FAMILY LAW SEEN EXAM

PREPARATION
Amera Valiallah

QUESTION 1
With reference to the above:
• Identify the type of agreement;
• Discuss the characteristics of the relevant the matrimonial property regime system; and
• Advise how the estate will be calculated on divorce.

Introduction
The matrimonial property regime outlined in the contract between Gerhardus Hendrick Stols
and Charis Frances Papageorgiou indicates that their marriage will be governed by the
accrual system as defined by the Matrimonial Property Act No. 88 of 1984. This essay will
identify the type of agreement they have entered into, discuss the characteristics of the
accrual system under South African law, and explain how the estate will be calculated upon
divorce. By examining the provisions and implications of their antenuptial contract, as well as
relevant case law such as MB v NB 2010 (3) SA 220 (GSJ), this essay aims to clarify how
the accrual system affects their financial relationship during and after marriage.

Type of Agreement
The agreement between Gerhardus and Charis is an antenuptial contract that stipulates a
marriage out of community of property with the inclusion of the accrual system. This type of
contract ensures that each party retains individual ownership of their respective estates, both
prior to and during the marriage. The contract specifically excludes community of property
and community of profit and loss, meaning that neither party has an automatic claim to the
other's assets or liabilities. However, the inclusion of the accrual system introduces a
mechanism for sharing the growth in their estates accumulated during the marriage. This
system balances the independence of separate estates with a fair division of marital gains.

Characteristics of the Accrual System

The accrual system, as described in Chapter I of the Matrimonial Property Act No. 88 of
1984, is designed to ensure equitable sharing of assets acquired during the marriage while
maintaining the independence of each spouse's estate. Under this system, the accrual of
each spouse's estate is calculated as the difference between the value of the estate at the
commencement and dissolution of the marriage.

As noted in MB v NB, the accrual system gives each party "an interest in the amount by
which each other's estate improves in value over the marriage." However, this interest is

1
purely equitable and only becomes exigible at the dissolution of the marriage by death or
divorce, according to Section 4(1) of the Act.
Exclusions from the accrual include inheritances, legacies, and donations received during
the marriage unless specified otherwise in the antenuptial contract. The primary benefit of
this system is that it provides financial protection to a spouse whose estate has grown less
by allowing them to claim half of the difference in accrual between the two estates upon
divorce. This ensures that both parties benefit from the economic partnership of the
marriage.

While the Barkhuizen v Napier case primarily dealt with insurance contracts, its principles
regarding the constitutional scrutiny of contractual terms are relevant to antenuptial contracts
as well. The Constitutional Court's approach in this case emphasizes the importance of
examining contractual provisions, including those in antenuptial agreements, through the
lens of public policy and constitutional values.

Calculation of the Estate on Divorce

Upon the dissolution of the marriage, whether by divorce or death, the accrual of each
spouse's estate is determined. According to Section 3(1) of the Matrimonial Property Act 88
of 1984, "At the dissolution of a marriage subject to the accrual system, by divorce or by the
death of one or both of the spouses, the spouse whose estate shows no accrual or a smaller
accrual than the estate of the other spouse, or his estate if he is deceased, acquires a claim
against the other spouse or his estate for an amount equal to half of the difference between
the accrual of the respective estates of the spouses."

The MB v NB case provides important guidance on how to determine the value of estates for
accrual calculations. The court held that the appropriate time for valuation is at litis
contestatio (close of pleadings), rather than at the time of divorce. This principle helps limit
attempts to squander assets after separation but before divorce. The court also emphasized
that a spouse cannot willfully deprive the other party of accrual benefits through fraud or
potentially reckless conduct.

The principles established in Barkhuizen v Napier (2007) are also pertinent when
considering the enforceability of terms within antenuptial contracts. While this case dealt
specifically with a time limitation clause in an insurance contract, the Court's reasoning can
be applied more broadly to contractual terms in family law contexts. The majority judgment,
delivered by Ngcobo J, held that when assessing the constitutionality of contractual clauses,
the proper approach is to determine whether the clause is contrary to public policy as
evidenced by constitutional values, particularly those found in the Bill of Rights.

