MEMORANDUM: PVL2601: OCTOBER/NOVEMBER 2017 PARTA 1 10 " 2 18 14 18 pe (See the prescribed textbook pp 26-28 and the stucy guide pp 6-8.) Be (See the prescribed textbook pp 31-32.) iy? (See the prescribed textbook pp 34-37 and the stucy guide pp 13-14.) Be (See the prescribed textbook p 38 and the study guide p 16.) (32) (See the prescribed textbook p 106 and the study guide pp 65-56.) ye (See the prescribed textbook p 117 and the study guide p 62.) aye {See the prescribed textbook pp 116-117 and the study guide pp 62-63.) 2 (See the prescribed textbook p 119 and the study guide p 67.) fay) (See the prescribed textbook pp 119-120 and the study guide pp 67-68.) wy (See the prescribed textbook p 164.) (ay (See the prescribed textbook pp 179-184.) Be (Gee the prescribed textbook p 207.) ge (Gee the prescribed textbook p 255.) qe) (See the prescribed textbook p 298.) (ae (See the prescribed textbook pp 325-326.)PARTE. QUESTION 4 0 w) A valid civil mariage must exist between the parties.) ‘The person claiming support must be in need of support ‘The person from whom support is claimed must be able to provide it) (See the prescribed textbook p 44 and the study guide p 21.) QUESTION 2 (a) () © Section 15(9){a) of the Matrimonial Property Act provides that if a third party ‘who enters into a transaction with @ person who is married in community of property does not know and cannot reasonably be expected to know” that the person's spouse had to consent to the transaction or that the necessary Consent was not obtained," the transaction Is deemed to have been entered into with the required consentithe third party can enforce the transaction”) (See the prescribed textbook pp 75-76 and the study guide pp 36-37.) “The Act does not prescribe how it must be established whether a third party is ‘bona fide." In Distilers Corporation Ltd v Modise the court held that the use of the word “reasonably” implies that an objective test must be used/the matter ‘must be considered from the point of view of the reasonable person in the third party's position) In Visser v Hull” the court held that a third party must Undertake “an adequate inquiry’ instead of simply relying on a person's bold assurance regarding his or her marital status.) As the third parties in Visser v Hull were the seller's blood relations and knew that his children and thelr mother had lived in the house for many years, they should have made enquiries as to whether the seller was married and, if so, whether the marriage was in ‘community of property.) Conclusion: in terms of Visser v Hull, a third party who is related to the seller, must make enquires. It is not clear whether the same ‘est applies toa third party who is not related to the seller," =rasen) (There are 7 possible marks for this §-mark question.) (See the prescribed textbook pp 76-77.) Presumably, Mrs Zwane has frequent contact with her sister since the sisters live near each other. it an reasonably be expected that Mrs Zwane would know that her sisters married and that the house she is buying is the spouses’ former ‘matrimonial home." If Mrs Zwane knew that her sister was married but did not. ‘know which matrimonial property system operated in the marriage, she should hhave enquired whether the marriage was in commurity of property." If she knew (or discovered upon making the enquiry) that her sister was married in community of property, she should not have entered into the contract without ‘Mr Buthelezi's consent. Even if her sister had lied to her and had told her that. ‘she was unmarried, Mrs Zwane should, in accordance with the judgment inVisser v Hull” have made enquiries" Therefore, Mrs Zwvane does not qualify ‘as a bona fide third party. (Application of information: prescribed textbook pp 76-77.) (There are 6 possible marks for this 4-mark question.) QUESTION 3 ‘The accrual in Angie's estate is calculated as follows: Not value on dissolution/net end valuet”? 900 000%) Minus net commencement valuet”) Roe Minus assets excluded from the accrual!) Inheritance ~ fiat”) -R300 0000 Gift by spouse — watch”) 50.000") Accrual 550 000" (Insurance pay-out of 8100 000 NOT EXCLUDED because it constitutes damages for patrimonial loss" pension interest deemed to be part of assets upon divorce.) The accrual in Ismai's estate is calculated as follows: Net value on dissolution/net end value 800 0000 Minus net commencement value (Fixed deposit as adapted by the CPI (R25 000 x 2)}" -R-50.000” Accrual R750 000" (Residential property forms part of accrual: winnings from horseracing form part of accrual.) Because Angie's estate shows the smaller accrual, she has @ claim against Ismais esate." ‘Angle's accrual claim = 4(R750 000 — R550 