FAMILY LAW

EXAM PACK

Abstract
This exam pack contains answers for past papers from 2013 - 2015

Joseph
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0784683517
 JUNE 2015
SECTION A

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

SECTION B

1. A putative marriage is when, at the time of the conclusion of the marriage, there is a defect which
renders it void, but one or both of the spouses were unaware of this defect. However, it has some
of the consequences of a valid civil marriage for as long as at least one of the parties is bona fide.
The court cannot declare a putative marriage valid.
As Mr and Mrs Green were married without an ante nuptial contract and Mrs Green was only the
bona fide party, the marriage will be treated as having been in community of property or rather as
having been a universal partnership if this is to the advantage of the bona fide party (Mrs Green).
However, in terms of the decision in Zulu v Zulu, these rules do 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. In such an event, the pre-existence of the valid civil marriage in community
of property makes the creation of the joint estate between the parties to the putative marriage
impossible, as all of the assets of the party who is a spouse in the valid civil marriage fall into the
joint estate which exists between him and his spouse in the valid civil marriage. The only claim

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that the applicant could have against the estate of the deceased is a claim for damaged and is
therefore all that Mrs Green will be able to claim from Mr Green’s deceased estate.

QUESTION 2

The accrual in Mr Lerumo’s estate is calculated as follows:

Net value on dissolution R100 000
Minus net commencement value -R 0
Minus assets excluded from the accrual:
Donation -R30 000 -R30 000
Accrual R70 000

(Damages in the amount of R6 000 for loss of income and R14 000 for damages to motor
vehicle (½) are NOT EXCLUDED because they are damages for patrimonial loss.

The accrual in Mrs Lerumo’s estate is calculated as follows:

Net value on dissolution R90 000
Minus net commencement value
as adapted by the CPI
(R15 000 x 2) -R30 000

Minus assets excluded from the accrual:

Assets substituted for excluded assets -R20 000 -R20 000
Accrual R40 000

Because Mrs Lerumo’s estate shows the smaller accrual, she has a claim against Mr
Sithole’s estate.
Mrs Lerumo’s accrual claim = ½(R70 000 – R40 000)
= ½(R30 000)
Mrs Lerumo is therefore entitled to R15 000.

Question 3

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a) The irretrievable breakdown of the marriage as contemplated in section 4 of the Divorce Act 70
of 1979.
b) A redistribution order is applicable to marriages out of community of property without the accrual
system (with complete separation of property) concluded before 1 November 1984 or before the
coming into operation of the Marriage and Matrimonial Property Law Amendment Act (on 2
December 1988) where the spouses did not enter into an agreement concerning the division of
their assets.

c) Tammy will be entitled to rehabilitative maintenance the parties. Rehabilitative maintenance is

awarded only for a limited period, during which women with an earning capacity must be trained
or retrained to take up paid employment or increase their participation in such employment. The
courts also increasingly expect of women who are engaged in only limited paid employment to
increase their participation in such employment after divorce, and grant them only rehabilitative
maintenance.
In Kroon v Kroon it was held that the facts of each case will determine whether or not rehabilitative
maintenance should be awarded.
In Botha v Botha the court expressly required a causal connection between the marriage and the
spouse’s inability to be self-supporting before an order for rehabilitative maintenance would be
made.
In Kooverjee v Kooverjee the court held that a proper analysis of the rationale behind the awarding
of rehabilitative maintenance dictates that an arbitrary period for the payment of rehabilitative
maintenance will not address the ultimate object of the achievement of self sufficiency. In
Kooverjee the court made a tapered award for rehabilitative maintenance, which took account of
the wife’s decreasing need to devote time to child-care as her children grew older. The court also
stressed that the de facto roles of women in society must not be ignored and that the court must
take into account “that the division of roles in families, influence[s] not only the past earning
capacity of the parties, but also their future earning capacities”
The courts no longer favors the view that was adopted in Grasso and Pommerel, namely that if
one of the parties is wealthy there is no reason why the other party should have to drop his or her
standard of living after divorce.
Furthermore, the courts no longer use the starting point that a husband has to maintain his former
wife until her death or remarriage. Women who are in paid employment are increasingly denied

