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248 LEARNING OUTCOMES Once you have studied this study unit you should be able to (1) define a life partnership (2) explain the general rule with regard to the legal consequences of cohabitation outside marriage (3) know which statutory recognition has hitherto been extended to, respectively, heterosexual and same-sex life partnerships (4) explain how court decisions have increasingly extended recognition to same-sex life partnerships (5) explain whether the law's refusal to treat heterosexual life partners like spouses is unconstitutional (6) explain whether the law's refusal to treat same-sex life partners like spouses is unconstitutional PRESCRIBED MATTER Read . Prescribed textbook 227 ``18.1 Definition'' (from the second sentence) . Prescribed textbook 227±229 ``18.2 General'' (from the last par on 227) . Prescribed textbook 234±237 ``18.5 Protection by means of the ordinary rules of the law which apply as between third parties'' Study . Prescribed textbook 227 (only the first sentence under ``18.1 Definition'' and the first par under ``18.2 General'') . Prescribed textbook 229± 234 ``18.3 Recognition of heterosexual life partnerships'' and ``18.4 Recognition of same-sex life partnerships'' . Prescribed textbook 237±240 ``18.6 The Constitution and life partnerships'' CONTENT OF THIS STUDY UNIT 1 DEFINITION Inthefirstplace,youmustbeabletoexplainwhatalifepartnershipis. The first sentence on page 227 of your prescribed textbook contains a definition of this term.
2 GENERAL The general rule of our law is that none of the ex lege consequences of marriage automatically ensue if a couple lives together without getting married. This is the case regardless of whether or not the life partners are legally permitted to marry each other. This rule is set out and explained with examples in the first part of the first paragraph under this heading on page 227 of the textbook. In the second part of that paragraph it is stated that legislation and court decisions have, however, extended some of the consequences of marriage to life partnerships. This aspect is further elucidated under the next two headings. 3 RECOGNITION OF HETEROSEXUAL LIFE PARTNERSHIPS Firstly, you must know that various Acts, such as the Insolvency Act 24 of 1936, the Compensation for Occupational Injuries and Diseases Act 130 of 1993, the Estate Duty Act 45 of 1955, the Pension Funds Act 24 of 1956, the Income Tax Act 58 of 1962, the Maintenance Act 99 of 1998, the Domestic Violence Act 116 of 1998 and the Rental Housing Act 50 of 1999 treat heterosexual life partners and spouses alike. All these Acts are discussed on pages 229 to 230 of the textbook. You need not study the detail and numbers or dates of these Acts. Just note that most of these Acts extend the same protection to heterosexual and same-sex life partners. Ignore the discussion of Robinson v Volks in your textbook on page 230, and only read the following section on this case: In this case, the Cape provincial division of the high court initially declared section 1 of the Maintenance of Surviving Spouses Act 27 of 1990 unconstitutional to the extent that it fails to include permanent life partners within the ambit of the Act. The decision of the Cape provincial division of the high court was, however, overturned by the constitutional court in Volks v Robinson 2005 (5) BCLR 446 (CC). The majority of the judges of the constitutional court found that differentiating between a spouse and a heterosexual life partner by excluding the life partner from a maintenance claim against the estate of his or her deceased life partner in circumstances where a spouse would have had such a claim in terms of the Maintenance of Surviving Spouses Act 27 of 1990 does not constitute unfair discrimination. Nor does it violate the surviving life partner's right to dignity. The majority pointed out that although the Bill of Rights does not contain the right to marry and to found a family, section 15(3)(a)(i) recognises marriage as an institution. Also, the constitutional court has recognised that marriage and family are important social institutions in our society: Dawood v Minister of Home Affairs; Shalabi v Minister of Home Affairs; Thomas v Minister of Home Affairs 2000 (8) BCLR 837 (CC), 2000 (3) SA 936 (CC) pars [30] and [31]; Du Toit v Minister for Welfare and 249
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# 2000 University of South Africa R
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iv 17 Forfeiture of patrimonial ben
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vi Ð analyse and critically evalua
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The content of this module can be g
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x Bibliography CronjeÂ DSP & Heato
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xii guide you are told what to read
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Glossary
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ad litem for the case or suit affid
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descendants your descendants are th
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legislation things like Acts, procl
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e in connection with or in the case
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void marriage a marriage which has
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2 SECTION I Introduction to family
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4 STUDY UNIT 1 In preparation MODUL
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Order in which authoritative source
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8 South Eastern Cape local division
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10 without qualification. Where a p
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12 2.4 The magistrates' courts and
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14 STUDY UNIT 2 Content of family l
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Wide and narrow meaning 16 branches
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18 STUDY UNIT 3 Historical overview
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20 HAVE YOU READ THE ``KEY TO THE S
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22 Engagement SECTION II Marriage l
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24 Engagement STUDY UNIT 4 The enga
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Distinction between engagement and
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28 in the missing words. The words
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ACTIVITY This activity tests your u
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Lawfulness and possibility Finalisa
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ACTIVITY On page 12 of your prescri
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36 engagement, the courts calculate
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Action on ground of seduction 38 FE
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40 fallen in love with another woma
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42 marriage itself. First of all yo
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Prodigal Insane person Person place
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had been so threatened and assaulte
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Adoptive parent and adopted child P
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Common ancestor prospective spouses
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Blood relatives in direct line Bloo
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54 (2) (a) T is related to Mr A wit
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56 QUESTIONS NB: Make sure that you
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Engagement STUDY UNIT 6 The civil m