In the context of Gerhardus and Charis's antenuptial contract, this means that any provisions
within their agreement could potentially be scrutinized for fairness and reasonableness. For
instance, if their contract contained clauses that unreasonably restricted one party's rights or
imposed overly burdensome obligations, these could be challenged on the grounds of public
policy. The Court's emphasis on the importance of an "adequate and fair opportunity" to seek
judicial assistance could be particularly relevant if any dispute arises regarding the
implementation of the accrual system or the calculation of estates upon divorce.

2
Moreover, the dissenting opinions in Barkhuizen v Napier, particularly those of Sachs J and
Moseneke DCJ, highlight the need for heightened scrutiny of standard form contracts and
clauses that may infringe on constitutional rights. In the context of antenuptial contracts, this
suggests that courts might be inclined to carefully examine any provisions that appear to
unfairly advantage one party or that were not freely negotiated.

To illustrate the calculation, suppose Gerhardus's estate grew from R500,000 to R1,500,000,
an accrual of R1,000,000, while Charis's estate grew from R200,000 to R700,000, an
accrual of R500,000. The difference in accrual is R500,000. Charis, having the smaller
accrual, would be entitled to claim R250,000 (half of the difference) from Gerhardus's estate.
This calculation ensures that both spouses share equally in the financial gains made during
the marriage, promoting fairness and preventing economic disparity at the end of the marital
relationship.

Conclusion
The antenuptial contract between Gerhardus and Charis establishes a marriage out of
community of property with the accrual system, allowing each to maintain separate estates
while sharing in the growth of their assets during the marriage. The accrual system under
South African law, as clarified by cases like MB v NB, ensures equitable distribution of
marital gains, providing financial protection and fairness to both parties. Upon divorce, the
difference in the growth of their respective estates will be shared, ensuring that both spouses
benefit from the economic contributions made during their marriage. This arrangement
reflects a balanced approach to marital property, promoting both individual ownership and
shared prosperity.

The principles established in cases like Barkhuizen v Napier further underscore the
importance of ensuring that antenuptial contracts, including those incorporating the accrual
system, align with constitutional values and public policy. While parties have the freedom to
contract, this freedom is not absolute and must be balanced against considerations of
fairness, reasonableness, and the protection of fundamental rights. As such, Gerhardus and
Charis should be aware that the terms of their antenuptial contract, while presumptively
valid, could be subject to judicial scrutiny if they were ever challenged on constitutional or
public policy grounds.

QUESTION 2
In light of the above scenario, apply the law as it relates to parental rights and
responsibilities by discussing:
• the court’s decision in Freedom of Religion South Africa v. Minister of Justice and
Constitutional Development and Others [2019] ZACC 34; and
• whether according to the law, Sam has failed in his parental rights and responsibilities.

3
Introduction
In contemporary discussions surrounding parental rights and responsibilities, the legal
frameworks governing the use of corporal punishment and child discipline play a crucial role.
A pertinent case that sheds light on these issues is Freedom of Religion South Africa v.
Minister of Justice and Constitutional Development and Others (the FORSA case). This
landmark decision by the Constitutional Court of South Africa not only underscores the
constitutional rights of children but also delineates the limits of parental authority, especially
in matters of discipline. This essay will explore the implications of this case for Sam's
situation with his son Michael, evaluating whether his actions align with or violate established
legal standards regarding child protection and parental responsibilities.

Overview of the FORSA Case

In the FORSA case, the Constitutional Court of South Africa addressed the contentious
issue of corporal punishment in the home. The case centered around whether the prohibition
of corporal punishment in the Children's Act (2005) infringed upon the rights of parents to
practice their religion and raise their children according to their beliefs. The court ultimately
ruled that while parents have the right to guide their children's upbringing, this right is not
absolute and must be balanced against the child's right to protection from violence, as
enshrined in the Constitution.

