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Module Code: JJSV100 Course Name: Advocacy Skills Date: 01/10/2021 Legal Opinion Acting for the Plaintiff Group Leader: Chigozie Onyenankeya Student Number: 223117838 Contact Telephone Number: 0726192395 Student Name: Shatakane Smela Student Number: 223488208 Student Name: Chigozie Onyenankeya Student Number: 223117838

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GROUP PLAGIARISM DECLARATION PLEASE NOTE: YOUR ASSESSMENTS/ASSIGNMENTS WILL NOT BE MARKED IF YOU DO NOT INCLUDE THIS DECLARATION! We hereby declare that this assessment/assignment is prepared and written by our group members and is a result of our own work and knowledge. Rules when undertaking the completion of this assessment/assignment. 1. You agree not to: • make use of any other means that could inappropriately help you in your work. • help or assist any other student in any way with the assessment/assignment unless your lecturer has indicated that this is permitted. • allow any fellow student to copy or use your work. • accept assistance, copy or use another student’s assessment/assignment. • submit work that is not your own. • obtain or try to obtain assistance in relation to the assessment/assignment. • undertake to complete the assessment/assignment on behalf of another/other student/s. • allow another/other student/s to complete the assessment/assignment on your behalf. • take any screenshots or copies of the assessment/assignment for sharing with fellow students. 2. You acknowledge that all the other rules pertaining to tests, assignments and examinations are applicable and that you are aware of the rules contained in the Nelson Mandela University’s General Prospectus, but specifically those regarding plagiarism and dishonesty: General Prospectus rule G1.27: Plagiarism and academic dishonesty “Plagiarism and any instance of an academic dishonesty will be dealt with the Student Disciplinary Code. Students are referred to the Policy on Academic Integrity and Prevention of Plagiarism available on the student portal”

DECLARATION We hereby declare that we will adhere to the requirements and rules outlined and referred to herein; and that we are aware that transgression of these rules will result in disciplinary action in accordance with the Nelson Mandela University’s General Prospectus. Surname, initial Smela, S.S

Student number 223488208

Signature Shatakane

Onyenankeya, C.T

223117838

Chigozie

Date: Module:

1 October 2021 JJSV100

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Table of Contents 1.Facts ............................................................................................................................ 4 2. Legal Issues ............................................................................................................... 4 3. APPLICABLE LAW .................................................................................................... 5 3.1 Dissolution of marriage and claim of joint estate .................................................... 5 3.2 Custody .................................................................................................................. 6 3.3 Maintenance .......................................................................................................... 7 4. APPLICATION OF THE LAW ................................................................................... 10 5. CONCLUSION .......................................................................................................... 12 TABLE OF STATUTES ................................................................................................ 13 TABLE OF CASES ....................................................................................................... 14 BIBLIOGRAPHY ........................................................................................................... 15

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1.Facts Shawn and Prunella aged 30 and 35 respectively have been married for 10 years and they have identical twins who are 5 years old. They are married in community of property as they never signed an antenuptial contract. Shawn ran a successful hedge fund and accumulated wealth. This ended abruptly in early 2020 when the Covid 19 pandemic began. The business suffered and he had to pay the losses. As a result, Prunella is now the breadwinner of the marriage and has changed character. She became disrespectful towards Shawn, neglected the marital home and abuses drugs and alcohol. As a result, Shawn mostly stays at home and became the primary caregiver of the children while Prunella is thriving as a senior software engineer at Amazon. In addition, Shawn discovers that Prunella is having an affair with a third party. When confronted Prunella is unapologetic and instead criticizes Shawn for having no income. Shawn is emotionally broken and believes that the marriage is over. He now asks to get 50% of the joint estate, a monthly amount to live on and custody of the two children. 2. Legal Issue Issuess 2.1 Dissolution of the marriage and Shawn’s claim to 50% of the joint estate 2.1.1 Can Shawn institute an action to end the marriage 2.1.2 Have the requirements for a divorce been met? 2.1.3 Is he entitled to 50% of the joint estate? 2.1.4 Does the court have discretion to refuse to grant divorce? 2.2 Custody 2.2.1 Can Shawn get sole custody over the children? 2.2.2 Should the defendant get custody by virtue of having more financial resources 2.2.3 How must courts determine the best interests of the child? 2.3 Maintenance 2.3.1 Is Shawn entitled to receive spousal support?

