Legal Practice Act — LPC Practical Vocational Training Guide: LPC Guide for Matrimonial Law (Regulation 6(10)(k)) (source: https://lpc.org.za/wp-content/uploads/2026/03/k-LPC-Guide-for-Matrimonial-Law-ito-Regulation-610k.pdf) PRACTICAL VOCATIONAL TRAINING (PVT) STRUCTURED COURSEWORK PROGRAMME FOR CANDIDATE LEGAL PRACTITIONERS (CANDIDATE ATTORNEYS) Matrimonial law, in terms of Regulation 6(10)(k) Author acknowledgement Adv. Nicholas J. Tee 2026/2027 PVT Structured Coursework Programme Publication and Copyright information © 2026/2027 The South African Legal Practice Council. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise, without the prior written permission of the South African Legal Practice Council. This intellectual property is strictly for the education and training of candidate legal practitioners as mandated by the Legal Practice Act 28 of 2014 and are not for commercial resale Acknowledgements The Legal Practice Council extends its gratitude to the Evaluator for his/her rigorous review, quality assurance, and contributions to the pedagogical effectiveness of this study guide: Reviewer: Mrs., Shivani Moodley (Pillay) ( Practising Legal Practitioner) Published by: The South African Legal Practice Council National Office, Building 10, Riverview Office Park 100 River View Park Street, Halfway Gardens Midrand, 1686 GUIDE FOR MATRIMONIAL LAW Regulation 6 (10)(k) FIFTEEN GUIDES There are fifteen guides for practical vocational training of candidate attorneys. This guide deals with the Matrimonial Law module in regulation 6(10)(k). OVERVIEW On 20 September 2014 Parliament assented to the Legal Practice Act 28 of 2014 (LPA). In terms of section 4 of the LPA, the Legal Practice Council (LPC) was established on 31 October 2018. The following day, on 1 November 2018 the bulk of the rest of the LPA came into effect. The Legal Practice Act regulates all legal practitioners whether on the practising roll or the non-practising roll. There are three forms of legal practice. They are an attorney, an advocate and an advocate with a Fidelity Fund certificate: see section 34 of the LPA. Under section 109(1)(a) of the LPA, the LPC published GN R921 in GG 41879 of 31 August 2018, as amended by GN R3779 in GG 49104 of 11 August 2023. The compulsory course work required in the regulations for candidate attorneys was standardised by the LPC in terms of the Norms and Standards. Regulation 6(10) reads: “(10) The programme of structured course work referred to in sub-regulation (1)(a) and (b) must be standardised and uniform throughout the Republic and comprise the following modules: (a) constitutional practice; (b) professional legal ethics; (c) personal injury claims; (d) high court practice; (e) magistrate’s court practice; (f) criminal court practice; (g) labour dispute resolution; (h) alternative dispute resolution; (i) attorneys’ bookkeeping; (j) wills and estates; (k) matrimonial law; (l) legal costs; (m) drafting of contracts; (n) information and communication technology for practice, and associated aspects of cyber law; and (o) introduction to practice management.” On 11 December 2020 the LPC published the Norms and Standards in Government Gazette 43981 under section 3 (g)(i) read with section 6(1)(b)(i) and section 95(1)(n) of the LPA. Regulation 6(10) requires candidate attorneys to be trained in the modules listed above. The similarity between regulation 6(10) for candidate attorneys and regulation 7(9) for pupils is not an accident. Section 32 of the LPA permits legal practitioners at any time, as determined in the rules and upon payment of the fee determined by the LPC, to apply to the LPC to convert their enrolment as attorneys to that of advocates and vice versa. Consequently, the training of candidate legal practitioners must allow for seamless section 32 conversions. Each guide per module deals with the requirements in regulation 6(10). Examiners set questions derived only from the latest LPC candidate attorneys’ curriculum and reading list. The combined curriculum and reading list is referred to as the “syllabus”. Each of the fifteen guides will assist training supervisors, mentors, busy legal practitioners and candidate attorneys to navigate the syllabus. The focus is on practical vocational training. INTRODUCTION TO EACH GUIDE Each guide per module in Regulation 6(10) is designed to assist candidate attorneys to understand, in real time, the minimum that is required under practical vocational training to become effective attorneys in practice. The essence of effective legal practitioners is the ability to read, to assimilate legal principles from that reading and to apply those principles in practice to the facts of your client’s case and in argument before courts, tribunals, disciplinary bodies, and any other forms of formal gatherings and meetings. The guides avoid prolixity. However each guide requires dedicated concentration. For the examinations, candidate legal practitioners (candidate attorneys and pupils) must be up to date with the latest Constitutional Court and Supreme Court of Appeal cases to within one week before the date of each exam. The guides do not rehash what you studied at University. Your LLB proves your capability. This guide will assist you to prepare for the LPC admission examinations. More importantly, this guide will also equip you to be an effective, competent, calm and (reasonably) confident attorney when you enter the legal profession. REQUEST TO CANDIDATE ATTORNEYS FOR DUE DILIGENCE Please read this guide attentively. Please carry out all recommended court attendances. Please carry out all the recommended practical exercises. Please complete reading all the material in the LPC reading list. Please note the notional hours to complete all 15 guides are 400 hours. Please note this guide, like the other fourteen guides, is sufficient for self-study. Please remember, the exams are based on the LPC’s most up to date reading list. • Currently the most up to date reading list is from 28 March 2025 of Notice 3086 of 2025 published in Government Gazette 52388. • Matters omitted from the LPC reading list will not be in the examinations unless the statute, case or article is included in your exam paper and allows you extra reading time to consider that statute, case or article. • Matters mentioned in the LPC reading list will be the subject of exam questions. • You will be required to answer the exam questions from the perspective of: o Facts first o Law later • The LPC exams, also referred to as assessments, are practical in nature. • The questions will proceed from the following perspective: – o What would you, as attorney of record, advise your client to consider? o What would you, as attorney of record, advise your client to do? o When and why would you refer a matter to another attorney or to counsel? o And similar practical questions. REFERENCES One of the products of Juta & Co Ltd is Jutastat. Many of the notes to this guide are downloaded from Jutastat. Please read the notes with care and diligence. This guide also relies on the Southern African Legal Information Institute (SAFLII). SAFLII is free and open access on the Internet. NOTE WELL The sequence of this guide follows the sequence in the most recent LPC syllabus of 28 March 2025 for candidate attorneys. The fifteen guides are designed to be updated when the LPC so requires. Bullet points below are drafted to assist you to grasp the material in the reading list. You must decide whether to accept or to amend the bullet points to suit your understanding. When there are no bullet points, you need nonetheless to read the rule or case or article to prepare for your exams. LPC SYLLABUS AND THE OFFICIAL SOURCE FOR ALL EXAMINATION QUESTIONS AT THE LPC ATTORNEYS’ ADMISSION EXAMS CURRICULUM READING LISTS AND COURSE CONTENT This column is sourced from Legislation the Norms and Standards the Candidates must read the legislation listed below. Candidates are NOT LPC published on 11 required to memorise the contents of the legislation. Candidates will be December 2020 in assessed on their ability to understand and apply the legislation and Government Gazette 43981 regulations published in terms of that legislation. In the exams, candidates will be required to read the legislation provided in the question and Taking instructions in detail. demonstrate their ability to understand and apply the legislation and Advice on marriage and its regulations. consequences Ante-nuptial contracts The case law below is part of the PVT curriculum AND will be examined. Advice on out of community of Candidates are not required to know the statutes or case law by heart. property with or without the Candidates must understand the principles in the cases and the legislation. accrual system and marriage in community of property Births and Deaths Registration Act 51 of 1992 Divorce and its consequences Child Justice Act 75 of 2008 Complying with Rule 41A Children’s Act 38 of 2005 and Regulations Redistribution orders Civil Union Act 17 of 2006 Drafting particulars of claim / Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 defence. of 2007 Drafting Rule 43 Applications: Divorce Act 70 of 1979 E v E 2019 (5) SA 566 (GJ) EB (born S) v ER (born B) and Others; KG v Minister of Home Affairs How to settle matrimonial and Others 2024 (2) SA 1 (CC); [2023] ZACC 32 (10 October 2023) disputes outside Court. ADR in especially at paras [108], [109], [120] to [133], [145] and [149] Family Law. Advice on rights and duties Domestic Violence Act 116 of 1998 concerning children, including: Domicile Act 3 of 1992 Birth and registration of births Hague Convention on International Child Abduction 72 of 1996 – Recognition of the unborn child repealed and re-enacted in Act 38 of 2005 Adoptive children: Maintenance Act 99 of 1998 Step-children: and, Maintenance of Surviving Spouses Act 27 of 1990 Children in foster care. Marriage Act 25 of 1961 The best interests of the child Matrimonial Property Act 88 of 1984 principle. Mediation in Certain Divorce Matters Act 24 of 1987 Chapter 3 of the Children’s Act Prevention and Combating of Trafficking in Persons Act 7 of 2013 38 of 2005 sections 18 to 41 Protection from Harassment Act 17 of 2011 Pottas v Plath 2022 (4) SA 301 (GJ) at para [1] Drafting particulars of claim and Recognition of Customary Marriages Act 120 of 1998 a plea. Reciprocal Enforcement of Maintenance Orders (Countries in Africa) Act 6 of 1989 NOTE WELL: Practice South