Tuesday 11 October 2016

Notice

Dear Family Law students

Please note that only students qualifying for the 3rd assessment will be writing the assessment on Wednesday, the 19 th day of October 2016 at 7h30 at the lecture venue. There will therefore not be class for the remainder of the students on that day.

Please furthermore note that I have posted notes in respect of the last two chapters. I will revisit the chapters in class on Monday, the 17th day of October 2016.

Revision classes will commence on Thursday, 20 October 2016.

Regards

Assessment 2 Feedback 2016

Student Name: ______________________ Student Number: ___________________

UNIVERSITY OF ZULULAND

FACULTY OF COMMERCE, ADMINISTRATION AND LAW

FAMILY LAW –LPFL102 ASSESSMENT 2 2016

ASSESSOR: MRS L RAMACCIO CALVINO

DURATION: 60 MINUTES MARKS 50

INSTRUCTIONS:

Question 1: Choose the most correct answer by circling the answer.

1. The immutability principle is relaxed by the following mechanisms provided for ito the Matrimonial Property Act 88 of 1984 (MPA):-

(a) Registering a new notarial document in terms of section 21(1) of the MPA;

(b) Applying for the immediate division of the accrual system ito section 8 of the MPA and asking for the change of the matrimonial property regime;

2. The immutability principle refers to:-

(a) A position that once a marriage has been entered into, the marital regime can be changed;

(b) A position that once a marriage has been entered into, the marital regime can be changed by simply registering a postnuptial contract;

3. In which case was it incorrectly held that the parties could change their marital regime in terms of section 21(1) of the MPA even if the antenuptial contract was not executed and registered:-

(a) Ex Parte Coetzee 1984 (2) SA 363 (W);

(b) Honey v Honey 1992 (3) SA 609 (W);

4. In which case was it held that the matrimonial property system can be altered with retroactive effect:-

(a) Ex Parte Kros 1986 (1) SA 642 (NC);

(b) Ex Parte Oosthuizen 1990 (4) SA 15 (E);

5. Which one of the following requirements is not a procedural requirement ito section 21(1) of the MPA:-

(a) Notice must be given to the deeds’ office;

(b) The application to change the marital regime must be sufficiently substantiated;

6. Which statement is correct:-

(a) When a marriage in community of property is dissolved by death the court must terminate the marriage with a declaratory order;

(b) Spousal consent requirements imposed by the MPA no longer apply;

7. Which statement is incorrect:-

(a) The executor of an estate where parties are married in community of property must pay the debts owed by the deceased party;

(b) The executor of an estate where parties married in community of property must pay all debts owed by the joint estate;

8. Choose the most incorrect statement:-

(a) One of the disadvantages of a marriage in community of property is that the executor must liquidate the assets of the joint estate once a spouse dies;

(b) One of the disadvantages of a marriage in community of property is that the surviving spouse may be left without shelter whilst the executor of a deceased estate liquidate all assets belonging to the joint estate;

(c) One of the disadvantages of a marriage in community of property is that the surviving spouse is not allowed to buy some of the assets belonging to the joint estate.

9. Choose the correct statement:-

(a) An antenuptial contract is terminated at death of the spouses;

(b) In the case of a marriage out of community of property, the surviving spouse cannot lodge a claim iro outstanding marriage settlements;

(c) in the case of a marriage out of community of property, the executor can only devolve the estate of the deceased once the accrual claim has been paid to the surviving spouse.

10. In terms of the Maintenance of Surviving Spouses Act 27 of 1990, a claim arises:-

(a) Regardless of the matrimonial property regime;

(b) Regardless of whether the surviving spouse stands to inherit;

11. A surviving spouse’s “means” excludes:-

(a) Any matrimonial property belonging to the surviving spouse;

(b) Any inheritance from the deceased’s estate;

12. In which case was it held that a new motor vehicle and ongoing medical expenses should be factors that must be considered in determining reasonable maintenance:-

(a) Mann v Leach 1998 (2) All SA 217 E;

(b) Oshry v Feldman 2011 (1) All SA 124 (SCA);

13. A surviving spouse’s claim for maintenance must be proven in terms of the:-

(a) Maintenance Act 99 of 1998;

(b) Maintenance of Surviving Spouses Act 27 of 1990;

14. The content of a universal community of property consist of:-

(a) All assets acquired by the spouses before the marriage;

(b) Membership interest in close corporations;

15. In case of a marriage in community of property, which one of the following assets are regarded as a separate asset from the joint estate:-

