from its opening words the Lex hoc edictali? It is an enactment of Leo and Anthemius of the year a.d. 472, and provides that no man or woman who remarries, having children by a former marriage, may by gift inter vivos or by will settle on the second spouse more than the amount of the smallest portion bequeathed to any of the children of the former marriage.* A gift contrary to this law is void to the extent of the excess, and the excess must be equally divided amongst the children of the prior marriage or marriages alone. ' Van Leeuwen, 4. 23. 8. ^ V. d. L. 1. 3. 10 ; and see Van Leeuwen, 1. 14. 14. ^ Cod. 5. 9. 6 (de secundis nuptiis). * Van Leeuwen, 4. 24. 8. This well-known enactment need not detain us further, since in the Roman-Dutch Colonies it has either never been received or been repealed by statute.[22]

Another rule relating to remarriage is that which imposes upon the surviving parent, before contracting another marriage, the duty of paying or securing to the minor children of the first marriage the shares due to them out of the estate of the deceased.[23] By the Civil Law the penalty for remarrying in breach of this rule was the forfeiture by the defaulting spouse of any property accruing to him or her from the estate of the deceased.Administration of Estates Act, 1913, sec. 56. (3) </ref> In South Africa the defaulting spouse forfeits his or her share in the joint estate for the benefit of the minor children, besides incurring a statutory penalty of fine or imprisonment.[24]

  1. Van Leeuwen, lib. 4, cap. 25; V. d. L. 1. 3. 2.
  2. 5 Voet, 23. 1. 12.
  3. Cens. For. 1. 1. 11.12; Voet, 23. 1. 1. In Ceylon writing is required. Ord. No. 19 of 1907, sec. 21.
  4. V. d. L., ubi sup.
  5. Cens. For. 1. 1. 11. 12; V. d. K. Th. 52; but see Voet, 23. 1. 2.
  6. The age is now twenty-one for both sexes. Duncan v. R. M. Mossel Bay (1905) 22 S. C. 587. Supra, p. 37.
  7. Tacitus, Agricola, cap. 18.
  8. Hoola van Nooten, vol. i, p. 300.
  9. 1 G. P. B. 319; 1 Maasdorp, p. 287.
  10. other degree of consanguinity or affinity than those in section one mentioned.
    In Natal the prohibited degrees are left to the common law, except that Act No. 45, 1898, legalizes the marriage of a man with his deceased wife's sister.
    For Ceylon see Ord. No. 19 of 1907, sec. 17. It has been held that by the law of the Colony there is no objection to a man marrying his wife's sister (Valliammai v. Annammai (1900), 4 N. L. R. 8). But the Ordinance is silent on the subject and the Court does not appear to have investigated the common law.
    In British Guiana Ord. No. 25 of 1901 (see. 28) defines the prohibited degrees and permits marriage with a deceased wife's sister.
  11. This is (semble) the law in Cape Colony. Mostert v. The Master (1878) Buch. 83. Mr. Justice Kotzé, however, says (Van Leeuwen, vol. i, p. 107, note): 'At the Cape of Good Hope the consent of guardians to the minor's marriage is necessary. Marr. O. in C. 1839, secs. 10 and 17.' In Natal the consent of guardians has been held to be necessary to the valid marriage of a minor. In re McDuling and Brown (1885) 6 N. L. R. 88. In the Transvaal, by Law No. 3 of 1871, sec. 8, it is not lawful to solemnize the marriage of a minor, if he or she cannot produce the consent of father or guardian. In Ceylon, the consent of guardians is required. Ord. No. 19 of 1907, sec. 22. For Brit. Gui. see Ord. No. 25 of 1901, sec. 30.
  12. V. d. K. Th. 126.
  13. 'The husband, whether he knew at the time or did not know the lady to be a minor, can receive no benefit from such a marriage and can have no control over her property.' Mostert v. The Master (1878) Buch. at p. 85, per Sir Henry de Villiers C.J.,
  14. Voet,23.2.20.
  15. 1 G. P. B. 331.
  16. Neostad. de pact. antenupt., Obs. 4 (in notis); Voet, ubi sup.; V. d. K. Th. 264.
  17. Voet, 23. 4. 60 (61); V. d. K. Th. 265.
  18. Voet, 23. 4. 61 (62). Secus if it is merely to revert 'to the side whence it came'.
  19. Voet, 23. 4. 62 (63).
  20. Voet, 23. 4. 63 (64). Infra, pp. 324-5.
  21. Voet, 23. 4. 64 (65).
  22. Repealed in the Cape Province by Act 26 of 1873, sec. 2 ; in the Transvaal by Procl. 28 of 1902, sec. 127 ; in the Free State by the Law Book of 1901, chap, xcii, sec. 1 ; in Natal by Laws No. 22, 1863, sec.3; No. 17, 1871, sec. 1 ; No. 7, 1885, sec. 3 ; in British Guiana by Ord. No. 12 of 1906, sec. 10. In Ceylon the lex hac edictali has, apparently, never been recognized.
  23. Gr. 1. 9. 6-7 ; Voet, 23. 2. 100-1 ; V. d. K. Th. 142 ff. ; Administration of Estates Act, 1913, sec. 56.
  24. Voet, 23. 2. 101 : Binubus aut binuba amittat proprietatem relictorum sibi a priore conjuge cessuram aequaliter liberis prioris thori . . . solumque retineat usumfructum, quamdiu superstes fuerit.