Introduction
THE ROLE OF FAMILY LAW
There are many types of families:
1) Traditional – heterosexual parents
2) African/Religious family – usually entailing polygamy
3) Life partnerships
4) Same-sex marriages aka Civil Unions
The Constitutional Court said we should recognize that:
1) Family is a social institution of vital importance
2) Family comes in many shapes and sizes.
▪ Therefore: “in recognizing the importance of family we must take care not to entrench particular
forms of family at the expense of other forms”. Dawood v Minister of Home Affairs
▪ The legal conceptions of the family and what constitutes family should change as social practices
and traditions change (try keep in line with s9 and other clauses in Bill of Rights)
▪ The Marriage Act conflicted with s9 of the Constitution as it excluded same-sex marriages/Civil
Unions
▪ In 2005 a case regarding same-sex relationships and legal unions in the form of a marriage took
place in the Constitutional Court (Minister of Home Affairs and Another v Fourie and Another
and Lesbian and Gay Equality Project and Others v Minister of Home Affairs and Others 2006).
o Out of this, came the Civil Unions Act 17 of 2006
LAWS REGULATING MARRIAGE
There are three laws that currently provide for the status of marriage in South Africa:
1) Marriage Act, 25 of 1961
2) Customary Marriages Act, 120 of 1998
3) Civil Union Act, 17 of 2006
▪ South Africans may choose in terms of which of these laws they wish to be married but they may
only be married in terms of one at a given time.
o Example: Same-sex couples are only allowed to be legally joined in terms of the Civil
Union Act, and couple marrying in terms of the Civil Union Act may choose whether their
union should be called a “civil partnership” or a marriage partnership
TERMINOLOGY
❖ Civil Partnership – not a marriage in the general, traditional sense of the word. It is for those
who do not comply with the traditional marriage, such as that it is sacred, in the “eyes of God”
and between a man and a woman.
o This brings about a question of separate but not equal.
❖ Life partnership – refers to two people of the same sex living together outside marriage in a
relationship which is analogous to, or has most of the characteristic or a marriage.
❖ Marriage - the union of one man and one woman and who mutually agree to live together as
spouses until the marriage is dissolved by the death of one of them or as otherwise provided by
law (divorce).
❖ Cohabitation - a stable, monogamous relationship where a couple that does not wish to, or is not
allowed to, get married, live together as spouses
❖ Civil Union - means the voluntary union of two persons who are both 18 years of age or older,
which is solemnized and registered by way of either marriage or a civil partnership, in
accordance with the procedures prescribed in this Act, to the exclusion, while it lasts, of all
others (s1 Civil Union Act 17 of 2006)
The Definition of Marriage with
Emphasis on Cohabitation
MARRIAGE
Definition
❖ Marriage is defined as the union of one man and one woman who mutually agree to live together
as spouses until the marriage is dissolved by the death of one of them or as otherwise provided
by law.
Challenges to the Definition
✓ “One man and one woman” – one aspect of this is that a marriage is only possible between a
male and a female and so excludes same-sex couples.
✓ Union of two persons “to the exclusion of all others” – this excludes polygamous relationships in
African cultures.
COHABITATION
❖ Cohabitation can be defined as a stable, monogamous relationship where a couple that does not
wish to, or is not allowed to, get married, live together as spouses. (In South Africa everybody is
allowed to marry, according to the particular procedures for their particular ages).
▪ This includes people of the same sex living together in a stable, exclusive relationship.
▪ Some writers refer to cohabitation as living together, de facto marriage, quasi-marriage,
common-law marriage and domestic partnership or private marriage.
▪ Our law does not recognize cohabitational relationships (they do not give rise to legal
consequences) and they are frowned up because they are viewed as immoral, undermine the
institution of marriage and produce illegitimate children.
▪ However, the law is not compatible with the current social circumstances as many cohabitation
relationships exist and people in those relationships are afforded certain protection in legislation
(Insolvency Act – people living together are considered spouses; Prevention of Family Violence
Act – spouse includes a person if a cohabitative relationship; and Domestic Violence Act)
Problems arising from non-recognition of cohabitative relationships
a) Death or decision to dissolve the relationship – there is no provision for dealing with property.
The party owning the property can unilaterally decide to dispose of it
b) Children of the relationship are extra-marital – the mother has the right to guardianship and
custody but the father can make an application to the courts in terms of the Natural Fathers of
Children Born Out of Wedlock Act
c) Parties can only use common law remedies – unjustified enrichment, contracts and universal
partnership. No remedies flow from the relationship (no legal consequences) therefore a party
cannot use one of the common law remedies and has no claim
d) Intestate succession – no provision is made for cohabitative relationships; if one party wants
his/her cohabitation partner to inherit he/she must expressly provide for it in a will (testate)
e) Insurance policies – if the cohabitation partner is not mentioned by name, he/she will not be
recognized as a member of the family (class of persons)
3 ELEMENTS ESSENTIAL FOR THE CREATION OF A COHABITATIVE RELATIONSHIP
1) A sexual relationship between the couple (it should be a relationship of a romantic nature)
2) A factual cohabitative relationship
3) A measure of durability and stability of the relationship
