NAME
STUDENT NUMBER
MODULE CODE PVL2601
ASSIGNMENT 2
QUESTION 1
(a)
The duty of support between spouses under common law arises from the moment of
marriage and lasts until its termination. It is reciprocal and applies to both spouses in
proportion to their means. However, the duty is not absolute. The duty exists only if
the spouse seeking maintenance is in need of support, and the spouse from whom
support is sought have the financial means to provide it. The duty of support is
proportionate to each spouse’s means and the standard of living they enjoyed during
the marriage. This support includes basic necessities such as food, clothing, housing,
and healthcare. It also covers a broader range of needs based on the couple’s
standard of living, including utility bills, insurance, transport, internet services, and
even lifestyle expenses such as gym membership or holidays1
(b)
Ms X is unlikely to succeed in her claim for spousal maintenance solely on the basis
that Mr Z intentionally impoverished himself. In Reyneke v Reyneke,2 the court dealt
with a similar situation where the husband deliberately depleted his financial resources
to avoid paying maintenance. Although the wife argued that he should still be deemed
to have the means to support her due to his fraudulent conduct, the court rejected this
view. It held that one of the fundamental requirements for a maintenance order is the
actual ability to pay, and this cannot be presumed or imputed merely because the
person previously had resources.3 Therefore, even if Mr Z’s conduct appears to be
1 Heaton J, South African Family Law (LexisNexis 2017) 55
2 Reyneke v Reyneke 1990 (3) SA 927 (E).
3 Heaton J, South African Family Law (LexisNexis 2017) 56
, aimed at avoiding his duty of support, the court cannot overlook the requirement of
actual means, and cannot grant maintenance in the absence of the ability to pay.
(c)
The common-law duty of support between spouses terminates upon the dissolution of
the marriage, either through death or divorce. Upon death, the surviving spouse no
longer has a duty of support from the deceased; however, they may claim
maintenance from the deceased’s estate under the Maintenance of Surviving Spouses
Act 27 of 1990. In the case of divorce, the duty of support ends, but the court may
grant a maintenance order in favour of one spouse in terms of the Divorce Act 70 of
1979.
If spouses live apart while still married, the duty of support usually continues. Where
separation is caused by the spouse who is liable to provide support such as through
desertion or misconduct, the duty remains. If, however, the spouse in need of support
caused the separation, common law traditionally holds that they lose the right to
maintenance. This position has been criticised, and courts have since moved away
from matrimonial fault as a decisive factor, recognising that dignity and fairness should
guide maintenance claims.
(d)
No
QUESTION 2
1. Identify the Problem
Mrs Deli, a Roman Catholic, seeks to divorce her husband under the Divorce Act 70
of 1979, following his adultery. However, their marriage was solemnised both as a civil
and religious (Roman Catholic) marriage. Since Roman Catholic doctrine prohibits
divorce and offers no annulment in this case, she is concerned whether the court can
grant a divorce despite the religious prohibition. The legal question is whether a civil
divorce may be granted where religious dissolution is not possible.
2. Discussion of the Relevant Law and Authority
A marriage entered into in both civil and religious form is recognised as a dual-validity
marriage. Such a marriage has two legal dimensions, the civil marriage is governed
STUDENT NUMBER
MODULE CODE PVL2601
ASSIGNMENT 2
QUESTION 1
(a)
The duty of support between spouses under common law arises from the moment of
marriage and lasts until its termination. It is reciprocal and applies to both spouses in
proportion to their means. However, the duty is not absolute. The duty exists only if
the spouse seeking maintenance is in need of support, and the spouse from whom
support is sought have the financial means to provide it. The duty of support is
proportionate to each spouse’s means and the standard of living they enjoyed during
the marriage. This support includes basic necessities such as food, clothing, housing,
and healthcare. It also covers a broader range of needs based on the couple’s
standard of living, including utility bills, insurance, transport, internet services, and
even lifestyle expenses such as gym membership or holidays1
(b)
Ms X is unlikely to succeed in her claim for spousal maintenance solely on the basis
that Mr Z intentionally impoverished himself. In Reyneke v Reyneke,2 the court dealt
with a similar situation where the husband deliberately depleted his financial resources
to avoid paying maintenance. Although the wife argued that he should still be deemed
to have the means to support her due to his fraudulent conduct, the court rejected this
view. It held that one of the fundamental requirements for a maintenance order is the
actual ability to pay, and this cannot be presumed or imputed merely because the
person previously had resources.3 Therefore, even if Mr Z’s conduct appears to be
1 Heaton J, South African Family Law (LexisNexis 2017) 55
2 Reyneke v Reyneke 1990 (3) SA 927 (E).
3 Heaton J, South African Family Law (LexisNexis 2017) 56
, aimed at avoiding his duty of support, the court cannot overlook the requirement of
actual means, and cannot grant maintenance in the absence of the ability to pay.
(c)
The common-law duty of support between spouses terminates upon the dissolution of
the marriage, either through death or divorce. Upon death, the surviving spouse no
longer has a duty of support from the deceased; however, they may claim
maintenance from the deceased’s estate under the Maintenance of Surviving Spouses
Act 27 of 1990. In the case of divorce, the duty of support ends, but the court may
grant a maintenance order in favour of one spouse in terms of the Divorce Act 70 of
1979.
If spouses live apart while still married, the duty of support usually continues. Where
separation is caused by the spouse who is liable to provide support such as through
desertion or misconduct, the duty remains. If, however, the spouse in need of support
caused the separation, common law traditionally holds that they lose the right to
maintenance. This position has been criticised, and courts have since moved away
from matrimonial fault as a decisive factor, recognising that dignity and fairness should
guide maintenance claims.
(d)
No
QUESTION 2
1. Identify the Problem
Mrs Deli, a Roman Catholic, seeks to divorce her husband under the Divorce Act 70
of 1979, following his adultery. However, their marriage was solemnised both as a civil
and religious (Roman Catholic) marriage. Since Roman Catholic doctrine prohibits
divorce and offers no annulment in this case, she is concerned whether the court can
grant a divorce despite the religious prohibition. The legal question is whether a civil
divorce may be granted where religious dissolution is not possible.
2. Discussion of the Relevant Law and Authority
A marriage entered into in both civil and religious form is recognised as a dual-validity
marriage. Such a marriage has two legal dimensions, the civil marriage is governed
