Summary
Summary Family Law 121 exam notes
- Course
- FMR 121 (FMR121)
- Institution
- University Of Pretoria (UP)
In depth summary of Family Law notes for the exam
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By: William1205 • 3 year ago
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© K WalkerMaintenance
General
Maintenance = duty of support between spouses & civil union partners
Enforced by a court order IF need arises
A distinction should be made between the following circumstances:
o During divorce proceedings:
Pending the outcome of the divorce action
Made during existence of union
Pendente lite
o No divorce action pending:
Maintenance Act
Made during existence of union
Stante matrimonio
o Common law:
Interdict
Payment of future maintenance can be secured
Maintenance Act
Maintenance = legal duty of any person to maintain any other person IRRESPECTIVE of the
nature of the relationship
o Ex lege duty of support between spouses/civil union partners
o Applies to contractual duty
o Life partners who have AGREED to support each other
Maintenance officers:
o Investigate all maintenance complaints
Failure to maintain the other spouse/civil union partner
Form of an application for the substitution/discharge of an already
EXISTING maintenance order
o Must investigate as prescribed in the Act
o May decide to institute an enquiry in the maintenance court
Orders:
o Maintenance order is NOT already in force:
Make a maintenance order
Order may include payment of other person’s medical expenses
Other person required to be registered as a dependant
Periodic payments/lump sum
o Maintenance order IS already in force:
Substitution
Discharge
Requires that “good cause” be shown
o Make no order at all
o Order directing that a person who owes the maintenance debtor money to repay the
loan to the spouse claiming maintenance instead of to the maintenance debtor
o Make a maintenance order by default:
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, © K Walker
Absence of party AGAINST whom the order is made
Failure to appear DESPITE being given sufficient notice of
proceedings
ONLY at the request of the maintenance officer
Provisions for person against whom the maintenance order by default is made
to have the order set aside
Different mechanisms to enforce a maintenance order in ARREARS: NB: a person aggrieved by an
o Warrant of execution: order made by a maintenance
Issued against movable property of defaulter court in terms of the Act may
IF insufficient: appeal against such an order
Issued against immovable property in the HC
o Attachment of emoluments:
Employer of defaulter
Pay outstanding amount directly to the person entitled to the
maintenance
o Attachment of debt:
Any debt owing to the defaulter
o Attachment of any pension/annuity/gratitude/compassionate allowance/any other
benefit
*Failure to make payment for a period of 10 days from the date on which the payment becomes
payable
Criminal sanctions:
o Offence in terms of the Act
Punishable on conviction with a fine/imprisonment
Max. 1 year with/without option of fine
Lack of means is no defence IF due to:
Unwillingness to work
Misconduct
o Contempt of court:
If found guilty = imprisonment
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, © K Walker
Consequences of Dissolution of a Union
Introduction
2 groups of people:
o Spouses/civil union partners
o May affect the children
Consequences of Divorce
Status
Patrimony
Maintenance
Status of the Spouses/Civil Union Partners
Changes to unmarried
o Again entitled to conclude a union
Woman is allowed to retain husband’s surname/adopt any surname previously had
Became a major through conclusion of a union
o Retains majority if civil marriage is dissolved before age of majority
o Not apply to civil unions
Civil Union Act does not allow a minor to conclude a civil union
Impediments to the conclusion of a union become applicable
o Relationship through affinity
s2B of the Wills Act becomes applicable
o If spouse/civil union partner dies WITHIN 3 months after union is dissolved by
divorce/annulment
o Will executed before the date of such dissolution must be implemented in the same
manner as if the previous spouse/civil union partner had died BEFORE dissolution
o UNLESS it appears from the will that the testator intended to benefit the previous
spouse/civil union partner NOTWITHSTANDING dissolution of the union
Patrimony of the Spouses/Civil Union Partners
General:
o Division of estates at divorce is determined by the property system applicable to the
union
o Ordinary division can be influenced by certain orders
Patrimony
Redistribution
Pension Interest Forfeiture Order
Order
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