Family law in the 21st century

 The Constitutional Court has emphasized that marriage and family are vital social institutions
of profound significance.
 The Children's Act aims to promote and strengthen families and give effect to constitutional
rights of children, including to family care, protection from harm, and having their best
interests paramount.
 The Court stated the government must provide the legal and administrative infrastructure to
ensure children are protected as per Section 28 of the Constitution.
 The Children's Act also provides for partial care, early childhood development, protection for
child-headed households, prevention services, alternative care, foster care, youth centres,
and creating offenses related to children.
 It aims to facilitate consensus on children in need of care, ensure access for disabled
children, give effect to constitutional rights of children, define parental duties, make
provisions for children's courts and adoption, and prohibit corporal punishment.
 Overall, the Constitution and Children's Act highlight the importance of family and the
government's duty to protect children's rights within families.

Parent and child

 The law has shifted from parental power to parental responsibility and children's rights. But
parental authority is still extensive.
 Courts have granted interdicts restraining contact between a minor and their romantic
partner against the minor's will, upholding parental authority.
 Where parents disagree, the father's will prevails regarding a minor child.
 Courts have prevented underage marriage to protect children's interests, despite potential
illegitimacy of a child.
 Parents can delegate their chastisement rights to others in loco parentis, but it must be
moderate and reasonable. Excessive discipline is prohibited.
 Biological parents have a duty to financially support children based on their means, whether
born in or out of wedlock.
 The best interests principle is enshrined in international and South African law, but the
Constitution states it is of paramount importance concerning children.

So while parental authority remains quite strong, it is tempered by responsibilities to act in children's
best interests and avoid excessive discipline. Financial duties also apply regardless of legitimacy.
Children's rights are growing but parental say still prevails in many contexts.

Adoption, artificial fertilisation and surrogate motherhood

 Past laws discriminating based on gender, marital status, culture, religion and sexuality in
adoption were found unconstitutional, as was not considering the child's best interests.
 A child may be adopted only if it is in their best interests, the legal requirements are met,
and the child is deemed adoptable.
 A child is adoptable if orphaned, abandoned, abused, in need of alternative care, etc.
 Prospective adoptive parents must be fit and proper, willing and able to undertake full
parental duties, over 18, and assessed by a social worker.
 Categories of people who may adopt include singles, married couples, domestic partnerships
(same-sex and opposite-sex), and joint non-couple households.
 Step-parents may also adopt if consent is obtained.
  Foster children are not available for adoption.
 In certain cases, a court may issue an order freeing a parent's consent to adoption.

The law now focuses on the best interests of adoptable children rather than the marital status,
sexuality or other attributes of adoptive parents. Assessment ensures prospective parents are
suitable and committed.

engagements

 Requirements
- Legal capacity
- Free consent
 Voidable Conditions
- Mistake, misrepresentation, duress, undue influence, unlawfulness
 Termination
- Marriage, death, mutual agreement, parental withdrawal of consent (if minor), or justa
causa
 Justa Causa
- Fact/occurrence after engagement that seriously risks a happy marriage (e.g.
unfaithfulness, unwillingness to marry)
 Breach of Promise
- 'Innocent' party may claim sentimental damages (delict) depending on how engagement
ended
- Engagement can be terminated without consequences if justa causa
 Damages
- Breach of engagement involves contractual and delictual claims
- No claims for prospective losses, only actual losses
 Actio Iniuriarum
- Remedy for non-monetary losses from dignitas, fama etc infringements
 Gifts
- Engagement gifts are customary
- Categorized into sponsalitiae largitas, arrhae sponsalitiae, tokens of affection
- Gifts besides tokens should be returned mutually if engagement ends mutually or justa
causa

So in summary, while consensual capacity is required, various conditions can void an engagement.
Termination grounds include just causes or mutual agreement. Damages are limited and customary
gifts are often exchanged and later returned.

