PVL2601 Exam Memos PDF

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EXAM PACKPVL 2601TCONTENTS PAGE MAY JUNE -2019 P SOLUTIONS PAGE MAY JUNE -2018 P SOLUTIONS PAGE OCT NOV - 2018 P SOLUTIONS PAGE MAY –JUNE - -2017 P SOLUTONS PAGE OCT- NOV -2017 P SOLUTIONS PAGE OCT – NOV -2016 P SOLUTIONS PAGE MAY – JUNE -2016 P SOLUTIONS PAGE SECTION BQUESTION 1a. Putative Marriage...

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EXAM PACK PVL 2601

T

2|Page

CONTENTS PAGE MAY JUNE

-2019 P SOLUTIONS

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3

MAY JUNE

-2018 P SOLUTIONS

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10

OCT NOV

- 2018 P SOLUTIONS

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12

MAY –JUNE -

-2017 P SOLUTONS

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18

OCT- NOV

-2017 P SOLUTIONS

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29

OCT – NOV

-2016 P SOLUTIONS

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34

MAY – JUNE

-2016 P SOLUTIONS

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42

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PVL 2601 MAY /JUNE 2019 MEMO.

SECTION A 1. 4. 2. 1. 3. 2. 4. 4. 5. 1. 6. 4. 7. 1. 8. 4. 9. 2. 10. 3. 11. 3. 12. 1 13. 3 14. 3 15. 2

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4|Page SECTION B QUESTION 1 a. Putative Marriage b. A child born of married parents.

c. This is where one or both of the parties are unaware at the time of contracting the marriage of the defect, which renders their marriage void and believe in good faith they were lawfully married. Such a marriage is void. The marriage is Void ab initio the court can’t declare a putative marriage valid as its VOID. If both parties’ bona fides at time of the marriage, and marriage was concluded without an Anc, they are then treated as having been married in cop and have a joint estate. If only one party was bona fides, the marriage will be treated as having been in cop if this will be to the advantage of the bona fides party. In terms of Zulu v Zulu, these rules don’t apply if the putative marriage was entered into while either of the parties was a spouse in an existing valid civil marriage in cop. If the parties entered into an anc in which cop was excluded, the marriage will be treated as being out of cop if this best serves the interests of the bona fides party or both of them if they were both bona fide.

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5|Page QUESTION 2 The accrual in Mr Naidoo estate is calculated as follows. Net value on dissolution.

R 900 000.

Minus net commencement value. (Deemed to be nil as not assets upon Marriage)

R0

Minus assets excluded from accrual • •

Leopard skin Donation Non –Patrimonial damages (satisfaction Pain and suffering)

Accrual

R 40 000 R 160 000 R 700 000

(NOT EXCLUDED; Livestock, half share in spouses.) The accrual in Mrs Naidoo Estate is calculated as follows. Net value on dissolution.

R 1 700 000.

Minus net commencement value. (Cash adapted by CPI (50 000 X 2)

R 100 000.

Minus assets excluded from accrual •

Inherited farm from father

Accrual

R 1 000 000

R 600 000.

NOT Excluded: pension interest, half share in spouses home. Because Mrs Naidoo estate shows a less accrual she therefore has a claim against Mr Naidoo estate. Mr Naidoo accrual claim

= ½ (R 700 000-R 600 000) = ½ (R100 000)