African Citizenship Act 88 of 1995 Directives will not be examined South African Passports and Travel Documents Act 4 of 1994 unless a copy of the relevant directive is supplied to Accrual system candidates writing the exams. Honey v Honey 1992 (3) SA 609 (W) at 612 B – D A discussion on the judgment in Odendaal v Odendaal 2002 (1) SA 763 (W) B v B. ST v CT 2018 (5) SA 479 (SCA) at paras [33] to [36] and [39] EB (born S) v ER (born B) and Others; KG v Minister of Home Affairs The duty of a practitioner in all and Others (CCT 364/21; CCT 158/22) [2023] ZACC 32 (10 October family matters to resolve 2023) especially at paras [108], [109], [120] to [133], [145] and [149] disputes quickly and cheaply. That practitioners are not to Antenuptial contracts adopt an adversarial approach in CB v DB 2023 (1) SA 381 (SCA) at para [7] family law cases. EB (born S) v ER (born B) and Others, op cit. Domestic violence and abuse Damages claim based on adultery Alternative dispute resolution in RH v DE 2014 (6) SA 436 (SCA) confirmed on appeal in DE v RH 2015 family law (5) SA 83 (CC) Customary marriage Gumede v President of the RSA 2009 (3) SA 152 (CC) Netshituka v Netshituka 2011 (5) SA 453 (SCA) at para [15] MM v MN and Another 2013 (4) SA 415 (CC) Muslim marriages Women’s Legal Centre Trust v President of the Republic of South Africa 2022 (5) SA 323 (CC) Change of matrimonial regime Sithole v Sithole 2021 (5) SA 34 (CC) at paras [47] and [50] Divorce Irretrievable breakdown of marriage Schwartz v Schwartz 1984 (4) SA 467 (A) Interpretation of divorce order concerning pension fund MN v FN 2020 (2) SA 410 (SCA) Old Mutual Life Assurance Company (SA) Ltd v Swemmer 2004 (5) SA 373 (SCA) Maintenance Kruger NO v Goss 2010 (2) SA 507 (SCA) Best interests of the child J v J 2008 (6) SA 30 (C) the entire case Views of the children HG v CG 2010 (3) SA 352 (ECP) Redistribution orders GKR v Minister of Home Affairs 2022 (5) SA 478 (GP) DM v CM 2022 (6) SA 255 (GJ) at para [180] Adoption TT v Minister of Social Development 2023 (2) SA 565 (GJ) at paras [80] to [91] Births EJ and Others v Haupt 2022 (1) SA 514 (GP) Centre For Child Law v Director-General, Department of Home Affairs and Others 2022 (2) SA 131 (CC) Children FS v JJ 2011 (3) SA 126 (SCA) – very important case for many reasons – this case will feature in the candidates’ examinations often For example: “the court pointed out that the present litigation had not been in any of the parties’ interests. It endorsed the views expressed in MB v NB 2010 (3) SA 220 (GSJ) that mediation in family matters is a useful way of avoiding protracted and expensive legal battles, and that litigation should not necessarily be a first resort. (Paragraph [54].)” Martens v Martens 1991 (4) SA 287 (T) at 295 D-E the court held it is not bound by the decision of a foreign Court where the interests of minor children are at stake Removal of child to temporary safe care C v Dept of Health & Social Dev, Gauteng 2012 (2) SA 208 (CC) Rights of unmarried father FS v JJ 2011 (3) SA 126 (SCA) – very important case for many reasons – this case will feature in the candidates’ examinations often INDEX Overview – Fifteen Guides pages 1 – 3 LPC syllabus and the official source pages 3 – 5 for all examination questions at the LPC attorneys’ admission exams Index page 6 HOW TO USE THE READING LIST page 7 A. GENERAL page 7 B. INTRODUCTION page 8 C. PRACTICAL MESSAGE FOR CANDIDATES pages 8 – 9 D. READING LIST page 9 Taking instructions in detail: Rule 43 pages 9 – 10 Legislation pages 11 – 13 Accrual system pages 13 – 14 Antenuptial contracts pages 14 – 15 Damages claims based on adultery page 15 Customary marriage pages 15 – 18 Muslim marriages pages 18 – 19 Change of matrimonial regime pages 19 – 20 Divorce page 20 Interpretation of divorce order concerning pension fund pages 20 – 22 Maintenance page 22 Best interests of the child pages 22 – 23 Views of the children page 23 Redistribution orders pages 23 – 25 Adoption page 25 Births page 26 Removal of child to temporary safe care pages 27 – 29 Rights of unmarried father page 29 Matrimonial Law – HOW TO USE THE READING LIST A. GENERAL This module prepares you to understand the basic but essential principles, concepts and procedures of Matrimonial Law. Candidates must read the sections of the Act, the rules and the case law indicated in the reading list. Some of the salient issues are set out in bullet points below. The reason to read the references in the reading list is to prepare for your attorneys’ admission exams. The examiners draft exam questions from the syllabus. The syllabus includes the column Curriculum and Course Content and the column Reading List in the table above. Questions based on matters not in the syllabus are allowed only where the statute, case or article being examined is added into the examination paper. In that event, you will be given an extra fifteen minutes to read and consider the question before writing your exam. This principle applies to all the modules in regulation 6(10) and for all your admission exams. The reading list is repeated below with bullet points to focus your grasp of the material. You will be able to download the case law from SAFLII onto your mobile devices at any time, and while in court. Remember: the bullet points are designed to help you understand salient issues. The phrase: Subject to your reading, the following points may be drawn from the case cited above requires you to check whether the bullet points are indeed an accurate reflection of the case. Be proactive: you can develop your own bullet points for exam preparation and for use later in practice. Note well: many candidate attorneys do not have access to the South African Law Reports nor the All South Africa reports published by LexisNexis. In this guide some references to the URLs of SAFLII are included. This will assist all candidates to access the relevant document, even when you are in court – of course – if the court has internet access and accessible WiFi. Furthermore, many candidates do not have access to text book commentary on the rules. If you read the rules carefully you may not need the commentary. The rules are remarkably similar in their effect and application to the rules of the High Court. The Department of Justice website also has up to date legislation and subordinate legislation. See the following URLs: https://www.justice.gov.za/ https://www.justice.gov.za/constitution/index.html https://www.justice.gov.za/legislation/acts/acts_full.html https://www.justice.gov.za/legislation/rules/rules.htm B. INTRODUCTION The main purpose of the Norms and Standards is to provide a national approach to standardise and implement practical vocation training of candidate attorneys in terms of regulation 6(10). Five years of deliberation including two colloquiums and frequent publications of the syllabus have preceded the gazetting of the LPC syllabus on 28 March 2025. In future, the LPC syllabus will be updated and amended as required by circumstances in the legal profession. Legislation As a candidate attorney you need a working knowledge of the important statutes identified below. However, you do not need to know the statutes by heart. In practice you will always read the statutes and rules applicable to your case while drafting pleadings and consulting with your clients and preparing for hearings, be they trials or applications. Examiners’ obligations There will be an emphasis on rules in regular use in practice; see the reading list. In your admission exams any question posed on the interpretation of an Act of Parliament or a rule requires the examiners to include that text in the question paper itself. To reiterate: you do not need to know the legislation and rules by heart. C. PRACTICAL MESSAGE FOR CANDIDATE LEGAL PRACTITIONERS To avoid an unnecessary repetition on how you as candidates need to learn the skills to advise your clients and to take instructions in practice, please read pages 16 to 24 of the Guide for Constitutional Practice, and apply the necessary changes for matters that are not constitutional issues. Matrimonial Law has become a specialist area of law. You need to know enough either to specialise in this law yourself, or to refer a problem you identify to a competent attorney who is a specialist in matrimonial and family law. Remember: in all family matters our judges no longer tolerate adversarial litigation and will hold the practitioners liable for unnecessary litigation and point-taking formalism especially when the interests of children are at stage. Rule 41A is a useful way to deal with family law disputes. See MB v NB 2010 (3) SA 220 (GSJ) at paras [48], [59] and FS v JJ 2011 (3) SA 126 (SCA) at para [54] dealt with later in the reading list. The following topics from the norms and standard may also be examined. • Advice on marriage and its consequences • Ante-nuptial contracts • Advice on out of community of property with or without the accrual system and marriage in community of property • Divorce and its consequences • Domestic violence and abuse • Alternative dispute resolution in family law • Complying with Rule 41A • Redistribution orders • Advice on rights and duties concerning children, including: • Birth and registration of births • Recognition of the unborn child • Adoptive children: • Step-children: and, • Children in foster care. • The best interests of the child principle. • Chapter 3 of the Children’s Act 38 of 2005 sections 18 to 41 D. READING LIST The reading list is to the point. Please read the following: Taking instructions in detail Consider the detail required in drafting sound Rule 43 applications: 43 Interim relief in matrimonial matters (1) This rule shall apply whenever a spouse seeks relief from the court in respect of one or more of the following matters: (a) Maintenance pendente lite; (b) A contribution towards the costs of a matrimonial action, pending or about to be instituted; (c) Interim care of any child; (d) Interim contact with any child. (2)(a) An applicant applying for any relief referred to in subrule (1) shall deliver a sworn statement in the nature of a declaration, setting out the relief claimed and the grounds therefor, together with a notice to the respondent corresponding with Form 17 of the First Schedule. (b) The statement and notice shall be signed by the applicant or the applicant's attorney and shall give an address within 25 kilometres of the office of the registrar and an electronic mail