Sam and Josefina Nakale have been married for a period of 6 years and have 2 children together. During the period of their marriage, Sam meets Tory, a 26-year-old human resources manager who works at First National Bank (FNB). Sam and Tory develop a friendship which later turns into an affair. Tory is aware that Sam has been married to Josefina, however, that does not stop her from continuing their affair. During the course of their relationship Sam begins to pay Tory’s bills which includes her medical and rent accounts. 1(one) year into their affair, Tory buys a house and soon after Sam starts spending more time at Tory’s residence eventually moving in with her. Josefina finds out about her husband’s affair and requests for Sam to terminate it for the sake of their marriage and their children. They start marriage counselling but due to his feelings for Tory, resumes their affair. Josefina feels that there is no way in which she can continue being married to her husband.
She approaches you, an expert in family law at the firm Hikali Legal Partners and wants to be advised on how she can commence divorce proceedings against Sam. Using case law and statutory regulations advice Josefina Nakale on the prospects of her divorce.
Question 2 Discuss the Instances whereby a marriage in community of property will not arise.
Question 2.1 Discuss the legal requirements for a valid customary marriage
Question 3: “Once all the requirements for the formation of a civil marriage are present and there exists no impediments that would render a marriage void or voidable; and all formalities have been complied with, the marriage is regarded as valid. There are consequences that arise out of a marriage which cannot be changed by the spouses, they come into being automatically by operation of law and cannot be excluded by the parties. They relate to the persons to the marriage and are the same whether parties are married in community of property or out of community of property.” Using case law critically discuss the statement above.