Rethinking the Application of the Putative Spouse Doctrine in South African Matrimonial Property Law

摘要

This article examines the application of the putative spouse doctrine in South Africa in the light of a recent judgement in which it was held that the second ‘wife’ to a bigamous civil ‘marriage’ in community of property was not entitled to any share of the estate at the death of her ‘husband’ despite the fact that she was ostensibly of the bona fide belief that she had been his only wife and that her marriage had been valid. On the basis of a comparative survey involving American and French law, the article concludes that the legal position created in South Africa by the precedent in question is untenable and in need of being developed in order to cater for future similar situations.