address, where available, as referred to in rule 6(5)(b) at either of which addresses service will be accepted. (c) The application shall be served by the sheriff: Provided that where the respondent is represented by an attorney, the application may be served on the respondent's attorney of record, other than by the sheriff. (3)(a) The respondent shall within 10 days after receiving the application deliver a sworn reply in the nature of a plea. (b) The reply shall be signed by the respondent or the respondent’s attorney and shall give an address for service within 15 kilometres of the office of the registrar, as referred to in rule 6(5)(b). (c) In default of delivery of a reply referred to in paragraph (a), the respondent shall be automatically barred. (4) As soon as possible after the expiry of the period referred to in paragraph (a) of subrule (3), the registrar shall bring the matter before the court for summary hearing, on 10 days’ notice to the parties: Provided that no notice need be given to the respondent if the respondent is in default. (5) The court may hear such evidence as it considers necessary and may dismiss the application or make such order as it deems fit to ensure a just and expeditious decision. (6) The court may, on the same procedure, vary its decision in the event of a material change occurring in the circumstances of either party or a child, or the contribution towards costs proving inadequate. Downloaded from Jutastat E v E 2019 (5) SA 566 (GJ) https://www.saflii.org/za/cases/ZAGPJHC/2019/180.html Subject to your reading, the following points may be drawn from the case cited above • The court a quo considered three rule 43 applications. Two applications had papers of considerable length. The court then considered conflicting judicial approaches to the length of the papers by requesting argument on the following issues: (i) While rule 43 applications generally require the submission of a succinct set of papers, does the court have the discretion to permit the filing of applications that have departed from the strict provisions of rule 43(2) and (3)? (ii) If the court does not have such a discretion, should the Practice Manual direct that all rule 43 applications conform to a specific form, particularly in terms of length? Would the imposition of a restriction on the length of rule 43 applications withstand constitutional muster? (iii) If the court does have such a discretion, what are the factors to consider in order to reasonably exercise this discretion? Are these factors exhaustive? • On referral to the full court for resolution, the Full Bench held: o Issue (i): while there was no discretion under rules 43(2) and (3), there was a power under rule 43(5) to call for further evidence, and this ought to be used in circumstances where the respondent's affidavit raised a dispute of fact, to allow the applicant to file a further affidavit. ▪ Further to issue (i): relevance should govern the length of the papers, and that so long as material was relevant, it should be admitted. ▪ Any predetermined length restriction would likely be unconstitutional. o Issue (ii): while there was no discretion under rules 43(2) and (3), there was a power under rule 43(5) to call for further evidence. ▪ This power ought to be used in circumstances where the respondent’s affidavit raised a dispute of fact, ▪ to allow the applicant to file a further affidavit. ▪ Further to issue (ii): the Practice Manual needs to be amended and the financial disclosure form in the judgment included in the Manual. ▪ It is imperative, constitutional and practically necessary to amend the practice manual to permit rule 43s to be filed without restrictions. This will allow optimisation of the best interest of minor children, but will also be fair and promote transparency by all parties. o Issue (iii): It shall not be competent for a court to dismiss a rule 43 application only on the basis of prolixity. If the court finds that the papers filed by a party contain irrelevant material, the court only has the power to strike off the irrelevant and inadmissible material from the affidavit in question, and make an appropriate cost order. Legislation Candidates need to read the legislation listed below. To reiterate: Candidates are NOT required to memorise the contents of the legislation. You will be assessed on your ability to understand and apply the legislation and regulations. Births and Deaths Registration Act 51 of 1992 Child Justice Act 75 of 2008 Children’s Act 38 of 2005 and Regulations Civil Union Act 17 of 2006 Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 Divorce Act 70 of 1979 EB (born S) v ER (born B) and Others; KG v Minister of Home Affairs 2024 (2) SA 1 (CC) esp at paras [108], [109], [120] to [133], [145] and [149] https://www.saflii.org/za/cases/ZACC/2023/32.html Subject to your reading, the following points may be drawn from the case cited above The divorce/death issue • The CC held that, in respect of spouses in marriages out of community of property entered into prior to 1 November 1984 in terms of an ANC, ie ‘old ANC marriages’, s 7(3) of the Divorce Act treated those whose marriages terminated by divorce differently from those whose marriages terminated by death, o because the former class had the benefit of the redistribution remedy o whereas the latter class did not. • Such differentiation served no legitimate government purpose o In explanation, the CC held that the underlying justification for the introduction of the redistribution remedy, namely to ameliorate the hardship which might be suffered by spouses in old ANC marriages, who, for whatever reason, did not adopt the accrual regime during the window period and who would be left without recognition for their contributions to the increase in the estate of the other spouse, applied equally to marital dissolution by divorce and death. o The CC held further that that there could exist no legitimate government purpose in excluding dissolution by death • Accordingly, the CC concluded that the provision in question violated s 9(1) of the Constitution o The CC accordingly confirmed the High Court’s order of unconstitutionality. ▪ It declared s 7(3) of the Divorce Act 70 of 1979 inconsistent with the Constitution and invalid, ▪ which declaration it suspended for a period of 24 months to allow Parliament to take steps to cure the constitutional defects. o The CC ordered that in the interim a reading-in be applied to the impacted legislation in the manner set out in para [149(4)]: see the table below: Matrimonial Property Act 88 of 1984 is to be read as including, as s 36A, the following provision: ‘(1) Where a marriage out of community of property as contemplated in paras (a), (b) or (c) of ss 7(3) of the Divorce Act, 1979 (Act 70 of 1979), is dissolved by the death of a party to the marriage, a court may, subject mutatis mutandis to the provisions of ss 7(4), (5) and (6) of the said Divorce Act, and on application by a surviving party to the marriage or by the executor of the estate of a deceased spouse to the marriage as the case may be (hereinafter referred to as the claimant), and in the absence of agreement between the claimant and the other spouse or the executor of the deceased estate of the other spouse (hereinafter referred to as the respondent), order that such assets, or such part of the assets, of the respondent as the court may deem just, be transferred to the claimant. (2) For purposes of ss (1), para (a) of ss 7(3) is to be read as excluding the following words: “before the commencement of the Matrimonial Property Act, 1984”.’ Downloaded from Jutastat The before/after issue • The CC found that s 7(3) differentiated, based on date of marriage, between, on the one hand, spouses in marriages entered into after the commencement of the MPA in terms of an ANC, ie ‘new ANC marriages’, and, on the other hand, spouses in old ANC marriages, amongst others. o The purpose of such differentiation was to make the redistribution remedy available to those spouses who got married out of community of property under a marital regime where accrual was not the default regime. o The lawmaker's thinking was that, if the accrual regime was applicable by default, but the spouses chose to exclude it, the redistribution remedy should not be available. (See [104].) o The CC held that a government purpose of respecting and enforcing spousal choice could not be said to be illegitimate, and the differentiation accordingly did not breach s 9(1) of the Constitution. • The CC, however, held that s 7(3), in differentiating between spouses in old and new ANC marriages, indirectly discriminated against spouses on the grounds of gender. o In explanation, the CC stated that, while the differentiation was not directly a differentiation based on gender, its practical effect in the case of new ANC marriages was to prejudice women and benefit men disproportionately o In this respect, the CC accepted expert evidence led by the applicant that, because women in South Africa tended to be poorer than men, when marriages failed, it was more often women than men who would be prejudiced by the absence of a redistribution remedy. o The CC held that the indirect discrimination was unfair. o and was unjustifiable under s 36 of the Constitution. • The CC accordingly again confirmed the High Court’s order of unconstitutionality. It declared para (a) of s 7(3) of the Divorce Act inconsistent with the Constitution and invalid, which declaration it ordered to be suspended to enable Parliament to cure the constitutional defects. The CC ordered that in the interim a reading-in should be applied to the impacted legislation in the manner set out in [150(4)] and [150(6)]. See the table below for [150(4)]. Para [150(6)] is the same as the table for para [149] above: Pending any remedial legislation as contemplated in para 3 above, para (a) of ss 7(3) of the Divorce Act is to be read as excluding the words in strike-out text below [in brackets]: ‘(a) entered into [before the commencement of the Matrimonial Property Act, 1984,] in terms of an antenuptial contract by which community of property, community of profit and loss and accrual sharing in any form are excluded;’ Downloaded from Jutastat Domestic Violence Act 116 of 1998 Domicile Act 3 of 1992 Hague Convention on International Child Abduction 72 of 1996 – repealed and re-enacted in Act 38 of 2005 Maintenance Act 99 of 1998 Maintenance of Surviving Spouses Act 27 