PVL1008H: Law of Persons and Family
EXAMINATION/TEST DATE: November 2021
QUESTION ONE: Scenario One
Winona and Harvey married each other in 1983 in terms of the Marriage
Act (that is, in terms of civil law). They were married out of community of
property in terms of an antenuptial contract which excluded community of
property and also excluded operation of the accrual system.
At the time of the marriage, both Winona and Harvey were 21 years of
age. They had no assets. In 1984, Harvey inherited R20 000 from his
father. Harvey used his money as “seed money” to start his own business.
Harvey established a small furniture business, which eventually grew and
prospered.
During the first few years of the marriage Harvey worked very hard on
growing his furniture business. Winona “helped out” in the business “as
needed”. She set up lots of meetings and answered letters (this was
before email and cell phones and all that).
Winona gave birth to the couple’s first daughter (Aya) in 1990. The
couple’s second daughter (Bee) was born in 1991 and the third daughter
(Cea) was born in 1994. Unexpectedly, Winona had a fourth child (a son
called David) who was born in 2007, when Winona was already 45 years
of age.
After the birth of the children, Winona stopped helping out at the
business. Instead, she stayed home full time and looked after the children
and the household. Aya, Bee and Cea grew older and eventually left the
home to live independent lives.
Harvey and Winona have now decided to get divorced because of
Winona’s secret love affair with Ed, the next-door neighbour. Harvey has
found out about the affair, and he does not want to be married to Winona
anymore.
Winona asks you for some legal advice:
a) Winona wants to know if she has any claim to Harvey’s assets.
Harvey’s total estate is now worth R15 million. The primary assets
, are the matrimonial residence (recently valued at about R5 million)
and Harvey’s furniture business (valued at about R10 million).
b) Winona wants to know if she has any claim to on-going spousal
maintenance after the divorce. Winona has grown accustomed to a
high standard of living. However, she has no marketable skills, and
she doubts that she will be able to find work easily.
c) Winona wants to know if she can claim maintenance from
Harvey for the financial support of David, who is now 14 years of
age. David attends an expensive private school in Cape Town and
Winona cannot afford the school fees.
QUESTION TWO : Scenario Two
The facts of Scenario Two are identical to Scenario One (as in Question
One) except that Winona and Harvey have never married each other.
They have, however, been living together since 1983, and everything else
is the same as with Scenario One.
Answer the following questions.
Under these circumstances:
a) Will Winona have any claim to Harvey’s assets?
b) Does Winona have a claim for ongoing maintenance for herself?
c) Can Winona bring a claim on behalf of David for ongoing financial
support for David?
Please build on your answers to those for Scenario One. Avoid repeating
things – just concentrate on what will be different under these
circumstances.
This exam will be marked as a percentage mark based on a holistic
assessment of your entire answer. There is no particular mark for any of
the questions or sub-questions. Your answer will be assessed in terms of
the ordinary marking rubric (reproduced at the end of this document for
your convenience). You will receive an overall grade expressed as a
percentage of the 75 marks for Exam Part B.
Answers
1. We must consider whether the contribution of Winona to the management of the
household as well as to Harvey’s business entitles her to what is his separate property,
, as a result of their marriage being out of community of property without accrual.
According to MPA S7(4) ,providing services, or saving expenses, or ‘any other’ kind
of contribution counts as contribution in the marriage. There is no place for
discrimination between husband and wife in their respective roles (Bezuidenhout v
Bezuidenhout). Therefore it is clear that Winona has claim to part of Harvey’s assets.
First, she contributed by being active in the business (setting up meetings etc) and
then later by looking after the children. Section 3(1) of the Matrimonial Property Act
provides that at the end of the marriage, the spouse whose estate has grown more than
the other spouse’s estate must share half of his or her comparative gains with the other
spouse. This is calculated as follow by looking at how much each spouse’s estates has
grown during the marriage. This means this spouse is entitled to half the amount by
which the growth of the other spouse’s estate exceeds hers. Due to the no-fault
divorce system, Harvey cannot sue Winona for adultery as we can assume that they
got divorced after 1996. After the 1996 Constitution came into operation,
commentators remarked hat the action for adultery potentially infringed constitutional
rights to freedom of association, privacy, and freedom of conscience and religion
(Wiese v Moolman).
Ex-wives should be responsible for their own maintenance (Hahlo), however, if
it is in the best interests of the children to have a stay-at-home mother: the court
can grant maintenance so that she does not need to find employment and can
stay at home looking after the children (Grasso v Grasso). If Winona cannot
find work for a period of time after the divorce, she may be granted
‘rehabilitative maintenance’ until she can train enough or find a job
(Weitzman). Because Winona has no skills, this situation is highly likely a
good option. Next, because Winona helped in the business, then later helped by
looking after the kids -so Harvey wouldn’t have to worry about them and could
expand his business- she could possibly be granted maintenance in a form of
compensation for the years invested in the marriage. The law could require that
Harvey make periodic payments to Winona for enabling him to advance his
career and maximise his earning potential (first by helping him at admin etc
then for looking after the children) (Ellman; O’Brien v O’Brien). Not
recognising Winona’s role in the business at first then later as a stay at home
EXAMINATION/TEST DATE: November 2021
QUESTION ONE: Scenario One
Winona and Harvey married each other in 1983 in terms of the Marriage
Act (that is, in terms of civil law). They were married out of community of
property in terms of an antenuptial contract which excluded community of
property and also excluded operation of the accrual system.