(a) Assets subject to fideicommissum or usufructus;

(b) Jocalia;

Question 2: State whether the following statements are TRUE or FALSE:

2.1 Extra –judicial alteration of the matrimonial property system is not enforceable against 3^rd parties and only binds the parties for as long as both of them uphold it. T

2.2 Property subject to fideicommissum is not part of the joint estate nor is the fruits or proceeds derived from such property. F

2.3 The proceeds and replacement assets of non-patrimonial damages are excluded from the joint estate. F

2.4 A criminal fine is not recoverable from the joint estate if the guilty spouse does not have sufficient separate assets to pay it. F

2.5 Prior written consent, attested to by two witnesses is required when a spouse married in community of property receives credit under a credit agreement. T

2.6 Oral or tacit consent is required when a spouse married in community of property wants to sell a coin collection. F

2.7 Section 15(9)(a) of the MPA protects third parties who enters into a transaction with a person who is married in community of property if the person cannot reasonably know that the spouse’s consent to the transaction is required. T

2.8 In terms of section 86 of the Deeds Registries Act requires that a notary public must attest to the contract and that the antenuptial contract must be registered within four months of its execution. F

2.9 If a minor wishes to enter into an antenuptial contract his guardian can sign the contract on his behalf. F

2.10 Section 3(1) of the MPA the accrual claim must be determined at the date of instituting the divorce proceeding. F

THE END

Re-Examination Paper 2015

RE- EXAMINATION/ AEGROTAT EXAMINATION

FACULTY OF COMMERCE, ADMINISTRATION & LAW

DEPARTMENT OF LAW

LPFL102- Family Law

DURATION: 3 HOURS MARKS: 100

Internal Examiner(s):

Mrs. L Ramaccio Calvino

Internal Moderator: Head of Department:

Dr. D Iyer Mrs. K Naidoo

______________________________________________________________________

INSTRUCTION TO CANDIDATES

1. Please ascertain that this paper consist of THREE pages.

2. Please clearly number the questions correctly.

3. Please answer each question on a new page.

4. Write neatly.

5. Every answer must properly motivated with reference to case law and

legislation where applicable.

Question 1:

Jack and John have been life partners since 2008. John, a military pilot, often travels to remote places without being able to contact Jack. John met Jack in Iraq whilst Jack was working for “Doctors without Borders”. John has a three year old son born from a previous relation by the name of Peter. John was awarded full parental rights and responsibilities in respect of Peter after Peter’s mother was declared mentally unstable.

On the 1^st day of April 2010, John and Jack went to a party and whilst both of them where intoxicated, John proposed to Jack. Jack accepted the proposal. The next morning John had to leave early for a mission in Afghanistan. He left before Jack woke up. Jack, being very excited about the intended wedding, booked the Oyster Box for the wedding reception and paid a deposit of R100 000 (one hundred thousand rand). Jack also paid R10 000(ten thousand rand) for a Tom Ford wedding suit.

On John’s return from Afghanistan he realised that Jack was serious about the proposal and decided to go ahead with the marriage. John consulted an avid 1^st year law student and was told that he can cancel the engagement by claiming “justa causa”.

1.1 Presume that Jack and John did get legally married. What are the legal requirements for a civil union and how do these requirements differ from the requirements in terms of the Marriage Act? (10)

1.2 Presume Jack was unaware that John was related to him. Would this marriage be regarded as a void, voidable or putative marriage and what would the consequences of such a marriage be? (20)

1.3 If John wanted to divorce Jack, what ground/s of divorce would you recommend to John should he follow? Motivate your answer. (20)

1.4 Suppose John died intestate. Will Jack have been able to inherit from John if they were not legally married? Discuss the constitutionality of same-sex life partners being afforded more spousal benefits that their heterosexual counterparts with reference to case law and legislation. (20)

1.5 Presume that John and Jack did get married without entering into an antenuptial contract. What are the variable and invariable consequences of their marriage? (20)

Question 2:

Critically discuss the promulgation of the Civil Union Act as a dual but separate Act to the Marriage Act 25 of 1961. (10)

THE END

Exam Paper 2015

FINAL EXAMINATION

FACULTY OF COMMERCE, ADMINISTRATION & LAW

DEPARTMENT OF LAW

LPFL102- Family Law

DURATION: 3 HOURS MARKS: 100

Internal Examiner(s):

Mrs. L Ramaccio Calvino

Internal Moderator: Head of Department:

Dr. D Iyer Mrs. K Naidoo

______________________________________________________________________

INSTRUCTION TO CANDIDATES

1. Please ascertain that this paper consist of THREE pages.

2. Please clearly number the questions correctly.

3. Please answer each question on a new page.

4. Write neatly.

5. Every answer must properly motivated with reference to case law and

legislation where applicable.

