PVL2601/201/2/2023

Tutorial Letter 201/2/2023

Family Law
PVL2601

Semester 2

Department of Private Law

This tutorial letter contains important information

about your module.

BARCODE
 CONTENTS

Page

1 INTRODUCTION ...................................................................................................................... 3
2 MEMORANDA .......................................................................................................................... 3
2.1 Memorandum for Assignment 1 ........................................................................................................... 3
2.2 Memorandum for Assignment 2 ........................................................................................................... 3
3 INFORMATION ON THE EXAMINATION ................................................................................. 6
3.1 Marks and duration of examination ...................................................................................................... 6
3.2 What you have to study for the examination ........................................................................................ 6
3.3 Format of the examination .................................................................................................................... 6
3.4 Practising for the examination .............................................................................................................. 7
4 IN CLOSING ............................................................................................................................. 7

2
 PVL2601/201/2/2023

Dear Student

1 INTRODUCTION

This tutorial letter provides you with the memorandum for Assignment 2 and information on the
examination.

2 MEMORANDA

2.1 Memorandum for Assignment 1

No memorandum is provided for Assignment 1, as the assignment questions were taken from a
pool of questions from which questions were drawn at random and each student received
feedback upon submitting the answers to the questions generated for him or her.

2.2 Memorandum for Assignment 2

Question 1

Read the information below and answer the questions that follow.

Mr and Mrs Brown entered into a civil marriage without an antenuptial contract. At the time of
entering into the marriage Mrs Brown was unaware of the fact that Mr Brown was already a party
to another civil marriage in community of property. Mrs Brown found out about the other civil
marriage after the death of Mr Brown.

a) What type of marriage is Mr and Mrs Brown’s marriage?

(1)
b) Mrs Brown approaches you for advice. As her attorney, advise her what the patrimonial
consequences of her marriage are. In your advice, you must discuss the conflicting case
law on the issue.
(9)
[10]
Answer

a) This is a putative marriage.(1)

(See textbook p 38 and study guide p 16.)

b) The normal rule is that the advantage of the bona fide party determines the patrimonial
consequences of a putative marriage.(1) In accordance with this rule, a putative marriage
that was concluded without an antenuptial contract is a marriage in community of
property/universal partnership if this benefits the bona fide party.(1)
3
 However, in Zulu v Zulu,(1) which was decided by the High Court in Durban, it was held
that this rule does not apply if the putative marriage was concluded while either of the
parties was a spouse in an existing, valid civil marriage in community property.(1) In such
event, the pre-existence of the valid civil marriage in community of property makes the
creation of a joint estate between the parties to the putative marriage impossible,(1) as all
of the assets of the party who is a spouse in the valid civil marriage fall into the joint estate
which exists between the spouses in the valid civil marriage.(1)

In MS v Executor, Estate Late NS(1) the Free State Division of the High Court declined to
follow Zulu.(1) It held that Zulu goes against the reason for the existence of the putative
marriage doctrine,(1) namely protecting the bona fide party to the marriage. It found that “it
would be unjust, unfair and contrary to the interests of justice” (para 18) to deny the bona
fide party a half-share of the joint estate that was amassed while the putative marriage
existed.(1) Furthermore, affording the bona fide party a half-share of the joint estate would
comply with constitutional norms and values and promote the spirit, purport and objects of
the Bill of Rights by not depriving him/her of property.(1)

The facts of the question do not state where Mr and Mrs Brown reside. The precedent
system dictates that if they live in the area of jurisdiction of the Free State Division of the
High Court, their marriage will be treated as in community of property/a universal
partnership if this is to Mrs Brown’s advantage.(1) If they live in the area of jurisdiction of the
KwaZulu-Natal High Court, Durban, they will be treated as being married out of community
of property, regardless of whether this benefits Mrs Brown, unless the court decides that
its earlier decision in Zulu was wrong.(1) If Mr and Mrs Brown reside in the jurisdictional
area of a different court, the patrimonial consequences of their marriage will depend on
whether Zulu or MS is applied.(1)

There are possible 14 marks for this 9-mark question.

(See textbook pp 39-40, study guide p 16 and Tutorial Letter 102.)

[10]

Question 2

Mr and Mrs Mopeli were married out of community of property with application of the accrual
system in 2015. Mr Mopeli is a surgeon in a private medical practice. Mrs Mopeli is a lawyer, but
she left her legal practice when she married Mr Mopeli and has, ever since, maintained the
household and looked after the spouses’ children. Mr Mopeli works long hours. To pass the time
between procedures he has started gambling online and has developed a gambling addiction. To
hide his gambling from Mrs Mopeli, Mr Mopeli has incurred large gambling debts. He has started
selling his assets without consulting Mrs Mopeli to pay for his gambling debts. Mrs Mopeli has no
assets of her own.

4
 PVL2601/201/2/2023

When Mrs Mopeli discovers that assets are disappearing from the matrimonial home she
confronts Mr Mopeli. Mr Mopeli tells Mrs Mopeli that it is none of her business what he does with
his own assets.

