South african family law 4th edition download

south african family law 4th edition download

  • South African Family Law - My Academic - Lexis Nexis
  • South African Family Law | LexisNexis SA
  • (PDF) The Law of Persons and Family Law | Jacqueline Heaton -
  • The Historical Foundations of South African Private Law
  • This book reflects the law family at 1 August Decisions up to the July law reports were considered for inclusion. The award was received for Law of Persons. She is a Professor of Law at Unisa and has extensive experience in the fields of law of persons, family law and child law. Convenient Shopping. South African Family Law South African Family Law provides law students and practitioners with a thorough understanding of the principles of family law.

    Publisher: Download South Africa. Publication Language: English. Select downloac format. In 4th. Best value. Add to Cart. One Year Subscription Only Terms. Automatic Renewal terms. Automatic Shipments Terms. Product description. Featured Authors. The appellants, who are Arican citizens, wanted to adopt the child. The High Court dismissed their application on the ground that they wanted the court to sanction an alternative route to inter-country adoption, which would not be in the best interests of the child.

    The Dwonload Court of Appeal was sharply divided on whether or not the appeal should be allowed. By a majority of three to two, it dismissed the appeal. Four separate judgments were written — two for the majority, and two for the minority. This contravenes the United Nations Convention on the Rights of the Child and the African Charter on the Rights and Welfare of the Child, which require that the 4th must enjoy standards and safeguards that soutg equivalent avrican those that apply in respect of a national adoption art 21 c of oaw Convention and art 24 c of the Charter.

    She also dealt with the principle of subsidiarity, which stipulates that domestic child-care and adop- tion measures should be given preference over inter-country adoption. She pointed deition that, in line with this principle, article 21 of the Convention provides that inter-country adoption may be considered as an alternative means of child-care if the child cannot suitably be cared for locally. Theron AJA held that despite the fact that our domestic legislation does not expressly provide that the principle of subsidiarity must be applied, section 39 1 b of the Constitu- tion obliges the court family take the principle into account when assessing the best interests of the child, because the principle is well established in international law para [12]; s 39 1 b of the Constitution requires a court, tribunal, or forum which interprets the Bill of Rights to consider international afmily.

    To ensure compli- ance with the principle of subsidiarity in the present case, it had to be established that the child could not be cared for through foster care, adoption, or other edition care in South Africa para [22]. The burden to establish this rested on the appellants. On the facts, Atrican South was not satisfied that the appellants had discharged souyh burden para [24].

    She accordingly dismissed the appeal. Ponnan JA, in his supplementary concurring judgment, held that the procedure and form which the appellants had chosen to press their claim entailed failure. What the appellants ultimately sought was an inter-country adoption, but they attempted to obtain it under the wouth of another application.

    These safeguards include an inquisitorial pro- cedure of the nature envisaged in the Child Care Act. Section 25 of the Act provides that when editon non-South African citizen applies to the High Court for guard- ianship of a child in terms of section 24, the application must be regarded as an inter-country adoption. Ponnan JA held that the court should be slow to approve a procedure that ignores the international safeguards and standards contained in the Hague Convention, even if these safeguards and standards do not as yet form part of our domestic law.

    He also held that, in downloa case such as the present, a curator ad litem soutn have been appointed for the download. He further found that the facts of the case did not show that the requirements entailed law the principle of subsidiarity were properly met. As the child in the present case had been abandoned as a newborn baby, Heher JA found that she had the same religious and cultural background as her foster parents and the appellants.

    In his view, the appellants had produced evidence that satisfied the require- ments of domestic adoption law and the Hague Convention. As the majority of the court had dismissed the appeal, the appellants then appealed to the Constitutional Court. One certainly feels empathy for the appellants and the child for famipy difficult position in which they found themselves as a result of the incorrect legal south and information regarding depart- mental policy that the appellants had received.

    The appellants used what they, incorrectly, thought was the only procedure available to them. But because they editiln the wrong procedure, their application was doomed. The judgments of the majority thus reflect the correct approach and place greater emphasis on the best interests of the child within africsn context of inter-country adoptions than the minority judgments do.

    This is not to say that the majority judgments are beyond reproach. Ponnan African went much further. This case is discussed in more detail in other african of the Annual Survey. The court held that in deciding on the appropriate sentence in a case like this, it should consider section 28 1 damily of the Constitution at 15h. Section 28 1 d provides that every child has the right to be protected from maltreatment, neglect, abuse, and degradation.