The judgment emphasized that corporal punishment is inherently harmful and contradicts the
values of dignity, equality, and non-violence that are fundamental to the South African
Constitution. The Constitutional Court in FORSA emphasized that "any form of violence,
including reasonable and moderate chastisement, has always been unlawful" (para 71). This
ruling aligns with Section 7(1)(h) of the Children's Act, which states that "the best interests of
a child are of paramount importance in every matter concerning the child."

Importantly, the Court declared that the common law defense of reasonable and moderate
parental chastisement is inconsistent with the provisions of sections 10 and 12(1)(c) of the
Constitution, which protect the right to human dignity and the right to be free from all forms of
violence, respectively.

Application to Sam's Situation

Sam's reaction to Michael's misbehavior, characterized by the use of corporal punishment,
directly conflicts with the principles established in the FORSA decision. In this scenario,
Sam's actions of yelling, grabbing Michael by the arm, and administering spankings are not
only punitive but also violent. The court's ruling reinforces that such practices are
incompatible with the protection of children's rights.

According to the Children's Act and the FORSA judgment, parents are mandated to
discipline their children in ways that promote their well-being and development, without
resorting to physical harm. By resorting to corporal punishment, Sam potentially breaches
his responsibilities under the law, failing to uphold Michael's right to a safe and nurturing
environment free from violence.

4
De Minimus Principle
Sam could look into using the de minimus principle as a defense sinceThe Money v Naude
case provides further insight into how courts evaluate violations of zoning and property use
regulations. In that case, the court considered whether operating an unauthorized
guesthouse could be excused under the de minimus principle, which allows courts to
overlook trivial infractions of the law. The court ultimately rejected this argument, finding that
unauthorized commercial use of a residential property was not a minor or trivial violation that
could be disregarded. The court emphasized that it has very limited discretion to condone
ongoing criminal conduct, which unauthorized use constitutes. This reinforces the
seriousness with which courts view violations of zoning and property use regulations, even
when the violator claims minimal impact. Applied to Sam's situation, this suggests that his
unauthorized use of corporal punishment, which violates established legal standards, would
likely not be viewed as a de minimus infraction that could be excused by the courts.

Legal and Ethical Considerations

Legally, the Children's Act, informed by the Constitutional Court's decision in FORSA,
stipulates that any form of corporal punishment is prohibited. This law aligns with
international conventions on children's rights, such as the United Nations Convention on the
Rights of the Child, which South Africa has ratified.

The FORSA judgment emphasizes that the right to be free from all forms of violence
(Section 12(1)(c) of the Constitution) extends to "all forms of violence" including moderate
and reasonable chastisement. The Court found that there is no justification for preserving the
common law defense of reasonable and moderate parental chastisement, as it unjustifiably
limits children's constitutional rights.

Ethically, Sam's actions undermine the principles of positive parenting and non-violent
discipline advocated for in the FORSA judgment. The Court noted that effective child-rearing
practices are those that foster trust, understanding, and mutual respect, rather than fear and
pain. The escalation of Sam's anger and the subsequent corporal punishment demonstrate a
failure to apply non-violent disciplinary methods and to seek alternative strategies for
managing his frustration and Michael's behavior.

Conclusion
The FORSA case establishes a clear legal precedent that prohibits the use of corporal
punishment in child discipline, prioritizing the child's right to protection, dignity, and freedom
from violence. Sam's conduct, involving physical punishment of Michael, is inconsistent with
these legal standards and the broader ethical mandate to protect children from harm.

The Constitutional Court's emphasis on positive parenting approaches and the availability of
less restrictive means to achieve discipline are particularly relevant. Moving forward, Sam is
encouraged to explore non-violent disciplinary approaches and support systems that align
with the law and promote a healthy, respectful parent-child relationship. This shift not only

5
complies with legal requirements established in FORSA but also fosters a nurturing
environment conducive to Michael's well-being and development.

In conclusion, the FORSA judgment represents a significant shift in South African law
regarding child discipline, effectively outlawing all forms of corporal punishment in the home.
This case underscores the need for parents like Sam to adopt alternative, non-violent
methods of child discipline that respect the constitutional rights of children while still allowing
for effective parenting.