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60 INSTANCES PERSON/PERSONS/AUTHORI
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62 antenuptial contract, the questi
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64 (2) Whose consent is needed if a
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66 LEARNING OUTCOMES The purpose of
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(3) When only can a man apply for t
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70 ACTIVITY Place each of the follo
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Legitimacy of a child born of a put
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74 Engagement STUDY UNIT 8 The inva
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Variable versus invariableconsequen
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Maintenance = support Meaning of ``
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Requirements for capacity Terminati
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Revocation or limitation of the cap
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84 FEEDBACK This statement is false
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86 (16) Discuss the concept ``house
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Matrimonial property law Section II
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OVERVIEW In section III we look at
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Primary matrimonial property system
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3.1 Assets Joint assets In your pre
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Jacob also exchanges the tractor wh
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Attachment of separate assets FEEDB
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Debts incurred during the subsisten
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QUESTIONS NB: Make sure that you ca
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Marriage in community of property N
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Equal concurrent management Section
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lawfully since Mr Khumalo's written
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FEEDBACK CIRCUMSTANCES CONSEQUENCES
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Requirements: (a) The court should
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study unit (study unit 9) where the
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PLEASE NOTE: YOU SHOULD ALSO BE ABL
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found in such a contract. The next
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FEEDBACK The Deeds Registries Act 4
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not, as many people wrongly think,
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Aim of legislature in introducing a
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Accrual and accrual claim relate to
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ACTIVITY Provide a summary of the s
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The accrual in Mr X's estate is cal
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suffered and/or still suffers, and
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Relaxation of principle of immutabi
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Requirements Procedural requirement
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concluded before the marriage. Subs
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not change their matrimonial proper
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148 SECTION IV Dissolution of marri
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150 IV DISSOLUTION OF MARRIAGE Deat
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Extra-judicial separation Predeceas
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154 (3) the standard of living of t
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. Prescribed textbook 124±126 ``11
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160 (2) Provide a short explanation
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Criteria contained in subsections 5
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Special rules You must also note th
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166 (15) How do the provisions of s
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168 Now that you know what the grou
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Scope of provisions Lastly, you sho
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172 STUDY UNIT 17 Forfeiture of pat
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Undue benefit Justness and fairness
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176 marriage out of community of pr
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Prerequisites Prerequisite that spo
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4 OTHER CONSIDERATIONS THE COURT TA
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Equal distribution between spouses
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186 (1) the order's source of law (
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188 . Form of a redistribution orde
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190 LEARNING OUTCOMES The purpose o
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Factors Weight attached to factors
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194 FEEDBACK (1) Mrs Kahn will prob
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Dum casta clause party in whose fav
Page 224 and 225: 198 PRINCIPLE CASE NAME (4) The app
Page 226 and 227: 200 . Waiver of the right to claim
Page 228 and 229: 202 LEARNING OUTCOMES After studyin
Page 230 and 231: Definition of guardianship Awarding
Page 232 and 233: Mother as custodial parent Your tex
Page 234 and 235: Custody to a third party In the sec
Page 236 and 237: 210 made a restrictive order simila
Page 238 and 239: 212 . Access (16) What does the con
Page 240 and 241: 214 LEARNING OUTCOMES The purpose o
Page 242 and 243: Limitation on publication Exception
Page 244 and 245: 218 SUMMARY In this study unit you
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Page 250 and 251: Invalid ito common law Valid ito Ac
Page 252 and 253: Position before commencement of the
Page 254 and 255: Ground for divorce Patrimonial cons
Page 256 and 257: Customary law part of culture Custo
Page 258 and 259: 232 . Registration of the marriage
Page 260 and 261: 234 . how a customary marriage can
Page 262 and 263: 236 SECTION VI Muslim marriages MOD
Page 264 and 265: 238 (2) set out the legislative rec
Page 266 and 267: 240 surviving spouse in a monogamou
Page 268 and 269: 242 and Muslim marriages constitute
Page 271 and 272: Life partnerships Section VII
Page 273: STUDY UNIT 24 Life partnerships MOD
Page 277 and 278: espectively, certain job-related be
Page 279: . Definition (1) What is a life par
Page 282 and 283: 256 SECTION VIII Domestic violence
Page 284 and 285: (3) indicate that in terms of the D
Page 286 and 287: 260 In the next section we deal wit
Page 288 and 289: 262 SECTION IX Children's rights an
Page 290 and 291: 264 STUDY UNIT 26 Children's rights
Page 292 and 293: Ways to obtain authority 266 regula
Page 294 and 295: Wide and narrow meaning Guardianshi
Page 296 and 297: Meaning of judicial interference it
Page 298 and 299: 272 (2) Which special rights are gi
Page 300 and 301: 274 . what parental power is . how
Page 302 and 303: In this study unit we shall look at
Page 304 and 305: In Petersen v Maintenance Officer t
Page 306 and 307: 280 (7) Does a stepparent have a du
Page 308 and 309: 282 SECTION X Guardianship and cura
Page 310 and 311: 284 You will further note in this s
Page 312 and 313: Definitions 286 1.2 The requirement
Page 314 and 315: 288 QUESTIONS NB: Make sure that yo
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