Question 1:

On the 1^st day of April 2010 John and Jack went to a party and whilst both of them where intoxicated John proposed to Jack. Jack accepted the proposal. The next morning John had to leave early for a mission in Afghanistan. He left before Jack woke up. Jack, being very excited about the intended wedding, booked the Oyster Box for the wedding reception and paid a deposit of R100 000 (one hundred thousand rand). Jack also paid R10 000(ten thousand rand) for a Tom Ford wedding suit.

On John’s return from Afghanistan, he realised that Jack was serious about the proposal and decided to go ahead with the marriage. John consulted an avid 1^st year law student and was told that he can cancel the engagement by claiming “justa causa”.

1.1 Assuming that a valid engagement was entered into between John and Jack, would John be able to cancel the engagement based on justa causa? Motivate your answer with reference to legal authority. (20)

1.2 In lieu of the immutability principle, can John and Jack change their matrimonial property regime, and if so, what would it entail? (20)

1.3 Suppose John died 4(four) months after he divorced Jack. Furthermore suppose that Jack and Peter was John’s sole beneficiary and that Jack was appointed as the testamentary guarding of Peter. Will Jack be able to inherit in terms of John’s estate? (10)

1.4 Suppose (for purposes of this question only) that Jack was not a doctor and that he was in fact a minor. Would the union between John and Jack be void, and if not, what remedies may John have against Jack should Jack start squandering John’s assets? Motivate your answer with reference to legal authority. (20)

Question 2:

Explain to Jack what parental rights and duties entail, as well as whether it would be in Peter’s best interest to remain with Jack or to be reunited with his biological mother.

(30)

THE END

Life Partnerships and Civil Union Act

Life Partnerships:

In determining whether parties entered into a life partnership the courts considered inter alia

· whether the life partner undertook to maintain the partner;

· in other instances the duty to support was not considered;

· whether the parties intended to life in a permanent relationship; and

· In other case courts considered whether the partners had a consortium omnis vitae.

South African law prior to the current constitutional era only recognised and protected relationships between a man and a woman who concluded a state-sanctioned marriage in accordance with the requirements of the Marriage Act. Although some Acts such as the Estate Duty Act 45 of 1955; Pension Fund Act 24 of 1956; Income Tax Act 58 of 1962; Maintenance Act 99 of 1998; Domestic Violence Act 116 of 1998; Medical Schemes Act 131 of 1998; Rental Housing Act 50 of 1999 recognised life partnerships.

With the drafting of the final Constitution, it was proposed that sexual orientation should be retained as forbidden ground for discrimination. Despite public opposition and a lack of legal precedent, sexual orientation as a ground for protection from discrimination was entrenched in section 9(3) of the Constitution. South Africa thus became the first country in the world explicitly to recognise in its Constitution, sexual orientation as a ground on which discrimination would automatically be unfair until proven otherwise.[1]

These constitutional provisions created an opportunity for various same-sex couples (who had hitherto been prohibited from entering into legally recognised marriages) and heterosexual couples (who chose not to get married) to approach the Constitutional Court demanding that the invariable consequences of marriage be extended to non-traditional families.

The Constitutional Court therefore became the platform through which recognition was sought for, and eventually given to, changing social norms and needs.

Several post-Constitution ad hoc judicial pronouncements (court rulings) were handed down extending spousal benefits to same-sex life partnerships by inter alia:-

· including a same-sex life partner as a “dependant” in terms of the Medical Schemes Act 131 of 1998,[2]

· acknowledging same-sex immigrant partners,^{^[3]}

· acknowledging same-sex partners for purposes of an insurance policy,[4]

· allowing same-sex couples to adopt children,^{^[5]}

· acknowledging that both same-sex partners have parental rights in respect of a child born as a result of artificial insemination,^{^[6]}

· allowing a same-sex partner to institute a claim for loss of support,[7]

· including a same-sex partner as the surviving spouse of a same-sex relationship,^{^[8]} and

· providing that same-sex couples are entitled to inherit in terms of intestate succession.^{^[9]}

The basis on which the Constitutional Court advanced limited rights to same-sex life partners was founded on the fact that same-sex couples could not choose to get married, as they were prohibited from entering into marriage and were therefore unjustifiably excluded from spousal benefits. The Constitutional Court therefore refused to extend spousal benefits to heterosexual life partnerships.

