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Family law > Module 10 > Flashcards

Module 10 Flashcards

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1
Q

What does Section 2(1) of the Divorce Act state?

A

Section 2(1) of the Divorce Act states that a court has jurisdiction in divorce proceedings if the parties are or either of the parties is domiciled in the area of jurisdiction of the court on the date on which the action is instituted, or ordinarily resident in the area of jurisdiction of the court on the said date and has been ordinarily resident in South Africa for not less than one year immediately before that date.

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2
Q

What is the grounds for divorce Before the Divorce Act 70 of 1979?

A
  • Fault-based divorce system
  • Requirement: guilt from one of the spouses in relation to a marital fault
  • Process: the innocent spouse could then sue for divorce
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3
Q

What is the grounds for divorce after the Divorce Act 70 of 1979?

A
  • No-fault divorce system
  • Requirement: grounds for divorce in terms of the Divorce Act
  • Fault is now irrelevant in considering whether or not a divorce should be granted as stated in Singh v Singh 1983
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4
Q

What is the fault based system?

A

Before 1979 women could sue their husbands for divorce on the grounds of adultery, or they could force the husband to stay married to them.

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5
Q

What does section 4(1) of the Divorce Act state?

A

Section 4(1) of the Divorce Act states that a court may grant a decree of divorce on the ground of the irretrievable breakdown of a marriage if it is satisfied that the marriage relationship between the parties to the marriage has reached such a state of disintegration that there is no reasonable prospect of the restoration of a normal marriage relationship between them.

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6
Q

When can a court grant a decree of divorce?

A

Section 3 of the Divorce Act provides that a court may grant a decree of divorce, only two grounds for divorce are the irretrievable breakdown of the marriage in section 4 and the mental illness or continuous unconsciousness in section 5.

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7
Q

What must a spouse prove when a spouse sues for divorce?

A
  • The marital relationship has disintegrated to the point of no longer a normal marriage
  • There is no reasonable prospect of restoring a normal marriage relationship in the future
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8
Q

When would the courts consider a marriage to be disintegrated?

A

The courts would consider a marriage to be disintegrated if they no longer have a consortium omnis vitea and the courts must be satisfied that there is no possibility of restoring the consortium. This is through evidence that supports the claim of an irretrievable breakdown

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9
Q

What was found in the Naidoo case state?

A

In the Naidoo case, the court must also consider the situation objectively, the court must be satisfied that there has been an irretrievable breakdown of the marriage. It must therefore have some factual basis in events or conduct which show that the marriage relationship has reached such a state of disintegration that there is no reasonable prospect of the restoration of a normal marriage relationship.

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10
Q

Is unhappiness a ground for divorce?

A

Section 4(1) shows that unhappiness is not a ground for divorce and that they need to prove there is no reasonable prospect of restoring a normal marriage in the future

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11
Q

What are the factors in Section 4(2) of the Divorce Act that might indicate proof of the irrevocable breakdown of marriage?

A
  • the parties have not lived together as husband and wide for a continuous period of at least one year immediately before the date of the institution of the divorce action
  • that the defendant has committed adultery and that the plaintiff finds it irreconcilable with a continued marriage relationship
  • that the defendant has in terms of a sentence of a court been declared a habitual criminal and is undergoing imprisonment as a result of such a sentence
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12
Q

What are the two special grounds in Section 5 of the Divorce Act?

A
  • Mental illness - section 5(1)
  • Continuous unconsciousness - section 5(2)
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13
Q

What is the evidence of in section 5 of Divorce Act?

A

Section 5 requires evidence from medical experts showing there is no reasonable prospect that they will be cured or regain consciousness and is designed to protect particularly vulnerable spouses. The court may also appoint a legal practitioner to represent the defendant at the divorce proceedings

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14
Q

What was determined in the Dickinson case?

