Class notes

Family law

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Course
Family Law

Institution
University Of The Witwatersrand (wits)

Book
The Law of Persons and Family Law

Semster 1 notes= Introduction to family which looks at the definition of who family is, what adaptionand Artifcial incldudingsurrogacyis and the laws related to it etc.

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Uploaded on September 10, 2023
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TOPIC 1: INTRODUCTION TO FAMILY LAW

WHAT IS A FAMILY?

 The definition of a family often determines the ambit and scope of the state’s interest
in (and protection of particular personal relationship.
 Family is not necessary defined in law, but it does recognised types of families which
may be used to describe what family may mean.
 Family:
- Can be thought of as groups of persons related by blood, marriage, or
adoption.
- According to Huber, a family is defined as having a mother, father, child, as
well as a servant. This isn't necessarily the case, though, as society has evolved
to accept various family structures, such as single-parent families, same-sex
families, child-headed households, and unmarried families etc.

FAMILIES AND THE CONSTITUTION

South Africa's Constitution is the supreme law, so it was necessary to change family law and
family policy laws to conform with the BOR and other constitutional values.

o Inherent human dignity and the right to family life
- Recognizing a right to dignity acknowledges the inherent worth of people and
their entitlement to be treated with respect and consideration.
- The family is referred to as the natural unit and foundation of society in the
African charter on human and people's rights, and the South African
Constitution guarantees constitutional protection for the family.
- The right to inherent human dignity in section 10 of the Bill of Rights, read
with section 28(1) & section 15(3) guarantees children's rights to family care
and authorizes legislation recognizing marriages consummated under any
tradition or system of religious, personal, or family law, is the most significant
constitutional protection for family life.
- As a result, Parliament and the Constitutional Court continue to strive to
develop a system of family law that respects everyone's equal worth and
dignity, especially when it comes to family life.
o Embracing diversity

Page 1 of 17

, - According to the Constitution, family law must recognize and protect
diversity, and South African family law has made a commitment to respect and
defend a variety of family structures.
- Muslim and Hindu unions are not fully recognized by the law, but the courts
have given those who wed in accordance with religious law but have not yet
consummated a civil union some of the protective rights provided by marriage
and family law.
- This is in accordance with the equality clause of the Constitution, which states
that family law may not unfairly discriminate on the basis of race, ethnic or
social origin, sexual orientation, religion, or moral convictions or cultural
beliefs.
- Marriage – Centrism? The Constitutional Court has emphasized the
importance of marriage as a social institution and its right to legal protection.
It has expanded the scope of those covered by marital protection to include
those involved in a wider range of marriages but has not provided legal
protection to those who have lived together for a long time without legally
tying the knot. [ domestic partnerships]
o Equality, fairness, and respect within the family
- Huber's model is unconstitutional because it discriminates on the grounds of
sex or gender and violates the dignity and rights of women.
- South African civil law now recognizes and legalizes equality of the sexes
within marriages, and spouses have equal responsibilities and powers with
regard to their property.
- In modern South African law, both parents share all parental responsibilities for
their children, including the duties of guardianship, and the Children's Act
emphasizes parents' responsibilities, rather than their powers.
- It is now unconstitutional to discriminate against anyone on the basis of their
circumstances of birth.
- Family relationships must be just and fair, and family law is the role of family
law to promote justice and ensure protection of the human rights of all family
members.

CLASSIFICATION OF FAMILY LAW

Page 2 of 17

,  Forms part of family law
 It regulates the legal relationship between husband and wife as well as the legal
relationship between parents (guardians) and children – it governs family
relationships.
 OR law that regulates the relationship between private persons.

o OBJECTIVES OF FAMIILY LAW:
- Protects
- Promotes equality and fairness
- Promotes legal certainty and predictability
- Creates a value system for society
- Law has a symbolic function

NB!!

1. families and family law cannot be easily defined,
2. The constitution continues to shape family law,
3. family law overlaps with many areas of private and public law.

Family law is divided into:

- Matrimonial law:
o Narrow sense:
 It is the rules that regulates engagement, conclusion of marriages,
personal/
invariable consequences, and the dissolution of marriage.
o Wide sense:
 It is the rules relating to matrimonial property.
- Matrimonial property law:
o It is the rules relating to the patrimonial (monetary) consequences of a marriage
during such a marriage and the dissolution of such a marriage.
- Law of parent and child:
o It is the rules relating to and regulating of the legal relationship between a
parent and child

TOPIC 2: PARENT AND CHILD

Page 3 of 17

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