QUESTION 3
With James being incarcerated, the couple find it increasingly difficult to maintain a healthy
relationship. Sarah reaches breaking point and is thinking of divorcing James. She consults
with you for advice. Advise Sarah regarding her rights and the process to be followed if any
for a divorce.
Certainly. I'll reformat the essay into an introduction, three body paragraphs, and a
conclusion while keeping the content the same. Here's the restructured version:

Introduction
Marriage, as a legal and social institution, encompasses both rights and responsibilities.
When faced with irreconcilable differences or circumstances that lead to the deterioration of
marital relations, the law provides mechanisms to dissolve the marriage through divorce. In
South Africa, the Divorce Act 70 of 1979 outlines the grounds and processes for obtaining a
divorce. Sarah, facing the incarceration of her husband James and the consequent financial
and emotional strain, seeks advice on her rights and the process for obtaining a divorce.
This essay provides an analysis of the legal framework for divorce in South Africa, focusing
on the grounds for divorce as stipulated in the Divorce Act, and offers guidance to Sarah
regarding her situation.

Grounds for Divorce and Proving Irretrievable Breakdown

The Divorce Act 70 of 1979 specifies two primary grounds for divorce: the irretrievable
breakdown of the marriage (Section 4) and mental illness or continuous unconsciousness
(Section 5). For Sarah, the applicable ground would likely be the irretrievable breakdown of
the marriage, given the significant strain and disintegration of their relationship following
James's criminal activities and imprisonment. Section 4(1) of the Divorce Act states that a
court may grant a decree of divorce on the ground of irretrievable breakdown 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."

Section 4(1) of the Divorce Act allows a court to grant a divorce if it is satisfied that the
marriage has irretrievably broken down. In Schwartz v Schwartz, the Appellate Division held
that 'the test to be applied in determining whether a marriage has irretrievably broken down
is subjective with objective overtones' (at 474G-H). This interpretation guides courts in
assessing cases like Sarah's, where subjective factors like emotional strain are coupled with

6
objective circumstances such as long-term imprisonment. The court in Schwartz also
clarified that moral judgments about the parties' conduct are not the central issue. Rather,
the question is whether, objectively viewed, the marriage has reached such a state of
disintegration that there is no reasonable prospect of restoring a normal marriage
relationship. Factors such as the duration of separation, the establishment of a new
relationship by one spouse, and the determined attitude of the spouse seeking divorce were
all considered relevant.

Importantly, Section 4(2)(c) of the Act specifically mentions that the court may accept
evidence "that the defendant has in terms of a sentence of a court been declared an habitual
criminal and is undergoing imprisonment as a result of such sentence" as proof of the
irretrievable breakdown of a marriage. This provision is particularly relevant to Sarah's
situation, as James has been sentenced to fifteen years in prison for multiple counts of
money laundering. In Sarah's case, there are several factors that could demonstrate the
irretrievable breakdown of her marriage to James: his criminal activities and conviction,
long-term imprisonment, financial strain, emotional distress, and difficulty in maintaining the
relationship. These factors, taken together, provide strong evidence that the marriage has
broken down irretrievably and that there is no reasonable prospect of restoring a normal
marital relationship.

Forfeiture of Patrimonial Benefits

In addition to seeking a divorce, Sarah may want to consider the possibility of forfeiture of
patrimonial benefits. Section 9(1) of the Divorce Act allows the court to make an order that
the patrimonial benefits of the marriage be forfeited by one party in favour of the other, either
wholly or in part. The court must consider three factors when making this determination: the
duration of the marriage, the circumstances which gave rise to the breakdown of the
marriage, and any substantial misconduct on the part of either of the parties. In Sarah's
case, the court would likely consider James's criminal activities as substantial misconduct.
The fact that he engaged in money laundering, which led to his conviction and long-term
imprisonment, could be seen as a significant factor contributing to the breakdown of the
marriage. The concept of substantial misconduct as a factor in determining forfeiture of
patrimonial benefits has evolved from the common law principle of fault or guilt. While the
Divorce Act has moved away from a strict fault-based approach to divorce, misconduct can
still play a role in the forfeiture of benefits.

