Family Law LWFL121

Chapter 1
F R A NCO IS ST E E NK A MP
(PIHE DURBANVILLE CAMPUS)
FRANCOIS.STEENKAMP@PEARSON.COM

MS PowerPoint slides prepared by Francois Steenkamp (PIHE Durbanville Campus) francois.steenkamp@pearson.com

Family law in 21 st century South Africa
• Read Ulric Huber’s description in ‘The Perfect Household’ on p. 161
• Do you agree with this ideology?
• Issues of patriarchy, sexism, chauvinism, slavery, (economic) class war,
subjugation, discrimination, religious dogma, cultural practices, mores,
custom, history, laziness, entitlement etc. come to the fore (to mention a
few)
• Is this still the modern view on what constitutes a ‘perfect household’?
• Are people who don’t aspire to this vision to be considered deviant? Or
incompetent?
• Does the law and the superstructure of modern society still support this
‘ideal’?
 What do you think?
• Read extract of Elizabeth Gilbert’s Committed on p. 162
• What do you think of this kind of ‘autonomistic marriage’
• Should the state always regulate marriage and divorce?
• What functions do you think the institution of marriage has in society?
• Why would the state have a vested interest in the institution of marriage?
• What is the origin of the institution of marriage? Does it have more than one place of origin?
• Why are societies so invested in this institution?
• Why has this institution endured for more than 4000 years?
• Is marriage an archaic institution that has outlived its usefulness?
• Should we reimagine the institution of marriage?
• Can we speak of a ‘marriage’ if there is no sexual intercourse?
• Is marriage a successful concept/construction?
• Why do about 51% of marriages in South Africa fail?
• What are the economic consequences of marriage?
What does the law say?
• What is a family?
• A married couple with their 2 or more children?
• Is the father or husband still ‘master’ or ‘king of his castle’ (the household)?
• Some families/family units look very different
• Same-sex families?
• Single-parent households? (mostly mothers)
• Child-headed households? (e.g. orphans)
• Households built around people who are not married to each other?
• Grandparent-headed household?
• What about households where friends live together?
• Is there one ‘defining element’ that makes a family?
• What about grown children living with their parents? (common in the East and West)
What does the law say? (cont.)
• Constitutional rights and values
• Would it be constitutional today for the law to require people to live in a
traditional ‘Huber-type’ family?
• Look at the Bill of Rights in the Constitution, 1996
• How has South African law discriminated against the cultural and religious
traditions of various groups in South Africa?
• What is the purpose and function of family law?
• What is the purpose and function of state involvement in intimate relationships
and family units?
What is a family?
• Difficult to provide a definition
• The definition of ‘family’ often determines the ambit and scope of the state’s interest
in (and protection of) particular personal relationships
• The ‘sexual family’ or shared commitment:
• Is the core of the family a sexual or conjugal relationship?
• Is this why some ‘families’ are regarded as such and others are not?
• What about adopted children of single parents?
• What about adopted children who later become orphans and live in child-headed
households? (E.g. in poor countries)
• What about the children of incest?
• What about the offspring of rape survivors?
• Can you think of any other unconventional circumstances?
What is a family? (cont.)
• Fineman suggests that the core family relationship is not sexual
• Rather, it is based on the relationship between parent and child (Mother-Child
Dyad)
• Relationships characterised by inevitable dependency (due to biological/natural
forces)
• Law Commission of Canada – Should we move away from granting family rights
based on spousal status to one characterised by ‘emotional and economic
dependence’?
• Shared households? Families based on ‘a shared commitment to live together
and care for each other’?
• Economic and social circumstances often dictates the lived realities of people
• What role does socio-economics play? The poor? The working poor? Those on
the lower rungs of the socio-economic ladder?
The definition of the family
• Used both in a wide and narrow sense
• Wide sense – Includes all people who are blood relations or have become
related through adoption, marriage, a civil union or a marriage-like
relationship
• A child-headed household which consists solely of minors may conceivably
also qualify as a ‘family’ in the wide sense, even though the children in the
household need not be related to each other
• Narrow sense – The more archaic definition of family restricts the concept
to spouses in a valid marriage and their children (as well as, nowadays, the
parties to a civil union and their children)
• E.g. Afrikaans – ‘gesin’ (narrow nuclear meaning) vs. ‘familie’ (extended
family)
• English – ‘Immediate family’ (spouse and children) vs. ‘extended family’
(broader family)
What is a ‘normal relationship’?
