Topic 1 – Introduction to Family Law
1. Purpose of family law
• What is the purpose of family law?
o Ensure fairness for all members of the family – nobody should be unfairly
taken advantage of
o Ensure family members look after one another. (Bannatyne).
o Ensure family-member’s human rights are respected, protected and
promoted (van der Merwe v RAF and Gumede) and that the family is
constitutionally compliant (Fourie, Gumede and Bhe).
o Protection from outside interference (including state interference)
(Dawood)
Topic 2 – Children in Family Law
1. Fundamental rights and needs of a child
• What are the needs and rights of a child?
o Children have a right to shelter and family care as well as a right to basic
nutrition, shelter, basic health care and social services.
2. The best interests of the child
• What does the Constitution mean when it says ‘the best interest of the child is
paramount? (s28)
o In all matters concerning the care, protection and well-being of a child the
standard that the child’s best interests is of paramount importance must
be applied.
3. Parental Rights and Responsibilities
• What are the 4 parental rights and responsibilites?
o Care
o Contact
o Guardianship
o Duty of support and maintenance
• What is care?
o ALL fathers must support the child (even if the biological father does not
get all rights and responsibilites)
, o A parent is “entitled to the physical presence of the child and controls their
daily life and education (secular and religious), decides on medical care for
the child, the necessary reasonable discipline and the persons with whom
the child may associate with are made by the custodian parent.
• What is contact?
o Maintaining a relationship with the child and communicating with them.
• What is guardianship?
o Handling the administrative affairs of the child and administering and
safeguarding the child’s property and interests as well as assist them in
legal matters.
o Guardians can exercise duties independently from one another except
where joint consent is needed.
• What is duty of support and maintenance?
o Common Law:
▪ Duty to support a child lies primarily with parents.
▪ Parents share the duty of support pro rata in accordance with their
means.
▪ Scope and content depend on the family’s standard of living.
▪ The duty is reciprocal.
▪ Terminates when child becomes self-supporting, a major or gets
married.
o Customary Law:
▪ Child is supported by parents as per the Children’s Act.
• What are the requirements for a support duty to exist?
o Relationship
o Needs
o Means
• How is a support duty enforced?
o Maintenance Act 99 of 1998:
▪ Maintenance Courts – decides how much maintenance is
appropriate and can enforce payment through civil and criminal
, sanctions.
4. Acquisition and Loss of Parental Rights and Responsibilities
• Who acquires parental rights and responsibilities?
o Biological mothers – s19
▪ If married - acquires full parental rights and responsibilities.
▪ If unmarried - acquires full parental rights and responsibilities.
▪ But if minor - her mother is the baby's guardian, and she has all
other parental rights and responsibilites except guardianship.
, o Married biological fathers – s20
▪ Has full parental rights and responsibilities if:
▪ Married to child's mother.
▪ Or was married to child's mother at conception, birth and any time
in between.
o Unmarried biological fathers – s21
▪ If biological father does not have parental rights and responsibilities
in respect of the child in terms of s20 - he acquires full parental
rights and responsibilities of the child -
▪ If at the time of the child's birth he is living with the mother in a
permanent life-partnership
▪ Regardless if he has lived or is living with the mother
▪ Consents to be identified as the child's father or pays damages in
terms of customary law
▪ Contributes in bona fides to the child's upbringing, expenses or
maintenance.
▪ Duty to contribute to maintenance.
▪ Can consult with biological mother to acquire parental rights and
responsibilites or as a last result consult the court.
o People who are not parents of the child
▪ Can acquire parental responsibilites and rights with respect of a
child.
▪ "interested persons" – stepparents.
▪ "any person having an interest in the care, well-being or
development" of a child.
▪ E.g. Granny, new partner.
• What leads to a loss of guardianship?
o Child becomes a major.
o Adoption.
o Court mandated removal of guardianship.
o Divorce.
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