THEREFORE ACCRUAL CLAIM IS =(R 50 000) PRIM048

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6|Page QUESTION 3 a. According to Singh, the guilty spouse forfeited all benefits because the law could not allow an individual to benefit financially from a marriage that had broken down due to his/her fault. The Requirements: are that the court looks at. 1. Duration of the marriage. 2. Circumstances which led to the breakdown of the marriage. 3. Any substantial misconduct on the part of either spouse. In terms of s9 (1), an order for forfeiture may only be granted if the court is satisfied that in the absence of the order, one spouse will be unduly benefited in relation to the other. Section 9(1) does not however provide for fairness. This does not mean that a spouse loses his own assets! It entails that the spouse loses his claim he has to the other spouse’s assets. If the marriage is in COP, the spouse against whom the order is made receives only those assets he/she brought into the estate. If he/she brought more than half of the assets into the estate, she/he will still only get half of the joint estate. If the marriage is out of COP, the benefits that can be forfeited are the spouse’s share of the assets brought into the marriage, or acquired as a result of the other spouse’s effort. Examples include: right to share in accrual, benefits from a succession clause, and marriage. According to Watt v Watt: The husband and wife married out of COP .During marriage he donated house to wife that he bought with his own money. When they got divorced, he claimed that the house was a patrimonial benefit that had to be forfeited by the wife. The wife claimed the house was not a patrimonial benefit. The court held that the house, because it was donated DURING THE MARRIAGE, was not a patrimonial benefit that is forfeited in terms of s9. Thus, according to s9, and Watt, only benefits acquired in terms of the parties ANC (thus things donated etc in the ANC PRIM048

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7|Page and not stuff acquired DURING the marriage can be forfeited, thus because the house was given to the wife during the marriage, she did not forfeit it).

b. The Maintenance of Surviving Spouses Act determines that in certain circumstances, the surviving spouse holds a claim for maintenance against the estate of the deceased spouse. Section 2 (1) of the Act determines that if the marriage is dissolved by death after the commencement of the Act, the surviving spouse has a claim against the estate of the deceased spouse for the provision of his reasonable maintenance needs until death or remarriage in so far as he is unable to provide therefore from his own means or earnings. The claim arises regardless of the matrimonial property system which operated in the marriage. However, the claim arises only in so far as the surviving spouse is unable to provide for her reasonable maintenance needs from his own means and earnings. The surviving spouse shall not, however, have a right of recourse against any person to whom money or property has already been paid. The following factors must be taken into account in considering the surviving spouse’s reasonable maintenance needs: The amount in the deceased estate available for distribution amongst heirs and legatees. The existing and expected means, earning capacity, financial needs and obligations of the surviving spouse and the subsistence of the marriage. The standard of living of the surviving spouse during the subsistence of the marriage and his age on the death of the deceased. The duration of the marriage. The surviving spouse’s age at the time of the deceased’s death. Any other relevant factor. The surviving spouse’s claim takes the same order of precedence against the estate as a claim for maintenance of a dependent child. If the surviving spouse’s claim and that of the dependent child compete with each other, such claims will be reduced proportionately. FELDMAN V OSHRY The SCA found that maintenance in a lump sum could indeed be awarded by the court in terms of the Maintenance of Surviving Spouses Act as nothing in this Act prevents PRIM048

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8|Page such an award. The court said that “the difficulties with estimating an appropriate lump sum award by reference to certain assumptions that might later prove to be unfounded do not present insurmountable difficulties. In delictual claims, for example, damages in relation to loss of support are estimated with regard to the life expectancy of a claimant and on the basis of other assumptions. There too, total accuracy can never be assured. Courts do the best they can. This does not mean that a court assessing a claim for maintenance should not take these factors into account in the totality of the presented circumstances in deciding an appropriate award.”

QUESTION 4 1. Khan v Khan 2. AM V RM 3. Govender v Rajavayah. 4. Gory v Kolver. 5. Ryland v Edros QUESTION 5 a. At common law, a step-parent is not obliged to maintain his or her stepchild because affinity does not give rise to a duty of support in respect of the child of one’s spouse or civil union partner. b. In Heystek v Heystek the High Court, incorrectly, held that as an “inevitable concomitant of a marriage in community of property” the spouses have a “shared responsibility . . . for the maintenance of the common household”, which results in a step-parent having a duty of support towards his or her spouse’s children from a previous marriage. The court further held that the child’s constitutional right to parental care extends to stepparents and encompasses the child’s maintenance needs. c. In MB v NB the court adopted a partially different approach to hold a stepfather liable for a portion of his stepson’s school fees after the stepfather and the child’s mother got divorced. The court held that because the stepfather had agreed to let PRIM048