• Heaton suggests that such legal definition should be sought in the concept of
consortium omnis vitae in view of the fact that marriage creates consortium
• In T v T, it was held that consortium comprises three components, namely
eros, agape and philiae
• In Grobbelaar v Havenga the court quoted the following from an English
decision: ‘[consortium] is an abstraction comprising the totality of a number
of rights, duties and advantages accruing to the spouses of the marriage’
• Inter alia, this totality comprises companionship, love, affection, comfort,
mutual services and sexual intercourse
• Divorce is usually the only remedy that can be invoked
• One of the parties cannot legally enforce any one of the elements of
consortium by means of a court order (interdict to prevent adultery not
possible, nor is suing in delict for the infringement of consortium)
Single mothers and single fathers
• Only 23% of South African children live in households with both of their biological parents
• 41% of children live with their mothers, but not with their fathers
• 3% of children live with their fathers and not their mothers
• Many South African children are born to unmarried mothers and never occupy the same
household as their biological fathers
• In other families, the father leaves the household after the child is born
• South African children are ‘more likely to be living apart from their biological father
than…to be living with him…either because their fathers are living elsewhere or because
their father deceased’
• Burden of childcare almost always falls on a woman regardless of the set up (e.g. via
caregivers, grandmothers etc.)
• Death of mothers due to HIV-AIDS pandemic
• Stepmothers and stepfathers
• In South Africa, most children seem to be growing up in extended-family households
Extended families
• For most South African children, the family unit is ‘unconventional’
• Most children in this country live in households that might or might not include one
of their biological parents, but are very likely to include at least one adult who is not
their biological parent
• In practice, grandmothers and other female relatives take on the role of primary
caregiver when their children's mothers are not resident in the household
• Labour migration – This involves both fathers and mothers who must migrate due
to economic reasons
• The number of HIV-AIDS orphans is also increasing, and this is a significant cause of
extended-family households
• More than 20% of South African children are orphans
• The old conventional family model does not fit well with the contemporary social
and economic realities of most South African families
Polygynous families
• Contemporary South African family law provides for polygyny: In some
circumstances it is legal for a man to have more than one wife
• The Recognition of Customary Marriages Act gives full recognition to existing
and future customary polygynous marriages
• The Act permits men to have more than one wife at the same time, thus allowing
for polygynous households
• The Draft Muslim Marriages Bill also envisages the recognition of polygamous
marriages
• South African family law has thus moved away from the notion that marriage
can only take place between two people
• In addition, many South African families are ‘polygynous’ in practice (de facto)
• Migrant labour system (especially under Apartheid) – Urban vs. rural families
(urban girlfriend(s) vs. rural wives or vice versa
Unmarried families
• These days, many couples don’t marry (especially in Western-Europe)
• What role does the changing religious convictions of people play in
the rise of this phenomenon?
• France – Proposal for 7 year marriages? (Optional renewal)
• Millions of South Africans live together in intimate life-partnerships
with people to whom they are not married
Families and the constitution
• The Constitution of the Republic of South Africa, 1996
• The supreme law of the land
• All other legal prescriptions/proscriptions are subject to the
Constitution
• Many changes were required to align existing laws with the Bill of
Rights and Constitution generally
• Download and have a look at the Bill of Rights
Families and the constitution (cont.)
• Inherent human dignity and the right to family life:
• Many international human rights documents provide an express right to family life (see p. 167)
• The International Covenant on Civil and Political Rights
• African Charter on Human and People’s Rights
• The Constitution, 1996 does not explicitly protect either the family or the institution of
marriage
• Is this due to us being a secular state?
• The most important provisions are Section 10 of the Bill of Rights – The right to inherent human
dignity
• The Constitution also expressly guarantees children’s rights to family care
• The Constitution also authorises legislation recognising ‘marriages concluded under any
tradition or system of religious, personal or family law’ (but must be consistent with the Bill of
Rights)
• Inherent human dignity – ‘Recognising a right to dignity is an acknowledgement of the intrinsic
worth of human beings: Human beings are entitled to be treated as worthy of respect and
concern
Families and the constitution (cont.)