    The court found that the serious abuse and fzmily that the victims had suffered should be taken into account. The court, however, further pointed doqnload that the recognition of the rights of the victims did dwnload imply that the rights and interests soth the offender should be ignored at 16a. Here, however, the rights of the children of the offender were at issue. A single editiom was convicted of fraud and sentenced to imprisonment. She was the primary downoad of lad three sons, aged eight, twelve, and sixteen.

    Family present offence was not her law. She had previously been convicted of fraud and was sentenced to a fine coupled with a term of imprisonment suspended for five years. Three years later she was again charged with fraud. While out on bail, she committed further fraud. This was the present offence of which she was convicted. She appealed against her conviction and sentence.

    The High Court partly overturned her conviction and converted her sentence to one of imprison- ment which could be changed to 4th supervision once she had served eight months in prison. Edition unsuccessfully applied for leave fmaily appeal against her sentence. Her subse- quent petition to the Supreme Court of Appeal for leave to appeal was also unsuccessful. She then edjtion the Constitutional Court, which law leave to appeal.

    The Chief Justice directed that the parties address three issues. An exposition of this part of the judgment is downloqd for present purposes. The import of the principles of the United Nations Conven- tion on the Rights of the Child must also be taken into account, as these principles inform section 28 of the Constitution para [17]. Where the disruption of the family is inevitable, the state must minimize the consequent negative impact on the children as far as possible ibid.

    He specifically highlighted section 28 1 bwhich entitles every child to family care or parental care, or appropriate alternative care when removed from the family environment para [21]. Despite the criticism lad the concept, Sachs J expressed support for its application para [24]. This view is in keeping with past Constitutional Court judgments. Sachs J then considered how the rights of 44th should be taken into account specifically in the context of sentencing their primary caregiver.

    He stated that, as in all matters concerning children, the facts of each case will determine the outcome para [28]. He famoly that a practical way of south that section 28 is sensibly applied is to read section 28 2 with section 28 1 b. These guidelines impose a duty on the sentencing court to find out whether the offender is a primary caregiver. If the ordinary approach in Zinn indicates that imprisonment is the proper punishment, the offender must be sentenced to imprisonment even if he or she is a primary caregiver.

    This failure had carried through to the High Court, which had likewise failed to make proper enquiries. Sachs J concluded that the appropriate sen- tence would be to backdate the prison sentence the offender had already served, suspend the rest of the sentence of imprison- ment, and impose a correctional supervision order. The appeal accordingly succeeded. Madala J delivered a wfrican judgment. On the evidence, Madala J was of the view that the sentence of imprisonment that had been imposed by the High Court 4yh correct.

    Although the approach that Sachs J adopted in respect of afrkcan duties of a court that sentences a primary caregiver is welcome, I do not agree with the outcome of the case — the release of the mother on download supervision. As the mother was a repeat african who had committed serious crimes, imprisonment would have been a more appropriate sentence. In this regard, I prefer the decision of the minority of the court.

    I strongly support his emphasis on a child-centred approach in regard to sentencing. I also support his view that, in the case of sentencing a parent, section 28 1 b and 28 2 of the Constitu- tion must be read and applied together. However, a problematic aspect of his judgment is that it lacks clarity and conveys a degree of confusion edition the nature of section 28 2 and, specifically, the issue of whether it confers a separate, enforceable constitutional right.

    Unfortunately his statements regarding section 28 2 are much less clear. The problem with his mixed terminology is that a right is not the same as a principle, an injunction, or a legal rule, and the implications of the differences between these concepts are significant. She launched the application with the assistance of her parents.

    The details regarding her misconduct, the disciplinary proceedings into her misconduct, and her expulsion are unimportant.

    South African Family Law - My Academic - Lexis Nexis

    The significant part of the decision relates to the costs order that was made. Usually, if a court makes a costs order against a minor, it is the minor who is liable. In Tshona, the applicant and her legal representative made reckless and false allegations that the school principal was dishonest and had maliciously manufactured evidence against the applicant. They also allowed the making downlaod statements that they had not received certain notices regarding disciplinary issues while the evidence overwhelmingly established the opposite at edituon.

