Page:NCGLE v Minister of Home Affairs.djvu/46

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Ackermann J

[46]The starting point is to enquire what the nature of such family life is in the case of spouses that section 25(5) specially protects and benefits. For purposes of this case it is unnecessary to consider comprehensively the nature of traditional marriage and the spousal relationship. It is sufficient to indicate that under South African common law a marriage “creates a physical, moral and spiritual community of life, a consortium omnis vitae”[1] which has been described as:

“… an abstraction comprising the totality of a number of rights, duties and advantages accruing to spouses of a marriage … These embrace intangibles, such as loyalty and sympathetic care and affection, concern … as well as the more material needs of life, such as physical care, financial support, the rendering of services in the running of the common household or in a support-generating business ….”[2]

  1. June D Sinclair assisted by Jaqueline Heaton The Law of Marriage Vol 1 (1996) (“Sinclair and Heaton”) 422 and authorities there cited.
  2. Per Erasmus J in Peter v The Minister of Law and Order 1990 (4) SA 6 (E) at 9 G.