MUST HAVE FOR EXAMS. All concepts in intro to family law or law of persons explained summarised including case summaries. Engagement section of family law notes + all cases
LU 1 Introduction
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Law of husband and wife has expanded to include not only civil spouses but also:
union partners; customary spouses; to some extent spouses married according to
religious laws
Nuclear families are outdated, and the law has now made provisions for different
types of families ->
Dawood V Minister of Home Affairs; Shalabi V Minister of Home Affairs; and
Thomas V Minister of Home Affairs
Set the precedent for the significance of recognising that families come in many
shapes and sizes and the fact that the definition of a family changes as social
practices and traditions change- in recognition of this we must not entrench particular
forms of family at the expense of others.
Basis of family law include:
• Marriage act
• Divorce act
• Matrimonial property act
• Maintenance act
• Maintenance of surviving spouses act
3 Main branches of family law
1. Private law – Deals with legal relationship between legal subjects. It subjects
such as the law of person, family law, succession, property, contract and
delict
2. Public law – Deals with the legal relationship between the state and the legal
subject. It includes constitutional, administrative and criminal law and court
procedure.
3. Corporate law – Deals with commercial issues. It includes company and trust
law, negotiable instruments and insolvency.
In a case where a spouse fails to comply with a maintenance order a criminal
prosecution may take place which is a form of public law and family law.
Sources of family law:
• Roman dutch common law
• Traditional African customs
• Legislation
• Judicial precedent (Case law)
• International law
, • NB Source Constitution- supreme law of the land and should be read and
interpreted within reference to the Bill of rights.
Law of unions
Marriages Marriage act Monogamous straight
people only
Civil unions Civil union act Monogamous + includes Broadened the
gay relationships scope of marriage
in case of
Constitutional
judgment of
Minister of home
affairs v Fourie
Customary Recognition of Polygynous/Monogamous
marriages Customary straight ppl
marriages act
(RCMA)
Religious Limited Constitutional
marriage recognition court case of
Womens Legal
Muslim Centre Trust v
Marriages Bill President of the
2010 Republic of
South Africa and
Others found that
the Marriage Act
alongside the
Divorce Act were
inconsistent with
S9, S10, S28 and
S34 of Constitution
as they failed to
recognise
marriages
solemnised in
accordance with
Sharia law (muslim
marriage
LU 2 Engagement
Definition: An agreement between a man and a woman to marry each other on
some determined date or within reasonable time.
- May be an oral or written or tacit agreement
- No formalities needed- (a contract of sale needs this)
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