Process and Rights in Pursuing a Divorce

To initiate the divorce process, Sarah should take the following steps: file a divorce petition
with the appropriate court, detailing the reasons for the breakdown of the marriage and
providing evidence to support her claim; serve the petition on James, even though he is in
prison; gather evidence to support her claim of irretrievable breakdown; address financial
matters by seeking maintenance and child support orders; address custody arrangements
for Michael and Emily; and consider requesting forfeiture of patrimonial benefits based on
James's substantial misconduct. Sarah should provide evidence of how his criminal activities
have negatively impacted the family. Given James's long-term imprisonment, Sarah is likely
to be granted primary custody of their children.

7
Conclusion
The South African Divorce Act provides a clear legal framework for obtaining a divorce,
focusing on the irretrievable breakdown of the marriage. Given the severe strain on Sarah
and James's marriage due to James's criminal activities and subsequent long-term
imprisonment, Sarah has strong grounds to pursue a divorce based on irretrievable
breakdown. The fact that James has been declared a habitual criminal and is serving a
lengthy prison sentence provides compelling evidence for the court to grant a divorce.
Furthermore, Sarah may have a strong case for forfeiture of patrimonial benefits due to
James's substantial misconduct. By understanding her rights and the legal procedures,
Sarah can take informed steps towards securing a stable future for herself and her children
amidst the challenges posed by James's incarceration and the dissolution of their marriage.
It is advisable for Sarah to consult with a family law attorney who can guide her through the
specific legal requirements and represent her interests throughout the divorce process.

QUESTION 4
Advise Emma on what her rights and responsibilities are in respect of her domestic
partnership with David. Is there any agreement in place? If so, would it be binding and
enforceable?

Introduction
Emma and David's ten-year domestic partnership has been built on mutual emotional,
financial, and professional support. Their relationship, characterized by shared
responsibilities and investments, faces a significant crisis due to David's infidelity. As Emma
contemplates separation, it is crucial to understand her rights and responsibilities within the
context of their domestic partnership, the existence and implications of any informal
agreements, and the enforceability of such agreements under the Draft Domestic
Partnerships Bill 2008.

Emma's Rights and Responsibilities

In their domestic partnership, Emma and David have shared a home, joint bank accounts,
and various assets. Despite the lack of a formal agreement, Emma has rights and
responsibilities akin to those in a registered domestic partnership under the Draft Domestic
Partnerships Bill.

While the Draft Domestic Partnerships Bill 2008 has not been enacted, its principles are
often considered by courts. In Butters v Mncora [2012] ZASCA 29, the Supreme Court of
Appeal recognized that 'where a cohabitee has made contributions to a joint home, equity
may require some form of compensation on termination of the relationship' (para 18). The
principles established in Butters v Mncora were further reinforced and clarified in the
subsequent case of Mncora v Butters [2013] JOL 30464 (ECP). In this judgment, the court
emphasized the comprehensive nature of a universal partnership, particularly the societas
omnium bonorum (partnership of all present and future property). Justice Chetty stated that
such a partnership "comprises 'all present and future property'" and covers "all the property

8
of each of the partners at the time of entering in the partnership" as well as every asset that
"comes to each of the partners under any title, even by way of succession, gift or legacy"
(para 2). This broad interpretation strengthens Emma's claim to an equitable share of all
assets acquired during her 10-year relationship with David, not just those explicitly linked to
their joint efforts. The court also highlighted the importance of good faith in such
relationships, noting that an "unexpressed mental reservation" by one partner to keep
surplus income for themselves would not satisfy the requirements of good faith in a
long-term intimate relationship (para 4). This principle could be particularly relevant if David
attempts to argue that certain assets or income were intended to be kept separate from their
partnership.

