PART AFAMILY LAW (PVL2601) LLB

1.Mr and Mrs Sisulu entered into a civil marriage subject to the accrual system ten years ago. Mrs Sisulu resigned from her job as a teacher after the Sisulus' only child, Lerato, was born. Lerato lives with severe physical and mental disabilities and requires constant care, which Mrs Sisulu provides to her. Lerato is eight years old now. The Sisulus live in a house Mr Sisulu inherited from his father. The house has been extensively adapted to accommodate Lerato's needs. Two weeks ago, Mr Sisulu discovered that Mrs Sisulu has been having an affair with the father of one of Lerato's school friends. Mr Sisulu has instructed Mrs Sisulu to move out of the matrimonial home with immediate effect.

Fully advise Mrs Sisulu whether Mr Sisulu may eject her from the house.

2 (a) List any four of the factors that will be taken into account to determine whether a donation by one spouse of an asset that falls into the joint estate will unreasonably prejudice the other spouse's interest in the joint estate.

(b) Mr and Mrs Monama married subject to the accrual system in 2010. They divorced last week. When they married, Mr Monama had a study debt of R10 000 and no assets, while Mrs Monama had cash savings in the amount of R10 000 and no debts. Mrs Monama's cash savings were declared in the spouses' antenuptial contract. Suppose that, according to the weighted average of the consumer price index, money was worth twice as much at the commencement of the marriage as at its dissolution.

Answer the following questions: (i) What amount must be used as the commencement value of Mr Monama's estate at the time of the divorce? Briefly explain your answer.

(ii) What amount must be used as the commencement value of Mrs Monama's estate at the time of the divorce? Briefly explain your answer.

(c) Fill in the missing words in the sentence below. The matrimonial property system which provides that the spouses are married out of community of property and out of community of profit and loss with exclusion of the accrual system is called _______________________________________ (four words).

PART B

1 A and B are married. They have a son, S. B also has a daughter, D, from a previous relationship. S and D are related to each other as follows:

[1] They are blood relatives in the direct line.

[2] They are collateral blood relatives.

[3] They are relatives by affinity in the direct line.

[4] They are relatives by affinity in the collateral line.

2 A putative marriage is described as a marriage ...

[1] which has never come into existence and has none of the legal consequences of a valid marriage.

[2] in which grounds are present, either before or at the time of the wedding, on the basis of which the court can be requested to set the marriage aside.

[3] in which one of the parties (or both) enters into a marriage while being unaware that there is a defect which renders the marriage void.

[4] that is solemnised and registered in accordance with the Civil Union Act.

3 In which one of the following cases did the court hold that spouses become tied co[1]owners in undivided and indivisible half-shares of all the assets and liabilities they have at the time of their marriage as well as all the assets and liabilities they acquire during the marriage?

[1] Amalgamated Banks of South Africa Bpk v De Goede

[2] Strydom v Engen Petroleum Ltd

[3] Nel v Cockcroft

[4] Estate Sayle v Commissioner for Inland Revenue

4 Mr and Mrs Mahlangu are married in community of property. For which one of the following legal proceedings does Mr Mahlangu need Mrs Mahlangu's written consent in terms of section 17 of the Matrimonial Property Act 88 of 1984?

[1] Instituting legal proceedings against his brother in connection with the farm the brothers inherited from their father subject to the condition that the farm must never become part of any joint estate

[2] Instituting legal proceedings for the recovery of non-patrimonial loss for a delict his neighbour committed against him

[3] Instituting legal proceedings for the recovery of patrimonial loss for a delict his neighbour committed against him

[4] Instituting legal proceedings against a client who supplies packaging material to the farm he and his brother inherited from their father subject to the condition that the farm must never become part of any joint estate

5 Mr and Mrs Smith are married subject to the accrual system. Mr Smith died last week. At the time of his death, the accrual in his estate was R500 000 and the accrual in Mrs Smith's estate was R100 000. Which one of the following amounts reflects the amount of the accrual claim Mrs Smith has against Mr Smith's estate?

