BOOK REVIEWS

THE SOUTH AFRICAN LAW OF HUSBAND AND WIFE (4th ed.). By H. Hahlo. Juta & Company Ltd., Capetown, 1975. Pp. xcii, 754. ($45.50)

The first edition of Professor Hahlo's The South African Law of Husband and Wife, published in 1953,1 received widespread critical acclaim.2 The fourth edition3 continues to display the author's wide knowledge of the law of many countries, his cogent analysis of compli-cated issues and his great felicity of expression. The book is of considerable interest to readers outside South Africa since throughout comparison is made with foreign law, including a fair representation of Canadian jurisprudence.4

The book also contains, as it has since the first edition, an appendixs by Dr. Ellison Kahn on jurisdiction and conflict of laws aspects of the subject. 6

The first chapter of the book, "Survey, Historical and Compara-tive", presents a penetrating analysis, from a comparative standpoint, of South African law. Professor Hahlo summarizes the position by stating that "[s]een in the global context, the South African law of husband and wife has, for better or worse, fallen behind developments over-seas" . 7 The husband remains legally the head of the family, 8 the divorce law is essentially fault-based 9 and South Africa has "no[t] .... so far given serious consideration to a root-and-branch reform of its marital property system" .10 It would, however, be unwise to overstress the extent of this conservatism. In certain areas ll South

1 H. HAHLO, THE SOUTH AFRICAN LAW OF HUSBAND AND WIFE (1953). 2 Maisels, Book Review, 71 S. AFR. L.J. 183 (1954). 3 H. HAHLO, THE SOUTH AFRICAN LAW OF HUSBAND AND WIFE (4th ed. 1975). 4 About two dozen Canadian decisions are referred to, as well as the Divorce Act,

R.S.C. 1970, c. 0-8, and a wide range of Canadian academic commentary. HAHLO, supra note 3, at 529-674. 6 Since the publication of the previous edition, Dr. Kahn produced an important

treatise, E. KAHN, THE SOUTH AFRICAN LAW OF DOMICILE OF NATURAL PERSONS (1972). See Copeling, Book Review, 5 COMPo & INT'L. L.J. S. AFR. 245 (1972) and Ranchod, Book Review, 89 S. AFR. L.J. 500 (1972).

1 HAHLO, supra note 3, at 14. 8 Id., ch. 9. 9 Id., chs. 25-28. The four grounds for divorce are adultery, malicious desertion,

incurable insanity and imprisonment as an habitual criminal. 101d. at 15. Cf. Miller, Pointers for Possible Reform of South African Matrimollial

Property Law, 91 S. AFR. L.J. 390-95 (1974). \I The welfare of the child has been recognized in decisions stretching back as far as

1881 and in the legislation, as controlling the determination of custody In divorce proceedings; id. at 459. In V. V. de Wet, 1953 (1) S.A. 612(0), the Court recognized the right of a mistress to claim an interest in a house built with her assistance. An unreported decision in 1968 applying the ex turpi principle so as to bar a mistress' claim is

1978] Book Reviews 465

African law is as advanced as elsewhere and even in those areas where the principles are expressed in conceptually obsolescent terms a strong element of judicial common sense appears to have assured that substan-tial justice is done in most cases.

Professor Hahlo's discussion l2 of the respective merits and disad-vantages of the separate property, traditional community and deferred community systems is a model of clarity and fairness. The idea current in some circles that the separate property system is malum in se and that community represents the best of all property worlds is, as Professor Hahlo displays, a naive and shallow one. It is relevant to note that there is a move towards separation of property in some countries with "advanced" community systems.