of 1990 Marriage Act 25 of 1961 Matrimonial Property Act 88 of 1984 Mediation in Certain Divorce Matters Act 24 of 1987 Prevention and Combating of Trafficking in Persons Act 7 of 2013 Protection from Harassment Act 17 of 2011 Pottas v Plath 2022 (4) SA 301 (GJ) at para [1] • Can a court dismiss an ex parte application for a protection order launched under s 2(1) of the Protection from Harassment Act 17 of 2011 without the application having been considered on a return date? The answer is: No. https://www.saflii.org/za/cases/ZAGPJHC/2022/223.html Recognition of Customary Marriages Act 120 of 1998 Reciprocal Enforcement of Maintenance Orders (Countries in Africa) Act 6 of 1989 South African Citizenship Act 88 of 1995 South African Passports and Travel Documents Act 4 of 1994 Marriage: Proprietary consequences Accrual system Honey v Honey 1992 (3) SA 609 (W) at 612 B – D Subject to your reading, the following points may be drawn from the case cited above • The term ‘antenuptial contract’ is not synonymous with the term ‘duly registered antenuptial contract’. • An antenuptial contract is valid between the parties and inter partes regulates their matrimonial property system even if it is not registered. • A duly registered antenuptial contract on the other hand regulates the parties’ matrimonial property system also as regards third parties. • The repeal of the prohibition against donations between spouses did not automatically abrogate the rule that parties may not postnuptially amend an antenuptial contract, whether such amendment was intended to have effect inter partes only or not. Odendaal v Odendaal 2002 (1) SA 763 (W) Subject to your reading, the following points may be drawn from the case cited above • Since the commencement of the Matrimonial Property Act 88 of 1984, any oral antenuptial contract includes the accrual system: section 2 • If a party seeks to allege that the accrual system was excluded in that oral contract, that party bears the onus to prove that contention ST v CT 2018 (5) SA 479 (SCA) at paras [33] to [36] and [39] Subject to your reading, the following points may be drawn from the case cited above • S 7 of the Matrimonial Property Act 88 of 1984 (MPA) sets out the duty which a spouse has to make full disclosure of relevant information when requested to do so by the other spouse; • Litigation is not a game where parties are able to play their cards close to their chest in order to obtain a technical advantage to the prejudice of the other party. This is even more so in matrimonial matters where the lives of the parties have been inextricably bound together and the interests of children are paramount; • A failure by a party to make full disclosure, as required by s 7 of the MPA, warrants the drawing of an adverse inference where it is reasonable in all the circumstances to do so, that a party has hidden assets. • The onus to prove an asset was excluded from an estate, for the purpose of calculating its accrual is on the party so alleging. DM v CM 2022 (6) SA 255 (GJ) at para [180] • The parties declared the commencement values of their estates in antenuptial contract • The declared value is conclusive proof of commencement value • The party to an antenuptial contract is entitled to challenge the declared commencement value on common-law grounds only: see s 6(3) of the Matrimonial Property Act 88 of 1984 • Further at para [180] the court held that a constitutional point not raised in the pleadings, not dealt with in evidence and not introduced as required in the rules, will not be determined by the court. The decision was upheld on appeal in DM v CM 2025 (6) SA 76 (SCA) See: https://www.saflii.org/za/cases/ZASCA/2025/55.html Antenuptial contracts CB v DB 2023 (1) SA 381 (SCA) at para [7] • There is no conflict between the antenuptial contract (ANC) and the agreement to pay lifelong maintenance • The primary objective of the ANC is not to create obligations, but to determine the matrimonial property system between spouses by excluding or varying the normal patrimonial consequences of marriage. o It is trite that the prohibition on donations between spouses has been abolished. o It is therefore no longer necessary for such donations to be made in an ANC. • The agreement to pay lifelong maintenance does not purport vary the ANC. o The two legal instruments co-exist because an ANC regulates the matrimonial regime of the parties stante matrimonio only, o whereas the agreement has no bearing at all on the nature of their matrimonial regime and the respective estates of the parties. ▪ Their estates remain separate. ▪ Thus, the provisions of the ANC remain intact and ▪ will be applicable upon their divorce ▪ despite the entitlement to enforce the terms of the agreement. o The finding by the court a quo, that the agreement constitutes an impermissible attempt to vary the ANC or the parties’ matrimonial regime contrary to s 21 of the Matrimonial Property Act, is therefore fundamentally flawed. Damages claim based on adultery RH v DE 2014 (6) SA 436 (SCA) Confirmed on appeal in DE v RH 2015 (5) SA 83 (CC) • The delictual action for adultery is abolished. • The SCA held: the high court should have denied the claim for loss of consortium because the marriage had already broken down when adultery first took place. • While the claim for contumelia was perhaps correctly granted, the SCA exercised its right to develop the common law by entirely abolishing the innocent spouse’s action for adultery based on the actio injuriarum. This was because the action: o had become obsolete due to a shift in social mores; o was of dubious historical provenance; o had been abolished in many foreign jurisdictions; o targeted only the third party and not the guilty spouse; o lacked deterrent effect and was therefore of doubtful use in achieving its postulated aim of protecting the institution of marriage; o lacked the objective element ▪ (humiliation in the eyes of the reasonable person) ▪ required of contumelia; o did disproportionate damage to the children of the marriage and to the dignity and privacy of the third party; and o was often motivated by anger and a desire for retribution rather than a need for closure or solace. Customary marriage VVC v JRM and Others (CCT202/24) [2026] ZACC 2 (21 January 2026) https://www.saflii.org/za/cases/ZACC/2026/2.html • Order of constitutional invalidity by the High Court, Gauteng Division Pretoria, that declared section 10(2) of the Recognition of Customary Marriages Act 120 of 1998 unconstitutional, is not confirmed. • The parties were married to each other in community of property by way of customary law on 5 August 2011. • On 19 February 2019 they concluded a civil marriage and signed an antenuptial contract (ANC) in terms of section 10(2) of the Recognition Act. o That contract provided that the civil marriage would be out of community of property and subject to the accrual system. o They concluded the civil marriage on 10 June 2021, without dividing the joint estate created by the customary marriage. • The subsequent civil marriage did not bring a new patrimonial regime into existence. • The antenuptial contract was invalid. Gumede v President of the RSA 2009 (3) SA 152 (CC) https://www.saflii.org/za/cases/ZACC/2008/23.html Following the declaration of invalidity of ss 7(1) and 7(2) of the Recognition of Customary Marriages Act 120 of 1998, Parliament amended section 7. See the table below. 7 Proprietary consequences of customary marriages and contractual capacity of spouses (1) (a) The proprietary consequences of a customary marriage in which a person is a spouse in more than one customary marriage, and which was entered into before the commencement of this Act, are that the spouses in such a marriage have joint and equal- (i) ownership and other rights; and (ii) rights of management and control, over marital property. (b) The rights contemplated in paragraph (a) must be exercised- (i) in respect of all house property, by the husband and wife of the house concerned, jointly and in the best interests of the family unit constituted by the house concerned; and (ii) in respect of all family property, by the husband and all the wives, jointly and in the best interests of the whole family constituted by the various houses. (c) Each spouse retains exclusive rights over his or her personal property. (d) For purposes of this subsection, ‘marital property’, ‘house property’, ‘family property’ and ‘personal property’ have the meaning ascribed to them in customary law. [Sub-s. (1) substituted by s. 2 (a) of Act 1 of 2021 (wef 1 June 2021).] (2) A customary marriage in which a spouse is not a partner in any other existing customary marriage, is a marriage in community of property and of profit and loss between the spouses, unless such consequences are specifically excluded by the spouses in an antenuptial contract which regulates the matrimonial property system of their marriage. [Sub-s. (2) substituted by s. 2 (b) of Act 1 of 2021 (wef 1 June 2021).] (3) Chapter III and sections 18, 19, 20 and 24 of Chapter IV of the Matrimonial Property Act, 1984 (Act 88 of 1984), apply in respect of any customary marriage which is in community of property as contemplated in subsection (2). (4) (a) Spouses in a customary marriage entered into before the commencement of this Act may apply to a court jointly for leave to change the matrimonial property system which applies to their marriage or marriages and the court may, if satisfied that- (i) there are sound reasons for the proposed change; (ii) sufficient written notice of the proposed change has been given to all creditors of the spouses for amounts exceeding R500 or such amount as may be determined by the Minister of Justice by notice in the Gazette; and (iii) no other person will be prejudiced by the proposed change, order that the matrimonial property system applicable to such marriage or marriages will no longer apply and authorise the parties to such marriage or marriages to enter into a written contract in terms of which the future matrimonial property system of their marriage or marriages will be regulated on conditions determined by the court. (b) In the case of a husband who is a spouse in more than one customary marriage, all persons having a sufficient interest in the matter, and in particular the applicant's existing spouse or spouses, must be joined in the proceedings. (5) Section 21 of the Matrimonial Property Act, 1984 (Act 88 of 1984) is