Emma has a right to seek an equitable division of their joint property, considering her
significant contribution to the partnership, especially in caring for their children and reducing
her work hours. She is also entitled to maintenance for herself and the children, ensuring
their financial security post-separation. Given her role as the primary caregiver, Emma's right
to occupy the family home until a formal division is settled is protected. Additionally, the
welfare and best interests of their children, Michael and Sandy, must be prioritized in any
separation arrangement, ensuring stability and support for them.

Existence of an Agreement
Emma and David did not formalize their partnership with a written agreement; their
understanding of asset management and responsibilities was based on tacit agreement.
This lack of formal documentation poses challenges in defining and enforcing their
respective rights and obligations. However, the Draft Domestic Partnerships Bill recognizes
the significance of long-term, committed relationships even without formal registration. In the
absence of a formal agreement, Emma can seek the court's intervention to establish her
entitlements based on the duration of the partnership, contributions (both financial and
non-financial), and the welfare of their children. The court can consider their tacit
understanding and the practical arrangements they have adhered to over the years.

Binding and Enforceability of the Agreement

The enforceability of Emma and David's informal arrangement is contingent upon judicial
interpretation under the provisions of the Draft Domestic Partnerships Bill. While informal
agreements are not as straightforwardly enforceable as formal contracts, the Bill allows
courts to adjudicate disputes based on equitable principles. The court can examine the
nature of their partnership, contributions made by each partner, and the tacit agreements
that governed their relationship. Given Emma's significant role in the household and
child-rearing, the court is likely to ensure that any division of assets and maintenance orders
reflect her contributions and the partnership's equitable interests. Thus, although the informal
agreement lacks formal enforceability, Emma can rely on the legal framework provided by
the Bill to seek a fair and just resolution.

9
Conclusion
Emma has substantial rights and responsibilities in her domestic partnership with David,
particularly regarding the division of assets, maintenance, and the welfare of their children.
While their informal, tacit agreement lacks formal documentation, it holds weight under the
Draft Domestic Partnerships Bill 2008. The Bill provides Emma with a legal basis to seek
equitable remedies through the courts, ensuring her and her children's financial stability and
security post-separation. Thus, despite the absence of a formal agreement, Emma can
assert her rights and responsibilities, relying on the legal provisions to achieve a fair
resolution.

QUESTION 5
Family law is defined as that branch of law that regulates the relationships between children
and their parents and which regulates marriages and other intimate relationships between
adults.
Discuss either of the following:
A. How the law regulates the relationship between children and parents; OR
B. How the law regulates marriages and other intimate relationships between adults.

Your response must also include a discussion of what family law is and its objectives in
relation to your choice of A or B above.
Hint: you are not expected to discuss every aspect of A or B. Whatever you decide to
discuss, make sure that you say so clearly in your introduction.

Introduction
Family law plays a crucial role in regulating relationships between children and their parents
in South Africa. This area of law aims to protect children's rights, define parental
responsibilities, and promote family stability. The legal framework governing parent-child
relationships is based on constitutional provisions, statutory law like the Children's Act, and
landmark court decisions.

Children's Rights
The South African Constitution enshrines children's rights and establishes the principle that a
child's best interests are paramount. Section 28 of the Constitution states that every child
has the right "to family care or parental care, or to appropriate alternative care when
removed from the family environment." It also guarantees children's rights to basic nutrition,
shelter, health care, and protection from abuse or exploitation. Importantly, Section 28(2)
declares that "A child's best interests are of paramount importance in every matter
concerning the child." This constitutional imperative forms the foundation for how family law
approaches parent-child relationships.

However, as highlighted in the academic article by Nell and Dykes (2024), applying the "best
interests of the child" standard in practice can be challenging. The authors note there is a

10
lack of clear guidelines in South Africa for determining best interests in custody disputes,
leading to inconsistent application. They argue this creates difficulties for social workers and
other professionals tasked with making recommendations to courts.

The landmark case of Bannatyne v Bannatyne (Commission for Gender Equality as Amicus
Curiae) 2003 (2) SA 363 (CC) exemplifies how the courts apply this principle in practice.
This case dealt with the enforcement of maintenance orders and highlighted the state's
obligation to create an environment where parents can fulfill their responsibilities to their
children. The Constitutional Court emphasized that the maintenance system is crucial for
upholding children's rights and promoting gender equality.