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 maintenance, because they are assumed to be able to meet their own maintenance needs even
if they have a much lower earning capacity than their husband.

d) A maintenance in terms of section 7(2) comes to an end on the death of the maintenance debtor
according to the decision in Kruger v Goss

e) If Zettie’s claim for maintenance is allowed, the executor of the deceased’s estate may settle the
claim or part thereof by concluding that an agreement with the surviving spouse and with those
heirs and legatees who have an interest in the agreement. In order to settle Zettie’s claim the
following can perhaps be done in terms of the agreement;
 the trustee of the family trust can agree to grant Zettie a usufruct over the former matrimonial
home to allow her to stay on in the house
 the trustee and Tom’s children can agree to transfer a lump sum of money or other assets
that they inherited from Zane to Zettie or to a trust of which Zettie is a beneficiary.
Provided the parties are unable to reach agreement on the way in which Zettie’s claim be settled,
the court may be approached for an order. In Oshry NNO V Feldman, the court may also make
an order for lump-sum maintenance in terms of the Maintenance of Surviving Spouses Act.

QUESTION 4

Ryland v Edros
AM v RM
Govender v Ragavayah
Gory v Kolver
Khan v Khan

QUESTION 5
a) (i) Bride and groom over the age of 18 years
(ii) Both consent to the marriage
(iii) Negotiated and entered into or celebrated in accordance with customary law

b) Yes. Lobolo is a requirement in most customary law systems.

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 QUESTION 6
a) At common law a step-parent is not obliged to maintain his or her stepchild, as the duty to support
rests on blood relationships not affinity. In Heystek v Heystek the court expressed that a step-
parent is obliged to maintain his or her step-child because the Constitution obliges a step-parent
to provide his or her stepchild with parental care. Rich is therefore obliged to maintain his
stepdaughter.

b) No. The maternal preference rule has been rejected in several cases.
In Van der Linde v Van der Linde the court declared that mothers are not necessarily better able
to be good parents on a day-to-day basis / held that “mothering” refers to caring for a child’s
physical and emotional well-being and that mothering is not only a component of a mother but
also forms part of a father’s being / emphasised that the quality of a parent’s role is not simply
determined by gender and a father can be just as good a “mother” as the child’s biological mother.
The generally accepted view now seems to be that maternity may not, on its own, be used to
determine which parent should be awarded care/residency but that acknowledging the facts of
the dynamics of pregnancy and the fact that there is often no one who can quite take the place of
a child’s mother does not amount to unfair gender discrimination. In considering the child’s best
interests, the court may have regard to maternity, but may not afford undue weight to it or turn it
into the only consideration.
The rejection of the assumption that mothers make better care-giving parents is in accordance
with the equality clause of the Constitution, section 28(1)(b) of the Constitution which affords
children the right to parental care, the Convention on the Elimination of All Forms of Discrimination
Against Women (CEDAW), the Convention on the Rights of the Child, and the African Charter on
the Rights and Welfare of the Child.

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 NOV 2014
SECTION A

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

SECTION B

QUESTION 1

a) Error in negotio is a form of material mistake that can be recognised in a marriage agreement.
Such a mistake regard the nature of the consensus concerned and renders the marriage void due
to the lack of meeting of mind between the parties concerned. Eg A intends to conclude a marriage
with B while B is under the impression that they are merely entering into an engagement contract.

b) Sterility - when a person is able to have sexual intercourse but cannot procreate children and is
thus infertile. It is one it the grounds for setting aside a voidable civil marriage if one of the parties
fraudulently concealed his or her sterility, the marriage is voidable and the prejudiced party may
have the marriage annulled.

QUESTION 2

a) Mr Filthyrich’s prior written consent, attested by two competent witnesses.

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b) Mr Filthyrich’s written consent, attested by two competent witnesses.
c) Mr Filthyrich’s written consent (without any further requirements).