applicable to a customary marriage entered into after the commencement of this Act in which the husband does not have more than one spouse. (6) A husband in a customary marriage who wishes to enter into a further customary marriage with another woman after the commencement of this Act must make an application to the court to approve a written contract which will regulate the future matrimonial property system of his marriages. (7) When considering the application in terms of subsection 6- (a) the court must- (i) in the case of a marriage which is in community of property or which is subject to the accrual system- (aa) terminate the matrimonial property system which is applicable to the marriage; and (bb) effect a division of the matrimonial property; (ii) ensure an equitable distribution of the property; and (iii) take into account all the relevant circumstances of the family groups which would be affected if the application is granted; (b) the court may- (i) allow further amendments to the terms of the contract; (ii) grant the order subject to any condition it may deem just; or (iii) refuse the application if in its opinion the interests of any of the parties involved would not be sufficiently safeguarded by means of the proposed contract. (8) All persons having a sufficient interest in the matter, and in particular the applicant's existing spouse or spouses and his prospective spouse, must be joined in the proceedings instituted in terms of subsection (6). (9) If a court grants an application contemplated in subsection (4) or (6), the registrar or clerk of the court, as the case may be, must furnish each spouse with an order of the court including a certified copy of such contract and must cause such order and a certified copy of such contract to be sent to each registrar of deeds of the area in which the court is situated. Downloaded from Jutastat Netshituka v Netshituka 2011 (5) SA 453 (SCA) at para [15] https://www.saflii.org/za/cases/ZASCA/2011/120.html • A civil marriage contracted while one spouse is a partner in an existing customary union with a third party is invalid. MM v MN and Another 2013 (4) SA 415 (CC) especially at para [83] https://www.saflii.org/za/cases/ZACC/2013/14.html • The Constitutional Court reiterated what the resurrection of customary law to its rightful place as one of the primary sources of law under the Constitution means. At para [24]: (a) customary law must be understood in its own terms, and not through the lens of the common law; (b) so understood, customary law is nevertheless subject to the Constitution and has to be interpreted in the light of its values; (c) customary law is a system of law that is practised in the community, has its own values and norms, is practised from generation to generation and evolves and develops to meet the changing needs of the community; (d) customary law is not a fixed body of formally classified and easily ascertainable rules. By its very nature it evolves as the people who live by its norms change their patterns of life; (e) customary law will continue to evolve within the context of its values and norms consistent with the Constitution; (f) the inherent flexibility of customary law provides room for consensus-seeking and the prevention and resolution, in family and clan meetings, of disputes and disagreements; and (g) these aspects provide a setting which contributes to the unity of family structures and the fostering of co-operation, a sense of responsibility and belonging in its members, as well as the nurturing of healthy communitarian traditions like ubuntu. • Paradoxically, the strength of customary law — its adaptive inherent flexibility — is also a potential difficulty when it comes to its application and enforcement in a court of law. o The difficulty lies not in the acceptance of the notion of living customary law o but in determining its content and testing it against the provisions of the Bill of Rights. • The Recognition Act is premised on a customary marriage that is in accordance with the dignity and equality demands of the Constitution. • A customary marriage where the first wife has consented to the further marriage conforms to the principles of equality and dignity as contained in the Constitution. • Where the first wife does not give consent, the subsequent marriage would be invalid for non-compliance with the Constitution. Muslim marriages Women’s Legal Centre Trust v President of the Republic of South Africa 2022 (5) SA 323 (CC) https://www.saflii.org/za/cases/ZACC/2022/23.html On 28 June 2022, the Constitutional Court held per Tlaletsi AJ (Madlanga J, Madondo AJ, Majiedt J, Mhlantla J, Pillay AJ, Theron J and Tshiqi J concurring): “[83] I therefore confirm the Supreme Court of Appeal’s order of constitutional invalidity, subject to the limitations referred to above on the interim relief. The President and Cabinet, together with Parliament, are directed to remedy the defects within 24 months so as to render the law constitutionally compliant. … [86] The following order is made: 1. The Supreme Court of Appeal’s order of constitutional invalidity is confirmed: 1.1 The Marriage Act 25 of 1961 (Marriage Act) and the Divorce Act 70 of 1979 (Divorce Act) are declared to be inconsistent with ss 9, 10, 28 and 34 of the Constitution in that they fail to recognise marriages solemnised in accordance with Sharia law (Muslim marriages) which have not been registered as civil marriages, as valid marriages for all purposes in South Africa, and to regulate the consequences of such recognition. 1.2 It is declared that s 6 of the Divorce Act is inconsistent with ss 9, 10, 28(2) and 34 of the Constitution, insofar as it fails to provide for mechanisms to safeguard the welfare of minor or dependent children born of Muslim marriages, at the time of dissolution of the Muslim marriage in the same or similar manner as it provides for mechanisms to safeguard the welfare of minor or dependent children born of other marriages that are dissolved. 1.3 It is declared that s 7(3) of the Divorce Act is inconsistent with ss 9, 10 and 34 of the Constitution, insofar as it fails to provide for the redistribution of assets, on the dissolution of a Muslim marriage, when such redistribution would be just. 1.4 It is declared that s 9(1) of the Divorce Act is inconsistent with ss 9, 10 and 34 of the Constitution, insofar as it fails to make provision for the forfeiture of the patrimonial benefits of a Muslim marriage at the time of its dissolution in the same or similar terms as it does in respect of other marriages that are dissolved. 1.5 The common law definition of marriage is declared to be inconsistent with the Constitution and invalid to the extent that it excludes Muslim marriages. 1.6 The declarations of invalidity in paras 1.1 to 1.5 above are suspended for a period of 24 months to enable the President and Cabinet, together with Parliament, to remedy the foregoing defects by either amending existing legislation, or initiating and passing new legislation within 24 months, in order to ensure the recognition of Muslim marriages as valid marriages for all purposes in South Africa and to regulate the consequences arising from such recognition. 1.7 Pending the coming into force of legislation or amendments to existing legislation referred to in para 1.6, it is declared that Muslim marriages subsisting at 15 December 2014, being the date when this action was instituted in the High Court, or which had been terminated in terms of Sharia law as at 15 December 2014, but in respect of which legal proceedings have been instituted and which proceedings have not been finally determined as at the date of this order, may be dissolved in accordance with the Divorce Act as follows: (a) all the provisions of the Divorce Act shall be applicable, save that all Muslim marriages shall be treated as if they are out of community of property; except where there are agreements to the contrary; and (b) the provisions of s 7(3) of the Divorce Act shall apply to such a union regardless of when it was concluded. (c) In the case of a husband who is a spouse in more than one Muslim marriage, the court: (i) shall take into consideration all relevant factors, including any contract or agreement between the relevant spouses, and must make any equitable order that it deems just; and (ii) may order that any person who in the court's opinion has a sufficient interest in the matter be joined in the proceedings. 1.8 Pending the coming into force of legislation or amendments to existing legislation referred to in para 1.6, it is declared that, from the date of this order, s 12(2) of the Children’s Act 38 of 2005 applies to a prospective spouse in a Muslim marriage concluded after the date of this order. 1.9 Pending the coming into force of legislation or amendments to existing legislation referred to in para 1.6, for the purpose of para 1.8 above, the provisions of ss 3 (1)(a), 3(3)(a) and 3(3)(b), 3(4)(a) and 3(4)(b), and 3(5) of the Recognition of Customary Marriages Act 120 of 1998 shall apply, mutatis mutandis, to Muslim marriages. 1.10 If administrative or practical problems arise in the implementation of this order, any interested person may approach this court for a variation of this order. 1.11 The Department of Home Affairs and the Department of Justice and Constitutional Development shall publish a summary of the orders in paras 1.1 to 1.10 above widely in newspapers and on radio stations, whichever is feasible, without delay. 2. The conditional cross appeal by the Women’s Legal Centre Trust, and the appeals by the South African Human Rights Commission and Commission for Gender Equality are dismissed. 