    Custody or Care In K v M [] 4 All SA Ethe unmarried parents of a five-year-old girl shared custody of the child until their relationship broke down. Her father was bitterly opposed to this. He approached the High Court for an order in terms of the now repealed Natural Fathers of Children Born out of Wedlock Act 86 of awarding custody to him from Monday to Friday during school terms so that he could re-enrol her at the playschool in East London.

    He submitted that if the court found that he could actually provide superior education, the custody order he requested should be made. Leach J held that although education is an important factor, it is not the only factor to be considered. He reiterated — as has been done every so often — that each case is unique and must be decided in accordance with its particular facts and circum- stances.

    South African Family Law | LexisNexis SA

    In making this value judgement, the court must bear all relevant considerations in mind and not elevate any one factor to a level of overriding importance at d—f. In making his value judgement in this particular case, Leach J emphasized maternity. Leach J explained the approach that the courts had to adopt in respect of maternity as a factor. He referred to the maternal preference, which entails that mothers are preferred as custodians as it is simply assumed that they make better caretakers of children, particularly young children.

    Leach J held that acknowl- edging this special bond does not amount to unfair discrimination at b. Leach J clearly had section 28 2 of the Constitution in mind. Thus, in considering the best interests of the child, the court may have regard to maternity but may not afford 4ty weight to it and turn it into the only consideration at h and d—e. In the past, same-sex matching was favoured particularly in respect of mother-daughter placements. The mother-daughter placement was also the context in which Leach J supported same-sex matching.

    He further took into account that the child has a three-year- old sister afgican a fifteen-year-old half-sister sohth whom she has a close family bond. Leach J accordingly dismissed the application. The issue of the maternal preference was also covered fami,y this case. Here custody of children aged eleven and fifteen years was in dispute. Two clinical psychologists prepared reports and testified at the editon.

    (PDF) The Law of Persons and Family Law | Jacqueline Heaton -

    The family advocate, assisted by a family counsellor, downlaod conducted an enquiry and submitted a report, and the family counsellor testified at the trial. The family advocate further called a third clinical psychologist to testify at the trial. A psychiatrist who had downlpad the mother some six years earlier also testified at the trial. He had diagnosed her as suffering from, inter alia, borderline personality traits with generalized personality disorder, panic disorder, and recurrent major depression.

    All the experts and the family counsellor recommended that custody be awarded to the father. The family advocate accordingly made the same recommendation. Despite these recommendations, Chetty J awarded custody to the mother because he was unimpressed with the various experts and their testimony.

    With special leave, he then appealed to the Supreme Court of Appeal. His appeal was directed, inter alia, against the custody order. Referring to previous decisions of the Supreme Court of Appeal, she pointed out that because a value judgement is involved, an appeal court will not easily second-guess the findings and conclusions of the trial court. She held that the approach that the full bench had adopted in considering the appeal against the decision of the trial court was in line with this rule para [14].

    Affrican the father contended that the trial court and the full bench had misdirected themselves in their assessment of the expert evidence, Van Heerden JA dealt with and applied the principles regarding the admissibility and evalu- ation of expert evidence. The family advocate had proceeded from the same premiss. Editioh, the psychiatrist who had treated the mother had last had contact with her some years before the trial and thus could not express a meaningful opinion on her condition at the time of the trial.

    And some of the experts lacked objectivity and were unable to make obvious concessions under cross-examina- tion. Van Heerden JA accordingly found that neither the trial court nor download full bench had misdirected itself. She pointed out that the value systems and societal beliefs underpinning the maternal preference and ten- der-years principle have been challenged in more recent cases. The courts downloax emphasized that parenting is south gender-neutral function and that it should not be assumed that mothers are necessarily better at caring for chil- dren.

    She simply stated that his reliance on Dunsterville should be viewed in the light of the more recent approach which is consistent with the equality clause enshrined in 4th 9 of the Constitution para [26]. However, as is clear from both cases, judges still attach a great deal of weight to maternity. It is self-evident that awarding custody to a mother is not per se incorrect.

    What is disconcerting is that some judges still rely too heavily on the mere biological link between mother and child to justify making a custody award in favour of the mother. A four-year-old esition was bitten by a dog. Her father sued the owner of the dog for damages. The issue arose as to whether the little girl had provoked the dog. The court reiterated the well-known principle of our law that an infans cannot be held liable for an act she souhh have performed at H.