QUESTION 3

The accrual in Mrs Wackhead’s estate is calculated as follows:

Net value on dissolution R250 000
Minus net commencement value -R 0
Minus assets excluded from the accrual:
Donation between spouses R20 000 -R30 000
Satisfaction for pain and suffering +R30 000
R50 000 -R50 000
Accrual R200 000

(Damages in the amount of R15 000 for damages to motor vehicle are NOT EXCLUDED
because they are damages for patrimonial loss).

The accrual in Mr Wackhead’s estate is calculated as follows:

Net value on dissolution R450 000
Minus net commencement value
as adapted by the CPI
(R100 000 x 2) -R200 000

Minus assets excluded from the accrual:

Assets substituted for excluded assets R20 000 -R20 000
Sculpture excluded in ante nuptial contract +R140 000
R160 000 -R160 000
Accrual R90 000

Because Mr Wackhead’s estate shows the smaller accrual, she has a claim against Mrs
Wackhead’s estate.
Mr Wackhead’s accrual claim = ½(R200 000 – R90 000)
= ½(R110 000)

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Mr Wackhead is therefore entitled to R55 000

QUESTION 4

Levy v Levy

Kroon v Kroon

Amar v Amar

Hodges v Coubrough

Maharaj v Maharaj

QUESTION 5

When the judicial discretion to redistribute assets was introduced into our law, some South African
courts adopted the guideline that one-third of the total value of the spouses’ assets should be
allocated to the spouse who owns fewer assets.

In Beaumont v Beaumont the Appellate Division rejected the one-third rule and all starting points
/ held that the court should start “with a clean slate” and then fill in “the void by looking at all the
relevant facts and working through all the relevant considerations, and finally exercising a
discretion as to what would be just, completely unfettered by any starting point”.

In Childs v Childs the (Cape Provincial Division of the) High Court held that equality should be the
yardstick in redistribution orders / the spouses’ assets should be divided equally unless there is
good reason for not doing so.

In Bezuidenhout v Bezuidenhout the Supreme Court of Appeal subsequently rejected equal

sharing as a starting point and reiterated that the court must start with a clean slate and not use
guidelines or starting points.

In Kirkland v Kirkland the Cape Provincial Division of t he High Court made a 50:50 division of the
spouses’ combined assets on the ground of the principle of equality, coupled with the spouses’
intention that all assets should belong to both of them together / the court did not view the
Supreme Court of Appeal’s decision in Bezuidenhout as a rejection of “the principle of equality as
such” but merely a decision based on the facts of the case.

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 However, it seems that the one third/two thirds division still holds way today. See, for example,
Joubert v Joubert in which a one third/two thirds division was confirmed on appeal on the facts of
the case even though the wife had not only performed domestic services and made financial
contributions towards the purchase of the couple’s two matrimonial homes, but had also given up
her job after the birth of the couple’s first child because her husband no longer wanted her to
pursue her career.

In Badenhorst v Badenhorst the Supreme Court of Appeal also reached the conclusion, on the
facts of the case, that a division of more or less one third/two thirds would be just and equitable
even though the wife had performed domestic and child-care responsibilities, assisted her
husband on their farm, and was a successful estate agent. Subsequently, in Buttner v Buttner,(1)
the Supreme Court of Appeal awarded 50% of the proceeds of the sale of a husband’s
membership interest in a close corporation to his wife on the ground that the spouses had adopted
the principle of equal sharing throughout their marriage. Buttner was based squarely on the facts
and does not mean that the Supreme Court of Appeal has moved towards accepting equal division
of assets in terms of section 7(3) to (6) of the Divorce Act and it seems that the Supreme Court
of Appeal, and the courts below it, still predominantly favors the one third/two thirds division.

Thus, Mrs Joubert can expect to be awarded a third of Mr Joubert’s assets.