At the time of the marriage, both Winona and Harvey were 21 years of
age. They had no assets. In 1984, Harvey inherited R20 000 from his
father. Harvey used his money as “seed money” to start his own business.
Harvey established a small furniture business, which eventually grew and
prospered.
During the first few years of the marriage Harvey worked very hard on
growing his furniture business. Winona “helped out” in the business “as
needed”. She set up lots of meetings and answered letters (this was
before email and cell phones and all that).
Winona gave birth to the couple’s first daughter (Aya) in 1990. The
couple’s second daughter (Bee) was born in 1991 and the third daughter
(Cea) was born in 1994. Unexpectedly, Winona had a fourth child (a son
called David) who was born in 2007, when Winona was already 45 years
of age.
After the birth of the children, Winona stopped helping out at the
business. Instead, she stayed home full time and looked after the children
and the household. Aya, Bee and Cea grew older and eventually left the
home to live independent lives.
Harvey and Winona have now decided to get divorced because of
Winona’s secret love affair with Ed, the next-door neighbour. Harvey has
found out about the affair, and he does not want to be married to Winona
anymore.
Winona asks you for some legal advice:
a) Winona wants to know if she has any claim to Harvey’s assets.
Harvey’s total estate is now worth R15 million. The primary assets
, are the matrimonial residence (recently valued at about R5 million)
and Harvey’s furniture business (valued at about R10 million).
b) Winona wants to know if she has any claim to on-going spousal
maintenance after the divorce. Winona has grown accustomed to a
high standard of living. However, she has no marketable skills, and
she doubts that she will be able to find work easily.
c) Winona wants to know if she can claim maintenance from
Harvey for the financial support of David, who is now 14 years of
age. David attends an expensive private school in Cape Town and
Winona cannot afford the school fees.
QUESTION TWO : Scenario Two
The facts of Scenario Two are identical to Scenario One (as in Question
One) except that Winona and Harvey have never married each other.
They have, however, been living together since 1983, and everything else
is the same as with Scenario One.
Answer the following questions.
Under these circumstances:
a) Will Winona have any claim to Harvey’s assets?
b) Does Winona have a claim for ongoing maintenance for herself?
c) Can Winona bring a claim on behalf of David for ongoing financial
support for David?
Please build on your answers to those for Scenario One. Avoid repeating
things – just concentrate on what will be different under these
circumstances.
This exam will be marked as a percentage mark based on a holistic
assessment of your entire answer. There is no particular mark for any of
the questions or sub-questions. Your answer will be assessed in terms of
the ordinary marking rubric (reproduced at the end of this document for
your convenience). You will receive an overall grade expressed as a
percentage of the 75 marks for Exam Part B.
Answers
1. We must consider whether the contribution of Winona to the management of the
household as well as to Harvey’s business entitles her to what is his separate property,
, as a result of their marriage being out of community of property without accrual.
According to MPA S7(4) ,providing services, or saving expenses, or ‘any other’ kind
of contribution counts as contribution in the marriage. There is no place for
discrimination between husband and wife in their respective roles (Bezuidenhout v
Bezuidenhout). Therefore it is clear that Winona has claim to part of Harvey’s assets.
First, she contributed by being active in the business (setting up meetings etc) and
then later by looking after the children. Section 3(1) of the Matrimonial Property Act
provides that at the end of the marriage, the spouse whose estate has grown more than
the other spouse’s estate must share half of his or her comparative gains with the other
spouse. This is calculated as follow by looking at how much each spouse’s estates has
grown during the marriage. This means this spouse is entitled to half the amount by
which the growth of the other spouse’s estate exceeds hers. Due to the no-fault
divorce system, Harvey cannot sue Winona for adultery as we can assume that they
got divorced after 1996. After the 1996 Constitution came into operation,
commentators remarked hat the action for adultery potentially infringed constitutional
rights to freedom of association, privacy, and freedom of conscience and religion
(Wiese v Moolman).
Ex-wives should be responsible for their own maintenance (Hahlo), however, if
it is in the best interests of the children to have a stay-at-home mother: the court
can grant maintenance so that she does not need to find employment and can
stay at home looking after the children (Grasso v Grasso). If Winona cannot
find work for a period of time after the divorce, she may be granted
‘rehabilitative maintenance’ until she can train enough or find a job
(Weitzman). Because Winona has no skills, this situation is highly likely a
good option. Next, because Winona helped in the business, then later helped by
looking after the kids -so Harvey wouldn’t have to worry about them and could
expand his business- she could possibly be granted maintenance in a form of
compensation for the years invested in the marriage. The law could require that
Harvey make periodic payments to Winona for enabling him to advance his
career and maximise his earning potential (first by helping him at admin etc
then for looking after the children) (Ellman; O’Brien v O’Brien). Not
recognising Winona’s role in the business at first then later as a stay at home