3. The President and the Minister of Justice and Constitutional Development must pay the Women’s Legal Centre Trust’s costs of this application, including the costs of two counsel.” Change of matrimonial regime Sithole v Sithole 2021 (5) SA 34 (CC) at paras [47] and [50] https://www.saflii.org/za/cases/ZACC/2021/7.html Tshiqi J (Mogoeng CJ, Jafta J, Khampepe J, Madlanga J, Majiedt J, Mathopo AJ, Mhlantla J, Theron J and Victor AJ concurring): “ [46] Recognising the right to dignity is an acknowledgment of the intrinsic worth of human beings. This right therefore is the foundation of many other rights that are specifically entrenched in the Bill of Rights. One of these is the right to equality. Black couples, like all others, have to be afforded equal protection and benefit of the law so that their inherent dignity is respected and protected. [47] To conclude, the unfair discrimination is not saved by s 36(1) of the Constitution. The provisions of s 21(2)(a) of the [Matrimonial Property Act 88 of 1984] are thus inconsistent with the Constitution and invalid, and the High Court order to this effect should be confirmed. Henceforth, the default position must be that all marriages which, in terms of the [Black Administration Act 38 of 1927], were automatically out of community of property are in community of property. The affected couples must then have the option, like other races, to opt out and change their matrimonial regime to be out of community of property. … [50] There is no basis to delay and thus perpetuate the unjustified unequal treatment of Black couples. However, the order should not affect the legal consequences of any act or omission existing in relation to a marriage before this order was made. Also, the order must not undo completed transactions in terms of which ownership of property belonging to any of the affected spouses has since passed to third parties. Further, a saving provision or generic order should be made in favour of a person claiming specific prejudice arising from the retrospective change of the matrimonial regime, to approach a competent court for appropriate relief.” • All Black Administration Act 38 of 1927 marriages are declared to be in community of property; • An opt-out via an application to the High Court remains available. Divorce Irretrievable breakdown of marriage Schwartz v Schwartz 1984 (4) SA 467 (A) • To determine irretrievable breakdown of marriage one has regard to what happened in the past, (the history of the relationship up to the date of trial) • and also to the present attitude of the parties to the marriage relationship as revealed by the evidence at the trial • S 4(1) of the Divorce Act 70 of 1979 does not confer a discretion on the Court to withhold a decree of divorce upon proof of the irretrievable breakdown of the marriage of the parties. o The approach to the interpretation of such clauses on a discretion is confirmed in Minister of Environmental Affairs v Trustees, Groundwork Trust 2025 (4) SA 98 (SCA) at para [29]. Interpretation of divorce order concerning pension fund MN v FN 2020 (2) SA 410 (SCA) https://www.saflii.org/za/cases/ZASCA/2019/185.html This case concerns the importance of drafting divorce settlements with pristine clarity. Please read the case. The nub of the result was: • The SCA considered the definitions of ‘pension fund’ in the Divorce Act 70 of 1979 and ‘pension fund organisation’ in the Pension Funds Act 24 of 1956, and • concluded that ‘pension fund’ in the Divorce Act was a ‘pension fund organisation’ in the Pension Funds Act. • Such a ‘pension fund organisation’ included both pension and provident funds. o Each Division of the High Court and many Regional Magistrate’s Courts have practice directives concerning drafting pension clauses properly into settlement agreements. o Please ask your principal to show you copies of such clauses. Old Mutual Life Assurance Company (SA) Ltd v Swemmer 2004 (5) SA 373 (SCA) https://www.saflii.org/za/cases/ZASCA/2004/140.html The Headnote to this case opens with the following remarks: • “The instant case illustrates cogently the importance of deeds of settlement and divorce orders relating to pension interests being formulated very carefully in order to ensure that they fall within the ambit of ss 7(7) and 7(8) of the Divorce Act 70 of 1979. • If this is done, then all that would be required of the pension fund in question would be to perform administrative functions to give effect to the order, without the rights of the fund or the relationship between the fund and the member spouse being affected in any way, and it would not be necessary to join the fund as a party to the divorce proceedings.” • Please read the headnote to the case. o In the matter of De Graaf NO v CS 2023 (6) SA 374 (SCA), which is not in the reading list, the issue of drafting clauses for pension claims in settlement agreements is set out again. o An example of a clause required by a pension fund is set out in the table below. Note that in practice you will discover that each pension fund and provident fund has their own peculiarity with regard to the wording of such clauses. o The best approach is to obtain the standard form wording required by such fund first before drafting the settlement agreement. In terms of section 7(7) of the Divorce Act 70 of 1979, the parties’ rights, interests or benefits in and to the respective pension funds listed below are deemed to be part of the joint estate. As such the incorporation of this settlement agreement into the Decree of Divorce/Court Order is and shall be deemed to be an order in terms of section 7(8) of the Divorce Act, 70 of 1979 in terms of which the parties shall be entitled to an amount equal to 50% of the value in any and all pension funds or pension fund interests held in the name of the other party. • any associated and/or statutory taxes or administrative costs applicable with the above amounts shall be for the account of the recipient. The parties record and confirm that they are members of and the holders of the following pension funds/pension fund interests: The plaintiff: Is a member of the NAME Retirement Investment, more specifically a provident fund held with NAME Limited, with policy number [state] And of a NAME Fund Investment, more specifically a provident fund held with NAME Ltd, with fund membership number [state] The defendant: Is a member of the NAME Retirement Fund, more specifically a provident fund held with NAME Limited, with policy number [state] under employee number [state] Accordingly, an endorsement will be made in the records of the abovenamed pension funds as follows: An endorsement shall be made in the records of the NAME Retirement Fund/Provident Fund (held with NAME Ltd under policy number [state]) that the defendant’s 50% share of the plaintiff’s pension interest, in that fund, is payable to the defendant. An endorsement shall be made in the records of the NAME Fund (held with NAME Limited under policy number [state]) that the defendant’s 50% share of the plaintiff’s pension interest, in that fund, is payable to the defendant. An endorsement shall be made in the records of the NAME Retirement Fund/Provident Fund (held with NAME Ltd under policy number number [state] under employee number [state]) that the plaintiff’s 50% share of the defendant’s pension interest, in that fund, is payable to the plaintiff. Any entitlement to payment of pension funds which the parties acquire in terms of the provisions hereof shall be so paid within 30 days of the date of divorce alternatively within any period ordinarily stipulated by the pension fund administrator. At the election of the parties, the parties nominate the following accounts, into which the payment due to them is to be paid: The plaintiff: [insert detail] Or To be specified within 10 days of the date of divorce, alternatively subject to the pension fund administrator’s default operational processes. The defendant: [insert detail] Or To be specified within 10 days of the date of divorce, alternatively subject to the pension fund administrator’s default operational processes. Maintenance Kruger NO v Goss 2010 (2) SA 507 (SCA) https://www.saflii.org/za/cases/ZASCA/2009/105.html • The question was whether a claim for rehabilitative maintenance, pursuant to a decree of divorce, was enforceable by a spouse against her former husband’s deceased estate under section 7(2) of the Divorce Act 70 of 1979 • S 7(2) had to be viewed in its common-law context. o Under the common law, spouses’ mutual duty of support and thus the mutual liability for maintenance were incidents of the matrimonial relationship. o Termination of the relationship by death brought that duty to an end. ▪ Theoretically, a claim for maintenance such as the present case could compete with the claim of a surviving spouse and with claims by dependent children and beneficiaries. ▪ In the absence of legislative regulation, the permutations and uncertainties abounded. • Claim accordingly unenforceable. Best interests of the child J v J 2008 (6) SA 30 (C) Please read the entire case https://www.saflii.org/za/cases/ZAWCHC/2008/27.html The Full Court held: • As the upper guardian of minors, the High Court is empowered and under a duty to consider and evaluate all relevant facts placed before it to decide the issue which is of paramount importance: the best interests of the child. • When a court sits as upper guardian in a custody matter it has extremely wide powers to in establish what is in the best interests of minor or dependent children. o It is not bound by procedural strictures or o by the limitations of the evidence presented or o by contentions advanced by the respective parties. ▪ Furthermore, the interests of minors must not be ‘held to ransom for the sake of legal niceties’ and ▪ the best interests of the child ‘should not be mechanically sacrificed on the altar of jurisdictional formalism’. • If the custodian parent is obliged to give due consideration to the views and wishes of the non-custodian parent before coming to a decision concerning the child, he or she is in no way bound to give effect to the non-custodian parent’s views and wishes. • Once he or she has given such consideration, he or she may act independently. o Moreover, failure to give consideration to the views and wishes of the non-custodian parent, and failure to inform him or her of the decision in terms of s 6(5) of the Act, do not in themselves render the decision made by the custodian parent void or invalid o the decision is subject to review • the determining factor is whether or not the decision is in the child’s best interests. Views of the children HG v CG 2010 (3) SA 352 (ECP) https://www.saflii.org/za/cases/ZAECPEHC/2009/48.html • In application for the variation of a joint-custody award made under divorce settlement agreement the interests of the children are paramount, and • The children must be given the opportunity to participate in any decision-making that affects them, • particularly where they are of an age and maturity fully to comprehend the situation - see sections 10 and 31 of the Children’s Act 38 of 2005. Redistribution orders GKR v Minister of Home Affairs 2022 (5) SA 478 (GP) https://www.saflii.org/za/cases/ZAGPPHC/2022/311.html • The court