In part one of this article, we discussed the legal rights that accrue to an individual once they enter into the institution of marriage. The rights that were discussed were matrimonial property rights, conjugal rights, consortium, and access rights to children, rights to make decisions in incapacitation, spousal privilege and use of name rights.
For an in-depth discussion of these rights please refer to last week’s article. Today’s article shall discuss the obligations incurred by an individual upon entering the institution of marriage which are as follows:
Once a party has entered into marriage they have an obligation to jointly contribute to the financial needs of the family. This is an obligation which is required from both husband and wife. If the parties have a child together, both parties have the legal obligation to maintain their child or children. In addition, people who are either married under civil aw or are in a customary law union have the obligation to maintain one another.
Ensuring rights of the children are upheld
In terms of the Constitution, children have rights that must be fulfilled. These rights are; enjoying family or parental care, shelter, basic nutrition, healthcare, social services, protection from maltreatment, neglect or abuse, protection from economic and sexual exploitation, to be given a family name and a birth certificate. It is the responsibility of both parents of children to ensure that every one of these rights is fulfilled.
Where parties are married in terms of the Marriage Act chapter 5:11, in terms of this marriage, they are required to be involved in a monogamous union. This means that one man may only marry one wife and one woman may only marry one husband. This obligation extends further to require that no party to the marriage may have any romantic or sexual relationship with any other person during the subsistence of the marriage.
Where one party to the marriage fails to honour this obligation and becomes adulterous, the aggrieved party may seek adultery damages from the lover of their spouse. Furthermore where one party enters into another marriage with another party during the subsistence of his or her marriage in terms of the Marriage Act chapter 5:11; the adulterous party may be found guilty of bigamy in terms of the Criminal Law (Codification and reform) Act Chapter 9:23.
Duty of aid and mutual assistance
In the event that one party may be injured, of poor health, or mentally incapacitated, their spouse has the duty of aid and mutual assistance.
This means that their spouse is responsible for the healing and recovery, medical expenses and decisions pertaining to their medical treatment. It is understood that in many cultures, when a party is incapacitated or of poor health, the relatives of that party may assume the care of their loved one.
Although this may be a cultural norm, it does not negate the duty of aid and mutual assistance that the spouse of the incapacitated patient has.
Duty of cohabitation
This means that when parties are involved in a marriage they are required to live together in holy matrimony. There may be some circumstances where the parties have to live apart for some time, whether it be for employment or any other such valid reason. This separation should be with the consent of both parties.
Furthermore where parties have separated for any just cause, they are expected to resume cohabitation in the future. Where one spouse does not consent to the separation and the other spouse does not acquiesce to return to the matrimonial home, the aggrieved spouse may seek recourse from the courts by seeking a decree of divorce from the Courts as this may be considered desertion which is grounds for divorce in terms of the Matrimonial Causes Act chapter 5:13.
We have therefore learnt that when parties enter into a marriage there are certain rights that accrue to them as well as certain obligations incurred by them which they have to observe.
It is important that we are all informed about these rights and obligations in order to allow us to make informed decisions with regards to our families.