Summary Family Law 121 exam notes

© K Walker




Maintenance


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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