QUESTION 7

a) No. section 3(2) of the Recognition of Customary Marriages Act 120 of 1998 provides that no
spouse in a customary marriage shall be competent to enter into a marriage under the Marriages
Act 25 of 1961 during the subsistence of such customary marriage.
b) Qtn not available
c) Void

QUESTION 8

a) - Each partner must bring something into the partnership

- The partnership should be carried on for the joint benefit of the parties
- The object should be to make profit
- The contract must be lawful

b) (i) Entering into a marriage or civil union with the child’s mother after the child’s birth
(ii) Being in a permanent life partnership with the child’s mother at the time of the child’s birth

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(iii) Acknowledging paternity and contributing to the child’s upbringing and maintenance
(iv) Entering into a parental responsibilities and rights agreement with the child’s mother or
somebody else who has parental responsibilities and rights in respect of the child
(v) Obtaining parental responsibilities and rights by an order of court
(vi) Receiving parental responsibilities and rights after the mother’s death as a result of an
appointment in the mother’s will
(vii) Adopting the child

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 JUNE 2014
SECTION A

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

SECTION B

QUESTION 1

a) Putative marriage
b) A putative marriage is when, at the time of the conclusion of the marriage, there is a defect which
renders it void, but one or both of the spouses were unaware of this defect.
c) It has some of the consequences of a valid civil marriage for as long as at least one of the parties
is bona fide. The court cannot declare a putative marriage valid.
As Mr and Mrs Smith were married without an ante nuptial contract and Mrs Smith was only the
bona fide party, the marriage will be treated as having been in community of property or rather as
having been a universal partnership if this is to the advantage of the bona fide party (Mrs Smith).
However, in terms of the decision in Zulu v Zulu, these rules do 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. In such an event, the pre-existence of the valid civil marriage in community
of property makes the creation of the joint estate between the parties to the putative marriage
impossible, as all of the assets of the party who is a spouse in the valid civil marriage fall into the

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joint estate which exists between him and his spouse in the valid civil marriage. The only claim
that the applicant could have against the estate of the deceased is a claim for damaged and is
therefore all that Mrs Smith will be able to claim from Mr Smith’s deceased estate

QUESTION 2

The accrual in Mr Mahomed’s estate is calculated as follows:

Net value on dissolution R200 000
Minus net commencement value
As adapted by the CPI
(-R50 000 x 2) +R100 000
Minus assets excluded from the accrual:
Satisfaction for pain and suffering R50 000 -R50 000
Accrual R250 000

(Damages in the amount of R40 000 for damages to motor vehicle are NOT EXCLUDED
because they are damages for patrimonial loss. The inheritance of R50 000 is also excluded
due to the provision in their ANC which expressly states that inheritance would form part of
the relevant spouse’s accrual).

The accrual in Mrs Mahomed’s estate is calculated as follows:

Net value on dissolution R150 000
Minus net commencement value
as adapted by the CPI
(R30 000 x 2) -R60 000

Minus assets excluded from the accrual:

Satisfaction R70 000 -R70 000
Accrual R20 000

(Compensation in the amount of R80 000 for loss of income is not included because it is a damage
for patrimonial loss).

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 Because Mrs Mahomed’s estate shows the smaller accrual, she has a claim against Mr
Mahomed’s estate.
Mrs Mahomed’s accrual claim = ½(R250 000 – R20 000)
= ½(R230 000)
Mrs Mahomed is therefore entitled to R115 000

QUESTION 3

a) [1] There are sound reasons for the proposed change.

[2] Notice of the proposed change has been given to all the creditors of the spouses.
[3] No other person will be prejudiced by the change.

b) In Honey v Honey the court held that spouses cannot their matrimonial property system extra
judicially. The court also held that the postnuptial contract was void and unenforceable between
the parties themselves.