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2.3.2 Does the duty of support between the spouses terminate after a divorce? 3. APPLICABLE LA LAW W

3.1 Dissolution of marriage and claim of joint estate South Africa moved from fault-based divorce in 1979. Section 3 of the Divorce Act,1 specifies that there are only two grounds for divorce. The one ground that is applicable here is the irretrievable breakdown of the marriage. A marriage has broken down irretrievably if it has disintegrated such that it is no longer a normal marital relationship and there are no reasonable prospects of restoring a normal relationship.2 This was confirmed in Naidoo v Naidoo,3 where the court held that mere unhappiness is not enough, the suing party must show on a balance of probabilities that the marriage has broken down irretrievably. The law says one of the factors which might indicate an irretrievable breakdown of a marriage is if one spouse finds the adultery of the other spouse irreconcilable.4 In Schwartz v Schwartz,5 it was held that it is of paramount to consider the history of the relationship as well as the present attitude of the parties when determining whether the marriage has broken down irretrievably. It was also stated in passing that the court does not have discretion to refuse to grant a divorce and that a divorce must be granted once it has been proven that the marriage has broken down irretrievably. As far as matrimonial property systems are concerned, the default system in South Africa is marriage in community of property.6 This creates a joint estate combining everything that the couple owns. This happens automatically by operation of the law and the parties need not to register the property in each other’s names manually. Parties must sign an antenuptial contract as one of the requirements when entering a marriage that is out of community of property.

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70 of 1979. S 4(1) of the Divorce Act 70 of 1979. 3 1985 (1) SA 366 (T). 4 S 4(2) of 72 of 1979. 5 1984 (4) SA 467 (AD). 6 Barratt (ed), Domingo, Amien, Denson, Coetzee, Olivier, Osman, Schoeman and Singh Law of persons and the family 2ed (2017) 284. 2

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3.2 Custody The court granting decree of divorce can make any order it deems fit in relation to the parental rights and responsibilities.7 Custody was replaced with ‘care’ in terms of the Children’s Act,8 this is more child centered. In essence the court must decide which of the parents will live with the child after the divorce. The parent who is awarded custody will also be responsible for daily and long-term decisions regarding the child. Examples of these decisions could be the child’s education or religious upbringing.9 A court can make an order for sole custody or joint custody. Sole custody means only one of the parents is responsible for the decisions which are listed above.10 The other parent retains other parental rights and responsibilities like maintenance and guardianship.11 Joint custody would mean that both parents are responsible for the child. The Children’s Act also makes provision for the assignment of care in a divorce matter.12 In doing so the court would have to consider a couple of factors like the relationship between the applicant and the child and any other relevant person and the child, extent to which the applicant has contributed towards expenses in connection with the birth and maintenance of the child, extent to which applicant has shown commitment towards the child and most importantly the best interest of the child.13 Granting of care or in terms of this section does not affect the parental rights and responsibilities that any other person may have in respect of the same child.14 In McCall v McCall,15 the court offered a list of factors to consider when deciding what is in the best interests of a child pending a custody/care dispute that has been accepted and applied in subsequent decisions.

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S 6(3) of 70 of 1979. 38 of 2005. 9 S (1) of 38 of 2005. 10 Deventer “Child custody in South Africa”(31 October 2018) https://www.vandeventers.law/LegalArticles/entryid/609/child-custody-in-south-africa-frequently-asked-questions (2021-09-29). 11 Ibid. 12 S 23(1) of 38 of 2005. 13 S 23(2) of 38 of 2005. 14 S 23(4) of 38 of 2005. 15 1994 (3) SA 201 (C). 8