A

In Dickinson, the wife had been committed in an institution for more than two years and the husband did not sue according to section 5(1), as section 5(1) has a higher ground of evidence. The courts found that it is not necessary to divorce per section 5(1) and is possible to grant the divorce under section 4(1), as this has less demanding requirements.

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15
Q

What does Section 5(1) state about when a court may grant a decree of divorce on the grounds of mental illness?

A
  • The defendant is admitted or detained as a patient in a mental institute
  • Has remained there for a continuous period of at least 2 years before the divorce proceedings without being discharged
  • Evidence is given by at least two psychiatrists (one appointed by the court) that the defendant suffers from an incurable mental illness
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16
Q

What does Section 5(2) state about when a court may grant a decree of divorce on the grounds of continuous unconscious because of a physical disorder?

A
  • The defendant’s unconsciousness has lasted for a continuous period of at least 6 months immediately prior to the divorce proceedings
  • That evidence is given by at least two medical practitioners (one neurologist or neurosurgeon appointed by the court) that there is no reasonable prospect that the defendant will regain consciousness
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17
Q

What does section 5(3) of the Divorce Act state?

A

Section 5(3) provides that the court can appoint a lawyer to represent the interest of the defendant’s spouse, order the plaintiff’s spouse and order the plaintiff’s spouse to pay for the costs of this representation.

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18
Q

What does section 5(4) of the Divorce Act state?

A

Section 5(4) provides that the plaintiff’s spouse might have to furnish security for any financial benefits that the defendant’s spouse may be entitled to at the end of the marriage.

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19
Q

When is forfeiture of the patrimonial benefits possible?

A

Section 9 of the Divorce Act makes it clear that forfeiture of patrimonial benefits is possible only when a decree of divorce is granted on the grounds of irretrievable breakdown. Forfeiture is not available if the divorce is granted on the grounds of section 5.

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20
Q

What does section 4(3) of the Divorce Act provide?

A

Section 4(3) provides that the court may postpone the divorce proceeding if it appears to the court that there is a reasonable possibility that the spouses may become reconciled through marriage counselling or further reflection. Under these circumstances, the court can refuse to grant the divorce

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21
Q

What does section 5A of the Divorce Act deal with?

A

Section 5A was inserted into the Divorce Act in 1996. Deals with the refusal to grant a civil divorce if it appears that a spouse who has the power to procure the religious divorce has failed to take the necessary steps.

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22
Q

What does section 5A of the Divorce Act try to prevent?

A

Section 5A is to prevent a situation in which a civil divorce is obtained under the Divorce Act but a spouse refuses to grant a religious divorce, which would restrict spouses from remarrying.

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23
Q

What are the requirements for a divorce decree in section 6 of the Divorce Act?

A
  • Is satisfied that the arrangements made for the children of the marriage are satisfactory to their best interest
  • The court has considered the report and recommendations of the Family Advocate
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24
Q

What does rule 43 of the uniform rule of court state?

A

Rule 43 is an interim relief pending a divorce order and when a divorce is finalised, any order for interim relief will lapse, and any order resulting from the divorce decree takes effect

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25
Q

Can a rule 43 oder be amended?

A

Rule 43(6) states that the court may, on the rule 43 procedure, vary its decision in the event of a material change occurring in the circumstances of either party or a child, or the contribution towards costs proving inadequate.

26
Q

When does Rule 43(1) apply?

A
  • Maintenance pendente lite;
  • A contribution towards the costs of a matrimonial action, pending or about to be instituted;
  • Interim care of any child;
  • Interim contact with any child.
27
Q

What does rule 43(2) state?

A

Rule 43(2) states that an applicant applying for any relief shall deliver a sworn statement like a declaration, setting out the relief claimed and the grounds

28
Q

What does rule 43(5) state?

A

Rule 43(5) states that the court may hear such evidence as it considers necessary and may dismiss the application or make such order as it deems fit to ensure a just and expeditious decision.

29
Q

What are the types of relief sought in a rule 43 order?

