PVL 1501- Last_minute_case_study_revision.

CASES – FAMILY LAW Grobbelaar v Havenga Consortium omnis vitae “An abstraction comprising the totality of a number of rights, duties and advantages accruing to the spouses of a marriage.” This comprises companionship, love, affection, comfort, mutual services and sexual intercourse. Peter v Minister of Law and Order Consortium omnis vitae The court said that the concept “consortium omnis vitae” is used “as an umbrella word for all the legal rights of one spouse to the company, affection, services and support of the other” Wiese v Moolman Consortium omnis vitae Broad, indefinable concept that nevertheless has a wellunderstood meaning Bannatyne v Bannatyne Non-compliance of maintenance orders Parties divorced. Settlement agreement provided for payment of maintenance to wife + children, and husband kept children on his medical aid. Husband did not pay maintenance regularly + removed children from medical aid. H applied to maintenance court for reduction order, which was granted, replacing High C order. When husband fell into arrears, W applied for contempt of court order in HC. Was refused. Wife applied to CC for contempt order on grounds that HC had neglected to take into account children’s constitutional rights. CC granted special leave and upheld appeal against HC. Decision to be welcomed as it shows the serious light in which the constitutional court views non-compliance of maintenance orders Excell v Douglas Household necessaries Requirements for capacity to purchase household necessaries: 1. There must be a valid marriage 2. There must be a joint household 3. Item purchased must be a household necessary Basis on which one spouse can bind the other is contractual If the parties no longer live together, the basis on which a spouse binds the other spouse is no longer contractual, but rather on the basis of duty of support. Reloomel v Ramsay Determining whether an item is a household necessary Husband was a reasonably well off doctor. Wife bought dress fabric for a number of silk dresses. Court found that in view of their standard of living, the dresses were household necessaries. Factors taken into account: Practices and customs of area, social status of family, income of family, standard of living Followed subjective approach – the court views the matter from the trader’s point of view and only takes into consideration the facts the trader was aware of or which he could reasonably have been expected to be aware of. - In determining whether a particular item is a household necessary the court used the subjective approach in terms of which the matter is viewed from the perspective of the dealer, ie the court looked at the facts of which the dealer was aware or should reasonably have been aware Van den Berg v Van den Berg Separate assets – nonpatrimonial assets Any amount a spouse recovers by way of non-patrimonial damages for a delict committed against him or her does Compiled by Courtney Engelbrecht not fall within the joint estate Du Plessis v Pienaar & Others Attachment of separate assets (in COP) Creditors of spouses who are married in community of property can look to the estates of both spouses for recovery of a joint debt. Even the separate assets of a spouse who is married in community of property can be attached for joint debts. Nedbank v Van Zyl Liabilities (In COP) The merger of liabilities applies to antenuptial as well as debts incurred during the subsistence of the marriage. Spouses are joint debtors, therefore one spouse who is married in COP cannot stand surety for other spouse’s debts because those debts are joint debts, and in our law a person cannot stand surety for his/her own debt Tomlin v London and Lancashire Insurance Co Suing in COP in delict Spouses who are married in community of property cannot sue each other in delict, as each spouse owns half the joint estate and the amount recovered as damages will come from the joint estate only to return to it Du Plessis v Pienaar Separate assets - insolvency The court held that an exclusion of an asset from the joint estate does not protect the asset in the case of insolvency, for all property of both spouses married in community of property fall into the insolvent estate if the spouse are sequestrated. De Wet v Jurgens In COP – joint debtors in respect of joint debts The court held that spouses who are married in community of property are joint debtors in respect of joint debts. It also held that the spouses, however, remain separate debtors even though the debt has to be paid out of the joint estate Nedbank v Van Zyl Suretyship – in COP The court held that a spouse who is married in community of property cannot stand surety for the other spouses’ debt because those debts are joint debts and in our law a person cannot stand surety for his or her own debt Zulu v Zulu Putative marriage in COP The court found that the general rule, namely that a putative marriage entered into without an antenuptial contract will be treated as in community of property if this is to the advantage of the bona fide party, 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 of property Grobbelaar v Havenga Consortium omnis vitae An abstraction comprising the totality of a number of rights, duties and advantages accruing to the spouses of a marriage and that this totality inter alia comprises companionship, love, affection, comfort, mutual services and sexual intercourse Moola v Aulsebrook In deciding whether or not a putative marriage can come into existence if the marriage was not duly solemnized, the court held that as long as the marriage was “contracted openly and in accordance with rituals and ceremonies not consistent with the law” it can be putative Bannatyne v Bannatyne Maintenance Courts The court stated that Maintenance Courts and maintenance laws are important mechanisms to give effect to the children’s right and that failure to ensure the effective operation of the maintenance system amounts to a failure to protect children against those who take advantage of the weaknesses of the system Ex Parte Kros Alteration of matrimonial property Applicants applied for their property regime to be changed from in community of property to out of community of Compiled by Courtney Engelbrecht system propert