Requirements for civil marriage

Requirements

 Capacity: Parties must have legal capacity to marry

 Consensus: Parties must consent to marry each other

 Formalities: Wedding must conform to prescribed statutory/common law formalities

 Lawfulness: Marriage must be legal (e.g. no bigamy)

Prohibitions
  Direct blood relatives

 Collateral blood relatives within 1st degree of common ancestor

 Direct in-laws

Capacity Issues

 Declared prodigals, mentally ill (during lucid interval), and persons under disability/illness
curatorship can marry without consent

 Minors require parental/court consent

Formalities

 Technical breaches don't necessarily invalidate marriage (Ex Parte Dow)

 Purpose is avoiding clandestine marriages

So capacity, consent, legality and formalities are required for civil marriage. But procedural breaches
may not invalidate, and certain capacity issues don't necessarily bar marriage. The focus is lawful
formation of a consensual lifelong partnership.

Void, voidable and putative marriages

Voidable Marriage

 Grounds exist before/at wedding for court to set aside

 Grounds: duress, impotence, mistake, pre-marital pregnancy by another, concealment of

sterility/misrepresentation, undue influence, minority

Difference from Void

 Void never existed legally

 Voidable can be set aside by court

Consequences of Putative Marriage

 Void but has some consequences of valid marriage

 Children regarded as of married parents

 Must distinguish between spouses acting in good or bad faith

Concealment Cases

 Sterility itself doesn't invalidate, fraudulent concealment does (Venter v Venter)

 Mere sterility not enough, procreation must be an express/implied marriage object (Van
Niekerk v Van Niekerk)

 Confirming fraudulent concealment as ground (not mere sterility)

So voidable marriages did legally exist but have defect grounds. Putative void marriages have some
limited consequences. Fraudulent concealment of sterility can invalidate, not mere sterility.
Personal consequences of civil marriage

 Marriage creates a community of life including cohabitation, fidelity and intercourse

(Dawood case).

 Previously a delictual claim existed against third parties for adultery. But adultery is now not
a crime or divorce ground, just evidence of irretrievable breakdown.

 The Constitutional Court found no wrongfulness to allow claims against third parties for
adultery (DE v RH). It is up to spouses to ensure the marriage's health. Adultery is common
and no longer a crime.

 The no-fault divorce system focuses on irretrievable breakdown rather than adultery itself.

 The claim against third parties for loss of consortium from adultery has now been removed.

 A mandament van spolie restores possession when unlawfully dispossessed, regardless of

ownership merits.

 The dependants' action allows claims by various family members for loss of support. It has
been extended over time, including to permanent same-sex life partners (Paixão case).

 Consortium omnis vitae refers to the total rights, duties and advantages of marriage,
including intimacy, services etc (Grobbelaar case).

In summary, while marriage creates mutual obligations, there is no third party liability for adultery
which is common. The focus is now on breakdown not fault. Spoliation remedies unlawful
dispossession. Dependents have claims for loss of support including in less traditional family
relationships. Consortium covers reciprocal spousal rights and duties within the marital life
partnership.

Marital property

Regimes

 In community of property (default)

 Out of community without accrual (antenuptial contract excluding accrual required)

 Out of community with accrual

In Community Features

 Joint estate, equal responsibility for debts even pre-marital

 Undivided half-shares, equal management, consent required for some transactions

 Both spouses can bind joint estate, joint insolvency

 Assets divided equally on divorce

Out of Community Without Accrual

 No joint estate, separate estates administered independently

 Spouses not liable for each other's debts besides household necessities

 No sharing in asset growth on dissolution

Accrual System -Growth/accumulation sharing between estates on dissolution

 More equitable than total separation

Changes to Regimes

 Possible but strict requirements must be met

Marital Power

 Repealed - spouses now have equal standing to manage joint estate

Cession and Suretyships

 Cession transfers rights to another as security for a debt

 Surety undertakes responsibility for principal debtor’s debt if defaulted

Van der Merwe case

 Found section 18 unfairly discriminated against in-community spouses regarding

compensation from other spouse

So various combinations of separation and sharing apply during marriage and on dissolution.
Discriminatory marital power rules have been repealed, and debt/security mechanisms facilitate
transactions between spouses and third parties.

