Family law
Unit 1: an introduction to family law
Barrat LPF Part 2: chapter 1 (pp 161-175);
chapter 13 (pp 383-388);
chapter 14 (pp 401-413)
Definition: the branch of law that regulates the relationship between children & their parents
and which regulates marriages and other intimate relationships between adults.
Objectives of family law
(1) protection
➔ Protects economically vulnerable members of the family
➔ Ensures family property = shared and distributed equitably.
➔ Ensures parents care for their children.
➔ Prevents physical/other abuse.
➔ Protect families from outside interference including unjustified state interference.
(2) Promote fairness within the family
➔ Ensures equitable distribution of resources between family members
➔ Married couples must support each other financially during marriage
➔ Equitable distribution of marital assets when marriage ends.
➔ Promotes fair-decision making practises in families → eg spouses have equal decision-making powers ito
household matters and children have the right to participate in decision-making if they are mature enough to do
so.
(3) Promote legal certainty and predictability
➔ Married couples understand economic consequences of their matrimonial property system and can plan
accordingly
➔ Divorce Act provides certainty ito distribution of matrimonial property and possibility of ongoing maintenance.
➔ Parents understand legal responsibilities and the legal nature of their relationship w/ their children.
➔ Promotes certainty for outsiders dealing w/ the family.
(4) Value system for society
➔ Set of values of dignity, equality, fairness and respect for diversity in line w/ constitution.
, (5) symbolism
➔ The existence of laws shows that a family form is legitimate, valuable, and worthy of the laws protection and
acknowledgement.
➔ Law has expressive powers: when it changes, peoples attitude adjusts in line with it.
Religious Marriages
- A religious marriage can also be a civil marriage (under Marriage Act/ Civil Union Act) if
and when:
1. Person performing marriage ceremony (eg the priest) is a marriage officer
registered under relevant legislation and
2. The marriage ceremony itself has been approved by home affairs
- Most christian priests / jewish rabbis = designated marriage officers under Marriage Act,
therefore most jewish and christian weddings = civil and religious marriages.
- More difficult for Hindus and Muslims to make their religious marriage a valid civil one,
because their weddings aren’t usually concluded by marriage officers. So they must
usually have a separate civil marriage. They would do this to ensure protection of civil
marriage laws.
There is a separation between organised religion & civil political power:
Courts enforce civil law, not religious law. Although in many instances religious rules and law
overlap, it is the law that is applied. Spousal support is enforced ito Civil Law, not religious
duties of support. South African civil laws of divorce apply to all marriages, irrespective of their
religion. The civil union act allows for homosexual couples, this may be contrary to the beliefs
of some religions, but civil law works according to the Constitution.
- During pre-constitutional era, courts refused to give any recognition to legal
consequences of any religious marriages, especially Muslim and Hindu ones, which they
regarded as contra bonos mores and against public policy, because they were potentially
molygomous.
- With the coming of the constitution and democratic values and rights such as:
➔ Freedom of religion
➔ Right to dignity
➔ Right not to be unfairly discriminated against on the basis of religion
It became clear it was ignorant and unconstitutional not to respect their religious views.
- In recent times, courts recognise Muslim marriages as a legally enforcable contract.
, - Since the constitution, courts have “consistently come to aid of spouses and children
married iyo religious laws only, if there was a need, especially if unfairness would result
by application of the strict letter of the law.”
Customary Marriages
Ito recognition act, customary marriage = a marriage concluded ito customary law.
& customary law = the customs & usages traditionally observed by indigenous African people of
SA and which form part of culture for them.
Characteristics of traditional customary marriages
(1) An emphasis on the linkage of families
(2) The possibility of polygamy
(3) Communal ownership of the marital land
The legal status of customary marriages
- Primary objective of Recognition Act: to legislate full legal recognition for customary
marriages within the SA legal system.
➢ Customary marriages now have same status & standing as non-cust.
➢ During colonial & apartheid periods there was a “persistent policy of
discrimination” against them.
- Valid marriages/unions with legal recognition in SA:
➢ Marriage Act
➢ RoCMA
➢ Civil Union Act
Recognition of customary marriages act
Before RoCMA after/since
“Persistent policy of discrimination” Customary marriages = same status and
standing as civil marriages.
“Customary unions” had limited legal standing Constitution provides that every person must
ito civil law. be treated w/ equal “dignity and respect” and
we realise that official policy = damaging,
humiliating and against the right to culture.
Official policy = based on christian doctrine → Customary law = a source of SA law. s211(3)
a marriage was understood to have been 1 of constitution says courts must apply
, man and 1 woman. Customary marriages customary law where applicable.
were potentially polygomous therefore not a
“true marriage”
Customary law is expressly subject to the
BoR and thus, any rules which discriminate
on grounds of gender = prima facie
unconstitutional.
Position of women in customary marriages =
improved ito:
Marital property
Abolishment of marital power
RoCMA recognises all customary marriages
entered into both before and after its coming
into operation.
Mono & polygamous marriages entered into
after RoCMA = marriages for all purposed if
they meet requirements of the Act.
Universal partnerships
● Couples who live together in an intimate partnership but aren’t married ito civil
marriage/union.
● Ie, unmarried couples and couples of a religious marriage.
● When the “partnership is dissolved”, the court can order a division of their property in a
fair and equitable way, based on either a partnership agreement or the size of each of
the spouses contributions
● If there is no express agreement, court will divide property proprotionally, ito each
contribution.
Rules of custom
- “Long-standing custom” = a source of SA law, where the custom:
1. Has existed for a long time.
2. Is reasonable
3. Is uniformly observed in the community to which it applies.
4. Definite and certain.
Unit 2: The engagement
BarratLPFDeel2:Hoofstuk4 (pp227-235)
Van Jaarsveld v Bridges 2010 (4) SA 558 (SCA)
Cloete v Maritz 2013 (5) SA 448 (WCC)