In Bannatyne, the Court stated that "Children have a right to proper parental care. It is
universally recognised in the context of family law that the best interests of the child are of
paramount importance." The Court further noted that while parents have the primary
obligation to care for their children, the state must provide the necessary legal and
administrative infrastructure to ensure children's protection.

Parental Responsibilities
The Children's Act provides a comprehensive framework for parental responsibilities and
rights. Section 18 of the Act outlines that parental responsibilities and rights include caring
for the child, maintaining contact, acting as guardian, and contributing to the child's
maintenance. The Act recognizes that both mothers and married fathers automatically have
full parental responsibilities and rights. For unmarried fathers, Section 21 specifies
conditions under which they can acquire full parental rights, such as living with the mother in
a permanent life partnership or demonstrating commitment to the child's upbringing and
maintenance. The Act also allows for parental responsibilities and rights agreements and
provides mechanisms for the court to assign contact and care to interested persons.

Parental rights encompass the core elements of care, custody, and guardianship over
children. South Africa’s legal framework ensures that parents can exercise responsibilities
such as making decisions about a child's education, health, religion, and overall welfare.

The recent South African case of E B v A M (2024) illustrates how family law regulates
parental rights and responsibilities in practice. The case involved divorced parents disputing
the mother's relocation with their children from Johannesburg to Cape Town. Their divorce
settlement agreement required joint decision-making on significant changes affecting the
children's living conditions or education. The court had to consider whether the mother's
unilateral decision to relocate violated this agreement and how to resolve the dispute in the
children's best interests.

Family Stability
Family law aims to promote family stability while protecting children's interests, especially in
cases of family breakdown. The Children's Act provides for parenting plans to help
co-holders of parental responsibilities manage their respective roles. Section 33 states that
such plans may determine matters like where the child will live, maintenance arrangements,

11
and contact with parents or other persons. The Act emphasizes mediation and professional
assistance in developing these plans. In cases of dispute, Section 29 empowers courts to
make determinations regarding parental responsibilities and rights, guided by the principle of
the child's best interests.

However, as Chapter 3 of the Child Gauge points out, there are times when families (or
individuals within families) require the state to intervene, yet the state may fail to do so
because of capacity constraints or the personal beliefs and values of those in the civil
service. For example, police may choose not to get involved in "private" matters of domestic
violence, or health workers may deter adolescent girls from using contraception based on
personal beliefs.

The Bannatyne case highlighted logistical difficulties in maintenance courts that result in the
system not functioning effectively. Evidence presented demonstrated problems ranging from
inadequately trained staff to insufficient facilities and resources. The Court recognized that
these systemic failures disproportionately affect women, who are most often the custodial
parents.

Conclusion
South African family law, grounded in constitutional principles and detailed in the Children's
Act, provides a comprehensive system for regulating parent-child relationships. It balances
the rights and responsibilities of parents with the paramount consideration of children's best
interests. While the legal framework is robust, ongoing efforts are needed to address
practical challenges in implementation and to navigate the complexities of diverse family
structures in South African society.

QUESTION 6
Advise Sarah as to when a court will make the following orders:
• An order for spousal maintenance
• A redistribution order.

In your brief overview of each order, explain to your client what the court will take into
consideration before it grants the orders and the role played by her matrimonial property
regime.
[Hint: Incorporate any factors that the court may consider in your discussion instead of listing
them.]

Introduction
Divorce proceedings often lead to complex questions about financial support and asset
distribution, especially in long-term marriages where one spouse has been a homemaker
while the other has developed a significant earning capacity. In Sarah and David's case,

12
Sarah, having been a stay-at-home mother for over a decade, faces significant economic
disadvantages compared to David, who now owns a successful multinational company. This
essay will explore the potential for Sarah to obtain spousal maintenance and a redistribution
order, examining the factors that the court will consider in making these determinations and
the influence of their matrimonial property regime.