Dissolution of civil marriage

Dissolution of Marriage

 By court setting aside a voidable marriage

 By death of a spouse (personal consequences end, patrimonial consequences depend on

property regime)

 By divorce order

Surviving Spouse Maintenance

 Surviving spouse can claim against deceased spouse's estate under Maintenance of Surviving
Spouses Act

 For reasonable maintenance needs until death/remarriage if unable to provide themselves

 Court considers estate assets available, needs and means of survivor, standard of living
during marriage

Pacta Successoria

 Agreement in antenuptial contract on estate devolution after death

 Similar to a will but amendable only by joint will

 Generally not legally recognized unless in antenuptial contract

Intestate Succession

 Assets devolve according to law if no valid will

  Spouse and descendants benefit first

 Then extended family relations may inherit

Feldman v Oshry

 Lump sum payment under Act not allowed

 Maintenance must be reasonable, not extravagant even for wealthy

 Additional maintenance awarded as estate couldn't fully provide and need shown

So dissolution carries various consequences tempered by considerations like needs, means and
fairness. Pacts and wills control succession, otherwise intestate laws apply.

Grounds for divorce

Grounds for Divorce

 Irretrievable breakdown of the marriage with no reasonable prospect of restoration (Section

4(1))

 Mental illness or continuous unconsciousness of a party (Section 5)

Evidence of Irretrievable Breakdown

 Parties not living together as spouses for at least 1 year

 Defendant committed adultery which plaintiff finds irreconcilable

 Defendant imprisoned as a habitual criminal

Requirements

 Subjective enquiry into marriage breakdown

 Objective enquiry that breakdown is irretrievable

Normal Marriage Relationship

 Considered in light of consortium omnis vitae concept

 Actions detracting from this standard indicate abnormal relationship

Protection of Incapacitated Spouses

 Legal practitioner can be appointed for defendant

 Plaintiff can be ordered to pay costs

 Plaintiff may have to provide security for benefits received

 No forfeiture order against an incapacitated defendant

Presuming Death

 If a spouse disappears, death must be proven

 Dissolution of Marriages on Presumption of Death Act can dissolve marriage even if spouse is
alive later
So the main ground for divorce is irretrievable breakdown assessed subjectively and objectively.
Incapacitated spouses receive legal protections. Presumption of death can also terminate a marriage.

Economic consequences of divorce

Division per Settlement Agreement

 Settlement agreement governs division and is binding

 Ownership transfers immediately even if asset still in other spouse's possession

Pension Benefits

 Defined as benefits member would get if membership terminated on divorce date

 Must claim share of spouse's pension interest in divorce proceedings (Sempapalele case)

Clean Break Principle

 Non-member spouse's right to receive payment/transfer of share of pension interest

allocated on divorce

Forfeiture of Benefits

 Court can order one spouse to forfeit patrimonial benefits in favor of the other spouse

 Factors: duration of marriage, breakdown circumstances, substantial misconduct, prevention

of undue benefit

Proving Undue Benefit

 Examples: not contributing financially, undermining spouse, abuse, disposal of joint assets
without consent, adultery

Redistribution of Assets

 Court can order transfer of assets between separated spouses married pre-1984, if just and
equitable

 Requirements: Contribution to maintenance/increase of other spouse's estate, equitable and

just

Maintenance

 Court considers financial position, needs, obligations, age, duration of marriage, standard of
living, conduct

 Types: rehabilitative, permanent, token

So various mechanisms including agreements, forfeiture and redistribution orders exist to fairly
divide assets on divorce based on factors like duration, contributions, needs and misconduct. Pension
splitting is allowed. Different forms of spousal maintenance cater to different circumstances.