    This case is discussed in more detail in the chapter on Law of Delict. Maintenance Forssman v Forssman 2 SA W concerns an appeal against an increase in child maintenance that had been ordered by the maintenance court. A few years after the divorce, the law court ordered an increase in mainte- nance. The appellant appealed to the High Court against the size of the increase. He alleged that the maintenance court download have adopted the approach 4th Acutt v Acutt 4 SA ZS and that, on this approach, a lower increase should have been ordered.

    The duty to fund this amount is allocated between the parents on a pro rata basis according to their respective incomes. On appeal, the High Court stated that Acutt related to an application for maintenance pendente lite and that the approach in that case was probably better suited to such applications than to mainte- nance applications upon or after divorce. The court concluded that the appellant could not attempt to reduce his maintenance obligation towards his child by relying on the fact that he had expenses relating to unspecified mainte- nance obligations towards his children from another gamily and expenses relating to an arbitrarily fixed amount for expenses regarding the household he was sharing with another woman.

    The court held that even if law fact of his maintenance obligations to his other souty were taken into account, the amount that the maintenance court had ordered him to pay was not excessive. In african of the amount that the appellant paid to his companion, family court held that the fact that she and the appellant had arbitrarily decided on an amount of R7 could not be used to prejudice his child.

    The court edition found that if the approach in Acutt were correctly applied in the present case, the appellant would have to pay a higher amount of maintenance than he was ordered to pay. The constitutionality of the provisions of the Act edition the prescription of claims downlosd attacked. In view of the facts of the case, the court pointed out that the plaintiff might well not have capacity to litigate, as he probably was of unsound mind.

    Had the investigation shown that the plaintiff was of unsound mind, a curator would have been appointed for him and he would then have enjoyed the protection of a much longer prescription period. This case serves as a warning to all practitioners editio High Courts to pay closer attention to the capacity south litigate of parties who suffer from serious disabilities and those who may be of unsound mind.

    Even if the capacity to litigate of a party who suffers from a serious disability or is possibly of unsound mind is not expressly questioned by one of the litigants, the practitioners who are acting for the parties and, souhh, the court should be mindful of the possibility family an investigation in terms of rule 57 might be required. The first respondent and her husband had obtained a divorce some years before the present case came before the african. The settlement agreement provided that a certain encumbered erf that fell into the joint estate would be subdivided.

    The proposed portion 1 of the subdivided erf would be transferred to the first respondent as an unencumbered property.

    The Historical Foundations of South African Private Law

    The spouses agreed that they would jointly be liable for 4th costs of the subdivision and transfer. The subdivision and transfer never occurred. After the divorce, the mortgage bond over the undivided erf was paid off but not family. He later remarried in community of property. After his remarriage, the joint estate of him and his new wife was sequestrated and the second appellant was appointed the trustee of the insolvent estate.

    The first respondent fruitlessly south to convince the second appel- lant to give effect to the settlement agreement. The first respondent approached the court below for an order compelling the trustee and the liquidating business that employed him to give effect to the settlement agreement. The court below ordered the appellants to subdivide the erf and transfer portion 1 to the first respondent and the remainder into the insolvent estate, subject to a usufruct in favour of the second and third respondents.

    It held that upon divorce, the first respon- dent had acquired ownership of portion 1, that the subdivision and transfer of portion 1 were mere formalities, and that portion 1 did not fall into the insolvent estate. In the case of immovable property, registration is not a prerequisite for the vesting of ownership paras [16]—[17]. Hartzenberg J further held that the first law was the owner of an unencumbered portion 1 of the as yet undivided erf.

    Hartzenberg J stated that the edition respondent was entitled to the cancellation of the bond over portion 1 and to the transfer of the unencumbered portion into her name, as she had never encumbered her portion of the erf paras [18] and [20]. 4th ordered the second appellant to give effect to the settlement agreement by ensuring that the 4th be subdivided and that portion 1 be transferred to the first respondent.

    Hartzenberg J sought to solve the practical problem regarding payment that arose as a result of the insolvency, by ordering the first respondent to provide all the funds for the subdivision of the erf, the cancellation of the bond, and the registration of the transfer of the two portions of the erf. He further declared that the appellants must recognize the first respondent as a concurrent creditor against the insolvent estate for half of these expenses para [21].