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As a result, the court will consider any number of factors including, but not limited to, the love, affection and other emotional ties which exist between parent and child and the parent’s compatibility with the child, the capabilities and character of the parent and the impact thereof on the child’s needs and desires. The court will also consider the capacity of the parent to give the child the guidance he or she requires and the mental and physical health and moral fitness of the parent. In Mohaud v Mohaud,16 the court relied solely on the best interest of the child. In doing so the court awarded custody to the father instead of the mother. The mother had committed adultery, the court held that the mother was immature in character, emotionally unstable and lacked discretion. The court found that despite the young age of the children it would not be in their interests to award her custody if there existed a better choice. In Madiehe (born Ratlhogo) v Madiehe,17 the court confirmed Mccall v Mccall,18 and looked at the factors that were offered in determining the custody of the children pending a divorce. The deciding factor was the best interests of the child. The court held that it was in the best interest of the child to award custody to the father as he seemed to have a firmly set system of goals and values.

3.3 Maintenance Maintenance is spousal support which some people may also call alimony, it refers to a claim of financial support during or after the dissolution of a marriage.19 One of the basic rules of marriage is that it creates a reciprocal duty of support between both spouses according to their financial means.20 However, as opposed to child maintenance where the duty of the parent to maintain the child remains even after divorce, both parents have a statutory obligation to support their children regardless of if they have custody or not.21 For spousal maintenance there is no automatic statutory right to spousal support after

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1964 (4) SA 348 (T). [1997] 2 All SA 153 (B). 18 See fn 15 above. 19Khumalo “Spousal Maintenance: Duty to Support Spouse Post Divorce”(20 July 2020) https://www.schoemanlaw.co.za/spousal-maintenance-duty-to-support-spouse-post-divorce/(accessed 2021-09-28). 20 Hahlo The South African Law of Husband and Wife 4ed (1975) 114. 21Deventerhttps://www.vandeventers.law/Legal-Articles/entryid/609/child-custody-in-south-africafrequently-asked-questions . 17

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divorce and no legislation that expressly states the guidelines on awarding the amount and period of the maintenance.22 According to section 7(2) of the divorce Act,23 In absence of a written agreement of maintenance between both spouses the court may make an order of payment of maintenance which it deems just. Section 7(2) of the divorce Act gives the court power to exercise their discretion in awarding an order for maintenance,24 in Botha v Botha the court ascertained that courts have a very wide discretion whether or not to award an order for maintenance, the amount to be paid and duration.25 In determining an award of maintenance, a court will consider any number of factors including, but not limited to, existing or prospective means of each of the spouses, their respective earning capacities, financial needs and obligations, the age of both spouses, the duration of the marriage, the standard of living of the spouses prior to the divorce and their conduct insofar as it may be relevant to the break-down of the marriage and any other relevant factors.26 As held is Grasso v Grasso none of these factors are greater than the other and they must all be considered together to achieve fairness.27 The existing and prospective means of the spouses refers to their financial resources, which may include monthly salary or any other sources of income. In Kroon v Kroon the court held that financial resources can also include matrimonial property which could be used to generate income,28 the court in J v J also added that a trust that brings forth income is also part of the financial resources.29 Respective earning capacities refers to the incomes of both spouses during the marriage or any other sources of income which will be considered when determining whether each spouse would be able to meet and maintain their own needs. In Kroon v Kroon it was held that the past and future earning capacities of the spouses will be influenced by the division

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Strauss v Strauss (1974) 3 SA 79 (A). S 7(2) 70 of 1979. 24 Ibid. 25 Botha v Botha GJ (unreported) 2020-09-06 Case no 2005/25726 par [42]. 26 S 7(2) of 70 of 1979. 27 (1987) (1) SA 48 (C) 58. 28 (1986) (4) SA 616 (E) 623. 29 (2002) 1 ALL SA 426. 23

