This is the work covered in the 3rd term of Private Law 171 at Stellenbosch University for the 2020 year. In the third and fourth term, Family Law is covered; this document along with the Term 4 one covers the whole of semester 2 for this module. In this document is notes from class, the textbook a...
Private Law 171
Class notes & Case Summaries
Semester 2, Term 3
2020
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,Study Unit 1: Introduction to Family
Law
1. Introduction
- Definition:
It is part of the Private law;
o That regulates the legal relationship;
o Between spouses, parents, guardians and children;
o And other persons related through blood or affinity.
- Subsections of Family Law:
o Matrimonial Law (Law of Husband and Wife)
o Matrimonial Property Law
o The Parent-child relationship.
2. Sources of Family Law:
- Legislation:
o Bill of Rights
o Sections 9, 10, 15 and 28(1)(b)
- Case Law
- Common Law
- Customary Law
- Religious Law
- International Law
,3. What do we mean with a “Family”?
- Different opinions: (Barrat 161 & 162)
o Huber (1686)
§ Described ‘perfect household’:
§ Law supported and encouraged this type of family/ household.
§ To what extend would this still apply today?
• There are still households like these, but they are far less
common. The husband is no longer seen as a ‘king’ in
most instances.
o Lillian Harman & Edwin Walker (1887)
§ Created own vows.
§ Edwin would not dominate his wife
§ Lillian refused to swear eternal vows.
§ They were arrested.
- Sexual Family or Relationship Dependency
o Some authors are of opinion that a family is formed as a result of the
sexual relationship between two partners.
§ Freeman: “The sexual tie may not be a marital bond, it may
exist between members of the same sex, but it remains at the
core of our understanding of intimacy and family connection.”
o Others are of opinion that dependency forms a family:
§ Fineman:
• Not sexual or spousal.
• It is dependency that is the core of a family.
o Boyd and Young:
§ Move away from spousal status to a relationship of “emotional
and economic dependence”
o Bottomley and Wong:
§ It should be based on the shared commitment to live together
and care for one another.
, - Different Family Forms
Protection must be given to different family forms!
o Single mothers & fathers
o Extended families
o Polygynous families
§ One husband and many wives.
§ Recognition of Customary Marriages Act allows for this,
• As well as Draft Muslim Marriages Bill
o Unmarried families
o Same-sex families
o Child-headed households
§ May be recognised as Child-headed household in terms of
Children’s Act if:
• Guardian, parent of household is terminally ill;
o Has passed away, or;
o Has abandoned the household
• No adult family member is available to provide care for
the children in the household.
• Child who assumes role of caregiver is over 16.
• Best interests of children in household.
- Importance of the Bill of Rights
o Equality, dignity, embracing diversity, fairness & respect are vital.
o Constitution provides for protection of the family.
o In Dawood:
§ O’Regan: Marriage and other family relationships are very
important to the concerned individuals.
§ Marriage is a way to define significance.
o Family law may not discriminate on grounds listed in s9.
o Constitutional Court prefers marriages over informal domestic
relationships.
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