[1] R200 000

[2] R250 000

[3] R300 000

[4] R400 000

6 Mr and Mrs Botha are married in community of property. Which of the following assets can be forfeited by Mr Botha if Mrs Botha succeeds with a claim for total forfeiture of benefits against him upon divorce?

[1] The house Mrs Botha owned before the spouses married

[2] The house Mr Botha owned before the spouses married

[3] The car Mr Botha bought for himself during the marriage with money he derived from his business

[4] The car Mr Botha bought for Mrs Botha's personal use during the marriage with money he derived from his business

7 In which one of the following cases did the court hold that a maintenance order that was made in terms of section 7(2) of the Divorce Act 70 of 1979 cannot be enforced against the deceased estate of the maintenance debtor?

[1] Zwiegelaar v Zwiegelaar

[2] Kooverjee v Kooverjee

[3] Qoza v Qoza

[4] Kruger v Goss

8 Jane and Mary (both female) want to enter into a valid marriage. They will be able to conclude a ...

[1] civil marriage.

[2] universal partnership.

[3] civil partnership.

[4] customary marriage.

9 Select the one correct option from the statements below:

[1] A husband in a customary marriage may enter into a civil marriage with another woman.

[2] A husband in a civil marriage may enter into a customary marriage with another woman.

[3] A husband in a customary marriage may enter into a customary marriage with another woman.

[4] A husband in a civil union may enter into a customary marriage with another woman.

10 In which one of the following cases did the court appear to have held that a stepparent can incur liability for a stepchild's maintenance on the ground of some sort of application of estoppel, that is the representation created by the step-parent to the child and the world at large?

[1] Heystek v Heystek

[2] MB v NB

[3] Motan v Joosub

[4] Petersen v Maintenance Office

PART C

1.Read the information below and answer the questions that follow. Mr and Mrs Covid entered into a civil marriage without an antenuptial contract. They have two children, Sanitizer and Mask. At the time of entering into the marriage, Mrs Covid was unaware of the fact that Mr Covid was already a party to another civil marriage in community of property. Mrs Covid found out about the other civil marriage after Mr Covid's death.

(a) What is the type of marriage between Mr and Mrs Covid called?

(b) What is the legal status of Sanitizer and Mask?

(c) Mrs Covid approaches you as an attorney for advice. Advise her about the validity of her marriage and its patrimonial consequences, if any. Refer to relevant case law in your answer.

2.Mr and Mrs Sekgobela are married in community of property. Three months ago, Mrs Twala instituted legal proceedings against Mr Sekgobela for compensation for injuries she sustained when he assaulted her outside her office. The assault had happened in front of several members of the public, who have all confirmed that the assault was unprovoked. They all say 22 that Mr Sekgobela had lashed out and started assaulting Mrs Twala when she asked him to move his car because it was blocking the emergency exit of the office building. When the summons was served on Mr Sekgobela, he told his wife that he would defend the proceedings. Mrs Sekgobela thereupon told Mr Sekgobela that she would never consent to his defending the legal proceedings. She also told him that he should apologise to Mrs Twala, thank Mrs Twala for not having laid a criminal charge against him, and fully compensate Mrs Twala for her injuries. Mr Sekgobela nevertheless went ahead and delivered a notice of intention to defend.

Fully advise Mrs Sekgobela whether Mr Sekgobela can validly defend the proceedings and what the consequences of such proceedings would be for her and the joint estate. Do not discuss Mr Sekgobela's delictual liability towards Mrs Twala. Your answer must focus only on the position as between Mr and Mrs Sekgobela in respect of the legal proceedings.

PART D

1 Mr and Mrs Covid are married. They have a daughter, Sanitizer, Mr Covid also has a son, Quarantine, from a previous marriage. Sanitizer and Quarantine are related to each other as follows:

[1] They are collateral blood relatives.

[2] They are blood relatives in the direct line.

[3] They are relatives by affinity in the direct line.

[4] They are relatives by affinity in the collateral line.

2 Before their marriage, Mask and Sanitizer agreed that they would marry out of community of property. They signed an antenuptial contract, but this contract was never properly executed and registered. What must Mask and Sanitizer now do to ensure that they are formally married out of community of property?

