LJU4804
October/November
SOLUTIONS
SEMESTER 2
DUE DATE: 13 OCTOBER 2023
, DOCUMENT OVERVIEW
QUESTION 1
1.1) The formal validity of Mr. and Mrs. Molefe's marriage would typically be
governed by the lex loci celebrationis, which means the law of the place
where the marriage was celebrated. In this case, they got married in
Mauritius. Therefore, the formal validity of their marriage would be determined
by Mauritian law since that was the place of celebration.
1.2) Section 7(3) of the South African Divorce Act 70 of 1979 allows for the
redistribution of assets upon divorce under specific circumstances. However,
the success of Mr. Molefe's claim would depend on whether the court finds
that the conditions for such redistribution have been met.
In South African law, the default matrimonial property regime is "in
community of property" unless the parties have executed an antenuptial
contract to the contrary. Botswanan law, on the other hand, presumes
marriages to be out of community of property by operation of law. Since
Mr. and Mrs. Molefe did not conclude an antenuptial contract, their
marriage would follow the default rules of the relevant legal system.
To determine whether Mr. Molefe can successfully claim a redistribution
of assets, you would need to look at the specific facts and
circumstances of their marriage and divorce, as well as how South
African courts have interpreted Section 7(3) of the Divorce Act.
Typically, Section 7(3) allows for the redistribution of assets if it can be
shown that one spouse contributed more to the marriage, economically
or otherwise, and that the other spouse would be unjustly enriched if the
assets were not redistributed. Mr. Molefe would need to provide
evidence and argumentation to support his claim that the circumstances
of their marriage warrant a redistribution of assets, despite the default
property regime in Botswana being out of community of property.
The success of Mr. Molefe's claim would ultimately be determined by
the South African court based on the facts and evidence presented, as
well as the interpretation of the law by the court in accordance with
South African
October/November
SOLUTIONS
SEMESTER 2
DUE DATE: 13 OCTOBER 2023
, DOCUMENT OVERVIEW
QUESTION 1
1.1) The formal validity of Mr. and Mrs. Molefe's marriage would typically be
governed by the lex loci celebrationis, which means the law of the place
where the marriage was celebrated. In this case, they got married in
Mauritius. Therefore, the formal validity of their marriage would be determined
by Mauritian law since that was the place of celebration.
1.2) Section 7(3) of the South African Divorce Act 70 of 1979 allows for the
redistribution of assets upon divorce under specific circumstances. However,
the success of Mr. Molefe's claim would depend on whether the court finds
that the conditions for such redistribution have been met.
In South African law, the default matrimonial property regime is "in
community of property" unless the parties have executed an antenuptial
contract to the contrary. Botswanan law, on the other hand, presumes
marriages to be out of community of property by operation of law. Since
Mr. and Mrs. Molefe did not conclude an antenuptial contract, their
marriage would follow the default rules of the relevant legal system.
To determine whether Mr. Molefe can successfully claim a redistribution
of assets, you would need to look at the specific facts and
circumstances of their marriage and divorce, as well as how South
African courts have interpreted Section 7(3) of the Divorce Act.
Typically, Section 7(3) allows for the redistribution of assets if it can be
shown that one spouse contributed more to the marriage, economically
or otherwise, and that the other spouse would be unjustly enriched if the
assets were not redistributed. Mr. Molefe would need to provide
evidence and argumentation to support his claim that the circumstances
of their marriage warrant a redistribution of assets, despite the default
property regime in Botswana being out of community of property.
The success of Mr. Molefe's claim would ultimately be determined by
the South African court based on the facts and evidence presented, as
well as the interpretation of the law by the court in accordance with
South African
