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
Familylawsa
Tuesday, 11 October 2016
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;
(c)
The immediate division of the joint estate in
terms of section 8 of the MPA.
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;
(c) A position that once a
marriage has been entered into, the marital regime cannot be changed.
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);
(c) Ex Parte
Engelbrecht 1986 (2) SA 158 (NC).
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);
(c) Ex Parte Lourens 1986 (2) SA 291 (C).
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;
(c) Sound reasons must be furnished for the
change of the regime.
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;
(c)
The death of a party to such a
marriage does not terminate the joint estate of the marriage.
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;
(c) The executor should deliver half of the net
value of the joint estate to the surviving spouse.
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;
(c) all of the
above.
11. A surviving spouse’s “means”
excludes:-
(a) Any matrimonial property belonging to the surviving spouse;
(b) Any inheritance from the deceased’s estate;
(c) Voluntary contributions made to the
surviving spouse by her children.
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);
(c) Joseph v Joseph 1951 (3)
SA 776 (N).
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;
(c) Administration of Estate Act 66 of 1965.
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;
(c) Life insurance policies.
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;
(c) All of the above.
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 3rd
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 1st 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 1st 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:
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 1st 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 1st 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 that both
same-sex partners have parental rights in respect of a child born as a result
of artificial insemination,[6]
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.
[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).
[7] Du Plessis v
Road Accident Fund
2004 (1) SA 359 (SCA).
[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”.
[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.
[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.
[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”.
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