INTRODUCTION

Family law has expanded significantly. The law of husband and wife includes civil spouses,
civil union partners, customary spouses. South African family law recognises civil
marriages, civil unions and customary marriages, but SA law does not recognise religious
marriages and life partnerships or domestic partnerships as such, but the courts and the
legislature have nonetheless granted a certain amount of piecemeal recognition to these
marriages and partnerships. The law of parent and child includes not only the parental
responsibilities and rights of the parents themselves, but also of extended family members
and sometimes third parties in the exercising and protection of these responsibilities and
rights..

Why is it important to study family law?

Family relationships are part and parcel of everyday life for all individuals. Every person has
been a child, most enter into relationships with others, some persons marry, and all marriages
end in death or divorce. Family law therefore deals with common life experiences. In
addition, most practitioners will be involved with some aspects of family law, albeit in
varying degrees, during their years of practice. What makes this area of the law particularly
challenging is the personal and emotional nature of the relationships, as well as the fact that,
in addition to the law, customs and morals often guide these relationships.

Development of the family unit

People have always regarded the family unit as the cornerstone of society. As the family unit
was traditionally based on marriage, society has given the institution of marriage a central
position in the law where it receives special protection. The viewpoint where a family is
regarded as a nuclear family consisting of a mother, father and their biological children is,
however, outdated. The law now makes provision for and recognises a number of different
types of family. While the nuclear family remains important and worthy of protection, this
importance and protection have been extended to other types of family relationships.

The Constitutional Court in Dawood v Minister of Home Affairs; Shalabi v Minister of Home
Affairs; and Thomas v Minister of Home Affairs stated that marriage and the family are of
profound significance to the individuals concerned. Such relationships have more than
personal significance at least in part because d whose humanity is expressed through their
relationships with others. Entering into marriage therefore is to enter into a relationship that
has public significance as well. The institutions of marriage and the family are important
social institutions that provide for the security, support and companionship of members of our
society and bear an important role in the rearing of children. The celebration of a marriage
gives rise to legal obligations, particularly the reciprocal duty of support placed upon spouses
and their joint responsibility for supporting and raising children born of the marriage.

Until relatively recently and subject to a few exceptions, South African family law was
limited to the study of the family of a recognised marriage conducted in terms of the
Marriage Act between one man and one woman. However, families do not always organise
their relationships in this way, and there are various different forms of family. As the
Constitutional Court stated in Dawood v Minister of Home Affairs; Shalabi v Minister of
Home Affairs; and Thomas v Minister of Home Affairs definition of the family also changes
as social practices and traditions change. In recognising the importance of the family, we
must take care not to entrench particular forms of family at the expense of other forms.

The Bill of Rights in the Constitution, which includes the rights to equality, human
dignity, and freedom of religion, belief and opinion, has created an impetus for the courts and
the legislature to increase the scope of marriage beyond the realm of the monogamous civil
marriage between one man and one woman concluded in terms of the Marriage Act. Two
major developments have been to extend the concept of a marriage from a monogamous
heterosexual arrangement to include same-sex and polygynous unions. The first law that
recognised another type of union was the Recognition of Customary Marriages Act.
recognises customary marriages, including polygynous marriages, and gives such marriages
equal status to a civil marriage, recognising all customary marriages, including marriages
which were concluded before the Act came into operation.

In 2006 the Civil Union Act was enacted as a result of the Constitutional Court’s finding that
it was unconstitutional to prevent persons of the same sex from marrying each other. This
Act, broadens the legal scope of marriage significantly. Although the main objective of the
Civil Union Act is to provide for same-sex marriages, the Act also allows for the conclusion
of heterosexual civil unions. In addition, the Act introduced a new concept into South African
family law in the form of the civil partnership. This provides heterosexual and same-sex
couples with an alternative whereby they can formalise their union without ‘marrying’ one
another. We now have to read the Divorce Act, the Matrimonial Property Act and the
Maintenance of Surviving Spouses Act in such a way that they also apply to customary law
marriages, civil unions and civil partnerships. The term ‘civil unions’ will be used in this
course to refer to marriages and civil partnerships concluded in terms of the Civil Union Act.

The South African legal system has not yet given full legal recognition to religious marriages.
Recognition of life partnerships or people who cohabit (live together) without entering into a
marriage or a civil union or a customary marriage has lagged behind other legal
developments, except for same- sex couples.

In relation to the position of children and the legal principles relating to the relationship
between parents and their children, the holders of parental responsibilities and rights are not
only the biological parents since other people may also acquire these responsibilities and
rights in several different ways. The legal principles apply irrespective of the relationship of
the parents, whether they are married or divorced, or whether the child is born of unmarried
parents. The Children’s Act des provides a comprehensive regulatory system for the rights of
children. The Act departed radically from the common law because, for the first time, it gave
automatic parental responsibilities and rights to unmarried biological fathers in certain
cases. The Act recognises the number of orphans, the high rates of poverty as well as the
relatively high number of abused and neglected children. The Act also has a broader concept
of parental responsibilities and rights than before so as to include extended family members
and third parties. Although family law falls within private law sphere, we cannot study it in
isolation as there is interaction between family law and the other branches of law, as well as
between the various private law subjects.

Examples of the interaction between family law and the other branches of the law are the
following:

•Family law and public law: A criminal prosecution may follow where a spouse fails to
comply with a maintenance order.

•Family law and corporate law: When calculating the accrual at the time of a divorce, the
court may in certain very limited and exceptional circumstances include the assets of a trust,
for instance, when the trust is used in a dishonest or unconscionable manner to evade a
liability or avoid an obligation. Examples of the interaction between subject areas in the
private law branch are the following:

•Family law and the law of persons: Marriage leads to a change in the spouses’ status.
Status forms part of the law of persons.

•Family law and the law of succession: The law of succession, specifically the Intestate
Succession Act,32 regulates the inheritance a spouse receives after the death of the other
spouse where there is no valid will.

•Family law and the law of property: The whole concept regarding the tied co-ownership
when sharing a joint estate that is pivotal in many matrimonial property systems is grounded
in property law.

•Family law, the law of contract, and the law of delict: Claims for financial damages and
hurt feelings resulting from a breach of promise (broken engagement) are based partly on the
law of contract and partly on the law of delict.

Sources of family law

We find the rules, prescripts, and principles regulating family law in various sources,
including Roman-Dutch common law, traditional African customs, legislation, court
judgments (from the principle of judicial precedent) and also international law. The sources
of each area of family law are a result of historical development. The most important source
is the Constitution as the supreme law of the country. It applies to all law and binds the
legislature, the executive, the judiciary and all organs of state. We should read and interpret
all the other sources in view of the Constitution, specifically, the Bill of Rights set out in
Chapter 2 of the Constitution. Family law has changed since the South African Constitution
containing the Bill of Rights came into operation. Children live in all kinds of families based
on the various living arrangements of their parents. Sometimes they live with one parent,
while probably having contact with the other. However, the number of orphans in South
Africa and problems of poverty, abuse and neglect also see children growing up in
households made up of extended family members, in child-headed households and to a lesser
extent in foster care with non-related caregivers or in adoptive families. Many children live in
families that are regulated by customary law, and sometimes there are disputes between
parties about whether their lives are ruled by civil law or customary law.