Advise Mrs Mopeli whether Mr Mopeli is correct and that there is nothing she can do to prevent
him from selling his own assets, as alleged by Mr Mopeli, or whether there are any statutory steps
she can take to protect her interests. Fully explain and substantiate your answer.
[10]
TOTAL FOR ASSIGNMENT 02: [20]

Your answer was evaluated according to the marking rubric.

Evaluation criteria Not yet Partially Achieved

achieved achieved

1. Identifying the problem. 0 0.5 1

2. Discussing the relevant law applicable 0 1-6 7

to the problem, referring to authority,
acknowledging sources and avoiding
plagiarism.

3. Applying the law to the facts of the 0 0.5 1

problem.

4. Language, use of tenses/syntax and 0 0.5 1

formulation.

Answer

Your answer was evaluated according to the marking rubric.

Identifying the problem (1 mark: see rubric)

This question relates to the statutory protection of a spouse’s right to share in the accrual.(1)

Relevant law applicable to problem (12 possible marks – maximum 7 marks: see rubric)

Since it is obvious that spouses who are married subject to the accrual system have an interest
in each other’s estates during the marriage, the legislator has created a mechanism to protect
this interest.(1) Section 8(1) of the Matrimonial Property Act 88 of 1984(1) provides that if, during
the subsistence of the marriage, one spouse by his/her conduct seriously prejudices or will
probably seriously prejudice the other spouse’s right to share in the accrual at the dissolution of
the marriage,(1) the spouse who stands to be so prejudiced may apply to the High Court for the
immediate division of the accrual.(1) The court may order such a division only if it is satisfied that
no other person will be prejudiced thereby.(1)
5
The court may order the division of the accrual according to the provisions of the Act or on such
other basis as it deems just.(1) Thus it may, for example, divide the difference between the
accruals on a 40/60 basis, instead of the usual 50/50 basis.(1) By making an unequal division of
the accrual, the court can compensate the prejudiced spouse for loss suffered as a result of the
other spouse’s conduct.(1)

If the court orders immediate division, it may also order that the marriage will no longer be subject
to the accrual system and will in future be subject to complete separation of property.(1) If the court
does not alter the matrimonial property system, it means that the accrual system continues to
apply to the marriage.(1) A new accrual system, as it were, comes into being from the date of the
court order.(1) For purposes of calculating this “new” accrual, the commencement value of each
spouse’s estate consists of the value of the estate after the accrual has been divided in terms of
the court order.(1)

Application to the facts (1 mark)

Because Mr Mopeli’s conduct seriously prejudices Mrs Mopeli’s right to share in the accrual of Mr
Mopeli’s estate upon the dissolution of the marriage, she should apply to the High Court for the
immediate division of the accrual.(1)

Please note that you were only asked to discuss the statutory remedy, section 8 of the Matrimonial
Property Act, and not the common law remedies that are available to Ms Mopeli.

NB: A mark was also awarded for language, the use of tenses/syntax and formulation.

(See the prescribed textbook pp 99-100 and the study guide p 52.)

[10]

3 INFORMATION ON THE EXAMINATION

3.1 Marks and duration of examination
The examination in PVL2601 (Family Law) will count 100 marks and the time limit for answering
the examination questions will be two hours.

3.2 What you have to study for the examination

For the examination, you have to study all the prescribed sections from your study guide, the
prescribed sections from your prescribed textbook, the prescribed cases, and the new
developments in Tutorial Letter 102 which was uploaded on myUnisa.

Please remember that you must also study the information on cases that are not prescribed but
are referred to in your study guide, prescribed sections from the textbook, and the new
developments in family law uploaded on myUnisa.
3.3 Format of the examination
The examination in PVL2601 will take the form of a multiple-choice exam (Quiz) which will be
made available on Moodle on the day of the exam.

6
 PVL2601/201/2/2023

The examination will consist of 50 randomised multiple-choice questions which will count 2 marks
each (ie the exam will count 100 marks in total). The examination will be conducted online.
We will provide additional information on the examination via announcements on myUnisa closer
to the examination date.
3.4 Practising for the examination
To gain confidence in answering examination questions for this module, it will be of great value if
you carefully work through the following:

• the activities in your study guide

• the questions and answers to the assignments

We advise you to answer the questions in the abovementioned material under circumstances that
are similar to those in which the examination will be written, as doing so will provide you with a
good opportunity to practise your skills in answering questions and to test your knowledge of the
study material. Therefore, we suggest that you answer the questions and then mark your answers
at the hand of the memoranda, answers or feedback provided in the study material. Do not
simply read the questions and answers together, as you will not truly be testing your skills
and knowledge by doing so.

4 IN CLOSING

We trust that you have found the semester’s work interesting and informative, and we wish you
the very best with your preparation for the examination.
PROF P BAKKER: bakkep@unisa.ac.za
PROF J HEATON: heatoj@unisa.ac.za
MS KN MONARENG: monarkn@unisa.ac.za
MS MM SEERANE: seeramm@unisa.ac.za