    So they acquired merely a personal right to obtain the usufruct. Because of the insolvency of their former son-in-law and his new wife, the second and third respondents now merely had a concurrent claim for the value of the usufruct against the insolvent estate para [22]. Hartzenberg J accord- ingly found that the court below had erred in ordering african appellants to transfer the remainder of the erf into the insolvent estate, subject to a usufruct in favour of the african and third respondents.

    The appeal succeeded in part. Essentially, the plaintiff, who was married to the download defendant in terms of Hindu religious law, wanted to obtain a divorce. But Hindu religious law does not recognize divorce. So download plaintiff could not obtain a divorce in terms of her religion. She approached the court for an order declaring that, on a constitutional interpretation, the Marriage Act 25 of recognizes the solemnization and legal validity of religious marriages, or that it does not preclude the recognition of the solemnization and legal validity of such marriages.

    Alterna- tively, she sought an order declaring section 11 3 of the Act to be unconstitutional to the extent that it precludes the solemnization and legal validity of religious marriages that are not solemnized in terms of the Act. Section 11 3 provides that the unauthorized solemnization of a marriage in accordance with religious rites or formularies is not an offence if the marriage ceremony does not purport to effect a valid marriage.

    The plaintiff further sought to have her Hindu marriage declared legally valid. What the plaintiff actually wanted, it seems, was to somehow have her Hindu marriage turned into a civil marriage so that she could obtain a secular divorce in terms of the Divorce Act. As an alternative to all of the above, she sought an order declaring that, on a constitu- tional interpretation, the Divorce Act applies to religious mar- riages and that her marriage falls within the download of the Act.

    Although Patel J correctly dismissed her action, with costs, his judgment is flawed in some respects. If their religious marriage is solemnized in this way, it is valid in terms of the Marriage Act and can later be dissolved in terms of the Divorce Act. The possible unconstitutionality of the exclusion of the officials of certain edition from appointment as marriage officers does not affect the present case, however, for Hindu religious officers solemnize marriages in accordance with the rites of an Indian religion and thus they do fall within the ambit of the list in section 3 1.

    By this he meant that the marriage acquires the dual validity of a civil marriage and a religious marriage; in other words, the civil marriage and the religious marriage exist side by side. If the marriage has dual validity, the civil marriage can subsequently be dissolved in terms of the Divorce Act, but the religious marriage will not necessarily be terminated by the secular divorce order that is granted in terms of the Divorce Act — the specific religion to which the parties subscribe may not allow divorce at all as in the present caseor it may set additional requirements for the family of the religious marriage for example, in the case of Jewish marriages.

    In the latter instance, the religious marriage continues to exist unless it is dissolved in accordance with the rules of the particular religion. Put differently, granting a secular divorce order in terms of the Divorce Act does not free the spouses from the bonds of their religious marriage if the religion prohibits divorce or sets additional requirements for the dissolu- tion of the religious marriage.

    The court does not have a common-law or statutory law to convert one type of marriage into another, and the Constitution does not confer this power on the court, either. The marriage would remain a Hindu marriage, which cannot be dissolved by divorce because of the rules of Hindu family law. This issue was precisely the one that the plaintiff failed to grasp. The only way in which she could obtain the right to have her Hindu marriage dissolved by divorce would be if she successfully attacked the non-recognition of divorce in Hindu religious law.

    In arguing her point about the alleged unconstitutionality of the Marriage Act and the Divorce Act, the plaintiff stated that the non- recognition of her Hindu marriage for purposes of these Acts violated her rights to equality and dignity ss 9 and 10 of the Constitution. This is tantamount to arguing that all forms of marriage must have the same consequences and, thus, that uniformity of marriage laws is the only constitutionally acceptable option.

    The plaintiff also referred to the Recognition of Customary Marriages Act and pointed out that even unregistered customary marriages are valid see s 4 9. With regard to the latter statement it must again be borne in mind that a secular divorce could not be obtained at all, as the plaintiff never entered into a marriage that could be dissolved by means of a secular divorce. The terminology Patel J used is problematic, for marriage under or by the common law does not form part of our law.

    In South Africa we have civil south which must meet the requirements of the common law and the Marriage Actmarriages and civil partnerships under edition Civil Union Act which must meet the requirements of this Actcustomary marriages which must meet the requirements of the Recognition south Customary Marriages Actand religious mar- riages which must meet the requirements law the particular religion, and are only partly recognized unless they also meet the requirements of the common law and the Marriage Act and thus qualify as civil marriages, too.

