matrimonial litigation

Sunday, 15 May 2016

POC example
Question 1:

Dr. Derek Grey, a neurologist employed at Netcare Paarl met his wife Maradeth Grey whilst he was on
holiday in England. Maradeth was a kickboxing trainer and worked as a bar tender at the Bangers and
Mash Pub during the nights. They decided to get married in South Africa at Dereks home located at 1
Summer Road, Paarl, Western Cape. Maradeths dad, Mr White was very upset about the marriage as
Maradeth was just divorced her previous husband, John Black, and it meant that his daughter will have
to relocate to Africa.

Derek and Maradeth decided to get married in terms of the Civil Union Act 17 of 2006 on the 1st day of
April 2010. Shortly after the marriage, Maradeth fell pregnant and gave birth to twin boys, Lex and Avery
on the 1st day of April 2011. Maradeth and the twins are on Dereks medical aid fund. Derek is
furthermore a member of the Paarl Netcare provident fund as administered by Alex Forbes Insurance
located at Unit 1, Forbes Building, Johannesburg.

When the boys turned three, Maradeth decided to continue with her kickboxing career as a trainer at
the Paarl Blood and Guts Kickboxing Centre. It was shortly after she started training again, that she
met Mark Grey, a kickboxing champion. Maradeth and Mark started having intimate relations. At home,
Maradeth became impossible to live with. She frequently had anger outbursts threatening Derek that
she will kill him or make sure that he never sees his children again. One evening Maradeth lost control
of her anger and punched Derek in the face breaking his jaw. Derek phoned the police and asked them
to charge her with assault.

Derek consults with you in respect of a divorce action. He is adamant that he wants Maradeth and her
boyfriend to pay for the pain and suffering they have caused him. Derek furthermore instructs you that
he wants primary caregiving of his boys and that he wants Maradeth to only visit with the boys if there
is an adult present. In addition he wants Maradeth to pay maintenance in respect of the children at the
rate of R5000-00 per month for both children. He is prepared to pay all the school expenses and medical
expenses relating to the children.

Based on the aforesaid set of facts, answer the following questions and where applicable refer
to authority:

1.1 Draft the particulars of claim based on the instructions given to you by Derek. Remember to cite all the
Defendants. (Please do not draft the summons itself or the annexures to the summons). You may
add your own facts where necessary.
(30)
 PLAINTIFF'S PARTICULARS OF CLAIM

1.

The Plaintiff is Dr. Derek Grey an adult male, neurosurgeon Paarl Netcare, Paarl and resident at 1
Summer Road, Paarl Western Cape. (1)

2.

The 1st Defendant is Maradeth Grey (born White) an adult female, employed as a kickboxing trainer at
Bloods and Guts Kickboxing Centre, Paarl and resident at 1 Summer Road, Paarl, Western Cape.
(1)

The 2nd Defendant is the Alberlito pension fund as administered by Alex Forbes Insurance located at
Unit 1, Forbes Building, Johannesburg. (1)

4.

The Plaintiff, 1st and Defendant are domiciled within the area of jurisdiction of the above Honourable
Court.

5.

The Plaintiff and the 1st Defendant were married in community of property in terms of the Civil Union
Act 17 of 2006 on the 1st day of April 2010, at Paarl, which marriage still subsists.
(1)
 6.

There are two minor child born from the marriage relationship, namely Lex and Avery Grey, males born
1 April 2011. (1)

7.

By reason of the fact and circumstances set forth hereunder, there has been irretrievable breakdown
of the marriage relationship between the Plaintiff and the 1st Defendant:
(1)

7.1 The 1st Defendant entered into an adulterous relationship.

7.2 The 1st Defendant sends himself from the matrimonial home without explaining his whereabouts;

7.3 As a result of the aforementioned behaviour the Plaintiff has lost her respect and trust in the 1st
Defendant. (1)

8.

In the premises, the marriage relationship between the Plaintiff and the 1st Defendant has reached
such a state of disintegration that there is no reasonable prospect of the restoration of a normal marriage
relationship between them. (1)

9.

It would be in the best interest of the minor children, Lex and Avery, a male born 1 April 2010 that
primary caregiving over him be awarded to the Plaintiff. (1)

10.
 The 1st Defendant is a member of the 2nd Defendant, Alberlito pension fund, with employment no:
0822043 and Member No: 1461755. In terms of Article 7(7)(a) of Act 70 of 1979 (as amended), the
1st Defendant's pension interest forms part of the joint estate of the parties and the Plaintiff is therefore
entitled to receive 50% of the value of the 1st Defendants pension fund, as calculated on date of
divorce. (2)

11.

