Family Law Matters

 


AB and Another v Minister of Social Development

  • This case dealt with a woman who was barred from obtaining both male and female donated gametes as section 294 of the Children’s Act requires at least one of these gametes to be from the commissioning parent themselves.
  • The plaintiff therefore sought an order declaring such a provision to be unconstitutional and irrational.
  •  The court held that the relief sought was the striking down of this provision, namely section 294 of the Children’s Act. The court went on to note that striking such a provision down  would not adversely affect the remainder of the Act nor the legal checks and protections the Act provided for such instance. The court therefore ruled the provision unconstitutional and thus referred such to the constitutional court for a confirmatory order of invalidity.

KS v MS 

  • This case dealt with whether the accrual system was to be calculated at litis contestatio or at the date of divorce, with the court holding that the parties were married out of community of property with the accrual system applying to their marriage.
  • The court went onto hold that in instances where one is dealing with the accrual system applicable to marriages, such is to be calculated at litis contestatio as such is seen as the moment of crystallisation of the issues in the case at hand and not at the date of divorce.

TM v ZJ

  • This case dealt with the application for maintenance pendent lite under rule 43 of the Uniform Rules of Court, by a wife who was married in terms of Islamic law and which was not registered under the Marriage Act. The respondent had contended that since  no marriage existed, no such application could be granted.
  • The court held that under such an application, there is no need to prove the prima facie validity of the marriage. Rather such a requirement of maintenance arose from the common law duty of a husband to support his wife and children and thus she could not be precluded by her Islamic law marriage.

YB v SB AND OTHERS NNO 

  • The case at hand dealt with two parties who were married out of community of property with the accrual system applicable. The parties were in the process of getting a divorce,  however the applicant sought to amend their particulars of claim holding that assets which were held by a trust actually belonged to the respondent and thus should form part of the estate which would in turn form part of the accrual calculations.
  • The court held that in instances where the form of a trust is absurd and the trustee uses such as their ‘alter ego’, the court would pierce the veil of such an entity to determine whether the assets form part of the personal assets of the trustee or founder (This was the same reasoning in RP v DP and Others)
  • The court therefore held that some of the assets held in trust in actual fact belonged to the respondent’s personal estate and thus such assets were taken into account when determining the accrual calculations.

Disclaimer: All information contained herein does not constitute legal advice in any form or manner nor is it intended. All legal advice must be obtained or gained from a consultation with a qualified lawyer. The views and opinions expressed are those of the cited authors and not those of the publishers of iGazette. iGazette accepts no liability for any information which may be incorrect.

© Rui Lopes. All Rights Reserved.

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