A
  • Spousal maintenance (pendente lite) - Reciprocal duty of support. The court will consider the financial circumstances of both the parties and will make an order from there
  • Contribution towards the cost of a pending divorce- contribution to legal fees and finalising the divorce. The court will consider the circumstances and facts of the case
  • Interim care- the court will look at the best interest of the child
  • Interim contact- Parties can request care or contact with the child during divorce proceedings
30
Q

What is stated in Zwiegelaar case?

A

In the Zwiegelaar case, it was stated that interim maintenance the term ‘maintenance’ refers to maintenance in the matrimonial context as a reciprocal duty of support which ‘entails the provision of accommodation, food, clothing, medical and dental attention, and whatever else the spouses reasonably require’ as seen in Interim maintenance may also include maintenance to pay for interim housing, school fees, matrimonial home bond payments and medical aid

31
Q

What is stated in KT v AT case?

A

In KT v AT the court in considering a Rule 43 application found that an application needs to be specific and deal with the issues at hand. It should contain a specific summary of the claims and not have an obscure amount of pages as the one set out in the case which had 368 pages.

32
Q

What are the instances in which a matrimonial system is divided departing from the normal way?

A

instances of departure can be in the form of settlement agreements, or forfeiture and redistribution orders.

33
Q

What does section 7(1) of the Divorce Act state?

A

S 7(1) of the Divorce Act states a court granting a decree of divorce may in accordance with a written agreement between the parties make an order about the division of the assets of the parties or the payment of maintenance by the one party to the other.

34
Q

What is a spouse agreement?

A

A spouse agreement is a contract that is legally binding and can be applied like all other contracts.

35
Q

What does section 9(1) of the Divorce Act state?

A

S9(1) of the Divorce Act states that when a decree of divorce is granted on the ground of the irretrievable break-down of a marriage the court may make an order that the patrimonial benefits of the marriage be forfeited by one party in favour of the other if the court believes that if the order for forfeiture is not made, the one party will be unduly benefited.

36
Q

What is the purpose of a forfieture order??

A

A forfeiture order is there to ensure that a spouse does not derive unfair financial benefits from being married to someone.

37
Q

What cant a spouse forfeit at divorce?

A

A spouse cannot be ordered to forfeit assets that they brought into the marriage, they can only be deprived of the assets their spouse brought into the marriage that they would be entitled to at the end

38
Q

What will be taken into account when a forfeiture of patrimonial benefits of marriage in accordance with s 9(1) of the Divorce Act?

A
  • Duration of the marriage
  • The circumstances which gave rise to the break-down
  • Any substantial misconduct on the part of either of the parties
39
Q

What is stated in Wijker case?

A

The Wijker case states that when the court is deciding if a spouse is unduly benefited, they should do so in relation to the factors in section 9(1) of the Divorce Act, however not all three factors have to be proven.

40
Q

What is the forfeiture order in marraige out of community of property with accrual?

A

The claim is for half the difference between the two accruals. In the case of forfeit the court can make a forfeiture order against the spouse with the lesser accrual.

41
Q

What is the forfeiture order in marriage out of community of property without accrual

A

In this system spouses normally don’t have any sharing of property. Maintenance is a patrimonial benefit of the marriage and a spouse can seek an order that the other spouse forfeits a claim for maintenance or the household necessaries

42
Q

What does the smith case state?

A

The Smith case states that forfeiture orders cannot be made against spouses who contribute more than half the assets to the joint estate. They will always receive at least half of the joint estate.

43
Q

What does section 7(3) of the Divorce Act state?

A

S7(3) of the Divorce Act states that a court granting a decree of divorce in respect of a marriage out of community of property can issue a redistribution order if a party to the marriage applies to the court for an order to transfer assets from the wealthier spouse

44
Q

When does section 7(3) of the Divorce Act apply?

A

S7(3) of the Divorce Act applies in respect of parties married out of community of property without the accrual and only if that marriage was concluded before the commencement of the 1984 MPA or before the repeal of the Black Administration Act in 1988.

