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    famaliy law memo

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    MEMO - PVL2601 -OCT 2016

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    famaliy law memo

    Copyright:

    © All Rights Reserved
    Download as PDF or read online from Scribd
    Flag for inappropriate content
    10 views8 pages

    Memo - PVL2601 - Oct 2016

    Uploaded by

    bonginkosi
    famaliy law memo

    Copyright:

    © All Rights Reserved
    Download as PDF or read online from Scribd
    Flag for inappropriate content
    of 8
    OcktlI mov ASlu - Een SECTION A” MULTIPLE -CHOIGE QUESTIONS [AFDELING A = MULTIKEUSEVRAE 4 [ge (Gee the prescribed textbook p 28 and the study guide p 6.) 2 4 (See the prescribed textbook pp 31-32 and the study guide p 9.) 3 Be (See the prescribed textbook p 45.) 4 9) (Gee the prescribed textbook p 106 and the study guide p 65.) 5 BP (See the prescribed textbook p 110, the prescribed casebook pp 152-156 and the study guide pp 57-58.) 6 py (Gee the prescribed textbook pp 121-122 end the study guide p 68.) 7 we {See the prescribed textbook pp 127-129.) 6 fP (See the prescribed textbook p 144 and the study guide p 64.) 8 Be (See the prescribed textbook pp 148-150 and Tutorial Letter 102, study unit 1) 10 By (ee the prescribed textbook p 205 and the study guide p 107.) ny (Gee the study guide pp 121-122 and the prescribed textbook pp 249-251.) 2 ye (See the study gude pp 125-128 and the prescribed textbook p 266) 3 BP (Gee the study guide p 131 and the prescribed textbook pp 287-288.) 14 [ay (See the study gude p 134 and the prescribed textbook pp 325-327.) 16 [ye (See the prescribed textbook pp 350.351 and the study guide p 142) ‘SECTION AFDELING B. Question 4 (1) Nether spouse may enter into another chil or a customary marriage or civil union with anyone else while the civil marriage subsists.” (2) New impediments to a subsequent civil marriage arise as a result of the relationship by affinity that is created by the marriage." (3) A right of intestate succession is created between the spouses. (4) As a result of the civil marriage, any children the couple had together before entering into the marriage become children born of married parents") (6) The spouses have full parental responsibilities and rights in respect of the children bom of the marriage. (6) The spouses’ capacity to act is restricted if they mary in community of property." (7) A spouse who is a minor when he or she marries attains majority. ‘There are 7 possible marks for this three-mark question. (Gee the prescribed textbook p 41.) Question 2 In terms of section 20%) of the Matrimonial Property Act," Mrs Smith will have to convince the court of the following: (1) Her interests in the joint estate are being seriously prejuciced or will probably be ‘seriously prejudiced by the other spouse’s conduct or proposed conduct.) (2) No other person will be prejudiced by the order. (See the prescribed textbook p 78.) Question 3 The accrual in Mr Khumalo’s estate is calculated as follows: Net value on dissolution" 200 000" ‘Minus net commencement value”) ‘Adapt commencement value with CPI: Accept that money was worth 2X as much at commencement of marriage as at dissolution’? (Thus R15 000 then, adjusted to R30 000 now) R30 000 ‘Minus assets excluded from the accrual) Inheritance” = 8100 090" (R30 000 for loss of income NOT EXCLUDED: damages. for patrimonial loss} Acerus B70 000) The accrual in Mrs Khumalo's estate Is calculated as follows: Net value on dissolution R50 000% Minus net commencement value Ro Minus assets excluded from accrual: ‘Compensation for non-patrimonial loss: R20 000% (R20 000 for damage to motor vehicle NOT EXCLUDED: ‘damages for patrimonial loss)" Accrual -R.30.000" (Mrs Khumalo’s estate has the smaller accrual and she can claim half the difference between the bigger and smaller accruals.) (R70 000 ~ R30 000)" % (R40 000) = R20 000 Mrs Khumalo’s accrual claim Therefore Mrs Khumalo ‘entitled to R20 000." There are 17 possible marks for this 14-mark question. (Gee the prescribed textbook pp 94-97, 98-99 and the study guide pp 47-52.) ‘The Supreme Court of Appeal found that maintenance in a lump sum could indeed be awarded by the court in terms of the Maintenance of Surviving Spouses Act Oshry NNO v Feldman 27 of 1990 as nlliny i this Act prevents | (Sue the prescribed lexlbouk p 118 and such an award. the stucy guide p 63.) “The court ordered a divorce in terms of the Divorce Act 70 of 1979, but ordered the husband, who was unwiling to co- - ‘operate in giving a gel, to pay maintenance to his wife until such time ‘as the marriage was terminated by the granting of a get ‘Aimar v Amar? (See the prescrited textbook pp 125-126 ‘and the study guide p 68.) "The court hald in an obffer dictum that does not have a discretion to refuse a decree of divorce once it has been proved that @ marriage has broken down irretrievably. ‘Schwarz v Schwartz® (See the prescribed textbook p 124.) ‘The cout adopted the view that the provision that the pension interast of a party is deemed to be an asset in his or her estate for purposes of determining the patrimonial benefits to which he or she may be entilad upon divoros means. that the interest is not ordinarily part of the joint estate of 2 couple who married in community of property, but that it may be taken into account upon divorce, ‘Sempapalele v Sempapelele® (See the prescribed textbook p 131 and the study guide p 73.) “The court held that in terms of section 7(7a) of the Divorce Act 70 of 1979, a Pension interest is part of divorcing parties’ assets and should automatically be included for purposes of determining the proprietary consequences of the divorce even ifthe divorce order does not ‘expressly mention the pension interest. Maharaj v Maharaj (See the prescribed textbook p 131 and the study guide p 73.) Question § (@) Section 9(1). (b) The duration of the marriage") ‘The circumstances which led to the breakdown of the marriage.) Any substantial misconduct on the part of either spouse." © was decided in Wiker v Waker." es (See the prescribed textbook pp 135-136, the prescribed casebook pp 194-196 and the study guide pp 77-78.) The factors need not al be present / need not be viewed