FALA 6211 – LECTURE SUMMARIES

LEARNING UNIT 1

• Definition of family law:

o Difficult to define because we all have a sense of what we mean when

we use the word ‘family’

o The definition often determines the ambit and scope of the state’s
interest in (and protection of) particular relationships.

• Family law is defined as the branch of law that regulates the

relationships between children and their parents or other
caregivers

• and which regulates marriages and other intimate

relationships between adults

TYPES OF MARRIAGES RECOGNISED IN SOUTH AFRICA

• South African Law recognises only

o Civil marriages – Marriage Act

o Civil unions – Civil Union Act

o and Customary marriages – Recognition of Customary marriages Act

• Historically polygamous marriages, mixed-race marriages, and

same-sex marriages were forbidden

• Even though the following are not recognised:

o Religious marriages (Hindu and Muslim marriages),

o life partnerships or

o domestic partnerships,

• the courts and legislature have granted certain recognition to

these marriages and partnerships
 • There is a bill sitting with Parliament since 2006 to recognise
Muslim marriages.

THE ‘SEXUAL FAMILY’ – VARIOUS FORMS OF FAMILY

• Single mothers and fathers

o 41% of children live with their mothers and not fathers
o 3% of children live with their fathers
o Many children born of unmarried mothers don’t occupy the same
household as their biological fathers

• Extended families
o Children who do not live with biological parents
o Grandmothers and other female relatives usually take on the role of
caregiver

• Polygynous families
o Recognition of Customary Marriages Act gives recognition to existing
and future customary marriages
o The Act permits one man to marry more than one wife
o Thus allowing for polygynous households

• Unmarried families
o Where couples do not marry
o Functioning outside the formal institution of marriage

• Same-sex families
o Same-sex couples are entitled to enter into marriages in terms of the
Civil Union Act

• Child-headed households
o Child-headed households – will be recognised according to the
Children’s Act if:
 o Mental illness Parent, guardian
o or caregiver is terminally ill, died or abandoned
o No adult family member is available to provide care for children in
the household
o A child over 16 years has assumed the role of caregiver with respect
to children in the household
o It is in the best interests of the children in the household
§ Must function under the supervision of an adult designated by
the children’s court,
§ an organ of the state
§ or a non-governmental organization determined by the provincial
head of social development

DIVERSE FAMILIES

• Dawood case – families come in different shapes and sizes

• Definition of family changes as social practices and traditions change

FAMILIES AND THE CONSTITUTION

• Inherent human dignity and the right to family life

o International Covenant on Civil and Political Rights

o African Charter on Human and People’s Rights

o SA Constitution provides for the right to inherent human dignity (s10)

and also guarantees children’s rights to family care (s28)

Inherent human dignity and the right to family life

• Embracing diversity

o S9 of Constitution
 o The Constitution requires family law to accommodate and protect
diversity

o If the law does not embrace diversity, it discriminates on grounds of

religion and culture and violates the dignity

Inherent human dignity and the right to family life

• Marriage-centrism

o The Constitutional Court has shown a clear preference for marriage

over informal domestic partnerships

o Volks NO v Robinson

Inherent human dignity and the right to family life

• Equality, fairness and respect within the family

o South African civil law recognises and legalises equality of the sexes
within marriages, and marital power is abolished.

o Reference to legitimate and illegitimate children – unconstitutional

OBJECTIVES OF FAMILY LAW

• Protection

o Courts are especially concerned with protecting economically

vulnerable members of the family.

o The state must regulate and enforce support duties between family
members.

o Family property is shared and distributed in an equitable manner

o Parents must care for their children financially and in other ways
 • Family law and public law – criminal prosecution may follow
where a maintenance order is not complied with

• Promote fairness within the family

o Married couples support each other financially during the marriage,

and equitable distribution of marital assets when marriage ends.

o Also fair decision-making powers for spouses and children that are
mature enough.

• Value system for society

o Family law is not value-neutral in that SA family law has played a

political role in creating and reinforcing inequalities based on race,
religion, gender and sexual orientation between and within families.

• Symbolism

o Law plays a very important symbolic function.

o Law has expressive power – can influence people’s attitudes about

what is socially acceptable.

SOURCES OF FAMILY LAW

• Roman-Dutch Common law

• The Constitution

• Legislation

• Traditional African Customs

• International Law

• Legal Precedent
o Case Law

§ Dawood v Minister of Home Affairs; Shalabi v Minister of Home

Affairs and Thomas v Minister of Home Affairs

§ “Marriage and the family are social institutions of vital

importance. Important to the individuals but significant because
we are social beings whose humanity is expressed
throughout relationships with others”

§ Details about the case were discussed in class.