PVL2601 FAMILY LAW EXAM PACK.

PVL2601 FAMILY LAW EXAM PACK. A putative marriage is when, at the time of the conclusion of the marriage, there is a defect which renders it void, but one or both of the spouses were unaware of this defect. However, it has some of the consequences of a valid civil marriage for as long as at least one of the parties is bona fide. The court cannot declare a putative marriage valid. As Mr and Mrs Green were married without an ante nuptial contract and Mrs Green was only the bona fide party, the marriage will be treated as having been in community of property or rather as having been a universal partnership if this is to the advantage of the bona fide party (Mrs Green). However, in terms of the decision in Zulu v Zulu, these rules do not apply if the putative marriage was concluded while either of the parties was a spouse in an existing, valid civil marriage in community of property. In such an event, the pre-existence of the valid civil marriage in community of property makes the creation of the joint estate between the parties to the putative marriage impossible, 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 him and his spouse in the valid civil marriage. The only claim that the applicant could have against the estate of the deceased is a claim for damaged and is therefore all that Mrs Green will be able to claim from Mr Green’s deceased estate. QUESTION 2 The accrual in Mr Lerumo’s estate is calculated as follows: Net value on dissolution R100 000 Minus net commencement value -R 0 Minus assets excluded from the accrual: Donation -R30 000 -R30 000 Accrual R70 000 (Damages in the amount of R6 000 for loss of income and R14 000 for damages to motor vehicle (½) are NOT EXCLUDED because they are damages for patrimonial loss. The accrual in Mrs Lerumo’s estate is calculated as follows: Net value on dissolution R90 000 Minus net commencement value as adapted by the CPI (R15 000 x 2) -R30 000 Minus assets excluded from the accrual: Assets substituted for excluded assets -R20 000 -R20 000 Accrual R40 000 Because Mrs Lerumo’s estate shows the smaller accrual, she has a claim against Mr Sithole’s estate. Mrs Lerumo’s accrual claim = ½(R70 000 – R40 000) = ½(R30 000) Mrs Lerumo is therefore entitled to R15 000. Question 3 a) The irretrievable breakdown of the marriage as contemplated in section 4 of the Divorce Act 70 of 1979. b) A redistribution order is applicable to marriages out of community of property without the accrual system (with complete separation of property) concluded before 1 November 1984 or before the coming into operation of the Marriage and Matrimonial Property Law Amendment Act (on 2 December 1988) where the spouses did not enter into an agreement concerning the division of their assets. c) Tammy will be entitled to rehabilitative maintenance the parties. Rehabilitative maintenance is awarded only for a limited period, during which women with an earning capacity must be trained or retrained to take up paid employment or increase their participation in such employment. The courts also increasingly expect of women who are engaged in only limited paid employment to increase their participation in such employment after divorce, and grant them only rehabilitative maintenance. In Kroon v Kroon it was held that the facts of each case will determine whether or not rehabilitative maintenance should be awarded. In Botha v Botha the court expressly required a causal connection between the marriage and the spouse’s inability to be self-supporting before an order for rehabilitative maintenance would be made. In Kooverjee v Kooverjee the court held that a proper analysis of the rationale behind the awarding of rehabilitative maintenance dictates that an arbitrary period for the payment of rehabilitative maintenance will not address the ultimate object of the achievement of self sufficiency. In Kooverjee the court made a tapered award for rehabilitative maintenance, which took account of the wife’s decreasing need to devote time to child-care as her children grew older. The court also stressed that the de facto roles of women in society must not be ignored and that the court must take into account “that the division of roles in families, influence[s] not only the past earning capacity of the parties, but also their future earning capacities” The courts no longer favors the view that was adopted in Grasso and Pommerel, namely that if one of the parties is wealthy there is no reason why the other party should have to drop his or her standard of living after divorce. Furthermore, the courts no longer use the starting point that a husband has to maintain his former wife until her death or remarriage. Women who are in paid employment are increasingly denied maintenance, because they are assumed to be able to meet their own maintenance needs even if they have a much lower earning capacity than their husband. d) A maintenance in terms of section 7(2) comes to an end on the death of the maintenance debtor according to the decision in Kruger v Goss e) If Zettie’s claim for maintenance is allowed, the executor of the deceased’s estate may settle the claim or part thereof by concluding that an agreement with the surviving spouse and with those heirs and legatees who have an interest in the agreement. In order to settle Zettie’s claim the following can perhaps be done in terms of the agreement;  the trustee of the family trust can agree to grant Zettie a usufruct over the former matrimonial home to allow her to stay on in the house  the trustee and Tom’s children can agree to transfer a lump sum of money or other assets that they inherited from Zane to Zettie or to a trust of which Zettie is a beneficiary. Provided the parties are unable to reach agreement on the way in which Zettie’s claim be settled, the court may be approached for an order. In Oshry NNO V Feldman, the court may also make an order for lump-sum maintenance in terms of the Maintenance of Surviving Spouses Act. QUESTION 4 Ryland v Edros AM v RM Govender v Ragavayah Gory v Kolver Khan v Khan QUESTION 5 a) (i) Bride and groom over the age of 18 years (ii) Both consent to the marriage (iii) Negotiated and entered into or celebrated in accordance with customary law b) Yes. Lobolo is a requirement in most customary law systems. QUESTION 6 a) At common law a step-parent is not obliged to maintain his or her stepchild, as the duty to support rests on blood relationships not affinity. In Heystek v Heystek the court expressed that a stepparent is obliged to maintain his or her step-child because the Constitution obliges a step-parent to provide his or her stepchild with parental care. Rich is therefore obliged to maintain his stepdaughter.