Community of Property - Family Law - Past Exam, Exams of Family Law

Download Community of Property - Family Law - Past Exam and more Exams Family Law in PDF only on Docsity! UNIVERSITY OF KWA-ZULU NATAL, PIETERMARITZBURG EXAMINATIONS: MAY/JUNE 2009 SUBJECT, COURSE AND CODE: FAMILY LAW (LAWS2FM/LAWS3FM) DURATION: 3 HOURS TOTAL MARKS: 70 External Examiner: Ms J Stevenson (NMMU) Internal Examiner: Professor M Carnelley STUDENTS ARE REQUESTED, IN THEIR OWN INTERESTS, TO WRITE LEGIBLY. ______________________________________________________________________________________________ PLEASE NOTE: This paper consists of 6 pages. Please ensure that you have all the pages. ______________________________________________________________________________ QUESTION 1 John and Jamie have been married since 1979: out of community of property and without the accrual system. They met as students two year earlier. Since then they have built up their take- away business which they eventually sold for R4 million six months ago. The money was placed in shares under John‟s name. For the first 15 years they both worked equally hard in the business. After 1995, when Jamie finally fell pregnant, they decided that she should become a housewife whilst the children were in the house. They specifically sold the business so that John could also spend more time with their three children: Jack (14), Julie and Jolene (twin girls of 12). It has now transpired that Jamie has been having an affair with her gym teacher. John consults you about instituting divorce proceedings. Both parents want custody of the children and Jamie also wants to share in John‟s pension that he built up over the past 15 years and that was paid for by the business. Jamie inherited a house from her father after his death valued at R1 million. Advise John in detail about the following issues pertaining to their marriage, with specific reference to case law, setting out the applicable legal principles, any discretion the court may have as well as the factors and/or requirements the court would take into consideration with each [in each case the applicable rules must be applied to their factual situation as far as possible]: 1.1 the possible grounds for a divorce as well as the possibility of using one of the guidelines in the Divorce Act; 1.2 the division of the assets in terms of the matrimonial property system; 1.3 the applicability of the legal rules relating to pension sharing and inheritances; 1.4 the possibility of a forfeiture of benefits order; 1.5 the possibility of a redistribution order; 1.6 the possibility for a spousal maintenance order; and 1.7 the issue of guardianship, care and contact of the children and the possible orders that could be made in this regard. 1.8 How would your answer in 1.2 – 1.5 differ if they had been married in community of property? (35 MARKS) UNIVERSITY OF KWA-ZULU NATAL, PIETERMARITZBURG EXAMINATIONS: MAY/JUNE 2009 SUBJECT & CODE: FAMILY LAW (LAWS2FM/LAWS3FM) PAGE 2 QUESTION 2 H and W have been married for ten years. They are married out of community of property and with the accrual system. At the time the marriage was concluded, H owned a car worth R20 000, but owed the bank R10 000 towards a study loan. At the same time, W owned furniture worth R20 000, but also owed the bank R10 000 towards a study loan. In addition, W also owed her sister R5000. W had borrowed this money from her sister. H and W now want to get divorced. H currently owns a house worth R800 000 and a car worth R200 000. During the course of the marriage, H also bought all the furniture in the house. The furniture is valued at R100 000. In addition, H also received an amount of R50 000 for pain and suffering after a car accident and an amount of R50 000 for defamation. H, however, owes his brother R100 000 for a business scheme that „went wrong‟. W currently owns a flat worth R350 000 and a car worth R150 000. She also owns a collection of rare and valuable coins. These coins are worth R50 000. During the course of the marriage, H donated R50 000 to W. In addition, W also received R50 000 as an inheritance from her father. She invested her inheritance in shares listed on the Johannesburg Stock Exchange. Please note that according to the consumer price index, money was worth twice as much at the commencement of the marriage, as it was at its dissolution. Determine the amount of the accrual and identify who must pay the accrual. In your answer you must set out your calculations. (10 MARKS) QUESTION 3 In Johncom Media Investments Limited v Mandel and others [2009] ZACC 5, the Constitutional Court considered the constitutional validity of s 12 of the Divorce Act 70 of 1979. Write an essay in which you set out and critically discuss the Constitutional Court‟s judgment. (10 MARKS) UNIVERSITY OF KWA-ZULU NATAL, PIETERMARITZBURG EXAMINATIONS: MAY/JUNE 2009 SUBJECT & CODE: FAMILY LAW (LAWS2FM/LAWS3FM) PAGE 5 QUESTION 16 Statement A: “A spouse who is married in community of property requires the mere written consent (without witnesses) of the other spouse when instituting legal proceedings that relate to his profession as an accountant”. Statement B: “A spouse who is married in community of property requires the written consent of the other spouse, attested by two witnesses, when selling a coin collection than the spouses accumulated over years and held as an investment”. QUESTION 17 Statement A: “Sue was born as a result of the artificial insemination of Anne. Anne used a donor ovum from Matilda and a donor sperm from John. Anne is married to Pete and he consented to the artificial insemination. John is legally regarded as the father of Sue”. Statement B: “In Robinson v Volks 2005 (5) BCLR 466 (CC), the Constitutional Court held that the different legal consequences between married and unmarried persons was unconstitutional”. QUESTION 18 Statement A: “An interim protection order, issued in terms of the Domestic Violence Act, 1998, may not be granted without the respondent being given an opportunity to be heard”. Statement B: “An interim protection order, issued in terms of the Domestic Violence Act, 1998, is accompanied by a suspended warrant of arrest for the respondent”. (15 MARKS) TOTAL: [70 MARKS] UNIVERSITY OF KWA-ZULU NATAL, PIETERMARITZBURG EXAMINATIONS: MAY/JUNE 2009 SUBJECT & CODE: FAMILY LAW (LAWS2FM/LAWS3FM) PAGE 6 THIS PAGE MUST BE HANDED IN WITH YOUR ANSWER BOOK. MARK THE CORRECT OPTION: A: Only Statement A is correct B: Only Statement B is correct C: Both Statements A and B are correct D: Both Statements A and B are incorrect _____________________________________________________________________ ANSWER SHEET Student number: ____________________________________ _____________________________________________________________________ Question 4 A B C D Question 5 A B C D Question 6 A B C D Question 7 A B C D Question 8 A B C D Question 9 A B C D Question 10 A B C D Question 11 A B C D Question 12 A B C D Question 13 A B C D Question 14 A B C D Question 15 A B C D Question 16 A B C D Question 17 A B C D Question 18 A B C D