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 QUESTION 4

Beaumont v Beaumont

Kritzinger v Kritzinger

Koza v Koza

Childs v Childs

Watt v Watt

QUESTION 5

a) The grounds for divorce for a civil union are similar to those of a civil marriage. A civil union is
therefore dissolved in terms of section 4 of the Divorce Act on the following grounds:
- Irretrievable breakdown of the union
- Section 4 lays down two requirements for the irretrievable breakdown, namely;
- The union relationship between the partners must no longer be normal,
- There must be no prospect of the restoration of a normal union relationship between the partners
- The parties have not lived together as partners for a continuous period of at least one year
immediately prior to the date of the institution of the divorce proceedings
- The defendant has committed adultery and the plaintiff finds it irreconcilable with a continued
union relationship
- A court has declared the defendant a habitual criminal and the defendant has been imprisoned
as a result of the sentence.

b) (1) The spouse's existing or prospective means

(2) The spouse's respective earning capacities
(3) The spouse's financial needs and obligations
(4) Each spouse’s age
(5) The duration of the marriage
(6) The standard of living during the marriage
(7)Each spouse’s conduct towards the breakdown of the marriage
(8) Any redistribution order in terms of section 7(3) of the Divorce Act
(9) Any other factor

QUESTION 6

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a) In terms of section 7(6) of the Recognition of Customary Marriages Act a husband who is already
a partner in a customary marriage and wants to enter another customary marriage must, prior to
the celebration of the new marriage, obtain the court’s approval of a written contract which is to
regulate the future matrimonial property system of his marriages. If the existing customary
marriage is in community of property or subject to the accrual system, the court must terminate
the matrimonial property system and effect division of the property.

In all applications, the court must ensure that the property is equitably distributed, and take into
account all the relevant circumstances of the family groups that would be affected if the application
were granted. Although the Act does not expressly require that the present and future wives’
wishes should be taken into account, the court will presumably consider their views as part of
their family groups’ circumstances.
Furthermore, all persons having a sufficient interest in the matter and, in particular, the husband’s
present and future wives, must be joined in the proceedings. The Act authorises the court to allow
amendments to the proposed contract, grant an order subject to conditions, or refuse the
application if, in its opinion, any party’s interests would not be sufficiently safeguarded by the
proposed contract.

b) The Recognition of Customary Marriages Act does not stipulate the consequences of failure to
obtain a court-approved contract. It is submitted that the absence of such a contract renders the
subsequent customary marriage void, for an interpretation which does not make the husband’s
capacity to enter into a further customary marriage dependent on the court’s approval of his
proposed matrimonial property contract would imply that court approval is unnecessary (and a
waste of time and money), and would leave the interests of the existing customary wives and their
family groups unprotected.
In MN V MN / Ngwenyama v Mayelane, the SCA held that the absence of a contract in terms of
section 7(6) does not affect the validity of the subsequent customary marriage.

QUESTION 7

a) The relationship has limited recognition in terms of South African law. The rationale behind this is
that it is not recognized as a marriage under the Marriages Act or Civil Union Act or any other
statute that deals with recognition of various marriages in the Republic.

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 In Ryland v Edros the court held that the contractual obligations flowing from a de facto
monogamous Muslim marriage can be recognised and enforced between the parties despite
the fact that the marriage is potentially polygynous.

b) Yes. In Daniels v Campell, the Constitutional Court held that a surviving spouse in a
monogamous Hindu & Muslim marriage qualifies as a spouse and survivor in terms of Intestate
Succession Act and Maintenance of Surviving spouse Act

c) Yes. Mr Hassam was in a Muslim marriage with the child’s (Aisha) mother at the time of the
child’s conception and birth therefore acquires automatic parental responsibilities and rights in
terms of the Children’s Act

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 NOV 2013
SECTION A

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

SECTION B

QUESTION 1

a) The parties must have capacity to act

Agreement to enter into a civil marriage with each other
The marriage must be lawful
The prescribed formalities must be complied with

b) This question deals with one of the requirements for a civil marriage, which is the prescribed
formalities must be complied wit. Under this requirement the formalities during the marriage
ceremony and the registration of the civil marriage are of paramount significance. The matter in
question is associated with the formalities during the marriage ceremony.
Section 29(2) of the Marriages Act of 1961 requires that the ”solemnization must take place in a
church or other building used for religious service, or in public office or private dwelling house,
with open doors and in the presence of the parties themselves and at least two competent

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witnesses.’’ The arranged plan of Sarah and Jack to celebrate their marriage on the beach will
however not comply with the prescribed formalities requirement.
In Ex parte Dow an applicant wanted to the marriage to be declared null and void because it took
place in a garden. The court held that the marriage was valid because the object of section 29(2)
is to avoid clandestine marriages and it was not the intention of the legislature to invalidate those
marriages which were not concluded in a building of some sort.
In light of the decision in Ex parte Dow, Sarah and Jack may celebrate their marriage on the beach
in Mauritius.

