obligation is clearly based on the premise that spouses will live together. The party who owns the home may not exclude or evict the other party from the home. Limited exceptions to this rule have been created under the Domestic Violence Act.[1]
[66]The way in which the marriage affects the property regime of the parties to the marriage is variable at common law. The ordinary common law regime is one of community of property including profit and loss in terms of which the parties to a marriage share one joint estate which they manage jointly. Historically, of course, our common law provided that the power to manage the estate (‘the marital power’) vested in the husband. This rule was altered by statutory intervention in 1984. Major transactions affecting the joint estate must now be carried out with the concurrence of both parties.[2]
[67]Marriage also produces certain invariable consequences in relation to children. Children born during a marriage are presumed to be children of the husband. Both parents have an ineluctable duty to support their children (and children have a reciprocal duty to support their parents). The duty to support children arises whether the children are born of parents who are married or not.
[68]The law also attaches a range of other consequences to marriage—for example, insolvency law provides that where one spouse is sequestrated, the estate of the other
- ↑ Act 116 of 1998. Interestingly, the Act is unusual in modern statutes in that it not only extends its provisions to life partners generally, but expressly includes same-sex partnerships within its ambit. See section 1(b).
- ↑ Section 15 of the Matrimonial Property Act 88 of 1984.