The Plaintiff furthermore requires an order directing the 1st Defendant to pay: (2)

11.1 Maintenance in respect of the minor child at the rate of R2500 per month per child.

12

Wherefore the Plaintiff prays for judgment as follows:-

A Against the 1st Defendant:

i) A decree of divorce on grounds of irretrievable breakdown of the marriage relationship;

ii) An order awarding primary care-giving of the minor child to the Plaintiff;

iii) A Order directing the 1st Defendant to pay to the Plaintiff:-

a) maintenance in respect of the minor child at the rate of R5000-00 per month;

iv) An order for the division of the joint estate; (2)

 B Against the 2ND Defendant:

(i) 50% of the 1st Defendant's pension fund interest, excluding any loans or other debts, against the said
pension fund, up to and including the date of the divorce shall be assigned to the Plaintiff and shall be
paid by the funds to her when any pension fund benefits become payable to the 1st Defendant.

An endorsement be made on the records of the said fund that 50% of the 1st Defendant's said pension
fund interest, excluding any loans or other debts against the said pension fund, up to and including the
date of divorce shall be payable to the Plaintiff. The amount assigned to the wife shall accrue interest
as at the rate of the said funds performance. (2)

C Against 1stand 2nd Defendants jointly and severally:

i) Cost of suit as on attorney and own client scale;

ii) Further and/or alternative relief. (2)

DATED AT EMPANGENI THIS DAY OF ________2013.

____________________

Plaintiffs Attorney

Boston Legal

Unit 1

EMPANGENI
 Posted by L Ramaccio Calvino at 22:25 No comments:
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Adoption
Adoption:

In studying adoption students have to refer to:-

Childrens Act 38 of 2005;

Chapter 23 of the text book Family law, J Heaton, LexiNexis

The following should be noted:

* Adoption is the formal process by which existing PRR are terminated and vested in
another person.

* The Childrens act governs adoption in RSA and inter-country adoptions.

* The act provides that any person may adopt as long as the adoptive parent is above
18 years of age.

Adoption is therefore the legal act of permanently placing a child with a parent or parents other than
the childs birth/biological mother or father. A legal adoption order has the effect of terminating the
parental rights of the birth mother and father, while transferring (i.e. handing over to) the parental
rights and responsibilities to the adoptive parents.

Section 230(3) provides that a child is adoptable if:

a. the child is an orphan and has no guardian or caregiver who is willing to adopt
the child;
b. the whereabouts of the childs parent or guardian cannot be established;
c. the child has been abandoned;
d. the childs parent or guardian has abused or deliberately neglected the child, or
has allowed the child to be abused or deliberately neglected; or
f. the child is in need of a permanent alternative placement.
Section 231 provides that a adoptable child may be adopted:
a. jointly by

a husband and wife,

 partners in a permanent domestic life-partnership, or
other persons sharing a common household and forming a permanent family
unit;

b. by a widower, widow, divorced or unmarried person;

c. by a married person whose spouse is the parent of the child;
d. by the biological father of a child born out of wedlock; or
e. by the foster parent of the child.

The adoption process

In South Africa, the only way in which you can legally adopt a child is by working through an accredited
adoption agency, or with the assistance of an adoption social worker functioning within the statutory
accredited adoption system.
When working through an adoption agency, the process usually starts with the prospective adoptive parents
submitting an application to the agency.
All prospective adoptive parents are required to undergo a screening and preparation process.The screening
process normally involves orientation meetings, interviews with a social worker, full medicals, marriage and
psychological assessments, home visits, police clearance and references.
Once the screening process is complete, applicants are placed on a waiting list for a child.
There is usually a period of introduction to the child, the length of time varying according to the childs age.

RSA Adoptions:

* In RSA only a minor child can be adopted

* The minor must also be adoptable (adoptability refers to a child that is a orphan,
have been abandoned or abused or in need of a permanent alternative placement)

* An adoption social welfare officer determines whether a child is adoptable

* The Director General of Social Development has to keep a register namely the
register on adoptable children and prospective adoptive parents (RACAP)

Adoptive parents
 * Any adoptive parent must be found to be fit and proper

* The adoption application must be made in the prescribed manner at the childrens
court.

* The application must be accompanied by a report from the social welfare officer and
a letter from the dept of social development recommending the adoption.

* The consent of all guardians must be obtained, if the guardian is a minor she must
be assisted by her guardian.

* Please refer to the section dealing with when consent is not required -page 293.
(Sec 236 of Childrens act.)