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9|Page his stepson use his surname and the child’s mother and stepfather had jointly completed admission forms at the school as the child’s “parents”, the stepfather had impliedly represented to the child, the child’s mother and the world at large that he intended to be in the same position as the child’s father. d. No, the common-law rule remains the same, i.e. that a stepparent is not obliged to support his or her stepchild. It is simply the source from which the child’s maintenance must be paid that differs between the two types of marriages or civil unions. In a marriage or civil union out of community of property, the debt is settled from the child’s parent’s estate, while in the case of a marriage or civil union in community the debt is – by virtue of the nature of universal community of property – settled from the joint estate. e. 1) The child’s marriage. (2) The child’s adoption. (3) The child’s departure or removal from South Africa. f. It is unclear whether maintenance order lapses automatically when the child becomes self-supporting. According to an obiter dictum of the Supreme Court of Appeal in B v B it does not, unless the maintenance order stipulates that it operates only until the child becomes self-supporting. In other words, the order only lapses upon the occurrence of the event or the expiration of the period specified in the order. However, other courts have held that the maintenance order lapses automatically if the child

becomes self-supporting

and no age

has been specified in the maintenance order, or if the child becomes selfsupporting before reaching the age specified in the maintenance order.

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10 | P a g e PVL 2601 MAY – JUNE 2018. MEMO.

SECTION A 1. 3 2. 1 3. 2 4. 2 5. 3 6. 3 7. 4 8. 1 9. 3 10. 1 11. 4 12. 4 13. 3 14. 4 15. 1

SECTION B

QUESTION 1 Girl 15 years. Boy 18 years. Pg 33 textbook..

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11 | P a g e QUESTION 2 The accrual in Mr Molefe’s estate is calculated as follows. Net value on dissolution

R 600 000.

Minus net commencement value. (Deemed to be nil as debts exceeded assets upon Marriage)

-R 0

Minus assets excluded from accrual •

Non –Patrimonial damages (satisfaction Pain and suffering)

R 150 000

Accrual

R 450 000

(NOT EXCLUDED; damages for loss of income = damages for patrimonial loss, membership interest, half share in spouses.)

The accrual in Mrs Molefe’s estate is calculated as follows. Net value on dissolution

R 400 000.

Minus net commencement value. (Cash adapted by CPI (150 000 X 2)

-R 300 000

Minus assets excluded from accrual •

• •

Jewellery that replaced inheritance from grandmother .

R20 000

Inheritance from father Donation of furniture and appliances From mr molefe

R30 000 R90 000

Accrual

-R140 000

R 40 000/R0

NOT Excluded: Fixed deposit, half share in spouses home. Because Mrs Molefe estate shows a negative accrual she has no accrual in her estate and she therefore has a claim against Mr Molefes estate. PRIM048

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12 | P a g e Mr Molefe accrual claim

= ½ (R450 000-R0) = ½ (R450 000)

THEREFORE ACCRUAL CLAIM IS =(R 225 000)

QUESTION 3 Section 21 (1) provides: H & W may jointly apply to the court for leave to change their matrimonial property system from whatever it is to whatever they want it to be. The court may grant consent to such change in any kind of marriage contracted before or after the commencement of the Act. Requirements: 1) There must be sound reasons for the proposed change. 2) Sufficient notice of the proposed change must be given to all the creditors. 3) No other person must be prejudiced by the proposed change. Sound reason will depend on the facts and circumstances of each Ex Parte Kros: The parties asserted that they had been ignorant about the consequences of the matrimonial property system . wanted to change from a marriage in COP to one out COP - (GRANTED). Ex Parte Engelbrecht: The parties agreed before the marriage that they would be married out of community but did not enter into an anc as they were under the impression that the could simply tell the marriage officer of their intention. (GRANTED). Ex Parte Coetzee et Uxor: The parties had concluded an anc from which community of property was excluded on the insistence of the bride’s father, which they themselves foresaw that their marriage could be unhappy unless they were married in COP (GRANTED) Ex Parte Burger: The spouses were married out of community of property without the accrual system, desired the accrual system to apply to ensure that the wife be given a PRIM048

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13 | P a g e fair share of the growth of the husband’s estate on dissolution of the marriage (GRANTED). QUESTION 4 1. Sempapele v Sempapele 2. Maharaj v Maharaj 3. Schwartz v Schwartz 4. Wijker v Wijker 5. Amar v Amar QUESTION 5 a) Section 7(2)

b)