QUESTION 2

The three civil sanctions are;

 warranty of execution against the maintenance debtor’s property

 an order for the attachment of emoluments due to the maintenance debtor
 an order for the attachment of any present or future debt owing or accruing to the
maintenance debtor

The two criminal sanctions are;

 guilty of an offence and liable on conviction

 or imprisonment for a period not exceeding one year or imprisonment without the option of a
fine

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QUESTION 3

The accrual in Habib’s estate is calculated as follows:

Net value on dissolution R200 000
Minus net commencement value -R 0
Minus assets excluded from the accrual: -R 0
Accrual R200 000

(Damages in the amount of R30 000 for loss of income and R20 000 damages to motor
vehicle are NOT EXCLUDED because they are damages for patrimonial loss).

The accrual in Hanita’s estate is calculated as follows:

Net value on dissolution R250 000
Minus net commencement value
As adapted by the CPI
(R100 000 x 2) -R200 000
Minus assets excluded from the accrual: -R 0
Accrual R50 000

Because Hanita’s estate shows the smaller accrual, she has a claim against Habib’s estate.
Hanita’s accrual claim = ½(R200 000 – R50 000)
= ½(R150 000)
Hanita is therefore entitled to R75 000

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 QUESTION 4

a) The provisions of the Maintenance of Surviving Spouses Act apply since the Act applies only to
marriages which are dissolved by death and only where the dissolution of the marriage took place
after the commencement date of the Act.
Mrs Sithole has a claim against the late Mr Sithole's estate for the provision of her reasonable
maintenance needs until her death or remarriage in so far as she is unable to provide for them
from her own means or earnings. In this regard, you should have dealt with the fact that Mrs
Sithole is unable to work and earn an income as a result of a disability and with the fact that she
is entitled to her half share of the joint estate, namely R25 000 and the inheritance of R5 000 in
terms of Mr Sithole's will. The amount of R30 000 (R25 000 and R5 000) will probably not be
enough to support her and therefore she will not be able to support herself from her own means
and earnings, especially since she is unable to generate her own income.
Mrs Sithole's claim is, however, limited to the amount required to provide for her reasonable
maintenance needs. Mrs Sithole can definitely lodge a maintenance claim with the executor of Mr
Sithole's estate.
Mrs Sithole's claim takes the same order of precedence against Mr Sithole's estate as a claim for
maintenance of a dependent child of Mr Sithole would have, should there have been such a claim.
If Tekiwe is dependent on Mr Sithole's estate for maintenance (in spite of the bequest), his claim
for maintenance and Mrs Sithole's claim will take the same order of precedence. If Mrs Sithole's
claim and that of a dependent child (had William been dependent on Mr Sithole's estate for
maintenance) compete with each other, such claims shall if necessary be reduced
proportionately.

b) The death of the child

The child’s adoption
When the child becomes self-supporting
If the child enters into a marriage or a civil union (NB the child can still claim maintenance from
his or her parent, grandparent, brother or sister)

QUESTION 5

a) A pension fund
In terms of the decision in Maharaj v Maharaj, pension interests are part of the assts the parties
of a divorce proceeding for the purposes of the division of their estates. Section 1 of the Divorce

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 Act has to be applied to calculate the interest of a spouse who is a member of a pension fund.
These pension benefits will be calculated by determining the benefit to which the spouse would
have been entitled to had he terminated his membership of the pension fund on the date of the
divorce. The other spouse will be entitled to half share of the pension interest within three or four
months after the date of divorce in cash or it may be transferred to an approved fund of her choice.

b) Retirement annuity fund

It is the total amount of the member’s contribution to the fund up to the date of divorce together
with total amount of annual simple interest at the prescribed official rate. The non-member spouse
is entitled to claim the lesser of the fund return or simple interest on the retirement annuity fund.