Many aspects of South African law strike the foreign reader as unusual or obsolete. The action for breach of promise, which did not exist in Roman law, may still be taken in South Africa, and was at one time enforceable by specific performanceP3 The fact that a man's fiancee turns out not to be a virgin was formerly a good ground for his cancelling the engagement,14 but Professor Hahlo argues, somewhat tentatively, that today "[ilt is questionable whether this still holds true" .15

The legal position of parties of the same sex who go through a ceremony of marriage together has given rise to academic discussion in South Africa16 but as yet there has been no reported decision on the question. Whilst there are Canadian17 and British l8 decisions in support of Professor Hahlo's statement that, "[a]ccording to expert opinion, a real change of sex is not possible", 19 it is worth noting that a recent decision20 in the United States has taken a different view.

criticized by HAHLo, supra note 3, at 36 n. 45. Cf. the English position, as exemplified by Cooke v. Head, [1972] 2 All E.R. 38, [1972] 1 W.L.R. 518 (C.A.), and see generally Samuels, The Mistress and the Law, 6 FAM. L. 152 (1976). For an account of the legal position of the mistress in South African law, with much comparative reference, see Hahlo, The Law of Concubinage, 89 S. AFR. L.J. 321 (1972).

12 HAHLO, supra note 3, at 15-21. Another excellent recent analysis of the subject is made by Hahlo, Matrimonial Property Regimes: Yesterday, Today and Tomorrow, II OSGOODE HALL L.J. 455 (1973).

13 HAHLO, supra note 3, at 54. 14 Id. at 51. IS Id. at 51-52. 16 See, e.g., Holloway, Transsexuals - Some Further Legal Considerations, 5

COMPo & INT'L. L.J.S. AFR. 71 (1972), and van Niekerk, Sex-Change Operations and the Law, 87 S. AFR. L.J. 239 (1970).

17 Re North and Matheson, 52 D.L.R. (3d) 280 (Man. Cty Ct. 1974). 18 Corbett v. Corbett, [1971] P. 83, [1970] 2 All E.R. 33 (P.D.A. 1970), criticized by

Parschin-Rybkin, Note, 5 OlTAWA L. REV. 583 (1972) and Green, Transexllalism [sic] and Marriage, 120 NEW L.J. 210 (1970) .

.. HAHLO, supra note 3, at 66 n. IH. 20 M.T. V. J.T., 140 N.J. Sup. 77, 355 A.2d 204 (Sup. Ct. App. Div. 1976), noted by

Browell, Comment: M.T. V. J.T.: An Enlightened Perspecti\'e on Transsexllalism, 6 CAP. U.L. REV. 403 (1977).

466 Ottawa Law Review [Vol. 10:464

Another question to which South African case law has not supplied a definitive answer is whether a woman requires her husband's consent for an abortion. Professor Hahlo suggests21 that this consent is not necessary, an approach since favoured by the United States Supreme Court. 22

The appendix by Dr. Kahn23 on jurisdiction and conflict of laws presents a clean analysis of the subject with a considerable amount of reference to the law of the Commonwealth and of the United States. On the question of the domicile of married women, it is noteworthy that Dr. Kahn and Professor Hahlo express the South African law in slightly different terms. Professor Hahlo states baldly that "[a]s long as the marriage subsists, the wife shares her husband's legal domicile, even if she lives in fact apart from him",24 whereas Dr. Kahn recognizes as "a possible (though very doubtful) exception"25 the qualification that a wife judicially separated from her husband may be able to acquire an independent domicile. The point is of general comparative interest since the whole subject of the domicile of married women is one of current controversy. 26

Where Professor Hahlo ventures to express his opinions on the social desirability of certain aspects of the law, he displays what migh t be described as "moderate-progressive" views. Coming from a country which has no divorce jurisdiction,27 however, this reviewer must take

21 HAHLO, supra note 3, at 111. See also Hahlo, Nasciturus in the Limelight, 91 S. AFR. L.J. 73, at 76-78 (1974).

22 Planned Parenthood of Cent. Missouri v. Danforth, 428 U.S. 52, 96 S. Ct. 2831 (1976), noted by Long and Ravenscraft, Comment, 10 AKRON L. REV. 367 (1976) and Crist-Brown, Comment, 42 Mo. L. REV. 291 (1977); see also Schell, Note: Third PC/rty Consent to Abortions Before and After Danforth: A Theoretical AnC/lysis, 15 J. FAM. L. 508 (1977) and Binchy, The American Revolution in Family Law, 27 N.1. LEGAL Q. 371, at 400-01 (1976).