The spouses’ ages Their prospective earning capacities Length of their marriage Their financial needs If conduct on either side caused the breakdown

c)

Token / nominal maintenance: this is asked for at the divorce hearing, because if maintenance is not asked for then, one may never get one after that. So the courts can award token maintenance to s spouse who doesn’t really need maintenance now but may need it in the future. It will be a small monthly amount like R1 per month. Then this amount can be increased to real maintenance on application when it’s needed. According to Qoza and Buttner – a party must show that there is a strong possibility that it will be needed. The payer of maintenance pays until the other party remarries or dies. But if she lives with someone, and doesn’t marry him, her ex still has to the maintenance, thus a dum custa clause can be into the maintenance agreement that even if she lives with someone, the maintenance will end, as if she married him.

d)

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Lump sum maintenance: today courts can award lump sum Maintenance. In Zwiegelaar, where the court ordered the husband to pay R8000-00 per month to the wife and a lump sum of R25000-00 For household necessaries - Payments need not be equal in size. www.tutorialscampus.co.za

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e) Family Advocate may be requested to institute an enquiry in terms of the Mediation in Certain Divorce Matters Act.21 The request may be made by the court or a party to the proceedings. If the Family Advocate deems it in the child’s interests, he or she may also of his or her own accord ask the court to authorise an enquiry.In Van Vuuren v Van Vuuren the court indicated that a Family Advocate ought to apply for an order authorising an enquiry if one of the following situations was envisaged: (1) Care of a young child will not be awarded to the child’s mother (2) Siblings will be separated. (3) Care will be awarded to a person other than the child’s parent. (4) An arrangement regarding care or contact will be made which is prima facie (that is, on (5) The face of it not in the child’s interests. The purpose of the enquiry is to enable the Family Advocate to furnish the court with a report and recommendations on any matter concerning the welfare of the minor or dependent children born of the marriage. A family counsellor assists the Family Advocate in the enquiry. The Family Advocate must help the court by putting information before it, must refrain from bias and make balanced recommendations. The court is not obliged to accept the Family Advocate’s report and/or recommendations. It may reject them completely or in part, or accept the Family Advocate’s factual findings but make an order that differs from the .Family Advocate’s recommendations.

Question 6 a) No (MM v MN) b) NO The order of the majority specifically refers to Xitsonga law, but the statements on equality and dignity strongly suggest that the court will arrive at the same conclusion in respect of other South African systems of customary law that may not require the first wife’s consent. Consequently, the implication of the judgment is that the consent of the first wife in any customary marriage is required for her husband’s further customary marriage. c) YES d) YES

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15 | P a g e QUESTION 7 a) • • • •

Guardianship, custody access. contributing to the child’s maintenance

b) • • • •

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The childs parents The childs grandparents. The childs siblings. A person who is not the child’s parent, grandparent or sibling but has care of the child

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16 | P a g e PVL 2601 OCT –NOV 2018 MEMO SECTION B

QUESTION 1 (a) Oral or tacit consent (b) Yes she may recover these payments from Betsy, Betsy is a mala fide third party who indeed knew that spousal consent was necessary and was not obtained. The (Matrimonial Property) Act is silent on the consequences of a transaction with a third party who was mala fide. It appears from Amalgamated Bank of SA v Lydenburg Passasiersdienste and Amalgamated Banksof SA v De Goede that such transactions are void/invalid. In Bopape v Moloto the court applied the judgment in Lydenburg Passasiersdienste and ordered a woman who had received donations totalling approximately R200 000 from her lover, whom she knew to be married in community of property, to repay the money. The court further held that the prejudiced spouse may recover the transferred asset from the mala fide third party even though he or she may also have a remedy against his or her spouse. In this case, the defendant argued that the donations were valid in so far as she, as a third party, was concerned and that her lover’s wife had to invoke the remedies afforded her by sections 15(9)(b) and 20 of the Matrimonial Property Act, but the court rejected this argument and held that there was no reason to limit the remedies of an aggrieved spouse to sections 15(9)(b) and 20. In Visser v Hull the court approved the reasoning in Bopape and set aside a transaction between mala fide third pa...