c) Pension or provident preservation fund

It is the amount to which the member who would become entitled in terms of the rules of the fund
had the member’s fund had been terminated at the date of divorce. A non member is entitled to
the fund return on the pension interest

QUESTION 6

a) A court-approved contract

b) The Recognition of Customary Marriages Act does not stipulate the consequences of failure
to obtain a court-approved contract. It is submitted that the absence of such a contract renders
the subsequent customary marriage void, for an interpretation which does not make the
husband’s capacity to enter into a further customary marriage dependent on the court’s
approval of his proposed matrimonial property contract would imply that court approval is
unnecessary (and a waste of time and money), and would leave the interests of the existing
customary wives and their family groups unprotected.

However in MN v MN/Ngwenyama v Mayelane the SCA held that the absence of a contract in
terms of section 7(6) does not affect the validity of the subsequent customary marriage.

QUESTION 7

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a) In terms of section 1 of the Civil Union Act, a civil union is the monogamous, voluntary union of
two persons who are at least 18 years of age, which is solemnised and registered in accordance
with the procedures prescribed by the Act. The parties can choose whether they want to call
their relationship a marriage or a civil partnership. The consequences will however be the
same. A civil union may be concluded by parties of the same or opposite sex.
b) No. the same rules that apply to the dissolution of civil marriages apply to the dissolution of civil
unions.

QUESTION 8
Ryland v Edros
Am v RM
Govender v Ragavayah
Du Plessis v Road Accident Fund
Gory v Kolver

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 JUNE 2013

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

SECTION B
QUESTION 1
a) Stuprum
It is an extra-marital sexual intercourse with a third party before the marriage. It is also one of the
grounds for setting aside a voidable civil marriage. Generally it does not affect the validity of a
civil marriage. The exception is where a woman is pregnant with another man’s child at the time
of the wedding. If her husband was unaware of the pregnancy, the marriage is voidable and he
may request annulment of the marriage.

b) Impotence
It is when a person is unable to have sexual intercourse. A civil marriage is voidable if one of the
spouses was unaware of the impotence at the time of the wedding. The exceptions are where the
plaintiff was aware of the impotence, condoned it or the impotence is only temporary or probably
curable.

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 QUESTION 2
2. Reloomel v Ramsay
Fose v Minister of Safety and Security
Exce4ll v Douglas
Wiese v Moolman
Bannatyne v Bannatyne

QUESTION 3
Remedy 1:
The statutory right to adjustment upon dissolution of the joint estate
Section 15(9)(b) of the Matrimonial Property Act governs the position if a spouse enters into a
transaction with a third party while he or she knows or ought reasonably to know that his or her
spouse will probably not consent to the transaction. If the joint estate suffers a loss as a result of
the transaction, an adjustment must be effected upon division of the joint estate in favour of the
spouse whose consent was not obtained.

Remedy 2:
Suspension of a spouse’s powers in respect of the joint estate
In terms of section 16(2) of the Matrimonial Property Act, the High Court may suspend any power
a spouse has in respect of the joint estate for a definite or indefinite period. The court will order
such suspension only if the prejudiced spouse applies for it and satisfies the court the order is
necessary for the protection of his or her interests in the joint estate.

Remedy 3:
Immediate division of the joint estate
If one spouse’s conduct seriously prejudices or will probably seriously prejudice the other
spouse’s interests in the joint estate, the prejudiced spouse may apply to court in terms of section
20 of the Matrimonial Property Act for the immediate division of the joint estate. No other person
must be prejudiced by the order. The court may order that the joint estate be divided in equal
shares or on such other basis as it deems just. The court may further replace community of
property with another matrimonial property system subject to such conditions as it deems fit. In

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terms of an obiter dictum in Leeb v Leeb the court will determine the basis on which the joint
estate is to be divided by taking into account factors such as the duration of the marriage, the
assets each spouse brought into the marriage, each souse’s debts at the commencement of the
marriage, each spouse’s contribution to the joint estate during the marriage, the prejudice one
spouse suffered in respect of assets of the joint estate as a result of the other spouse’s conduct,
and antenuptial debts which were settled form the joint estate during the subsistence of the
marriage.