* If the adoptable child is 10 years of age and mature enough to understand the
proceedings his/her consent must also be obtained.

* Before consent is obtained the parties must be counseled by a social officer

* Any party to the adoption may withdraw his/her consent within 60 days after signing
the adoption application; hence an adoption order may only be finalized thereafter.

* If the consent of a guardian is unreasonably withheld one can apply to the high court
to dispense with such consent ito sec 241 of the Childrens act.

A freeing order: Sec 235 of the Childrens act

A parent or guardian may request to be freed from PRR pending the adoption
application.

a child protection organization accredited in terms of section 25 1 to

Provide adoption services or an adoption social worker may issue an order freeing a
parent or person whose consent to the adoption of the child is required in terms of
section 233 from parental responsibilities and rights in respect of the child pending
the adoption of the child.

Consideration of order: Sec 240 of Childrens act

* The court must take all relevant circumstances into account (such as the religious
and cultural background of the child, the prospective parents circumstances, the
adoptive parents circumstances and nature as well as the report form the social
welfare officer)

* An adoption order may only be made if it is in the childs best interest and the
prospective parents have been properly assessed to be fit and proper parents and
the consent of all parties have been obtained.

Notice to be given of proposed adoption: Sec 328 of the Childrens Act

238. (1) when a child becomes available for adoption, the presiding officer must
without delay cause the sheriff to serve a notice on each person whose consent to
the adoption is required in terms of section 233.

(2) The notice must-

(a) Inform the person whose consent is sought of the proposed adoption of the child;
and

(b) request that person either to consent to or to withhold consent for the adoption,
or, if that person is the biological father of the child to whom the mother is not
married, request him to consent to or withhold consent for the adoption, or to apply in
terms of section 239 for the adoption of the child.

(3) if a person on whom a notice in terms of subsection (1) has been served fails to
comply with a request contained in the notice within 30 days, that person must be
regarded as having consented to the adoption.

Advertisement & Payment:

* Under no circumstances are one allowed to compensate or advertise for the

adoption of a child. The only compensation that may be paid is in respect of the birth
mothers medical expenses.
 Effect of order: Sec 234 & 242 of Childrens Act

* Family members of the biological parents of the child also loses any PRR claim that
may have in respect of the child, unless a post adoption agreement has been
entered into in terms whereof the court approves limited means to retain a link
between the family members and the said child. The agreement must be drafted in a
particular format.

* Sec 234.( 1) The parent or guardian of a child may, before an application for the
adoption of a child is made in terms of section 239, enter into a post-adoption
agreement with a (a) communication, including visitation between the child and the
parent or guardian concerned and such other person as may be stipulated in the
agreement;.

Rescission: Sec 243 of Childrens Act

* An adoption order may be rescinded on application by an interested party

* The application must be made to the high court/childrens court within a reasonable
period of time (not more than 2 years)

* If the rescission order is granted, the PRR ceases from such date the rescission is
made.

Inter-country adoption:

The purposes of this Chapter are give effect to the Hague Convention on Inter-
country Adoption and to provide for the recognition of certain foreign adoptions. A
convention country is therefore a country that forms part of the Hague convention.
 Chapter 16 schedule 1 Childrens act governs inter-country adoptions. One must
differentiate between the following forms of inter-country adoptions:

* 1. Adoption of a child that is habitually resident in RSA by an adoptive parent

resident in a convention country.

In this case the prospective adoptive parent must apply to the central authority of the
convention country where she resides (Italy). The central authority of that country
(Italy) must compile a report and submit same to the DG social development in RSA.
If a suitable child is available in RSA, the DG prepares a report and submits same to
the central authority of the country where the prospective adoptive parent resides
(Italy). If the central authorities of the 2 countries agree on the adoption, the DG
refers the matter to childrens court in RSA who will decide on the adoption.

Please refer to the requirements in your text books.

* 2. Adoption of a child that is habitually resident in RSA, by a parent from a non-

convention country:

Must apply to competent authority of the country then follow the same procedure as
above. Japan is not a convention country; hence this situation will arise when a
Japanese prospective parent wants to adopt a RSA child. The prospective parent
must approach the Japanese authority and then follow the same procedure as in 1.

* 3. Adoption by a RSA resident of a child who is habitually resident in convention

country:
 Apply to central authority, as 1

* 4. Adoption by a RSA parent of a child in a non-convention country:

Same as in 2.

Convention country adoptions are recognition as foreign adoptions; however in the

case of non-convention countries a declaratory order may be requested to recognize
the adoption.

Posted by L Ramaccio Calvino at 22:21 No comments:

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