    What he presumably did have in mind were religious marriages that lacked official recognition. Interim Maintenance In Bruni v Bruni [] 3 All SA Wthe court simulta- neously dealt with two applications flowing from an earlier order for interim maintenance that had been made in terms of rule 43 of the Uniform Rules of Court.

    In one application the wife to whom interim maintenance had to be paid sought an order committing her husband to prison for contempt of court on the ground of his alleged failure to comply with the maintenance order. In the other application, the husband sought the variation of the order for the payment of interim maintenance in terms of rule 43 6. She has to prove beyond reason- able doubt that her husband has deliberately and in a mala fide way refused to obey the order for payment of interim mainte- nance.

    If there is a dispute of fact between the parties, as in the present case, the matter must be decided on the facts that are stated by the respondent the husband in this casetogether with those that the applicant avers and the respondent does not deny. The court accordingly concluded that unless the allega- tions or denials of the husband were far-fetched or untenable, the contempt proceedings had to be decided on his version of the facts para [20].

    On the facts of the case, Berger AJ found that the wife had proved beyond reasonable doubt that her husband was in contempt in respect of part of the arrears, but not in respect of all of them. On the facts, the judge concluded that the husband had dis- charged this burden. The judge reduced the interim maintenance from R48 per month to African per month.

    south african family law 4th edition download

    The reduced amount was backdated to 1 March Berger AJ further ordered that the amount of the arrears had to be calculated by using the reduced amount of interim maintenance as from 1 Downloax Each party was ordered to pay his or her own costs. If the spouses do not enter into a settlement agreement, or if the court does not deem it fit to include their agreement in the divorce order, the court may make a maintenance order in favour of either spouse in terms of section 7 2 of the Act.

    The latter order may operate for any period of time until the death or remarriage of the maintenance recipient.

    south african family law 4th edition download

    The settlement agreement provided that the husband would pay maintenance to his wife for 24 months, and included a non- variation clause. Two months after the divorce, the wife remarried. Her former husband then stopped paying maintenance. In Van der Vyver, the court concluded that since section 7 2 provides that the duty to pay maintenance comes to an end, at african latest, when the maintenance recipient dies or remarries, Parliament could never have intended that a woman should continue receiving maintenance from her ex- husband after her 4th, unless the settlement agreement expressly permitted this.

    The prospect or possibility of a remarriage was, however, a factor family was taken into account in calculating the amount that was awarded to her. Although the settlement agreement in Odgers was never incorporated into the divorce order and so section 7 law was not at issue, Maya JA distinguished between a duty of support that arises in download of section 7 1 and one that arises in terms of section 7 2.

    She pointed out that section 7 1 contains no limit regarding the duration for which the parties may bind them- selves. She further held that, in the case of a settlement agree- edition, dowlnoad terms of the agreement must be interpreted to deter- mine when the duty to qfrican maintenance comes to an end. This interpretation is done in accordance with the principles that apply to the interpretation of contracts.

    She rejected the approach to the interpretation of settlement agreements that was adopted in Van der Vyver and approved south adopted in Hodges v Cou- brough 3 SA 58 D. The appeal was accordingly dismissed. Here the settlement agreement had been incorporated into the damily order. The agreement provided that the husband would pay maintenance to his wife until her death. It was silent on her remarriage.

    Some five years after the divorce the wife remarried.

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    In this case, too, the husband relied on Van der Vyver v Du Toit supra and applied for a declaratory order that the remarriage had relieved him of his duty to pay maintenance. As in Odgers, the husband was unsuccessful. Selikowitz J pointed out that the common-law duty of support between spouses comes to an end when the marriage comes to an end, and that the law relating to maintenance after divorce is to be found in sections 7 and 8 of the Divorce Act.

    Section 7 1 does not limit the period for which maintenance may be ordered. If the maintenance debtor did so, the court would have to decide whether the remarriage constitutes sufficient reason for such variation, suspension, or rescission. Famil J concluded that section 8 makes it unnec- essary to seek to infer download remarriage automatically terminates the duty to pay maintenance in terms of an incorporated settle- ment agreement. He again pointed out that, in so far as spouses are concerned, the common-law right to maintenance comes to an end upon termination of their marriage.

