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JLVV 102 - FAMILY LAW IN 21ST CENTURY SA NOTES
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CHAPTER 1: FAMILY LAW IN 21ST CENTURY SA1. WHAT IS A “FAMILY”?
Difficult to provide a definition of “the Family.”
Various attempts made to define the family.
Definitions reflect differing & conflicting ideological, cultural & religious values.
As a result of one’s involvement with the family, tend to think that one knows
instinctively what the family is.
BUT how does one determine what which groups of people are families and which
are not?
Answer to this question is NB as the definition of “family” determines the ambit of the
state’s interest & protection of particular relationships.
1.1 The “Sexual Family” or Families Based on “Shared Commitment”
Is the core of the family a sexual or conjugal relationship?
Why are some groups of people regarded as a family while other groups not?
Many academics have questioned the assumption that a family is based on a sexual
tie of some kind.
Canada: granting of family rights and responsibilities should be on the basis of
emotional and economic dependence.
Definition of family should accommodate other more diverse home-sharing
arrangements.
1.2 Single Mothers and Single Fathers
SA stats: 23% children live in households with both their biological parents; 41%
children live with their mothers but not their fathers; 3% children live with their fathers
not their mothers.
1.3 Extended Families
Most children in SA grow up in extended-family households.
In practice, grandmothers and other female relatives take on the role of the primary
caregiver when the mother is not resident in the household.
Primary reasons: demographics in labour migration & the increase in AIDS orphans.
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, 1.4 Polygynous Families
Traditional common law marriage is defined as the union between one man and
woman to the exclusion of all others.
H/e, RCMA gives full legal recognition to polygynous marriages.
Many SA families are polygynous in practice, even where the man only has one legal
wife.
1.5 Unmarried Families
Many couples in SA do not marry.
These couples & their children live outside the formal institution of marriage.
In 2002, 2.4 million SA living with intimate partners without being married.
1.6 Same-sex Families
Regulated by Civil Union Act 17 of 2006.
1.7 Child-headed Households
2009 SA stats: 122 000 children living in 60 000 child-headed households.
S137 of the Children’s Act recognises a household as a child-headed household if:
a) Parent/guardian/care-giver of the household is terminally ill, has died or
abandoned the children in the household.
b) No adult family member is available to provide care for the for the children in
the household;
c) A child over the age of 16 yrs has assumed the role of care-giver iro the
children in the household; &
d) It is in the best interests of the children in the household.
Child-headed households must function under the general supervision of an adult
designated by a children’s court or an organ of state or a NGO.
Child heading the household may make all the day-to-day decisions relating to the
household and the children in it.
Reasons: AIDS & labour migration.
1.8 Diverse Families
Dawood v Minister of Home Affairs; Shalabi v Minister of Home Affairs; Thomas v
Minister of Home Affairs:
a) Families come in different shapes & sizes;
b) Definition of family changes as social practices & traditions change.
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