• People have a right to create a life of ‘significance’ – Intense private importance
• Autonomous personal choices
• The law must respect and protect the ways in which people wish to live their
lives (legally)
• Violation of these rights during the Apartheid era
• E.g. Migrant labour system
• E.g. Prohibition on interracial (mixed marriages)
• Parliament and the Constitutional Court have been careful to avoid such dignity
violations when reshaping the legislative landscape
• Family law should recognise the equal worth and dignity of all people,
particularly with regard to their family life
Embracing diversity
• Acknowledgement, acceptance and accommodation of difference
• Very important in a heterogenous and pluralistic country such as South Africa
• Equal egalitarian society should be aspired to
• Difference should not be suppressed or eliminated, homogeneity is not possible
in this country
• Bill of Rights
• Law may not discriminate unfairly
• Equality clause – Section 9 of Constitution
• No discrimination on the basis of race, ethnic or social origin, sexual
orientation, religion, conscience, belief or culture
• Cultural or religious communities may also not be discriminated against
Embracing diversity (cont.)
• The past colonial (Dutch & British) regimes as well as the Afrikaner-Nationalist
Apartheid regime, tended to take a chauvinistic, Eurocentric, ethnocentric view
of family law
• Bias in terms of Roman-Dutch & English common law conceptions of marriage
• These Eurocentric mores/norms were viewed as superior to others in South
Africa
• See extract from Seedat’s Executors v The Master on p. 169
Embracing diversity (cont.)
• These ideologies/conceptions are unacceptable to a secular liberal democratic
state like South Africa
• The law should protect everyone equally under the Constitution, to the
exclusion of no one
• Why are Muslim and Hindu marriages still not treated as equal to the other
systems in the eyes of the South African family law?
• Currently a Bill before Parliament intending to grant full recognition to Muslim
marriages
• Since 2006 same-sex couples have been able to marry, and same-sex marriages
have equal status in law to opposite-sex marriages
Marriage-centrism?
• The Constitutional Court has opined that marriage is a relationship of ‘defining significance for many, if not most
people’
• It has described marriage as an ‘honourable and profound estate’
• It has emphasised that marriage is a social institution of ‘vital importance’
• As an academic exercise one may ask to what extent a court is a conduit and/or mouthpiece for the propagation
of the prevailing mores/norms of contemporary society?
• Is marriage entitled to greater legal recognition and respect than other forms of association?
• Formal marriage vs. intimate domestic partnerships? Which is entitled to greater legal protection?
• Constitutional Court has emphasised the need to embrace diversity and difference
• The Constitutional Court has extended greater protection to more forms of marriage than was the case in the
past?
• South Africa does not recognise so-called ‘common-law marriages’ e.g. ‘common-law wife’ or ‘common-law
husbands’
• The Constitutional Court has thus far failed to protect people who have lived together for many years, but have
not finalised their relationships (exceptions – Domestic Violence Act etc.)
• Volks NO v Robinson – Marriage-centric approach
• There is currently a draft bill before Parliament which aims to extend legal protection to people in domestic
partnerships
Equality, fairness and respect within the family
• Husband no longer the supreme authority within the family (in the eyes of the
law)
• Husbands being superior to wives is an untenable situation constitutionally
speaking
• Such an ideology/dogma discriminates against women on the basis of sex or
gender and also violates the dignity of women as persons
• South African law now recognises and legalises the equality of the sexes within a
marriage
• Marital power was abolished in 1984, and spouses have equal responsibilities
and powers with regard to their property
• Important also because of women’s participation in the workforce
• Changes to the law has attempted to minimise the economic prejudice
experienced by married women
 Equality, fairness and respect within the family
(cont.)
• Women usually perform the bulk of the childcare
• Working women usually earn less than their male counterparts
• Stereotypes relating to different roles for men and women in the household
should be treated with scepticism
• In practice, women’s position in society continues to be unequal to that of men
(women therefore might require added legal protection to ensure a
substantively equal and just outcome)
• In modern South African law, both parents share all the parental responsibilities
for their children, including the duties of guardianship
• The Children’s Act emphasis parents’ responsibilities, rather than their ‘powers’
• Children’s rights are emphasised and is ‘paramount’ in any matter involving the
child – and it also gives far more recognition to children as autonomous agents
of their own lives
 Equality, fairness and respect within the family
(cont.)
