Family Law 2011
Content
UNIVERSITY OF KWAZULU-NATAL, PIETERMARITZBURG EXAMINATIONS: JUNE 2011 SUBJECT, COURSE AND CODE: FAMILY LAW (LAWS2FM/ LAWS3FM P1) DURATION: 3 HOURS TOTAL MARKS: 70
______________________________________________________________________________ External Examiner: Ms J Botha (NMMU) Internal Examiner: Professor M Carnelley ______________________________________________________________________________ STUDENTS ARE REQUESTED, IN THEIR OWN INTERESTS, TO WRITE LEGIBLY. ______________________________________________________________________________ PLEASE NOTE: This paper consists of (5) pages. Please see that you have all the pages. Please answer ALL questions. ______________________________________________________________________________
Question 1 Stone is married to Jo-Anne, but he has been having an extra-marital affair with his personal assistant Peter for the past few months. Unfortunately a colleague has just informed Jo-Anne about the affair and she is threatening to sue Peter for the breakup of their marriage. Stone is not happy with this development and seeks your legal advice on the following: 1.1 1.2 Is the claim for adultery available to Jo-Ann? Explain your answer. What arguments could be raised for and against a claim for adultery? (5)
UNIVERSITY OF KWAZULU-NATAL, PIETERMARITZBURG EXAMINATIONS: JUNE 2011 SUBJECT, COURSE AND CODE: FAMILY LAW (LAWS2FM/ LAWS3FM P1)
PAGE 2 _____________________________________________________________________________________
Question 2 2.1 Harry and Winnie have been married for seven years, out of community of property and including the accrual system. At the time when the marriage was concluded, Harry owned a car (R10 000) and owed a study loan (R10 000). Winnie only had a few pieces of furniture (R20 000) and a study loan of R7 000. At the time she owed her sister R3000 for money borrowed from the sister. At the time of the divorce, Harry owned a house (R900 000) and a car (R300 000). He also bought all the furniture in the house (valued at R80 000). He received an amount of R20 000 for pain and suffering after a car accident, and R50 000 for defamation – both these amounts are held in a savings account. Harry’s brother William still owes him R100 000. Winnie owned a flat (R450 000), a car (R150 000) and has a valuable coin collection (R50 000). She received R40 000 as an inheritance from her father that was invested on the JSE in shares. She has no debts. During the marriage Harry donated to Winnie R50 000 that she and her sister spent on a European holiday. Assume that, according to the consumer price index, money was worth twice as much at the commencement of the marriage, as at its dissolution. Determine if an accrual claim would be due and payable at the time of divorce. (6)
2.2 Winnie has realized that, in light of their marital problems, Harry is attempting to hide some of his assets to reduce her possible accrual claim. Explain to Winnie the protective measures available to her to in this regard. (4)
(10)
UNIVERSITY OF KWAZULU-NATAL, PIETERMARITZBURG EXAMINATIONS: JUNE 2011 SUBJECT, COURSE AND CODE: FAMILY LAW (LAWS2FM/ LAWS3FM P1) PAGE 3 ______________________________________________________________________________ Question 3 Anita and Anton have been married for thirty years (since 1979) out of community of property, without the accrual system. They have three minor children. They started an accounting business (both are accountants) just before they got married. Both worked therein until the birth of the children when they decided that it would be better for the children that Anita stay at home. All the assets, including the business, are in Anton’s name. The business is worth about R3 000 000 as a running concern, the house R1 000 000 as well as the two cars (R1 000 000 in total). Only Anton has a pension, currently worth R2 000 000. A few years ago Anton created a trust for his children of which he and his golf partner are the trustees. The value of the trust assets are R7 000 000. Anton recently went on a trip abroad to “find himself”, but also found a new love, namely Annabel. This was a shock to Anita as she always thought that their marriage was happy. Your principal wants you to prepare an opinion for him wherein you explain the following concepts by giving the requirements for each of the concepts, the rule that would be applied by the court, any specific factors the court would have to consider, as well as the relevant case law. In your answer also refer to the clean-break principle and the interaction between the various possible claims: 3.1 3.2 the possible grounds for the divorce (including any statutory guidelines); the division of the assets in terms of the chosen matrimonial property system (show the amounts); the possibility of a forfeiture of benefits order; the possibility of a redistribution order; and the likelihood of a spousal maintenance order. (25)
3.3 3.4 3.5