23 Cf. HAHLO, supra note 3, at 529-674. 24 Id. at 107, reference to Kahn's development of the subject in the appendix. 25 Id. at 545. See further, id. at 541. 26 The domicile of dependency of married women has been abolished in England by

the Domicile and Matrimonial Proceedings Act, 1973, c. 45, noted by Hartley and Karsten in 37 MODERN L. REV. 179 (1974), and in New Zealand by the Domicile Act, 1976, noted by Webb in 26 INT. & COMPo L.Q. 194 (1977). The partial reform in Canada brought about by the Divorce Act, R.S.C. 1970, C. D-8, has been criticized for not going far enough: see, e.g., Rafferty, Domicile - The Need for Reform, 7 MAN. L.J. 203, at 211 (1977). The provinces are beginning to respond to such criticism, Ontario having recently abolished the domicile of dependency of married women for all purposes. See Family Law Reform Act 1978, S.O. 1978, C. 98, S. 65.

27 Article 41, 3. 2 of the Irish Constitution provides that "[n]o law shall be enacted providing for the dissolution of marriage." See generally A. SHATTER, FAMILY LAW IN THE REPUBLIC OF IRELAND ch. 9 (1977). A recent public opinion poll conducted by a national periodical indicated that only a minority (around 35%) favoured the introduction of divorce although this number was somewhat larger than in a poll conducted three yoars previously: see, Divorce: The Change in Attitudes, Hibernia (Dublin), Sept. 24. 1976. Divorces obtained in foreign jurisdictions may be recognized in certain cases: see Bank of Ireland V. Caffin, [1971]I.R. 123 (S.C.) and Gaffney V. Gaffney, [1975] I.R. 133 (S.C.), noted by Duncan, 9 IR. JURIST (NEW SERIES) 59 (1974) and by Webb, N.Z.L.J. 411 (1976).

1978] Book Reviews 467

issue with the universality of Professor Hahlo's assertion that "[t]here is everything to show that hard divorce law breeds immorality and dis-courages marriage". 28 No study of the mores of the Irish has been published which supports this proposition.

This minor criticism apart, the fourth edition of The SOllth African Law of Husband and Wife is to be welcomed by lawyers far beyond the confines of South Africa as a work of major comparative interest.

WILLIAM BINCHY

28 HAHLO, supra note 3, at 26. *Law Reform Commission, Republic of Ireland.

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ANNALS OF AIR AND SPACE LA w. Vol. 1. Edited by N. M. Matte. Carswell's, 1976. pp. viii, 289. ($25.45)

The appearance of this volume l is an event of major significance in the study and research of air and space law in Canada. In his preface, Professor Nicolas Mateesco Matte, Q.C., Director of the Institute of Air and Space Law at McGill University and Editor-in-Chief of the Annals, recounts the history of the successful effort. The publication of the AnnaLs was prompted partly "because ... the Institute's Faculty, with its experience and continued development, could assist in advising and directing the editing staff'2 and partly because "the Government of Quebec-recognizing the past and present achievements of the Institute-recently chose it as a Centre for research of interest to Quebec as well as an inter-University and inter-disciplinary forum for studies" . 3

The importance of this new enterprise is underlined by the high quality of the contributions to the first volume. In the article. Aircraft and the InternationaL Legal and Institutional Aspects of the Stratos-pheric Ozone ProbLem,4 Professor Carl Q. Christol discusses the need for an enlarged international environmental law dealing with hazards. He observes that there exists a consensus that "an excessive amount of nation-based pollution violates world community expectations",:1 and submits that "the reduction of the hazards caused by high-flying jet aircraft to the ozone layer of the stratosphere requires the use of

1 ANNALS OF AIR AN D SPACE LA W, Vol. I (N. Matte edt 1976). 2 ld. at vii. 3 ld. at vii-viii. 4 ld. at 3. SId. at 24.