Eg. In Volks v Robinson it was concluded that it is inappropriate for the court to impose a duty to maintain on a deceased estate while the life partner did not have an ex lege duty to maintain during his lifetime.

Presently same-sex life partnerships enjoy more legal protection (entitled to claim intestate succession and maintenance in respect of the Maintenance of Surviving Spouses Act) than heterosexual life partnerships which may be regarded as differential treatment.

It was however only in December 2005 that the exclusion of same-sex couples from the Marriage Act came under constitutional scrutiny in the Fourie case.

In Minister of Home Affairs v Fourie (Doctors for Life International and Others, Amici Curiae); Lesbian and Gay Equality Project and Others v Minister of Home Affairs,[10] the Constitutional Court declared the exclusion of same-sex couples from the common law definition of marriage and the marriage formula provided for in section 30(1) of the Marriage Act 25 of 1961 unconstitutional. The Constitutional Court held that the exclusion of same-sex couples from the right to marry unjustifiably denied same-sex couples equality before the law and equal protection and benefit of the law under section 9(1), subjected same-sex couples to unfair discrimination by the state under section 9(3),[11] and violated their right to dignity under section 10[12] of the Constitution.[13] The court consequently declared the common law definition of marriage inconsistent with the Constitution and invalid to the extent that it does not permit same-sex couples to achieve the dignity, status, benefits and responsibilities available to heterosexual couples through marriage.[14] In addition the court declared “the omission from section 30(1) of the Marriage Act 25 of 1961 after the words ‘or husband’ of the words ‘or spouse’ ... to be inconsistent with the Constitution, and the Marriage Act ... to be invalid to the extent of this inconsistency”.[15]

Civil Union Act

In response to the Fourie ruling, Parliament enacted the Civil Union Act 17 of 2006[16] thereby affording same-sex couples the right to marry by means of a civil union regime.

A civil union is defined as “the voluntary union of two persons who are both 18 years of age or older, which is solemnised and registered by way of either a marriage or a civil partnership, in accordance with the procedures prescribed in this Act, to the exclusion, whilst it lasts, of all others”.^{^[17]} The Civil Union Act is applicable to monogamous relationships^{^[18]} of either same-sex or heterosexual couples.

Despite the legal requirements for a civil union being nearly identical to those of a civil marriage( in other words a person must have capacity to act, consensus, act lawfully)^{^[19]} certain prescribed formalities regulating the solemnisation and registration of a civil union differ from those relating to a civil marriage. As in the case of the Marriage Act, the Civil Union Act prescribes that a civil union may only be solemnised by a marriage officer^{^[20]} and that the solemnisation must occur in accordance with the provisions of the Act.^{^[21]} A marriage officer may either be a religious marriage officer or an ex officio marriage officer.^{^[22]} One of the key differences is that the Civil Union Act requires a religious denomination or organisation to apply in writing to the Minister of Home Affairs^{^[23]} to be designated for purposes of solemnising civil unions.^{^[24]} In addition, only after the religious denomination or organisation has been designated as a religious institution for purposes of solemnising marriages in terms of the Civil Union Act,^{^[25]} may a minister of religion or any person holding a responsible position, for as long as he or she occupies such position in the religious denomination or organisation,^{^[26]} apply to be a designated marriage officer.^{^[27]} In terms of the Marriage Act, in contrast, a single application is required.^{^[28]} An application to a High Court is also possible where a parent, guardian or the presiding officer has refused to consent to the marriage of a minor and where such refusal is without adequate reason contrary to the interests of the minor. Accordingly, the double application process required in terms of the Civil Union Act makes it more cumbersome for a religious marriage officer to conduct civil unions than civil marriages. The Civil Union Act furthermore prescribes that an ex officio marriage officer so designated by virtue of section 2 of the Marriage Act is a marriage officer in terms of the Civil Union Act.^{^[29]}

A civil marriage and a civil union can only be solemnised by either a religious or an ex officio marriage officer. In terms of section 31 of the Marriage Act, a religious marriage officer may refuse to solemnise a civil marriage which does not conform to the rites, tenets, or doctrines of his or her religious beliefs. This is in contrast with the provisions of section 5 of the Civil Union Act which do not provide a religious marriage officer with such a right.