declared s 7(3)(a) of the Divorce Act 70 of 1979 invalid to the extent that marriages out of community of property entered into before commencement of Matrimonial Property Act 88 of 1984 were not covered • The court found such differentiation constitutionally invalid; it amounted to unfair discrimination • The appropriate remedy was to remove the cutoff date The decision was confirmed on appeal in EB v ER NO and Others 2024 (2) SA 1 (CC) https://www.saflii.org/za/cases/ZACC/2023/32.html and Parliament duly amended the Divorce Act, 1979. See section 7 in the table below: 7 Division of assets and maintenance of parties (1) A court granting a decree of divorce may in accordance with a written agreement between the parties make an order with regard to the division of the assets of the parties or the payment of maintenance by the one party to the other. (2) In the absence of an order made in terms of subsection (1) with regard to the payment of maintenance by the one party to the other, the court may, having regard to the existing or prospective means of each of the parties, their respective earning capacities, financial needs and obligations, the age of each of the parties, the duration of the marriage, the standard of living of the parties prior to the divorce, their conduct in so far as it may be relevant to the break-down of the marriage, an order in terms of subsection (3) and any other factor which in the opinion of the court should be taken into account, make an order which the court finds just in respect of the payment of maintenance by the one party to the other for any period until the death or remarriage of the party in whose favour the order is given, whichever event may first occur. [Sub-s. (2) substituted by s. 36 (a) of Act 88 of 1984 (wef 1 November 1984).] (3) A court granting a decree of divorce in respect of a marriage out of community of property- (a) entered into before the commencement of the Matrimonial Property Act, 1984, in terms of an antenuptial contract by which community of property, community of profit and loss and accrual sharing in any form are excluded; (b) entered into before the commencement of the Marriage and Matrimonial Property Law Amendment Act, 1988, in terms of section 22 (6) of the Black Administration Act, 1927 (Act 38 of 1927), as it existed immediately prior to its repeal by the said Marriage and Matrimonial Property Law Amendment Act, 1988; or (c) entered into in terms of any law applicable in a former homeland, without entering into an antenuptial contract or agreement in terms of such law, may, subject to the provisions of subsections (4), (5) and (6), on application by one of the parties to that marriage, in the absence of any agreement between them regarding the division of their assets, order that such assets, or such part of the assets, of the other party as the court may deem just, be transferred to the first-mentioned party. [Sub-s. (3) added by s. 36 (b) of Act 88 of 1984 (wef 1 November 1984) and substituted by s. 2 (a) of Act 3 of 1988 (wef 2 December 1988) and by s. 1 of Act 12 of 2020 (wef 22 October 2020).] (3A) A court granting a decree of divorce in respect of a Muslim marriage, may, subject to the provisions of subsections (4), (5) and (6), on application by one of the parties to that marriage, in the absence of any agreement between them regarding the division of their assets, order that such assets, or such part of the assets, of the other party as the court may deem just, be transferred to the first-mentioned party. [Sub-s. (3A) inserted by s. 4 (a) of Act 1 of 2024 (wef 14 May 2024).] (4) An order under subsection (3) or (3A) shall not be granted unless the court is satisfied that it is equitable and just by reason of the fact that the party in whose favour the order is granted, contributed directly or indirectly to the maintenance or increase of the estate of the other party during the subsistence of the marriage, either by the rendering of services, or the saving of expenses which would otherwise have been incurred, or in any other manner. [Sub-s. (4) added by s. 36 (b) of Act 88 of 1984 (wef 1 November 1984) and substituted by s. 4 (b) of Act 1 of 2024 (wef 14 May 2024). (5) In the determination of the assets or part of the assets to be transferred as contemplated in subsection (3) or (3A), the court shall, apart from any direct or indirect contribution made by the party concerned to the maintenance or increase of the estate of the other party as contemplated in subsection (4), also take into account- (a) the existing means and obligations of the parties, including any obligation that a husband to a marriage as contemplated in subsection (3) (b) of this section may have in terms of section 22 (7) of the Black Administration Act, 1927 (Act 38 of 1927); (aA) any contract or agreement between the parties in a Muslim marriage, where the husband is a spouse in more than one Muslim marriage; [Para. (aA) inserted by s. 4 (d) of Act 1 of 2024 (wef 14 May 2024).] (b) any donation made by one party to the other during the subsistence of the marriage, or which is owing and enforceable in terms of the antenuptial contract concerned; (c) any order which the court grants under section 9 of this Act or under any other law which affects the patrimonial position of the parties; and (d) any other factor which should in the opinion of the court be taken into account. [Sub-s. (5) added by s. 36 (b) of Act 88 of 1984 (wef 1 November 1984), substituted by s. 2 (b) of Act 3 of 1988 (wef 2 December 1988) and amended by s. 4 (c) of Act 1 of 2024 (wef 14 May 2024).] (6) A court granting an order under subsection (3) or (3A) may, on application by the party against whom the order is granted, order that satisfaction of the order be deferred on such conditions, including conditions relating to the furnishing of security, the payment of interest, the payment of instalments, and the delivery or transfer of specified assets, as the court may deem just. [Sub-s. (6) added by s. 36 (b) of Act 88 of 1984 (wef 1 November 1984) and substituted by s. 4 (e) of Act 1 of 2024 (wef 14 May 2024).] (7)(a) In the determination of the patrimonial benefits to which the parties to any divorce action may be entitled, the pension interest of a party shall, subject to paragraphs (b) and (c), be deemed to be part of his assets. (b) The amount so deemed to be part of a party’s assets, shall be reduced by any amount of his pension interest which, by virtue of paragraph (a), in a previous divorce- (i) was paid over or awarded to another party; or (ii) for the purposes of an agreement contemplated in subsection (1), was accounted in favour of another party. (c) Paragraph (a) shall not apply to a divorce action in respect of a marriage out of community of property entered into on or after 1 November 1984 in terms of an antenuptial contract by which community of property, community of profit and loss and the accrual system are excluded. [Sub-s. (7) added by s. 2 of Act 7 of 1989 (wef 1 August 1989).] (8) Notwithstanding the provisions of any other law or of the rules of any pension fund- (a) the court granting a decree of divorce in respect of a member of such a fund, may make an order that- (i) any part of the pension interest of that member which, by virtue of subsection (7), is due or assigned to the other party to the divorce action concerned, shall be paid by that fund to that other party when any pension benefits accrue in respect of that member; (ii) the registrar of the court in question forthwith notify the fund concerned that an endorsement be made in the records of that fund that that part of the pension interest concerned is so payable to that other party and that the administrator of the pension fund furnish proof of such endorsement to the registrar, in writing, within one month of receipt of such notification; [Sub-para. (ii) substituted by s. 11 of Act 55 of 2003 (wef 31 March 2005).] (b) any law which applies in relation to the reduction, assignment, transfer, cession, pledge, hypothecation or attachment of the pension benefits, or any right in respect thereof, in that fund, shall apply mutatis mutandis with regard to the right of that other party in respect of that part of the pension interest concerned. [Sub-s. (8) added by s. 2 of Act 7 of 1989 (wef 1 August 1989).] (9) When a court grants a decree of divorce in respect of a marriage the patrimonial consequences of which are according to the rules of the South African private international law governed by the law of a foreign state, the court shall have the same power as a competent court of the foreign state concerned would have had at that time to order that assets be transferred from one spouse to the other spouse. [Sub-s. (9) added by s. 1 of Act 44 of 1992 (wef 15 April 1992).] Downloaded from Jutastat Adoption TT v Minister of Social Development 2023 (2) SA 565 (GJ) at paras [80] to [91] https://www.saflii.org/za/cases/ZAGPJHC/2022/931.html • This matter concerned two adoption applications in terms of s 239 of the Children’s Act 38 of 2005 • When you read the case, consider the following themes: o What agency do the parties display? o Is it correct for State institutions to deny the agency of informed adults? o While there is a lot of reading in this case: there is one universal truth for all law: people acting on their own informed accord (agency) should not be overruled by functionaries who follow the letter of the law and not the spirit of the law. • Section 231 of the Children’s Act is worth reading again. Births EJ and Others v Haupt 2022 (1) SA 514 (GP) https://www.saflii.org/za/cases/ZAGPPHC/2021/556.html • The first and second applicants were a female same-sex couple and partners in a civil partnership. o A male friend of the couple, the third applicant, supplied the first applicant with semen, with which, using a home insemination kit, she impregnated herself. o Some months into the pregnancy, first, second and third applicants applied for a declarator that s 40 of the Children’s Act 38 of 2005 was of application to same-sex couples. • Held, on interpretation of section 40, that it did so apply. • The resultant order provided that: o the child was considered the child of first and second applicants from the moment of birth; o the first and second applicants would have full parental rights and responsibilities from the child’s birth; o the birth register should reflect the first and second applicants as the child’s parents; o