Reference no: EM133277305

South African law

Caroline and Paul started dating during their second year at university in 2005. In July of that year, Caroline became pregnant. The young couple's parents were dismayed at this news. Both families insisted that Caroline and Paul marry as soon as possible so that the baby could be born 'within lawful wedlock' (as Paul's father put it). Paul's family was very wealthy and Paul had already inherited R 300 000 from his grandmother, a substantial sum in those days. In order to protect Paul's financial interests, Paul's father insisted that the couple marry out of community of property. He further insisted on the exclusion of the accrual system. Caroline and Paul were not law students and didn't fully understand the implications of all this, but, eager to please Paul's parents, they went along with this proposal and signed an antenuptial contract which excluded community of property and accrual. To some extent, they were obliged to accede to Paul's father's demands; he had offered to provide them with full financial support until Paul completed his university studies. Caroline and Paul got married in October 2005, and Caroline gave birth to twin boys in March 2006. Paul continued with his engineering degree and qualified as an electrical engineer in November 2009. By this time, Caroline was pregnant again and the couple's third son was born early in 2010. For the next few years, Caroline and Paul were happy enough. Paul worked extremely hard in the engineering business he had joined soon after leaving university. Often, this entailed working late into the evening. Caroline was kept busy all day (and sometimes much of the night as well) caring for three small boys. She considered finding a morning job when the youngest child started school, but, without any particular qualifications, she was unable to find anything that paid enough to make this worthwhile. Instead, she spent many mornings working on their beautiful garden, or went to the boys' school where she volunteered in the tuck-shop, did the school's flower arrangements, was on the Music Department's Fundraising Committee, and prepared the snacks for school sports matches. Caroline and Paul believed strongly in getting involved in the school lives of their children. In many ways, however, Caroline and Paul became dissatisfied with their marital relationship. They came to the conclusion that they had married too young, before they properly understood 'who they were' or 'who they would become'. Both felt that they might feel happier and more fulfilled with new partners. In 2020, Caroline developed a close friendship with Harold, the divorced father of one her children's school friends. Over the next few months the friendship grew into something more and Caroline and Harold became lovers. Caroline finally filed for divorce in August 2022 when her youngest son started high school. Paul's father was outraged by Caroline's behaviour. He insisted that Paul fight for his marriage. If Paul was unable to prevent the divorce, Paul's father insisted that Paul fight for every penny he had earned during his working years. Paul was surprised to discover how heartbroken he felt now that Caroline had actually found someone new. He realized that he would not be able to prevent the divorce, but he agreed with his father that Caroline should be punished in some way for finally abandoning him. He proposed a divorce settlement in which: 1. Paul kept his own estate (now worth R 10 million, including the value of the marital home); 2. Paul paid generous child support for all three boys (who would live with Caroline most of the time); 3. Paul paid absolutely no spousal maintenance to Caroline (Paul's father advocated a 'clean break' and pointed out that at the age of 37, Caroline was still young enough to find a job). Caroline went to see an attorney. The attorney told Caroline about a recent case called G v Min of Home Affairs and suggested that Caroline counter-sue with the following proposal: 1. Redistribution of half of Paul's estate in terms of section 7(3) of the Divorce Act (buttressed by a claim that the current date restrictions on this section are unconstitutional); 2. A section 7(2) claim for enough spousal maintenance to enable Caroline to maintain her current standard of living.

Answer the following questions. Refer to cases, statutes and relevant sections of the Constitution as appropriate.

1. On what grounds could Caroline argue that section 7(3) of the Divorce Act is unconstitutional?

2. If the court agrees to ignore the date restrictions on section 7(3), will Caroline succeed with her 7(3) redistribution claim? How much money would she be entitled to?

3. Can Caroline succeed in her claim for spousal maintenance in terms of section 7(2)? How would the court decide how much spousal maintenance would be appropriate?

4. If Caroline marries Harold next year, how will her claims be affected?

5. Can Paul bring a counter-claim for forfeiture of patrimonial benefits in terms of s 9?