000)" = 94200 000)" R00 000 Therefore, Angie is entitled to R100 000." (There are 19 possible marks for this 15-mark question.) (See the prescribed textbook pp 94-99 and the study guide pp 47-52.)QUESTION 4 (a) o ()) The duration of the marriage:”? (i) The circumstances which led to the breakdown of the marriages” (ii) Any substantial misconduct on the part of either spouse. (See the prescribed textbook p 135.) A forfeiture order may only be granted if the court is satisfied that, in the absence of the order, Somizi will be unduly benefitted in relation to Wololo. in Wiker v Wiker” the Appeliate Division held that a court may not use a forfeiture order as a mechanism to deviate from the normal consequences of the ‘spouse's matrimonial property system simply because the court considers it fair and just” Given tne tact that Wololo ana Somizi have been mamned for 20 years, that Wololo is solely responsible for the breakdown of the marriage by having moved out of the matrimonial home," and there is no substantial ‘misconduct by Somizi,” itis unlikely that the court will grant a forfeiture order against Somizi.") (See the prescribed textbook pp 135-136 and the study guide pp 77-78.) QUESTION 5 @) o () By rendering services (for example, by working inthe other spouse's business, without any compensation of for a low salary).") (i) By saving expenses which would otherwise have been incurred (for ‘example, by being a homemaker and in this way saving the other spouse various expenses). In any other manner.) (Gee the prescribed textbook p 144.) (The spouses’ existing or prospective means. i) The spouses’ respective eaming capacities, ‘The spouses’ financial needs and obligations Each spouse's age. ‘The duration of the marriage. The spouses’ standard of living during the marriage, Each spouse's conduct in so far as it may be relevant to the breakdown of the marriage. Any redistribution order in terms of section 7(3) of the Divorce Act. Any other factor which, in the court's opinion, should be taken into account. Any five for 5 marks, (See the prescribed textbook pp 158-159 and the study guide pp 92-93.)QUESTION 6 (2) The Recognition of Customary Marriage Acti) (See the prescribed textbook p 217 and the study guide p 112.) 4) » absence of registration does not affect the validity of a customary marriage.) (See the prescribed textbook pp 220-221 and the study guide p 114.) (©) In community of property.) Gumede v The President of the Republe of South Africa”) removed the differentiation between the patrimonial consequences of ‘@ monogamous customary marriage entered into before and after the coming into operation of the Act. (See the prescribed textbook pp 221-222 and the study guide p 115.) ‘QUESTION 7 Statenent/Steling “The court held thatthe contractual obligations flowing from a de facto monogamous Muslim marriage can be recognised and enforced as between the parties despite the fact that the marriage is potentially polygynous. The court granted a Muslim woman's application for maintenance pendente lite in terms of rule 43 of the Uniform Rules of Court even though the spouses never entered into a civ marriage. The court held thatthe word "spouse" in | the Intestate Succession Act 81 of 1987 includes the surviving partner in a ‘monogamous Hindu mariage. | The court declared the exclusion of | same-sex life pariners from intestate inheritance from each other's deceased estate in terms ofthe Intestate Succession Act 81 of 1987 Unconstitutional ‘The Transvaal Provincial Division ofthe | High Court (now the Gauteng Division of the High Court, Pretoria) recognised the duty of support in a de facto polygynous Muslim marriage. CaselSaak Ryland v Edros® (See the prescribed textbook p 244.) ‘AM v RM (See the prescribed textbook p 245.) Govender v Ragavayahi®) (Gee the prescribed textbook p 249.) Gory v Koiver®™ (See the prescribed textbook p 266.) Khan v Khan (See the prescribed textbook p 245.)QUESTION 8 @ ) ‘Any four ofthe following: It he marries Bheka or enters into a civil union with her, It he acknowledges paternity, contributes to the child's upbringing for a reasonable period, and contributes to the child's maintenance for @ reasonable period: Ihe enters into a parental responsibilities and rights agreement with Bheka; Ifthe court assigns parental responsibilities to him; It he is appointed as the child's guardian andlor care-giving person in Bheka’s wil; Ihe adopts the child (See the prescribed textbook pp 312-317 and the study guide pp 135-196.) ‘The duty of a parent to support his or her child is terminated by the death of the child, but not by the death of the parent”) (See the prescribed textbook pp 349-350 and the study guide p 142.)