This document contains study units 1-3 of semester 2, of Private Law 171. It contains all class notes and summarised textbook notes needed to obtain a distinction of upcoming tests and exams.
Study unit 3- The Legal req for entering into a Pg 18- 31
marriage
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,Study unit 1
Family law
Part of Private Law
•That regulates the legal relationship
•between spouses, parents, guardians and children;
and other persons related through blood or affinity.
Subsections
• Matrimonial law / law of husband a wife
• Matrimonial property law
• The parent-child relationship
Sources of Family law
• Legislation - very important : bill of rights - Secs- 9.10.15. and 28(1)(b)
• Case law
• Common law
• Customary Law
• Religious law
• International law
What do we mean with a ‘family’
1Read examples on page 161 and 162 very carefully -contrasting
1.1 Huber (1686)-describes perfect household
• Reflected the social values of his times:
• A household is either perfect or imperfect
• A household is said to be perfect when there is a father, mother child or children,
and one more servants, so as to make at least 4 persons.
• When one of these is lacking the household becomes more or less imperfect,
according to the importance of the missing member
• The greatest imperfection, is when the father is lacking , next when there is no
mother
• A lack of a child is also no small imperfection
• Lack of servants less important
• Furthermore the government of the household resides in the father. , provided he
recognises his wife being associated with him in such govern. She ranks below him
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, but over the children and servant. So household said to be under management of
wife and husband.
• Dual authority causes strife- superior power should be exercised by husband
1.2. Lilian Harman and Edwin Walker (1887)
• Were made for each other - fell in love and entered into an autonomists marriage -
no minister or judge
• Created own wedding in which Edwin swore to never dominate his wife in any way
nor would she take his surname
• Lilian refused to swear eternal loyalty to Edwin bu states firmly that she would
‘make no promises that It make become impossible or immoral for me to fulfil retain
the right to act always as my conscience and best judgement shall dictate.
• They were arrested - charged with failure to respect license and ceremony
• Lilian + Ed wanted freedom to enter into or dissolve the roe unions, on their own
terms
• Wanted liberty to define their own relationship based on their personal interpretation
of love.
2.’sexual family’ or ‘relationship of dependency’ (Barratt 163 and 164)
• We associate families in terms of a sexual relationships
• Freeman has suggested that the core of family relationship is not sexual or spousal
but rather the relationship between parent and child
• Bottomley and Wong focus on ‘shared households’. They argue that law should
identify based on a ‘shared commitment to live together and care for each other.’
• The definition of family should move beyond ‘bilateral relationships’. For e.g 3
unmarried friends or family may decide to set up a shared household, where they
agree to provide each other with emotional and financial support and care
3.Diversity:Family forms (Barrat 164-167)
• Single mothers and fathers
- Huber idea doesn’t not envisage a single-parent household
- In SA many children are more likely to live away from their biological father or father is
deceased. Increasing mothers are dying due to Aids pandemic
- Complexity of households due to divorce, marriage, remarriage
• Extended families
- Don’t match Huber’s ‘perfect household’
- Most SA children live in households which might not include one of their biological
parents. - but very likely to include one parent which is not biological
- Aids pandemic leading to increase in orphans = contribute to extended families
• Polygamous families
- Huber’s model envisage one man and one women
- Recognition of Customary Marriages Acts gives full legal recognition to existing and
future customary polygamous marriages.- act permits men to have more than one wife
at the same tame, thus allowing for polygamous households.
- In addition many SA families are ‘polygamous’ in practice, many African men migrate to
urban areas leaving behind their wives and children behind.- start new families in urban
areas
• Unmarried families
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, - Hubers concept - assumes a married couple at its core
- Multiple SA coupes live together in intimate life-partnership with people whom they
aren’t married to.
• Child- headed households
- Recognised as such when:
- The parent, guardian or care-giver of the household is terminally ill , has died, or
abandoned the children in the house household
- No adult family members is available to provide care for the children in the households
- A child over the age of 16 years has assumed the role of care-giver in respect of the
children in the household, and
- It is in the best interests of the children in the household.
It must function under the general supervision of an adult designated by a children’s, an
organ of state
• Diverse families
- Families comes in all forms and sizes - Judge O-reagen
• 4. Important role of the Bill of Rights (Barrat 167-170)
• Inherent human dignity and the right to family life
- SA Constitution does not expressly provide a right to family life, and does not explicit
protect marriage or the family.
- Certification case: Court concluded that SA Constitution does indeed provide
constitutional protection for the family , despite the lack of clauses similar to those in
the international documents
- Most important constitutional protection for family life is the inherent dignity in sec 10
of the Bill of Rights.
- Constitution also expressly guarantees Childs’s rights to family care
- Inherent human dignity defined as: recognising a right to dignity is an abknlowdgment
of the intrinsic worth of human beings ate entitled to be treated as worthy of respect
and concern.
- The law must acknowledge that all people have the capacity for creating lives of
significance and must be ensure legal recognition and protection for their autonomous
choices about how they wish to conduct their personal lives.
- The CC has has frequently relied on the right to human dignity in family law matters
- Judge O’ Regan noted that the decision to enter into marriage relationships and to
sustain such a relationship is a matter of defining significance for many, If not most
people….’
- During apartheid.. CC noted frequent violation of family life and humans dignity due to
pass laws resulting in families being unable to live together
- In reshaping SA family law, parliament and CC hope to avoid violations of past and
create a family law system which recognises the equal worth and dignity of all people.
Embracing diversity
- One aspect of recognising and protecting everyone’s equal worth and dignity is the
obligation to recognise and accommodate difference.
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