Spousal Maintenance
Spousal maintenance, as outlined under Section 7(2) of the Divorce Act, provides for the
financial support of a spouse post-divorce. The court can order one spouse to pay
maintenance to the other if it is deemed just, considering various factors such as the means,
financial needs, earning capacities, and ages of the parties, as well as the duration of the
marriage and the standard of living during the marriage. In Sarah's case, her lack of
employment for the past 12 years, her age, and her limited earning potential make her a
strong candidate for spousal maintenance.

The court will likely consider that Sarah sacrificed her career to support David and their
family, which contributed to David's business success. Given these circumstances, the court
might grant Sarah rehabilitative maintenance to allow her time to pursue her doctorate and
eventually re-enter the workforce. It's important to note that, as highlighted in the article "The
rescission of divorce orders for purposes of claiming spousal maintenance," spousal
maintenance cannot be granted post-divorce. If Sarah wants to claim spousal maintenance,
she must do so at the time of the divorce proceedings.

Redistribution Order
In addition to spousal maintenance, Sarah may seek a redistribution order under Section
7(3) of the Divorce Act. This provision allows the court to order the transfer of assets from
one spouse to another if it is equitable to do so, considering the contributions made by each
spouse to the marriage, including non-financial contributions such as homemaking and
child-rearing.

In Beaumont v Beaumont, the Appellate Division established that the court has a wide
discretion in making a redistribution order, taking into account 'any factor which should in the
opinion of the court be taken into account' (at 987H-I). The court emphasized that attempting
to formulate guidelines outside the wide criteria mentioned by the Legislature would not be
useful or feasible, given the infinite variety of circumstances under which subsection (3) falls
to be applied.

This broad discretion allows the court to consider Sarah's non-financial contributions to the
marriage, including her role as a homemaker and primary caregiver. The court will take into
account Sarah's significant role in maintaining the household and raising their children,
which enabled David to focus on building his business.

In Van Zummeren v Van Zummeren and another [1997] JOL 458 (E), the court granted a
redistribution order, noting that services rendered by the plaintiff contributed toward the
maintenance of the estate of the defendant (husband) as contemplated by section 7(4) of the

13
Divorce Act. The court in that case compelled the defendant to transfer one-third of his
assets to the plaintiff.

Considerations for Court Orders

When making these orders, the court will consider a holistic view of the marriage, including
the financial and non-financial contributions of both spouses and the best interests of their
children. The court's primary aim is to ensure fairness and equity, recognizing that Sarah's
absence from the workforce was a joint decision made for the family's benefit.

The children's well-being, including maintaining a stable home environment, will also be a
critical factor. The court may find it just to award Sarah both spousal maintenance and a
redistribution order to reflect her contributions and to provide her with the means to achieve
financial independence.

It's worth noting that in Van Zummeren v Van Zummeren, the court excluded the husband's
motor vehicle from the redistribution order as it was a gift from a parent to a child. This
suggests that if David has received any significant gifts from his parents, these may be
excluded from the redistribution calculation.

The matrimonial property regime will also play a significant role in determining the extent of
Sarah's entitlement to David's assets. If they were married in community of property, Sarah
would be entitled to half of the joint estate. If they had an antenuptial contract with accrual,
Sarah might be entitled to a share of the accrual of the estate built during the marriage.

Conclusion
In conclusion, Sarah's situation exemplifies the challenges faced by non-working spouses in
divorce proceedings. The court, guided by principles of fairness and equity, will consider
spousal maintenance and a redistribution order to address the economic disparities between
Sarah and David. By evaluating factors such as the duration of the marriage, the standard of
living, and the respective contributions of each spouse, the court aims to ensure a just
outcome that acknowledges Sarah's sacrifices and provides her with the support needed to
rebuild her life.

The wide discretion given to the courts in these matters, as emphasized in Beaumont v
Beaumont, allows for flexibility in addressing the unique circumstances of each case. This
approach, while potentially leading to some uncertainty, allows the court to tailor its decisions
to the specific needs and contributions of the parties involved.

14