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of roles in families and that the court will have to look at income from all sources such as tax credits and dividends.30 Financial needs and obligations depends majorly on the standard of living of the spouses during the marriage, there must be a differentiation between the needs and wants of the spouses. Where the sole reason for a claim for maintenance is so the spouse claiming can support his/herself the court will have to properly weigh all the factors that might bring about immorality or injustice.31 The age of each spouse and the duration of the marriage are important in determining their respective earning capacities and financial needs, the court will look at the duration of the marriage and the fact that the spouse was not working at the time of the divorce when deciding whether or not to award spousal maintenance.32 In the case of Grasso v Grasso it was held that a middle aged spouse who during the marriage devoted themselves to catering for the children and house hold would be awarded maintenance until they are able to retain a professional job and an elderly spouse who is too old to earn a living or remarry would most likely be awarded permanent maintenance.33 The conduct of the spouses as far as it may be relevant to the breakdown of the marriage refers to conducts like adultery and desertion which inherently was the cause of the dissolution of the marriage. However, divorce is no longer based on matrimonial fault and maintenance will not be awarded solely on the merit of misconduct, the court will only consider misconduct of the spouses as far as it was relevant to the breakdown of the marriage.34 In Grasso v Grasso the court viewed the constant adultery of the defendant as a heavy misconduct and held that it holds a significant part in awarding an order of maintenance, the plaintiff was awarded permanent maintenance.35

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Kroon v Kroon supra 626. N v N (1984) (2) SA 294 (C) 78B. 32Preller “Spousal Maintenance” (8 August 2019) https://www.divorcelaws.co.za/spousal-maintenance.html (accessed 2021-09-29). 33 Grasso v Grasso supra 42. 34 See fn 32 above. 35 Grasso v Grasso supra 40. 31

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4. APPLI APPLICATION CATION OF THE LA LAW W For a divorce to be granted Shawn must show that his marriage with the defendant has broken down irretrievably. The fact that he is unhappy with the marriage would not be sufficient, he must show that the marriage has disintegrated such that it is no longer a normal marital relationship and that there are no reasonable prospects of restoring it. Shawn will most likely be successful in getting the dissolution due to the fact that the defendant’s conduct led to the irretrievable breakdown of the marriage. The defendant committed adultery and had an unapologetic attitude even after confrontation. At this point the marriage is irretrievably broken down and is beyond reasonable restoration. The courts does not have the discretion to refuse to grant a divorce once Shawn shows that the marriage has indeed broken down. Shawn and the defendant never signed an antenuptial contract, so their marriage is in community of property by default. A joint estate is created, Shawn is entitled to 50% of the joint estate and this cannot be disputed. The court has the power to make an order relating to the parental rights and responsibilities of the two parties. The one parental right and responsibility that is in contention here is custody/care. In doing so the court will consider that Shawn was the primary caregiver of the children which expresses Shawn’s great love and affection towards the children in comparison to the defendant who neglected them. The court will analyse this as a show of good character. The court will analyse the character of the defendant regarding her adulterous misconduct and substance abuse that indefinitely led to the breakdown of the marriage. If all these factors are considered Shawn’s chances of being awarded sole custody increases. However, the defendant may argue that the twins are at a young age and shouldn’t be taken away from their mother. As seen above in Mohaud v Mohaud a judge refused to award custody to the mother just because the children were of a young age, it was held that if a better choice existed age does not matter so much.36 Taking this into consideration the court may not likely award the defendant custody on the account of being a financially stable mother. Ultimately the

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See fn 16 above.

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best interest of the children takes precedence, the defendant will however, still retain her parental responsibility of maintenance and guardianship even if Shawn is awarded sole custody. As stated above there is no statutory right or automatic entitlement to spousal maintenance as the reciprocal duty to support the spouse terminates after the divorce. Shawn is not entitled to maintenance, awarding of maintenance is in the full power and discretion of the courts. As the spouse seeking maintenance Shawn bears the burden to prove that he needs support from the defendant. The court will consider all the factors mentioned in the applicable law section when deciding whether to award maintenance. The court will take into account the fact that the defendant has more financial resources with a stable and successful career as a software engineer compared to Shawn. The court will analyze Shawn’s need for maintenance and the ability of the defendant to pay such maintenance. The age and duration of the marriage is also a crucial factor that the court will go through, and as mentioned in Grasso v Grasso the court usually favors middle aged and elder...