cumulatively.) This Questions. () Not ‘The redistribution of assets in terms of section 7(3) of the Divorce Act is only available to parties married before 1 November 1984 and 2 December 1988, whereas the Civil Union Act only came into operation on 30 November 2006." (See the prescribed textbook pp 212-213 and the study guide p 108.) (b) Mrs Khoza will probably be entitled to rehabilitative maintenance.” Rehabilitative maintenance is maintenance that is awarded only for a limited petiod of time?) during which the maintenance recipient must be trained or retrained to take up paid employment or increase her participation in such ‘employment / so that she will be able to provide in her own support.) ‘Any one of the following cases for another mark? ‘Kroon v Kroon; Pommere! v Pommerel, Botha v Botha; Kooverjee v Kooverjoe (See the prescribed textbook pp 160-162, the prescribed casebook pp 250, 254-259 and the study guide p 93.) (©) Definition of joint legal care: In joint legal care, the joint care is limited to joint decision-making about important issues") such as whether an operation should be performed on the child, where the child should be educated, and in which language and religion the child should be brought up.°! ® = eam far mx sve] The child usually resides with only one parent, and decisions which are taken on a day-to-day basis, such as whether the child may watch certain television programmes, Whether he or she may stay over at a friend's house,” sy eanol ot ceeson ‘smace ona cydeybas8) and so forth, are left to that parent. Reasons why our courts were hesitant in the past to make joint care awards: In the past our courts used to be hesitant to make joint care awards." One of the reasons for this viewpoint was that it was believed that one parent should Control the child's if, so that the child would know where he or she stands.” “The risk of parental confict and disagreement was also frequently used as an ‘argument against joint care.” An objection to joint legal care was that, because it does not involve sharing of day-to-day care of the child, joint legal care “puts the care-taking parent in a position of responsibility without power whist ving the nencaretaker parent (usually the father) power without responsibility’ Advantages of joint care: ‘The supporters of Joint care argue that it ensures a continuing personal relationship between the child and both parents and prevents situations in which one parent assumes the dominant role in the chilt’s Ife, with the other parent becoming an “absent’ parent.) Furthermore, joint care avoids @ “winner-takes-al" situation, which is said to exacerbate hostility and conflict between parents, which, in tum, harms the child.) Its further claimed that joint care reduces or even eliminates child abduction." Proseribed case: {In the most recent reported decision on joint care, namely Krugel v Krugel De Vos J rejected the arguments against joint care on the ground that they do not serve the child's best interests.” She stated that a more liberal approach to granting joint care might be appropriate in view ofthe changing roles and responsibilities of parents and the concept of children’s rights.("! She ‘specifically rejected hostility between the parents as a bar to joint care.(") She held that, 2s long as both parents are fit and proper persone, they should have equal say in their chie's upbringing.” in deciding whether or not to ‘order joint care, the court has to consider whether input from both parents, “even if that input fs at times disharmonious", is not preferable 10. an uninvolved parent She held that (unless the disagreement is of such a nature thatthe child is put at risk either physically or emotionally, it stl seems preferable for the child to leam to deal with the ups and downs of two invalved parents, than to lose half of his or her rightful parental input De Vos J concluded that joint care promotes the rights of children and also helps to establish sex equality by reshaping gender roles within parenthood." Conclusion: In the light ofthe fact that joint care is nowadays increasingly being awarded, [Mrs Khaza's statement is probably not correct") ‘There are 20 possible marks for this 10-mark question. (See the prescribed textbook pp 181-182, the prescribed casebook pp 288- 292 and the study guide pp 100-101.) Question7 (2) 1) Bride and groom over the age of 18 years; 0) () ii) both bride and groom consented to enter into @ customary marriage; and ii) the mariage is negotiated and entered into or celebrated in ‘accordance to customary law.!") (See the study guide p 114 and the prescribed textbook pp 218-219.) Yes,” although the Act does not require the delivery of lobolo for the validity of a customary marriage, the agreement to pay lobolois a requirement under all systems of customary law.) (See the study guide p 114 and the prescribed textbook pp 218-219.) Either spouse!” or any party who has "a sufficient interest in the matter") (See the study guide p 115 and the prescribed textbook pp 220-221.) tion. (a) ©) ( No, Mr and Ms Hassam’s relationship is not recognised as a valid marriage.) (Our law only affords limited protection to Muslim marriages”) because these marriages permit polygyny and are not solemnised in terms of the Marriage ‘Act 25 of 1961.7) (See the study guide pp 121-122 and the prescribed textbook pp 241-242.) Yes.) In Ryland v Edros the court held that the contractual obligations flowing from a de facto Muslim martiage can be recognised and enforced as between the parties despite the fact that the marriage is potentially olygynous in nature” OR a contractual duty of support can be enforced between the parties. oR ‘Yes.() In Khan v Khan‘? the court recognised the duty of support in a de facto Polygynous Muslim marriage” OR the court recognised that spouses in a de facto polygynous marriage can use the Maintenance Act 99 of 1998 to enforce a duly of support that arises from their marriage." By Implication this wall Naturally apply to de facto monogamous Muslim marriages.) (There are 4 possible marks for this scenario.) OR ‘Yes. In Amod (born Peer) v Multilateral Motor Vehicle Accidents Fund (Commission for Gender Equality Intervening)!" the court recognised the legal

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