Private Law – Family Law
Study Unit 1 – Introduction to Family Law Chapter 1 (pg 3-16)
Family Law in the Legal System
Private Law – Legal relationships between private legal subjects (i.e. Law of persons, succession,
contract and delict).
Public Law – Legal relationships between state and legal subject (i.e. Constitutional, administrative,
criminal law & law of court procedure).
Corporate Law – Commercial issues (i.e. Company & trust law, negotiable instruments & insolvency).
Definition of Family Law
A part of private law* which regulates the legal relationships between spouses; parents, guardians
and children; and other persons related through blood or affinity.
*regulates horizontal relationships between legal subjects (natural persons able to bear rights and
capacities
• Family Law is a part of private law, which deals with the material law, which forms part of
the national law (law of South Africa).
• International Law – Laws that govern rules between different governments.
Definition from the courts of Family Law:
• Dawood and Another v Minister of Home Affairs and Others; Shalabi and Another v Minister
of Home Affairs and Others; Thomas and Another v Minister of Home Affairs and Another:
• “Marriage and the family are social institutions of vital importance… Such relationships are
of profound significance to the individuals concerned. But such relationships have more than
personal significance at least in part because human beings are social beings whose
humanity is expressed through their relationships with others. Entering into marriage
therefore is to enter into a relationship that has public significance as well. The institutions of
marriage and the family are important social institutions that provide for the security,
support and companionship of members of our society and bear an important role in the
rearing of children. The celebration of a marriage gives rise to moral and legal obligations,
particularly the reciprocal duty of support placed upon spouses and their joint responsibility
for supporting and raising children born of the marriage. These legal obligations perform an
important social function. This importance is symbolically acknowledged in part by the fact
that marriage is celebrated generally in a public ceremony, often before family and close
friends. The importance of the family unit for society is recognized in the international human
rights instruments referred to above when they state that the family is the “natural” and
“fundamental” unit of our society. However, families come in many shapes and sizes. The
definition of the family also changes as social practices and traditions change. In recognizing
the importance of the family, we must take care not to entrench particular forms of family at
the expense of other forms.”
• Illustrates the importance of families and why they must be protected.
• Families are part of every day life – Every person if born, some enter into relationships, some
marry and all marriages end in death or divorce.
, Applicable to
• Law of succession, insolvency law, law of evidence (eg: spouse cannot be forced to testify),
domestic violence.
Interactions with Other Branches
• Family Law and Public Law:
o Criminal prosecution where spouse fails to comply with maintenance order.
• Family Law and Corporate Law:
o Calculating accrual at time of divorce.
o Include assets of trust.
Interaction between Subject Areas in Private Law
• Family Law and Law of Persons:
o Marriages leads to change in status of spouse – Status forms part of law of persons.
• Family Law and Law of Succession:
o Intestate spouse where there is no valid will.
• Family Law and the Law of Contract and Delict:
o Claims for financial damage & hurt feelings resulting from breach of promise (broken
engagement) based partly on contract & delict.
Sources
• Constitution – Applies to all laws, binds legislature, executive, judiciary, all organs of state and all
other sources should be read in terms of it.
• Legislation
o Marriage Act 25 of 1961
o Children’s Act 38 of 2005
o Matrimonial Property Act 88 of 1984
o Divorce Act 70 of 1979
o Maintenance Act 99 of 1998.
o Maintenance of Surviving Spouses Act 27 of 1990.
• Case law – Court judgements (principle of judicial precedent)
• Common law (Roman, Roman-Dutch, influenced by English) (not influenced by legislation)
• Bill of Rights s9, 10, 12, 15.
• International law (convention on the rights of the child)
• Customary law (not covered in this course)
• Religious law
Subsections
a) The matrimonial law (law of husband and wife)
• Marriage Act and Civil Union Act.
• Includes:
o Spouses.
o Civil union partners.
