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Summary family law (LWFL) notes
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Family lawSingle mother and father.
When the mother dies it is most likely that the child will be taken on by female
relative most often the grandmother.
Extended families.
In many households there are not 2 biological parents, grandmothers and other
female relatives take on the role of primary caregiver. Labour migration involves both
fathers and mothers.
Polygynous families.
It is legal for a man to have more than one wife. The recognition of customary
marriage Act gives full legal recognition to existing and future customary polygynous
marriages, men can have more than one wife at the same time according to the act.
The draft Muslim marriages Bill also allows for recognition of polygynous marriages.
Child-headed households.
The children act provides that a household may be recognized as a child headed
household if.
a) The parent or guardian of the household is terminally ill, has died or
abandoned the child in the household.
b) No adult family member is available to provide care for the children in the
household.
c) A child over the age of 16 has assumed the role of the care giver.
d) It is in the best interest of the children in the household.
Diverse families.
Family law must offer protection and support to family life and family members
regardless of the family forms in which they live.
Families and the constitution.
Inherent human dignity and the right to family life.
Many international human rights documents provide express right to family life, 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. The most important constitutional protection for family life
is the right to inherent human dignity section 10 of the bill of rights.
,The constitution also guarantees children's rights to family care. The cons also
authorize legislation recognizing marriages concluded under any tradition or system
of religious, personal or family law. Inherent human dignity recognizing a right to
dignity is an acknowledgment of the intrinsic worth of human beings.
People have a right to create a life of significance intense private importance,
autonomous personal choices.
Embracing diversity.
Acknowledgement, acceptance and accommodation of difference, very important in
a heterogeneous and pluralistic country such as SA. Equal egalitarian society should
be aspired to not suppress or eliminate difference; homogeneity is not possible in
this country.
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.
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 identified marriage as a relationship of defining
significance for many, if not most people. Marriage is a social institution of vital
importance. Marriage is entitled to legal protection, and failure by the state to respect
the marriage relationship is a violation of the right to human dignity.
The court has extended marital protection to people involved in a wider range of
marriage. There is no legal protection for people who have lived together for many
years but have not formalized their relationship as a marriage. There is a draft bill
before parliament which aims to extend legal protection to people in domestic
partnerships.
Equality, fairness and respect within the family.
It was said that the husband had supreme authority in the family, wives were legally
inferior and were under their husband’s command. This model is inherently
unconstitutional because it discriminates on the grounds of sex or gender and also
violates the dignity rights of women. SA civil law now recognizes and legalizes
equality of the sexes within marriages. Marital power has been abolished.
SA law acknowledged that women and men often assume different toles within the
family. The father also has parental power over his children, common law fathers
were sole guardians of children born within marriages. Both parents share all the
parental responsibilities for their children including the duties of guardianship. The
children's Act emphasizes parents’ responsibilities, rather than their powers.
,Children born to unmarried parents were termed illegitimate and faced many legal
disadvantages. It is now unconstitutional to discriminate against anyone on the
grounds of his or her birth. Family relationships must be just and fair. 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.
Family law is private law, the state is deeply involved, EG) it is not possible to
conclude a marriage without state endorsement and approval. Only the high court
can vary the statuses of parties. Parties cannot privately agree to change their
statuses, nor can this be done in the lower courts.
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,
protecting family members from physical and other forms of abuse within the family.
Promote fairness within the family.
Married couples must support each other financially during the marriage, and there
should be equitable distribution of marital assets when the marriage ends. Spouses
have equal decision-making powers with regard to household matters, children have
the right to participate in some decision making, provided they are mature enough.
Promote legal certainty and predictability.
Rules governing various types of family relationships promote legal certainty and
predictability. Married couples can understand the economic consequences of their
matrimonial property system and plan accordingly. At the end of marriage
matrimonial property rules and the provision of the divorce act, provide some degree
of predictability regarding distribution of property and maintenance.
Family law rules also promote certainty for outsiders who have dealings with the
family. If third parties wish to contract with a family member, they can assess
whether the married person has the capacity to contract without spousal consent.
Value system for society.
Family law is not value neutral. family law must impart a new set of values. The
constitutional value of dignity, equality, fairness and respect for diversity must govern
the law’s regulation of family relationships.
Symbolism.
Law has a very important symbolic function. When the law recognizes 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, this is the reason for using marriage rather than civil union for same
sex couples.
Expressive power, the law can influence people’s attitudes about what is socially
acceptable, when law change, people gradually internalize a new set of values
(despite possible countervailing social norms)
Parent and child.
Chapter 2
Week 1.
The rights and best interests of the child.
Section 28 of the constitution sets out the rights of children. These rights concern
the relationships between children and their parents. EG) children have the rights to
family care or parental care, and basic nutrition, shelter and basic health care
services.
The children's Act is the legislative mechanism that gives effect to the rights of
children as set out in the constitution and the international children's rights treaties.
The Act is written from the human rights perspective, the equality and dignity of
children.
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