Family law Flashcards
What factors will the court take into account in determining the amount of maintenance to be paid by non-custodian parent?
- The income and financial means of both parents,
- The standard of living of the child before and after divorce,
- the age and health of the child,
- the education and training needs of the child,
- any special needs the child may have
How do you calculate accrual?
- Determine the commencement value of each spouse’s estate (based on assets and liabilities before the marriage)
- Determine the end value of their respective estates at the end of marriage
- Calculate the accrual: end value minus commencement value = accrual of estate
- Calculate claimable accrual: the spouse with the smaller estate has a claim against the spouse with the larger estate (subtract smaller accrual from larger one then divide it by 2.)
How do you calculate accrual on the date of divorce?
Accrual: net increase in the value of a spouse’s estate since the date of marriage.
Difference between commencement value before the marriage and the end value on the date of divorce.
The spouse with the largest estate will have to transfer half the difference between the larger accrual and the smaller accrual
When does a spouse need prior WRITTEN consent of the other spouse?
For transactions (juristic act that actually transfers, confers with a real right in immov prop, etc) such as:
- Alienating or burdening immovable property forming part of the joint estate (ex: transferring a house, registering a mortgage bond, etc)
- Suretyship
Must give written consent before the transaction occurs!
For which transactions does a spouse need the other spouse’s written consent attested by 2 competent witnesses?
Relates to the contract which creates the obligation to sell, donate, burden with a mortgage,etc. Can be ratified afterwards.
- To enter into an agreement of sale, loan agreement or servitude agreement;
- Receiving credit under a credit agreement;
- Purchasing immovable prop
What transactions simply require the other spouse’s written consent (without further requirements)?
- Alienating or pledging assets mainly held as investments that form part of the estate (jewels, paintings, etc);
- Alientating, ceding or peldging shares, stock, debentures, debenture bonds, insurance policies, fixed deposits, etc or any similar asset/ investment by or on behalf of the other spouse in a financial institution;
- Instituting or defending legal proceedings that don’t relate to the spouse’s profession, trade or business, or separate property or for the recovery of non-pat damages for a delict committed against him
- Withdrawing money credited to the name of the other spouse in ny bank account
What is the main purpose of an ANC?
To deviate from some common law or statutory rules re the matrimonial property consequences of marriage
What are the requirements of a valid ANC?
Must be attested by a notary
Registered in the deeds registry within 3 months of its execution
What is the effect of marriage out of COP?
Complete separation of property:
- Each spouse keeps the estate they had before the marriage and everything they require during; and
- They each have full legal capacity to enter into contracts without the other’s help.
In their ANC they must state that they want complete separation of property without accrual.
Which marriages is accrual applicable to?
Automatically applies to marriages out of COP unless expressly excluded in ANC
Is it possible for parties to change their matrimonial regime?
YES (sec 21 Matrimonial Property Act):
- Apply to court
- Must show sound reasons
- Must give notice to all their creditors;
- Must not prejudice other people;
5.The change is then effected by a notarial contract registred in the Deeds Registry
If no ANC is concluded before the marriage then it will be…
Automatically in COP
List the three marital regimes:
- In COP (all marriages automaticaly in COP)
- Out of COP with accrual (must have ANC);
- Out of COP without accrual (must have an ANC).
