Summary
PVL2601 Family Law Summary Notes Case Summaries
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- University Of South Africa (Unisa)
PVL2601 Family Law Summary Notes Case Summaries
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CASE FACTS / APPLICABLE TOF:- Applicant wanted marriage declared null & void, because the
marriage took place in a garden – The judge found nothing wrong
Ex Parte Dow with a marriage in a garden – application failed
A:- Prescribed marriage formalities (during ceremony)
Void, voidable and F:- Applicant & her deceased husband went through marriage
ceremony solemnised in accordance with Islamic rites by a priest
putative marriages who was not duly appointed as a marriage officer. (neither spouse
Requirements for a was aware of that fact) They had 7 children – children couldn’t
putative (assumed, Moola vs inherit from father because was seen as born from unmarried
acknowledged, accepted) Aulsebrook parents. Argument was that marriage was putative marriage even
though statutory requirements for solemnisation of marriage had
marriage not been complied with – Application was granted.
A:- Requirements for a putative marriage
Patrimonial consequence Applicant entered into Civil Marriage ICOP. Husband already in
Civil marriage ICOP with another woman, Only discovered at
of a putative marriage husband’s death – Due to her not knowing, she claimed marriage
Zulu vs Zulu to be putative and she was entitled to ½ estate – Court dismissed
application. No matrimonial system can operate in a void marriage
Household necessaries F:- Deals with basis of one spouse’s liability for goods other
spouse purchased on credit while there was no common
– Termination of joint household between them. One spouse has capacity to bind other
household & if marriage is in comm. of prop., the joint estate, for household
goods only if 3 req are met:-
* Must be valid marriage between partners
Excell vs * Parties must share joint household
Douglas * Transaction in Q must relate to household necessaries
If req met – binds spouse in contractual nature
But once joint household comes to an end – one spouse cant bind
other in contractual nature
A:- Household necessaries – Termination of joint
household
Household necessaries F:- Factors which have to be taken into account such as spouse’s
standard of living etc. Should court take subjective / objective
– How its determined approach. In this case took subjective = viewed from perspective
whether something is of the dealer. Takes into account factors of which the dealer was
a household necessary Reloomel vs aware / ought to have been aware.
Ramsay (Objective approach = court takes into account all other factors
without paying attention to what dealer knew about factors.
A:- Household necessaries – How its determined whether
something is a household necessary
The Maintenance Act F:- After divorce, father accepted to pay maintenance & keep
children on his medical scheme. But, failed to pay maintenance, so
99 of 1998 went to Maint Court to reduce payment amount. Succeeded. But
(enforcement of still failed to make payment & took children of his medical
maintenance orders) scheme, refusing to pay for their medical cover.
Bannatyne vs The constitutional court held that contempt of court proceedings
Bannatyne are appropriate constitutional relief for the enforcement of a claim
for the maintenance of children (if the legislative remedies are in
some way deficient)
A:- The Maintenance Act 99 of 1998 (enforcement of
maintenance orders)
, Marriage in F:- The merger of liabilities applies to antenuptial debts as well
as debts incurred during the subsistence of the marriage.
community of The spouses are joint debtors, therefore one spouse who is
Property Nedbank vs van married in community of property cannot stand surety for the
other spouse’s debts because those debts are joint debts, and
Zyl in our law a person cannot stand surety for his or her own debt,
even if the spouse has assets falling outside of the joint estate
A:- Marriage in comm. of prop – Liabilities
Spouses married ICOP cannot stand surety for each others debts,
as those debts are joint debts, and you cannot stand surety for
De Wet v your own debt. Today spouses married ICOP have equal
Jurgens concurrent powers of administration i.r.o the joint estate
Alteration to matrimonial The court held that the matrimonial property system of spouses
can be altered retroactively by the court to create flexibility.
property system Ex Parte Krös
The court adopted a strict approach and held that the court does
Ex Parte not have the power to change the matrimonial property system
Oosthuizen with retroactive effect
The court held that if spouses want to introduce the accrual
system in terms of section 21(1) they must apply the
Ex Parte Burger “normal basis of the accrual system” as provided for in chapter I
of the Act.
The court held that spouses cannot change their matrimonial
property system without the court’s intervention,
Honey v Honey even if they are married out of community or property.
F:- Judge of Appeal, Corbett = To determine whether a marriage
has reached such a state of disintegration that there is no
reasonable prospect of restoration of a normal marriage
relationship – Its important to have regard to what has happened
Schwartz vs in the past (history up to trial) & also present attitude of parties to
Schwartz marriage as revealed by evidence at trial.
A:- Irretrievable breakdown of the marriage as ground for
divorce – test to determine if the consortium has been
terminated / violated
SCA confirmes Schwarst vs Schwarts view
Levy vs Levy
F:- Judge Flemming = Particular marriage has broken down when
one spouse no longer wishes to continue marriage relationship, it
indicates marital breakdown.
Formation of an intention to sue for divorce = subjective element
Court will look at scantiness & surmountabillity of reasons why
Swart vs Swart divorce was applied for = Objective element
A:- Irretrievable breakdown of the marriage as ground for
divorce – test to determine if the consortium has been
terminated / violated
(Jewish marriage) husband refused to grant the wife a
get. If not granted the get, the woman may not re marry.
If woman enters another marriage in such circumstances,
the other marriage is deemed void in Jewish religion.
Amar v Amar Judge issued divorce decree, but ordered the husband
who was unwilling to cooperate in giving the get, to pay
maintenance to his wife until such time as he granted the
get
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