UNIVERSITY OF KWAZULU-NATAL, PIETERMARITZBURG EXAMINATIONS: JUNE 2011 SUBJECT, COURSE AND CODE: FAMILY LAW (LAWS2FM/ LAWS3FM P1) PAGE 4 ______________________________________________________________________________ Question 4 You are consulted as an attorney by Annique. She had been in a relationship with Benjamin for the past seven years, living together in a house bought by Benjamin. During the seven years Annique has been a home-maker and did not work at all, fulfilling the needs of her evergrowing family. She has four children with Benjamin. She has no assets. Benjamin is however a very successful salesman and has a net estate of about R2 million. She wants to know the following: firstly, will the courts protect her by awarding maintenance to her if the relationship is terminated; and secondly, would she be entitled to inherit from his estate if he dies intestate as he has been diagnosed with cancer. Refer to legal sources, but do not discuss. 4.1 4.2 4.3 4.4 Presume that Annique and Benjamin are married in terms of the Marriage Act of 1961; Presume that they are married in terms of Islamic law; Presume that are married in terms of Hindu law; Presume that they are merely living together without having concluded any marriage. (10) Question 5 John and Kate have lived together for a few years. Kate has decided to kick John out of the shared home as he is continuously pre-occupied with his hobbies over weekends and does not treat her “like the princess she is”. They have two children together, but Kate does not want John to see them anymore. She just wants him to keep on maintaining them as he has been doing in the past. This attitude is breaking John’s heart as he has been a very “hands-on” father. The children, both boys, are 5 and 3 years old. John seeks your advice on whether Kate can stop him from seeing the children. Discuss his rights with reference to the Children’s Act 38 of 2005. (5)
UNIVERSITY OF KWAZULU-NATAL, PIETERMARITZBURG EXAMINATIONS: JUNE 2011 SUBJECT, COURSE AND CODE: FAMILY LAW (LAWS2FM/ LAWS3FM P1) PAGE 5 ______________________________________________________________________________ Question 6 Mary Maponya has two boys, ages 11 and 13. You are an attorney and she seeks your legal advice. Two years ago the court made an order against the father of the children for the payment of maintenance. Although he pays periodically, he is currently R 136 000 in arrears. She is desperate for some action as the matter has been “dragging on” for months. He continuously promises her that he will pay, yet little money has been forthcoming. She knows that he will be receiving a pension payout from his previous employer within the next few weeks as he had been retrenched, but she also heard via the grapevine that he is planning to spend most of it on an extended trip overseas. He is also in the process of selling his house as he has moved in with his new lover. Discuss the options available to Mary in acquiring the arrears in light of existing legislation and judicial precedent. Also advise her on the possibility of protecting the future maintenance claims for her children also with reference to case law. (15)
TOTAL MARK [70]
______________________________________________________________________________ External Examiner: Ms J Botha (NMMU) Internal Examiner: Professor M Carnelley ______________________________________________________________________________ STUDENTS ARE REQUESTED, IN THEIR OWN INTERESTS, TO WRITE LEGIBLY. ______________________________________________________________________________ PLEASE NOTE: This paper consists of (5) pages. Please see that you have all the pages. Please answer ALL questions. ______________________________________________________________________________
Question 1 Stone is married to Jo-Anne, but he has been having an extra-marital affair with his personal assistant Peter for the past few months. Unfortunately a colleague has just informed Jo-Anne about the affair and she is threatening to sue Peter for the breakup of their marriage. Stone is not happy with this development and seeks your legal advice on the following: 1.1 1.2 Is the claim for adultery available to Jo-Ann? Explain your answer. What arguments could be raised for and against a claim for adultery? (5)
UNIVERSITY OF KWAZULU-NATAL, PIETERMARITZBURG EXAMINATIONS: JUNE 2011 SUBJECT, COURSE AND CODE: FAMILY LAW (LAWS2FM/ LAWS3FM P1)
PAGE 2 _____________________________________________________________________________________
Question 2 2.1 Harry and Winnie have been married for seven years, out of community of property and including the accrual system. At the time when the marriage was concluded, Harry owned a car (R10 000) and owed a study loan (R10 000). Winnie only had a few pieces of furniture (R20 000) and a study loan of R7 000. At the time she owed her sister R3000 for money borrowed from the sister. At the time of the divorce, Harry owned a house (R900 000) and a car (R300 000). He also bought all the furniture in the house (valued at R80 000). He received an amount of R20 000 for pain and suffering after a car accident, and R50 000 for defamation – both these amounts are held in a savings account. Harry’s brother William still owes him R100 000. Winnie owned a flat (R450 000), a car (R150 000) and has a valuable coin collection (R50 000). She received R40 000 as an inheritance from her father that was invested on the JSE in shares. She has no debts. During the marriage Harry donated to Winnie R50 000 that she and her sister spent on a European holiday. Assume that, according to the consumer price index, money was worth twice as much at the commencement of the marriage, as at its dissolution. Determine if an accrual claim would be due and payable at the time of divorce. (6)