• Illegitimate children – Faced many legal disadvantages in the past
• It is now unconstitutional to discriminate against anyone on the grounds of his
or her circumstances of birth
• The Constitution requires that everyone be treated with equal respect and
concern and forbids any form of unfair discrimination
• Family life must be just and fair (insofar as this is humanly possible)
• It is the role of family law to promote justice within families and ensure
protection of the human rights of all family members in their dealings with each
other
The objectives of family law
• The state has an interest in regulating people’s most intimate and private
relationship
• Family law is part of private law
• However, the state is deeply involved
• E.g. It is not possible to conclude a marriage without state endorsement
and approval & parties cannot privately agree to change or vary many of
the legal consequences of marriage
• Only the High Court / Regional Court can vary the statuses of parties
• Parties cannot privately agree to change their statuses, nor can this be
done in the lower courts
The objectives of family law (cont.)
• Protection:
• Constitutional Court has repeatedly emphasised the protective function of
family law
• Especially the more economically vulnerable member of the family
• The state must regulate and enforce support duties between family
members
• Family property must be shared and distributed equitably
• Family law protects children from physical and other types of abuse and
ensures that parents care for their children financially and in other ways
• Autonomy interests of especially children should also be considered
• Protects families from outside interference, including unjustified
interference by the state
The objectives of family law (cont.)
• Promote fairness within the family:
• Must promote fairness between members of the family
• Equitable distribution of rights and duties among family members
• Parents must fulfil their duties towards their children
• Married couples must support each other during the marriage
• Equitable distribution of marital assets on dissolution of the marriage
• Fair decision-making practices are promoted
• Spouses have equal decision-making powers with regard to household
matters
• Children have the right to participate in some decision-making, provided
that they are mature enough
The objectives of family law (cont.)
• Promote legal certainty and predictability:
• Rules governing various types of family relationships promote legal certainty and
predictability
• E.g. married couples can understand the economic consequences of their
matrimonial property system (regime)
• Matrimonial property rules and the Divorce Act afford some predictability
regarding the distribution of marital property and the possibility of ongoing
maintenance
• Family law rules enable parents to understand the legal nature of their
relationships with their children and their legal responsibilities towards them
• Also provides certainty to outsiders who have dealings with the family (e.g. if a
third-party wished to contract with the family (e.g. in-community of property etc.)
• Third parties also have a way of identifying the adults who have authority over
minors
The objectives of family law (cont.)
• Value system:
• Family law is not value-neutral
• Has played a highly political role in creating and reinforcing inequalities on
the bases if race, religion, gender, and sexual orientation between family
members
• In the future, values such as dignity, equality, fairness, respect for diversity
etc. must be imparted
The objectives of family law (cont.)
• Symbolism:
• Law has a very important symbolic function
• When the law recognises and gives legal endorsement to a family form, this sends
a powerful message to the community that the family form is legitimate,
valuable, and worthy of the law’s acknowledgement and protection
• The use of the term ‘marriage’ also has symbolic value (see Fourie case)
• The same principles apply when the law acknowledges, or fails to acknowledge,
religious marriages or domestic partnerships, or when the law tries to ensure
substantive equality and equal respect and concern for all members of the family
• ‘Expressive power’ –The law can influence people’s attitude about ‘what is socially
acceptable’
• When laws change, people gradually internalise a new set of values (despite
possible countervailing social norms)
Defining family law
• Very difficult to define family and family law
• Some people argue that there is nothing unusual or special about family law – Family
law consists of ordinary legal principles, that just happened to be applied in a
particular context, ‘the family’
• The law itself must determine which relationships qualify as family relationships and
which do not
• In this way, the law ‘plays a significant role in constructing a particular view of the
family’
• Very often, it is not possible to apply ordinary legal principles within the context of the
family e.g. the legal relationships between family members and the remedies at their
disposal are not usually handled as contractual matters, even though aspects of their
dealings with each other might resemble contractual relationships
• Rules regarding family property operate differently from the ordinary principles of
property law
• Family law gives rise to a large number of rights and obligations that are unique to this
area of law and which cannot be understood in any other way but as ‘rules of family
law’
Defining family law (cont.)
• Enormous intersection between family law and other branches of the law
• In the South African context, there is an especially important intersection between
family law and welfare bureaucracy
• South African family policy envisages that financial support of family members will
primarily be the responsibility of other members of the ‘family’
• But because of widespread poverty, many South Africans depend on state assistance
grants (social grants)
• Historically, administrative officials in the government have relied on definitions of
family relationships to decide whether or not to award grants , and the terms on which
they were awarded
• At present, grants are given to ‘primary caregivers’ of children, regardless of the
familial relationship underlying the living arrangements
• This is realistic in the light of prevailing social and economic conditions within our
(capitalist) economic world order
• END