no adoption procedure was required; o the third applicant was a gamete donor and no obligations would arise between him and the child and o he would obtain no right of guardianship, parenthood, care or contact; o the child would have no claim for maintenance or in succession against the third applicant or his relatives. • Candidates are requested to read the entire case. Centre For Child Law v Director-General, Department of Home Affairs and Others 2022 (2) SA 131 (CC); https://www.saflii.org/za/cases/ZACC/2021/31.html • Section 10 of the Births and Deaths Registration Act 51 of 1992 did not allow the unmarried father to give notice of the birth of his child under own surname in the absence of the mother. • The High Court found the provision constitutionally invalid and severed the section from the Act. • The Constitutional Court confirmed the order of the High Court. • The declaration of constitutional invalidity took effect from the date of the Constitutional Court order order, being 22 September 2021. Note to Candidates: remember this case when you read the Births and Deaths Registration Act 51 of 1992 Martens v Martens 1991 (4) SA 287 (T) at 295 D-E • The court held it is not bound by the decision of a foreign Court where the interests of minor children are at stake Removal of child to temporary safe care C v Dept of Health & Social Dev, Gauteng 2012 (2) SA 208 (CC) • The Constitutional Court confirmed a High Court’s declaration of invalidity of ss 151 and 152 of the Children’s Act 38 of 2005. o The sections, which provide for the removal of children to temporary safe care, infringed the rights of children and parents by failing to provide for automatic review by a court of such removals. o The court ordered as remedies certain readings-in and a severance. • Parliament has since amended sections 151 and 152. See the tables below. 151 Removal of child to temporary safe care by court order (1) If, on evidence given by any person on oath or affirmation before a presiding officer it appears that a child who resides in the area of the children’s court concerned is in need of care and protection, the presiding officer must order that the question of whether the child is in need of care and protection be referred to a designated social worker for an investigation contemplated in section 155 (2). (2) A presiding officer issuing an order in terms of subsection (1) may also issue an interim order for the temporary safe care of the child if it appears that it is necessary for the safety and well-being of the child. [Sub-s. (2) substituted by s. 2 (a) of Act 18 of 2016 (wef 26 January 2018).] (2A) The court ordering the removal of the child must simultaneously refer the matter to a designated social worker and direct that social worker to ensure that the- (a) order in terms of subsection (2) is placed before the children’s court, for review before the expiry of the next court day following the removal; and (b) child concerned, and where reasonably possible the parent, guardian or care-giver, as the case may be, are present in the children's court for the purposes of assisting the court in making a decision which is in the best interest of the child. [Sub-s. (2A) inserted by s. 2 (b) of Act 18 of 2016 (wef 26 January 2018).] (3) When referring the question whether the child is in need of care and protection in terms of subsection (1) or when making an order in terms of subsection (2), the children's court may exercise any of the functions assigned to it in terms of section 50 (1) to (3). (4) An order issued in terms of subsection (2) must identify the child in sufficient detail to execute the order. (5) A person authorised by a court order may, either alone or accompanied by a police official- (a) enter any premises mentioned in the order; (b) remove the child from the premises; and (c) on those premises exercise any power mentioned in section 50 (3) (a) to (d). (6) A police official referred to in subsection (5) may use such force as may be reasonably necessary to overcome any resistance against the entry of the premises contemplated in subsection (5) (a), including the breaking of any door or window of such premises: Provided that the police official shall first audibly demand admission to the premises and notify the purpose for which he or she seeks to enter such premises. (7) The person who has removed a child in terms of the court order must- (a) without delay but within 24 hours inform the parent, guardian or care-giver of the child of the removal of the child, if that person can readily be traced; and (b) within 24 hours refer the matter to a designated social worker for investigation in terms of section 155 (2); and (c) report the matter to the relevant provincial department of social development. (8) The best interests of the child must be the determining factor in any decision whether a child in need of care and protection should be removed and placed in temporary safe care, and all relevant facts must for this purpose be taken into account, including the safety and well-being of the child as the first priority. Downloaded from Jutastat 152 Removal of child to temporary safe care without court order (1) A designated social worker or a police official may remove a child and place the child in temporary safe care without a court order if there are reasonable grounds for believing- (a) that the child- (i) is in need of care and protection; and (ii) needs immediate emergency protection; (b) that the delay in obtaining a court order for the removal of the child and placing the child in temporary safe care may jeopardise the child's safety and well-being; and (c) that the removal of the child from his or her home environment is the best way to secure that child’s safety and well-being. (2) If a designated social worker has removed a child and placed the child in temporary safe care as contemplated in subsection (1), the designated social worker must- (a) without delay but within 24 hours inform the parent, guardian or care-giver of the child of the removal of the child, if that person can readily be traced; (b) not later than the next court day inform the relevant clerk of the children's court of the removal of the child; (c) within 24 hours and without delay, report the matter to the relevant provincial department of social development of the removal of the child and of the place where the child has been placed; and [Para. (c) substituted by s. 3 (d) of Act 18 of 2016 (wef 26 January 2018).] (d) ensure that the- (i) matter is placed before the children's court for review before the expiry of the next court day after placement of the child in temporary safe care; and (ii) child concerned, and where reasonably possible, the parent, guardian or care-giver, as the case may be, are present in the children’s court. [Para. (d) added by s. 3 (e) of Act 18 of 2016 (wef 26 January 2018).] [Sub-s. (2) amended by s. 3 (a) of Act 18 of 2016 (wef 26 January 2018).] (3) If a police official has removed a child and placed the child in temporary safe care as contemplated in subsection (1), the police official must- (a) without delay but within 24 hours inform the parent, guardian or care-giver of the child of the removal of the child, if that person can readily be traced; (b) refer the matter before the end of the first court day after the day of removal of the child to a designated social worker, who must ensure that- (i) the matter is placed before the children's court for review before the expiry of the next court day after the removal of the child; (ii) the child concerned, and where reasonably possible, the parent, guardian or care-giver, as the case may be, are present in the children's court, unless this is impracticable; and (iii) the investigation contemplated in section 155 (2) is conducted; [Para. (b) substituted by s. 3 (g) of Act 18 of 2016 (wef 26 January 2018).] (c) without delay but within 24 hours notify the provincial department of social development of the removal of the child and of the place where the child has been placed; and (d) not later than the next court day inform the relevant clerk of the children's court of the removal of the child. (4) The best interests of the child must be the determining factor in any decision whether a child in need of care and protection should be removed and placed in temporary safe care, and all relevant facts must for this purpose be taken into account, including the possible removal of the alleged offender in terms of section 153 from the home or place where the child resides, and the safety and well-being of the child as the first priority. (5) Misuse of a power referred to in subsection (1) by a designated social worker in the service of a designated child protection organisation- (a) constitutes unprofessional or improper conduct as contemplated in section 27 (1) (b) of the Social Service Professions Act, 1978 (Act 110 of 1978) by that social worker; and (b) is a ground for an investigation into the possible withdrawal of that organisation’s designation. (6) Misuse of a power referred to in subsection (1) by a designated social worker employed in terms of the Public Service Act or the Municipal Systems Act constitutes unprofessional or improper conduct as is contemplated in section 27 (1) (b) of the Social Service Professions Act, 1978 (Act 110 of 1978) by that social worker. (7) Misuse of a power referred to in subsection (1) by a police official constitutes grounds for disciplinary proceedings against such police official as contemplated in section 40 of the South African Police Service Act, 1995 (Act 68 of 1995). (8) Any person who removes a child must comply with the prescribed procedure. Downloaded from Jutastat Rights of unmarried father FS v JJ 2011 (3) SA 126 (SCA) https://www.saflii.org/za/cases/ZASCA/2010/139.html • In matters dealing with minors, disputes between parents need to be mediated • Litigation is the last resort, not the first • If the mother and father were in permanent life partnership at time of birth of child, the father automatically acquires parental rights and duties in respect of the child: Children’s Act 38 of 2005, see section 21. Note to candidates: In practice, matrimonial law is a specialist area of law. It is a domain of law that requires not only technical legal competence but also a high degree of emotional maturity and sensitivity from practitioners. Nicholas J. Tee January/March 2026

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