[1] They must bring a court application in terms of section 21(1) of the Matrimonial Property Act 88 of 1984 for leave to change their matrimonial property system.

[2] They must enter into a postnuptial written agreement and have it notarially executed. [3] They must bring a court application in terms of section 88 of the Deeds Registries Act 47 of 1937 for permission to have the contract executed and registered after the marriage.

[4] They do not have to do anything. (2)24 3 Mr and Mrs Social-D are married subject to the accrual system. When they married, Mrs Social-D had no debts and owned a house which was valued at R100 000. Suppose that during the subsistence of the marriage money depreciated to such an extent, that according to the consumer price index, R2 now has the same value as R1 at the beginning of the marriage.

Which one of the following amounts reflects the initial value of Mrs Social-D's estate?

[1] R0

[2] R50 000

[3] R100 000

[4] R200 000

4 Which of the following parties will be able to conclude a valid civil union?

[1] A 17-year-old boy and a 22-year-old woman

[2] A 17-year-old girl and a 22-year-old man

[3] Two 17-year-old boys

[4] Two 22-year-old women

5 In Gumede v The President of the Republic of South Africa the Constitutional Court removed the differentiation between the patrimonial consequences of ________________ entered into before and after the Recognition of Customary Marriages Act 120 of 1998:

[1] monogamous customary marriages

[2] minors' customary marriages

[3] polygynous customary marriages

[4] customary and civil marriages

6 In Govender v Ragavayah the court held that ...

[1] the word "partner" in the Intestate Succession Act 81 of 1987 includes the surviving partner in a monogamous Hindu marriage.

[2] the word "spouse" in the Intestate Succession Act 81 of 1987 includes the surviving partner in a monogamous Hindu marriage.

[3] the phrase "contractual obligations" flowing from a de facto monogamous Muslim marriage can be recognised and enforced as between the parties even though the marriage is potentially polygynous in terms of the Intestate Succession Act 81 of 1987. [4] the exclusion of same-sex life partners from intestate inheritance from each other's deceased estate in terms of the Intestate Succession Act 81 of 1987 is unconstitutional.

7 As a general rule, a permanent life partnership ...

[1] can be regarded as a civil partnership.

[2] can be regarded as a common law marriage.

[3] does not confer the consequences of a valid marriage.

[4] does not exempt donations between the partners from donations tax.

8 Section 28(2) of the Constitution of the Republic of South Africa, 1996 provides that a child's best interests are of paramount importance in every matter concerning the child. Which one of the following statements concerning this section is INCORRECT?

[1] Section 28(2) imposes a stricter requirement than that which applies in terms of the United Nations Convention on the Rights of the Child.

[2] Section 28(2) imposes a stricter requirement than that which applies in terms of the African Charter on the Rights and Welfare of the Child.

[3] Section 28(2) elevates the child's best interests to the supreme issue in any matter concerning the child.

[4] Section 28(2) implies that limitations of a child's best interests are impermissible.

9 In which one of the following ways can a person acquire parental responsibilities and rights in respect of a child?

[1] Entering into a permanent life partnership with the child's biological mother after the child's birth.

[2] Entering into a civil marriage with the child's mother but divorcing her before the child is conceived.

[3] Giving birth to the child.

[4] Paying a sum of money to the court to acquire such responsibilities and rights.

10 In Heystek v Heystek the court held that ...

[1] a stepparent is obliged to maintain his or her stepchild because the Constitution obliges a stepparent to provide his or her stepchild with parental care.

[2] an adoptive parent is obliged to maintain his or her adopted child because the Constitution obliges an adoptive parent to provide his or her adopted child with parental care.

[3] a grandparent is obliged to maintain his or her grandchild because the Constitution obliges a grandparent to provide his or her grandchild with parental care.

[4] a divorced parent is obliged to maintain his or her child because the Constitution obliges a divorced parent to provide his or her child with parental care.

11 In which one of the following cases did the Constitutional Court hold that contempt proceedings in the High Court to secure the enforcement of a maintenance debt are appropriate constitutional relief for the enforcement of a claim for the maintenance of children?