QUESTION 4

The accrual in Mr Pakati’s estate is calculated as follows:

Net value on dissolution R100 000
Minus net commencement value -R 0
Minus assets excluded from the accrual:
Donation from third party R30 000 -R 30 000
Accrual R70 000

(Damages in the amount of R6 000 for loss of income and R14 000 damages to motor vehicle
are NOT EXCLUDED because they are damages for patrimonial loss).

The accrual in Mrs Pakati’s estate is calculated as follows:

Net value on dissolution R90 000
Minus net commencement value
As adapted by the CPI
(R15 000 x 2) -R30 000
Minus assets excluded from the accrual:
Assets substituted for excluded assets R20 000 -R20 000
Accrual R40 000

Mrs Pakati’s estate shows the smaller accrual, she can claim half the difference between
the bigger and the smaller accruals.
Mrs Pakati’s accrual claim = ½(R70 000 – R40 000)

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 = ½(R30 000)
Mrs Pakati is therefore entitled to R15 000

QUESTION 5
a) In terms of section 7(3) of the Divorce Act, the prerequisites for the making of a redistribution
order include that the spouses must have married prior to the commencement of the Matrimonial
Property Act/1 November 1984, with an antenuptial contract which excludes community of
property, community of profit and loss, and accrual sharing in any form (ie, subject to complete
separation of property); or prior to the commencement of the Marriage and Matrimonial Property
Law Amendment Act/2 December 1988, in terms of section 22(6) of the Black Administration Act
which also provided for complete separation of property).
Mrs Khumalo clearly meets the second prerequisite above.

Section 7(4) of the Divorce Act sets out two requirements for the granting of a redistribution order,
namely that the spouse who seeks the order must have contributed directly or indirectly to the
maintenance or increase of the other spouse’s estate during the subsistence of the marriage, and
that the court must be satisfied that, because of such contribution, is will be equitable and just to
make a redistribution order.
Mrs Khumalo clearly meets the first requirement above.
In Beaumont v Beaumont the parties were married in 1964 with an antenuptial contract excluding
all community of property and profit and loss. During the subsistence of the marriage the wife, like
Mrs Khumalo on our facts, kept house for her husband and raised the children, fulfilling the
ordinary duties of a wife. Upon divorce the court, in applying the one-third guideline, awarded the
wife an amount of R150 000 of the husband’s estate.
In light of the prerequisites, requirements and decision in Beaumont, Mrs Khumalo will succeed
in a claim for a redistribution order against Mr Khumalo.

b) (1) The spouse's existing or prospective means

(2) The spouse's respective earning capacities
(3) The spouse's financial needs and obligations
(4) Each spouse’s age
(5) The duration of the marriage

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 (6) The standard of living during the marriage
(7) Each spouse’s conduct towards the breakdown of the marriage
(8) Any redistribution order in terms of section 7(3) of the Divorce Act
(9) Any other factor in the court’s opinion should be taken into account

QUESTION 6
a) Civil Union Act
b) Yes
c) Both parties must be at least 18 years of age
Agree to enter into a civil union
Solemnized and registered in accordance with the prescribed procedures
d) Civil partnership

QUESTION 7
a) Recognition of Customary Marriages Act 120 of 1998
b) The customary marriage is valid. Failure to register a customary marriage does not affect the
validity of the marriage in terms of section 4(9) of the Recognition of Customary Marriages Act
120 of 1998
c) The marriage will be in community of property unless such consequences are specifically
excluded in an antenuptial contract in terms of the decision in Gumede v President of the Republic
of South Africa.
d) Yes. Section 10(1) of the Recognition of Customary Marriages Act 120 of 1998 provides that
a man and a woman in a monogamous customary marriage may convert their marriage into
a civil marriage.

QUESTION 8
a) Because they are not recognized under any legislation as such.

b) Ryland v Edros
Kahn v Kahn
AM v AM

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