Children after divorce

Relevant Case Law

 Soller v R, Ex parte Van Niekerk, Legal Aid v R

Relevant Sections of Children's Act

 Sections 2, 6, 6(5), 9, 10, 12, 22(4), 22(5), 23(2), 23(3), 24(2), 28(4), 29(3)

Constitution

 Section 28

Custody Factors (McCall v McCall)

 Parent-child emotional ties, capabilities, communication, guidance, providing needs,

education, health and moral fitness, environmental stability, keeping siblings together, child
preference, gender matching

Best Interests Factors (Children's Act)

 Child relationships, parental attitudes, capacity to provide for needs, effect of changes,
contact practicalities, cultural connections, characteristics, development, disability, illness,
stable family environment, protection from harm, family violence, avoiding further
proceedings

Office of Family Advocate

 Institutes enquiries into children's best interests, makes recommendations, aims to be

neutral

Social Workers

 Assist through Form 38 reports covering family profile, circumstances, child views, evaluation
and recommendations

So a range of factors across relationships, capabilities, practicalities and child wellbeing guide custody
and care determinations to serve the child's best interests. Independent state agencies provide
input.

Customary marriages

Recognition of Customary Marriages Act

 Gives legal recognition, doesn't codify all aspects

Constitution

 Customary law is valid depending on consistency with Constitution

 Protects cultural rights but limited by Bill of Rights

Determining Validity

 Courts consider living customary law and adapt it in line with Constitution and Bill of Rights

Women's Traditional Roles

 Important within families, held respect and influence over decisions

 Had property rights, allocated land

 Colonial laws eroded rights and status

Polygamy Definitions

 Polygamy: Plural marriage

 Polygyny: One man married to multiple women

 Polyandry: One woman married to multiple men

Traditional Courts

 Resolve disputes per customary law, provide restorative justice

 Bill aims to codify and regulate them in line with Constitution

Sexism Questions

 Patriarchy exaggerated under colonial rule

 Distorted relatively egalitarian checks and balances

 Deprived women of protections and opportunities

So customary law gets constitutional validity. Discrimination and distortion against women occurred
under colonial patriarchal bias, reversing previous rights and status. The legal framework now aims
to respect cultural rights and pluralism while upholding dignity, equality and justice.

Civil unions

Definition

 Voluntary union between two persons 18+ solemnized and registered as a marriage or civil
partnership

 Extends rights to same-sex and different-sex couples

Fourie case

 Common law limiting marriage to heterosexuals found unconstitutional

 Denied same-sex couples the status, benefits and duties of marriage

Conscience Clause

 Marriage officers can object on conscience, religion and belief grounds to same-sex civil
unions

 Not compelled to solemnize them

Objections

 Written objections can be lodged with the marriage officer

 Officer inquires into grounds and refuses if lawful impediment found

Solemnisation

 Statutory wording used to declare parties lawfully joined in civil union

Consequences
  Same as Marriage Act, with contextual changes

 References to ‘marriage’ and ‘spouses’ in laws include civil unions

Equality Concerns

 ‘Separate but equal’ raises new marginalization risks

 Should avoid reproducing segregation-like harms

So civil unions secure legal rights for more relationships, though equality concerns persist on
segregation-style impacts denying full equal footing

Domestic violence

Purpose of Domestic Violence Act

 Provide maximum legal protection against domestic abuse

 Convey state's commitment to eliminating domestic violence

Nature of Domestic Violence

 Hidden, repetitive character with ripple effects (S v Baloyi case)

 Cuts across society but often concealed and unpunished

Definition of Domestic Relationship

 Broad definition encompassing family, romantic/intimate partners etc living together

currently or previously

Types of Abuse

 Physical, sexual, emotional, verbal, psychological, economic, intimidation, harassment,

stalking, property damage etc.

Tools in Act

 Summary arrest without warrant, arrest warrant in protection order

Lockdown Regulations

 Confined many with intimate partners for extended, unusual periods

 Led to surge in domestic violence rates and some rise in divorces

 Shows importance of Act in both regular and crisis/emergency contexts

So the Act provides protection in a wide array of domestic relationships against various abuse types.
The pandemic lockdowns revealed intensified risks it must address.