[1] Soller v Maintenance Magistrate, Wynberg

[2] Burger v Burger

[3] Mngadi v Beacon Sweets & Chocolates Provident Fund

[4] Bannatyne v Bannatyne (Commission for Gender Equality, as Amicus Curiae)

12 During the subsistence of a civil marriage, both spouses have a right to live in the matrimonial home ...

[1] regardless of whether they are married in or out of community of property, and regardless of whether they share the expenses relating to the matrimonial home.

[2] regardless of whether they are married in or out of community of property, but only if they share the expenses relating to the matrimonial home.

[3] only if they are married out of community of property and share the expenses relating to the matrimonial home.

[4] only if they are married in community of property and share the expenses relating to the matrimonial home.

13 Mr and Mrs Naidoo are married in community of property. What form of consent does Mrs Naidoo require from Mr Naidoo to sell an expensive painting that forms part of their joint estate and that they bought as an investment?

[1] Written consent without any further requirements

[2] Written consent, attested by two competent witnesses

[3] Prior written consent, attested by two competent witnesses

[4] Oral consent

14 Select the CORRECT word that is missing from the following statement: If a bona fide third party enters into a transaction with a person who is married in community of property and the person has not obtained the required consent to the transaction from his or her spouse, the transaction is _____________ in terms of section 15(9)(a) of the Matrimonial Property Act 88 of 1984.

[1] void

[2] valid

[3] voidable

[4] invalid

15 Which one of the following statements relating to the decision in RD v TD in respect of spouses married subject to complete separation of property is correct?

[1] The spouses may enter into an agreement that community of property will apply in their marriage.

[2] The spouses may enter into a societas universorum bonorum (ie, a universal partnership relating to present and future assets, liabilities, profits and losses).

[3] The spouses may enter into a societas universorum quae ex quaestu veniunt (ie, a universal partnership that is limited to the sharing of present and future assets, liabilities, profits and losses acquired from commercial undertakings).

[4] The spouses may enter into all of the above agreements.

16 What is an agreement between married parties to live apart called?

[1] Judicial separation

[2] Extra-judicial separation

[3] Non-cohabitation

[4] Divorce

17 The legal definition of a "normal marriage relationship" for purposes of section 4(1) of the Divorce Act 70 of 1979 should be sought in the concept of _____________________ .

[1] societas universorum bonorum

[2] pactum successorium

[3] consortium omnis vitae

[4] error in negotio

18 Which section of the Divorce Act 70 of 1979 creates an exception to the rule that the court does not have the power to refuse to grant a divorce order where it is proved that the marriage has broken down irretrievably?

[1] Section 3

[2] Section 4(1)

[3] Section 5(2)

[4] Section 5A

19 In terms of section 7(7)(a) of the Divorce Act 70 of 1979, a spouse's pension interest is deemed to be part of his or her assets which can be considered in relation to division of the spouses' assets upon divorce. Section 7(7)(a) does not apply to spouses who married ...

[1] in community of property.

[2] out of community of property with the accrual system.

[3] on or after 1 November 1984 in terms of an antenuptial contract by which community of property, community of profit and loss and the accrual system are excluded.

[4] before 1 November 1984 in terms of an antenuptial contract by which community of property, community of profit and loss and the accrual system are excluded.

20 Which one of the following criteria does the court have to take into account when considering an order for the forfeiture of patrimonial benefits against a spouse in terms of section 9 of the Divorce Act 70 of 1979?

[1] Undue benefit of the spouse

[2] The principle of fairness

[3] The one-third rule

[4] The yardstick of equality

21 Which one of the following statements is true regarding civil unions concluded in terms of the Civil Union Act 17 of 2006?

[1] Minors cannot conclude a civil union.

[2] Only same-sex couples can marry in terms of the Civil Union Act.

[3] All the requirements for a valid civil union are the same as those of a civil marriage. [4] Parties are not allowed to conclude a lobolo agreement prior to concluding a civil union.

22 A customary marriage that is not registered in terms of the Recognition of Customary Marriages Act 120 of 1998 is _____________ .

