Family Law

Family in the 21st Century

Faculty of Law
The “Sexual Family” or Families based on “Shared
Commitment”

• Is about husbands and wives and the children they produce

• Is the family about a sexual or conjugal relationship?
• Can other groups( student households) of people not be regarded as
family because of the above definition?
• Many scholars have questioned the assumption of a “family” is based on
sexual ties
• Freeman has questioned this definition, raising his concerns
• One of the questions posed by the scholar is “ why is the sexual tie a
foundation of the institution”
• Some scholars have stated that the family relationship does not revolve
around “sexual or spousal relationship” (Fineman)
• Family may also involve a relationship between a parent and a child

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Single Mothers and Single Fathers

• According to SA stats 23% of South African children reside in the

household with both parents
• But 41% of children live with their mothers but not their fathers
• 3% of the children reside with their fathers
• Many of these children are born to unmarried mothers and they never
reside with their biological fathers in their households
• “the contemporary patterns of marriage, divorce and remarriage produce
father-child or mother-child units, and remarriage families with
stepmothers and/or stepfathers.”

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Extended Families

• Some children do not reside with their mother nor with

fathers
• Therefore, Grandmothers and other female relatives
play a key of being care givers to their grandchildren
• Reason why some children grow up in extended
families include labour migration as well as their
parents being deceased (AIDS pandemic)

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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 legal
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 allows for recognition of Polygynous
marriages

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• Unmarried Families – many couples do not marry – Barlow and James
observe that an increasing number of couples and their children function
as a family outside the formal institution of marriage
• Same-sex Families - In terms of common law, marriage was possible
only between one man and one woman. Now, same sex couples are also
entitled to enter into marriages. The Civil Union Act 17 of 2006 makes
provision for such marriages
• Child-headed Households – The Children’s Act provides a definition for
when a household may be regarded as child-headed house-hold. The
house-hold must function under the supervision of an adult designated by
the court, however the child heading the household may make all day-to-
day decisions relating to the household and the children in it. It appears
that a significant factor in the formation of child-headed households is the
need for parents to migrate in order to find work.

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• Diverse Families – as Judge O’Regan has observed,
“families come in many shapes and sizes” she also
notes that “the definition of the family also changes as
social practices and traditions change”

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Families and the Constitution

• Inherent Human Dignity and the Right to Life – while the

Constitution does not explicitly protect marriage or the family, in
the Certification Case the CC concluded that the most important
constitutional protection for family life is the right to inherent
human dignity
• Embracing Diversity – one aspect of recognising and protecting
everyone’s equal worth and dignity is the equality clause in
section 9 of the Constitution

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Objectives of Family Law

• Protection - The state must regulate and enforce support duties

between family members It must ensure that family property is shared
and distributed in an equitable manner. Family law ensures that parents
care for their children both financially and in other ways. The state must
also protect family members from physical and other forms of abuse
within the family. Family law is especially concerned with protection; it
must not ignore the autonomy interests of family members, including
children
• Promote Fairness w/i the Family - The law tries to ensure equitable
distribution of resources between family members - Example: by
ensuring that parents fulfil their duties to support their children. Married
couples must support each other financially during the marriage and
there should be equitable distribution of marital assets when the marriage
ends

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Objectives Continued…

• Promote Legal Certainty and Predictability - Rules governing various

types of family relationships promote legal certainty and predictability
Example: married couples can understand the economic consequences
of their matrimonial property system, and can plan accordingly, at the end
of the marriage, matrimonial property rules and the provisions of the
Divorce Act provide some degree of predictability regarding distribution of
martial property and the possibility of on-going maintenance. Family law
rules enable parents to understand the legal nature of their relationship
with their children, and their legal responsibilities in this regard
• Value System for Society – Family law needs to impart a new set of
value, i.e. the Constitutional values – dignity, equality, fairness and
respect for diversity
• Symbolism - 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

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Defining Family Law

• Its difficult to define what a family is, therefore it is difficult to define what
family law is
• The legal relationships between family members and the remedies at
their disposal are not handles as contractual matters – rules relating to
family law operate differently
• There is however intersection between family law and other branches of
law
• Many definitions of Family law resort to description – family law is defined
by describing the sorts of legal issues that typically fall within its ambit –
for our purposes, we understand that family law is the branch of law that
regulates the relationship between children and their parents, as well as
marriages and other intimate relationships

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