In terms of the Marriage Act, ex officio marriage officers are obliged to solemnise civil marriages.^{^[30]} In contrast, in terms of the Civil Union Act, ex officio marriage officers may refuse to solemnise same-sex civil unions on the grounds of their conscience, religion, and beliefs.^{^[31]} It is noteworthy that this provision only applies to same-sex couples. The different provisions applicable to ex officio marriage officers in terms of the Marriage Act and in terms of the Civil Union Act, constitute an anomaly.

The legal consequences of a marriage and civil union are identical therefore the invariable as well as the proprietary consequences of a civil union is identical. A civil union can therefore also be dissolved in terms of the Divorce Act.

It is questionable whether the dual application of the Marriage Act and the Civil Union Act is constitutional as heterosexual couples have the right to choose between getting married ito the Marriage Act or the Civil Union Act whilst same-sex couples can still only get married in terms of the latter Act.

[1] Section 9(5) of the Constitution.

[2] Langemaat v Minister of Safety and Security 1998 (2) All SA 259 (T).

[3] National Coalition for Gay and Lesbian Equality v Minister of Home Affairs 2000 (2) SA 1 (CC).

[4] Farr v Mutual & Federal Insurance Co Ltd 2000 (3) SA 684 (C).

[5] Du Toit v Minister of Welfare and Population Development 2002 (10) BCLR 1006 (CC).

[6] J v Director-General of Home Affairs 2003 (5) SA 621 (CC).

[7] Du Plessis v Road Accident Fund 2004 (1) SA 359 (SCA).

[8] Satchwell v President of the Republic of South Africa 2002 (6) SA 1 (CC).

[9] Gory v Kolver NO 2007 (3) BCLR 249 (CC) (hereinafter referred to as the “Gory case”).

[10] 2006 (1) SA 524 (CC).

[11] Section 9(3) of the Constitution provides that “[t]he state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethic or social origin, colour, sexual orientation…”.

[12] Section 10 of the Constitution provides that “[e]veryone has inherent dignity and the right to have their dignity respected and protected”.

[13] Fourie case paras 75-79.

[14] Fourie case paras 1(c) and 2(b) of the order.

[15] Fourie case para 2(c) of the order.

[16] Civil Union Act 17 of 2006.

[17] Section 1 of the Civil Union Act.

[18] Section 8(1) and 8(2) of the Civil Union Act provides that a party to a civil union “may not conclude a marriage under the Marriage Act or the Recognition of Customary Marriages Act 120 of 1998”. In addition section 8(3) of the Civil Union Act stipulates that “[a] person who is married under the Marriage Act or the Customary Marriages Act may not register a civil union.” For a general discussion of traditional values in terms of customary law being omitted from the Civil Union Act.

[19] The parties to the civil union must have the necessary capacity to act, have the intention to enter into a civil union with one another and must, in terms of section 8(6) of the Civil Union Act, not be prohibited by law from entering into a civil union.

[20] Section 4(1) of the Civil Union Act.

[21] Section 4(2) of the Civil Union Act provides that “[s]ubject to the provisions of the Act, the marriage officer has all the powers, responsibilities and duties conferred upon him or her under the Marriage Act, to solemnise a civil union”.

[22] Section 1 of the Civil Union Act defines a “marriage officer” as a marriage officer ex officio designated in terms of section 2 of Civil Union Act and a minister of religion designated in terms of section 5 of the Civil Union Act; compare sections 2 and 3 of the Marriage Act.

[23] In terms of section 1 of the Civil Union Act, “Minister” refers to “the Cabinet member responsible for the administration of Home Affairs”.

[24] Section 5(2) of the Civil Union Act provides the Minister of Home Affairs with the authority to designate a religious denomination or organisation as a religious institution for purposes of solemnising a civil union. For a discussion of whether section 5(1), (2), (4) and (6) only provides for marriages and not also for civil partnerships.

[25] Section 5(1) of the Civil Union Act.

[26] Section 5(4) of the Civil Union Act.

[27] Section 5(4) of the Civil Union Act.

[28] Bonthuys 2008 SALJ 475.

[29] Section 1 of the Civil Union Act; compare section 2(1) and (2) of the Marriage Act.

[30] Section 2 of the Marriage Act.

[31] Section 6 of the Civil Union Act provides that “[a] marriage officer, other than a marriage officer referred to in section 5 may in writing inform the Minister that he or she objects on the ground of conscience, religion and belief to solemnising a civil union between persons of the same sex, whereupon that marriage officer shall not be compelled to solemnise such civil union”.