[1] void

[2] voidable

[3] valid

[4] putative

23 The matrimonial property system of a monogamous or first customary marriage concluded after 15 November 2000 without an antenuptial contract is ...

[1] regulated by customary law.

[2] in community of property.

[3] out of community of property.

[4] out of community of property with the accrual.

24 When does a man have to enter into a court-approved contract in terms of section 7(6) of the Recognition of Customary Marriages Act 120 of 1998?

[1] Prior to entering into any customary marriage

[2] Prior to entering into a customary marriage but after concluding an antenuptial contract

[3] After entering into a lobolo agreement but prior to paying lobolo

[4] Prior to entering into a second or further customary marriage

25 In Amod (born Peer) v Multilateral Motor Vehicles Accidents Fund (Commission of Gender Equality Intervening) the Supreme Court of Appeal found that a dependant who is not legally married to the deceased may have an action for compensation for the loss of support if certain requirements are met. Choose the correct requirements from the list below: (a) The deceased had a legally enforceable duty to support the dependant. (b) The duty of support arose from a marriage that was concluded in terms of the tenets of a recognised and accepted faith. (c) The duty of support deserves recognition and protection. (d) The duty of support is recognised in terms of the tenets of a recognised and accepted faith.

[1] (a) and (d)

[2] (a) and (b)

[3] (a), (b) and (c)

[4] (a), (b), (c) and (d)

PART E

1 Fill in the missing word in each of the sentences below:

(a) Your sister-in-law is related to you by affinity in the _________________ line.

(b) Blood relatives in the collateral line may not marry each other if either of them is related to their common ancestor(s) within the _______________ degree.

2 Charles and Mary entered into a civil marriage without an antenuptial contract two years ago. Last week, Mary discovered that the marriage is bigamous, because Charles has been married to another woman, Queen, for the past ten years. The marriage between Charles and Queen is in community of property.

Mary consults you about the patrimonial consequences of her marriage to Charles. Mention the nature of the marriage without discussing the requirements for this type of marriage. Also briefly explain to Mary what the patrimonial consequences of her 32 marriage to Charles are. Refer to case law in respect of the patrimonial consequences of the marriage.

3 Mr and Mrs Mathabatha married subject to the accrual system in 2005. When they married, Mr Mathabatha had a debt in the amount of R100 000, while Mrs Mathabatha had a fixed deposit in the amount of R100 000 at a bank. A month ago, Mr Mathabatha died of a long-standing illness. At the time of his death, the net value of Mr Mathabatha's estate was R700 000, which included: R100 000 he received as satisfaction (non-patrimonial damages) for pain and suffering after being involved in a motor vehicle accident R220 000 he received as compensation for the loss of income he sustained while he was in hospital after the accident R130 000 he received as damages for the damage the accident caused to his motor vehicle R50 000 Mrs Mathabatha donated to him Furniture and other household assets to the value of R200 000 At the time of Mr Mathabatha's death, the net value of Mrs Mathabatha's estate was R1 000 000, which included: A residential property valued at R400 000 R500 000 she inherited from her mother R100 000 her uncle donated to her Suppose that during the subsistence of the marriage, money depreciated to such an extent that, in terms of the weighted average of the consumer price index, R2,00 now has the same value as R1,00 at the beginning of the marriage.

Indicate by doing the necessary calculations whether Mrs Mathabatha has an accrual claim against Mr Mathabatha's estate. Explain your answer by fully substantiating your calculations.

4 The names of five court cases dealing with redistribution of assets and/or trust assets upon divorce are given below. Write the name of the court case that offers authority for the statement in the first column on the dotted line in the second column.