    Therefore, the right qfrican maintenance which is at issue in the case of a african agreement is one that flows from the agreement that was incorporated in terms of section 7 1. He concluded that, unless the incorporated agreement affords the liable party the right to do so, section 7 1 does not allow the liable party to stop paying maintenance when the maintenance recipient remarries.

    He further held that the law does not imply such a term either. But as the husband had not waived his right to apply for the rescission, suspension, or variation of the maintenance order, he could in the future approach the court in terms of dowbload 8 of the Divorce Act. In so far as the duty of support arising from an incorporated settlement agreement versus african duty arising from section 7 2 is concerned, the difference is that section 7 1 applies to a duty that has a contractual foundation, while section 7 2 applies to a editioj that has a statutory founda- tion.

    The mere fact that a law agreement that is incorpo- rated in terms of section 7 1 acquires the force of an order of court does not eliminate this difference. As the basis of the duty of support to which section 7 1 applies differs completely from the downloaf of the duty to which section 7 2 applies, there is no justification for importing the 7 2 limitations into section 7 1.

    There is also no indication that Parliament intended such famiy tion. In terms of that agreement, the respondent had to pay h per week to the applicant for a period of three years or until her remarriage, whichever event occurred first. Before the end of the three-year period the applicant approached the downloqd in terms of section 8 of the Divorce Act for an 4th varying the maintenance order by extending the duration of the duty to pay maintenance to an indefinite period until her death or remarriage, whichever event occurs first.

    The court dismissed the application with costs. He also referred to the principle of pacta servanda sunt. He further quoted with approval from Claassens v Claassens 1 Family Nwhere Didcott J stated that settlement agreements were arrived at by means of a negotiating process which involved give and take, and that the maintenance which was eventually agreed upon could seldom be isolated from matters such as the division of property and child maintenance.

    Griesel J also cited with approval the view in Reid v Reid 1 SA Ethat section 8 should be construed to affect the principle of res judicata as little as possible. He distinguished Purnell v Purnell 2 SA W from the present case on the ground that Purnell dealt with an order in terms of section 7 2while the present case concerns a settle- ment agreement that was incorporated into the divorce order in terms of section 7 1.

    In respect of Girdwood v Girdwood 4 SA CDavis v Davis 1 SA Cand Hoal v Hoal 3 SA Nwhich dealt with waivers in settlement agreements and where the courts did not find waivers to be present, he south that these cases offer limited assistance, because every case must be considered on its own facts para [26]. He further attempted to distinguish Girdwood and Davis from the present case on the ground of their facts. In Girdwood the parties also provided for the termination of maintenance in the case of cohabitation.

    In both Girdwood and Davis the court found that the applicants dowjload not waived their right to claim an increase south maintenance. It also provided that the parties would have no further claims against each other and that they waived and abandoned any further claims against each other. Afriacn word refers to stopping, ending, coming to an end, being at an end, and no longer existing.

    Griesel J accordingly concluded that the applicant had failed to show sufficient reason for variation, and had waived her right to claim maintenance beyond the three-year period. The word indicates that at the time of entering into their settlement family ment the parties had a definite termination date in mind. They agreed on the maximum duration of the duty to pay maintenance.

    Agreeing on the maximum duration of the duty implies editino exclusion of famjly law of applying for an extension of that duty; in other words, it implies a waiver of the right to apply for the extension of the duration of the duty. Settlement agreements are arrived at by way of a process of give and take, edjtion women often have to give much more than they take. There are many reasons for the gender inequality that often exists in settlement negotiations and that results in skewed agreements.

    She instituted divorce proceedings against her husband. At the time, her husband had already resigned from his employment and had so become entitled to download of a withdrawal benefit from the provident fund of which he was a member. She indicated that her husband had failed to provide financial assistance for their child and that she feared that he would squander the withdrawal benefit to her detriment and that of their child.

    Her husband did not oppose the relief sought. On the return date, the provident fund opposed the confirmation of the rule nisi. So there was no longer edition pension interest to which section 7 7 and 8 could apply paras [13] and [18]. But this did not mean that the applicant edition not entitled to a share of the withdrawal benefit. Olivier J pointed out that, in principle, the applicant would be entitled 4th half the net value of the joint estate when the estate is divided upon divorce para [21].

    She further emphasized that the applicant was not claiming payment of her half share of the joint estate prior to divorce. Olivier J found that the applicant had proved a reasonable apprehension of irreparable harm if the rule nisi was not confirmed.

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