2.2 Winnie has realized that, in light of their marital problems, Harry is attempting to hide some of his assets to reduce her possible accrual claim. Explain to Winnie the protective measures available to her to in this regard. (4)
(10)
UNIVERSITY OF KWAZULU-NATAL, PIETERMARITZBURG EXAMINATIONS: JUNE 2011 SUBJECT, COURSE AND CODE: FAMILY LAW (LAWS2FM/ LAWS3FM P1) PAGE 3 ______________________________________________________________________________ Question 3 Anita and Anton have been married for thirty years (since 1979) out of community of property, without the accrual system. They have three minor children. They started an accounting business (both are accountants) just before they got married. Both worked therein until the birth of the children when they decided that it would be better for the children that Anita stay at home. All the assets, including the business, are in Anton’s name. The business is worth about R3 000 000 as a running concern, the house R1 000 000 as well as the two cars (R1 000 000 in total). Only Anton has a pension, currently worth R2 000 000. A few years ago Anton created a trust for his children of which he and his golf partner are the trustees. The value of the trust assets are R7 000 000. Anton recently went on a trip abroad to “find himself”, but also found a new love, namely Annabel. This was a shock to Anita as she always thought that their marriage was happy. Your principal wants you to prepare an opinion for him wherein you explain the following concepts by giving the requirements for each of the concepts, the rule that would be applied by the court, any specific factors the court would have to consider, as well as the relevant case law. In your answer also refer to the clean-break principle and the interaction between the various possible claims: 3.1 3.2 the possible grounds for the divorce (including any statutory guidelines); the division of the assets in terms of the chosen matrimonial property system (show the amounts); the possibility of a forfeiture of benefits order; the possibility of a redistribution order; and the likelihood of a spousal maintenance order. (25)
3.3 3.4 3.5
UNIVERSITY OF KWAZULU-NATAL, PIETERMARITZBURG EXAMINATIONS: JUNE 2011 SUBJECT, COURSE AND CODE: FAMILY LAW (LAWS2FM/ LAWS3FM P1) PAGE 4 ______________________________________________________________________________ Question 4 You are consulted as an attorney by Annique. She had been in a relationship with Benjamin for the past seven years, living together in a house bought by Benjamin. During the seven years Annique has been a home-maker and did not work at all, fulfilling the needs of her evergrowing family. She has four children with Benjamin. She has no assets. Benjamin is however a very successful salesman and has a net estate of about R2 million. She wants to know the following: firstly, will the courts protect her by awarding maintenance to her if the relationship is terminated; and secondly, would she be entitled to inherit from his estate if he dies intestate as he has been diagnosed with cancer. Refer to legal sources, but do not discuss. 4.1 4.2 4.3 4.4 Presume that Annique and Benjamin are married in terms of the Marriage Act of 1961; Presume that they are married in terms of Islamic law; Presume that are married in terms of Hindu law; Presume that they are merely living together without having concluded any marriage. (10) Question 5 John and Kate have lived together for a few years. Kate has decided to kick John out of the shared home as he is continuously pre-occupied with his hobbies over weekends and does not treat her “like the princess she is”. They have two children together, but Kate does not want John to see them anymore. She just wants him to keep on maintaining them as he has been doing in the past. This attitude is breaking John’s heart as he has been a very “hands-on” father. The children, both boys, are 5 and 3 years old. John seeks your advice on whether Kate can stop him from seeing the children. Discuss his rights with reference to the Children’s Act 38 of 2005. (5)
UNIVERSITY OF KWAZULU-NATAL, PIETERMARITZBURG EXAMINATIONS: JUNE 2011 SUBJECT, COURSE AND CODE: FAMILY LAW (LAWS2FM/ LAWS3FM P1) PAGE 5 ______________________________________________________________________________ Question 6 Mary Maponya has two boys, ages 11 and 13. You are an attorney and she seeks your legal advice. Two years ago the court made an order against the father of the children for the payment of maintenance. Although he pays periodically, he is currently R 136 000 in arrears. She is desperate for some action as the matter has been “dragging on” for months. He continuously promises her that he will pay, yet little money has been forthcoming. She knows that he will be receiving a pension payout from his previous employer within the next few weeks as he had been retrenched, but she also heard via the grapevine that he is planning to spend most of it on an extended trip overseas. He is also in the process of selling his house as he has moved in with his new lover. Discuss the options available to Mary in acquiring the arrears in light of existing legislation and judicial precedent. Also advise her on the possibility of protecting the future maintenance claims for her children also with reference to case law. (15)
TOTAL MARK [70]