Badenhorst v Badenhorst; Beaumont v Beaumont; Kirkland v Kirkland; Kritzinger v Kritzinger; RP v DPPVL2601/101 33 Statement Case The then Appellate Division held that the wording of section 7(4) of the Divorce Act 70 of 1979 is sufficiently wide to also cover the performance of the "ordinary duties" of a wife in respect of looking after the home and caring for the family as a required contribution for a redistribution order under this section. ........................................................ The then Appellate Division held that normally only a positive act would constitute a contribution and that merely to refrain from action would therefore not usually qualify as a contribution to the growth or maintenance of the other spouse's estate. ....................................................... The Supreme Court of Appeal held that the fact that assets which have been transferred to a trust vest in the trustees and do not form part of the spouse's estate "does not per se exclude them from consideration when determining what must be taken into account when making a redistribution order". Because the court found that "but for the trust, ownership in all the assets would have vested in the respondent", the court added the value of the trust assets to the value of the husband's estate in calculating the amount to be transferred to the wife. ....................................................... The court held that if the trust form is abused and a trustee treats a trust as his or her alter ego, the court may pierce the trust veil by using a common-law power which is distinct from the discretion afforded to the court by section 7(3) to (6) of the Divorce Act 70 of 1979. ....................................................... The court made an equal division of the spouses' combined assets and held that the principle of equality, coupled with the spouses' intention that all assets should belong to both of them together and the fact .......................................................34 that the husband had made the major financial contribution to the growth and maintenance of the spouses' assets dictated that he should be entitled to half the parties' assets by virtue of a redistribution order.

5 Mr and Mrs Kerr married out of community of property without the accrual system in 2004. It was Mrs Kerr's first marriage and Mr Kerr's second marriage. Mrs Kerr is much younger than Mr Kerr. Although Mrs Kerr is a qualified teacher, she has never worked outside the home during the marriage. It is Mr Kerr's opinion that a woman's place is in the home so that she can look after the home and raise their children herself. Mr Kerr has a very successful plumbing business and is extremely wealthy. Mrs Kerr has no assets. The parties have three young children, aged 3, 6 and 9. After 15 years of marriage, Mr Kerr now wants to get divorced and marry an even younger woman. Mrs Kerr realises that she will not be able to claim a redistribution order but wants to know if she will be able to claim maintenance for herself.

(a) Besides "any other factor", there are other specific factors which the court must take into account when making a maintenance order in terms of section 7(2) of the Divorce Act 70 of 1979.

(b) List any five of these factors.

(c) What "other" factors under "any other factor which, in the court's opinion, should be taken into account" should be considered in the specific circumstances of this case?

(d) In the light of the fact that Mrs Kerr is a qualified teacher, what kind of maintenance will the court probably order in this case? Also explain what this kind of maintenance entails and briefly discuss your prescribed case in which this kind of maintenance was indeed awarded.

(e) In the light of the fact that Mr Kerr is extremely wealthy, what other kind of maintenance, which is nowadays permissible, will also be a possibility in the specific circumstances of this case?

6 Peter and Sibongile are partners in a life partnership since 15 January 2005.

(a) Define a "life partnership"

(b) Briefly explain to Peter and Sibongile whether the consequences of a legally recognised marriage are conferred on their life partnership and whether they enjoy any degree of protection in terms of the law.

(c) Indicate whether the courts are willing to extend spousal benefits to heterosexual life partners such as Peter and Sibongile? Support your answer with case law.

7 Lilith and Gabriel are divorced. Gabriel is a devout Christian and disapproves of Lilith's Pagan lifestyle. They have a child, Sabrina, from their marriage. Gabriel has primary care with regard to Sabrina. Sabrina visits Lilith every second weekend. On the weekends that Sabrina visits Lilith, she teaches her Wiccan spells to improve her life.

(a) Gabriel feels that because he was awarded care of Sabrina upon divorce and Lilith was only awarded contact, he can determine Sabrina's religious education. He insists that Lilith should not expose Sabrina to Paganism. Advise Lilith regarding the exercise of her parental responsibilities and rights while Sabrina is in her care. Refer to case law.

(b) Fill in the missing phrase consisting of two words: If Lilith and Gabriel, as co-holders of parental responsibilities and rights, cannot agree on Sabrina's religious upbringing, they must try to agree on a _________________ ______________ (two words) before they may approach the court for an appropriate order.

(c) Who must Lilith and Gabriel approach to assist with reaching agreement on a [answer in (b) above] before they may approach the court?

(d) Name three persons who are obliged to support a child.

(e) Name two instances when the duty to support a child ends.