45
Q

What does EB v ER state?

A

S7(3) is extended to all marriages out of community of property without accrual in the EB v ER

46
Q

What does section 7(4) of the Divorce Act state?

A

Section 7(4) provides that a court may only make a transfer order if it is satisfied that this is equitable and just because the poorer spouse contributed to the maintenance or increase of the estate of the wealthy spouse during the marriage.

47
Q

What contribution can section 7(4) of the Divorce Act come in the form of:

A

The contribution could take the form of:
- Providing services
- Saving expenses
- Other kind of contributions

48
Q

What does the court look at when determining a forfeiture order?

A

In order to determine how much the richer spouse has to transfer to the poorer spouse the court looks inter alia current means and responsibilities of parties; whether there has already been sharing in the property.

49
Q

What are the factors listed in s7(5) that the court must consider when making a transfer order?

A
  • The existing means and obligations of the parties
  • Any donation made by one of the parties to the other
  • Any forfeiture order made
  • Any other factors which in the opinion of the court should be taken into account
50
Q

What is stated in the Beaumont case?

A

In Beaumont, the court held that the word any other factor in section 7(5) was broad enough to include misconduct by one of the spouses leading to the breakdown of the marriage. The misconduct can be relevant but the court should adopt a conservative approach in this regard

51
Q

What is the claim of spousal maintenance based on?

A

The Divorce Act allows a court to grant spousal maintenance as part of the divorce order as stated in s7(2). Spousal maintenance is based on the needs of the claimant, the ex-spouse.

52
Q

When will a periodic maintenance order be granted?

A

If the spouse cannot afford a lump sum maintenance order the court can order the periodic payment of spousal maintenance until death or remarriage.

53
Q

What are the factors to be considered before the court in an s7(2) application?

A
  • the existing or prospective means of each of the parties,
  • their respective earning capacities ,
    financial needs and obligations,
  • the age of each of the parties;
  • the duration of the marriage,
  • The standard of living of the parties prior to the divorce,
  • Their conduct in so far as it may be relevant to the break-down of the marriage,
    an order in terms of subsection 7(3) (redistribution order) and
  • any other factor..
54
Q

How long is a maintenance order?

A

The duration of the maintenance order can be indicated in the court order, if not this is in effect till the party dies or remarries. It is awarded at the time of divorce in the divorce order

55
Q

What does section 8(1) of the Divorce Act state?

A

S8(1) states that spouses can approach a court at a later time to change the maintenance amount that was awarded at the time of the divorce. The court will only grant the variation order if there is sufficient reason for a change

56
Q

What does MG v RG state?

A

MG v RG it was found that an applicant can apply for token maintenance to keep a maintenance claim alive, if the maintenance order lapses

57
Q

When did parliment insert section 7(7) into the Divorce Act and what does it do?

A

In 1988 Parliament inserted s7(7) in the divorce act to provide that spouses’ pension interest should be deemed part of their estate. Therefore spouses married in community of property are entitled to half of this interest at the time of divorce. S 7(8) provided that this money would only become available when the spouse’s pension was paid out, this share was calculated at the time of the divorce and doesn’t get interest.

58
Q

What does The Pension Act s 3D(a)(d) and (e) state?

A

The Pension Act s 3D(a)(d) and (e) now provide that the non-member spouse’s share of the pension can either be paid out immediately or reinvested on their behalf

59
Q

What is token maintaince?

A

Token maintenance is the a small amount that is claimed, in order to keep the maintaince order alive, this is to increase the maintenance later if needed

60
Q

What is the clean break principle?

A

The clean break principle is that if there are enough assets that prevent an order for spousal maintenance, the court will make a lump sum of assets. Rather than maintaining claim each month

61
Q

What is praeteritum non vivitur principle?

A

praeteritum non vivitur means we don’t live in the past. This rule means that spousal maintenance must be claimed at the time of divorce and cannot be claimed afterwards

Family law (11 decks)

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