Family Law: Topic 1
Family is a difficult concept to define, but it is important that the law
determines the groups of people which can be defined as families. This is
based on the scope of the state’s interest in personal relationships.
Types of Families
Sexual Family v Shared Commitment Family
- When we think about families, we usually think about husbands and
wives and the children they produce.
- Is the core of a family a sexual relationship? What criteria is used to
define a group as a family? ‘Family’ is usually based on a sexual tie
of some kind. Therefore friends sharing a flat falls beyond its scope.
- Fineman considers the ‘Mother-Child relationship/Dyad’ to be the
central idea of family. This is a symbol of inevitable dependency,
which can be seen as the definition of a family.
- Other opinions mirror this, stating that the definition of family should
move beyond a spousal (sexual) relationship and focus on
emotional and economic dependency. However, this is
problematic as a group of friends living together can be defined as a
family.
- Other factors which could contribute to the definition are a shared
household, commitment and care.
- Family law focuses on maintenance and property distribution.
Single Parents
- 23% of South African children live with both biological parents.
- 41% live with their mothers and not with their fathers.
- 3% live with their fathers and not with their mothers.
It is common for children to be born to single mothers or for their
fathers to leave home after the child is born. Therefore, it is more likely
for children to live apart from their fathers than with them, either
because their fathers are living elsewhere or are deceased. Often, the
death of the mother forces single-father families to form. In many of
these cases the children are passed on to females in their extended
family to care for them, when their mother is no longer around (Eg
grandmother). Most children grow up in extended- family households.
, Extended Families
- It is common for children to live in a home with an adult who is not
their biological parent.
- Often, grandmothers and aunts (other female relatives) are involved
in raising children when their mother is no longer around or does
not reside with them.
- This is a result of labour migration (both parents) and AIDS.
- More than 20% of South African children are orphans.
Polygamous Families
- The Recognition of Customary Marriages Act recognises that a man
can have more than one wife, as does The Draft Muslim Marriages
Bill. Therefore South African Family law has moved away from the
idea that a marriage is only between two people.
- Many men have one legal/ official wife and in practice they have
more than one wife and family.
- For a long time, men leave their wife and family at home and
migrate to urban areas where they maintain relationships with other
women and start new families.
- The urban and rural women know of each other’s existence, but
don’t usually meet.
- The official wife doesn’t have the social or economic power to
prevent her husband from having another family.
Unmarried Families
- Many families form without the parents being married, but they still
live together in intimate life-partnerships with people to whom they
are not married.
Same-Sex Families
- The law refers to a marriage as being between members of the
opposite sex, however today same-sex couples are also able to
enter into civil unions which are equal to marriages.
Child-Headed Households
- In 2009 there were 60 000 child-headed households in South
Africa, housing 122 000 children.
- The Children’s Act allows for child-headed households in the
following cases:
1. Parent/guardian/care-giver is ill, dead or has abandoned the
children in the household.
Family is a difficult concept to define, but it is important that the law
determines the groups of people which can be defined as families. This is
based on the scope of the state’s interest in personal relationships.
Types of Families
Sexual Family v Shared Commitment Family
- When we think about families, we usually think about husbands and
wives and the children they produce.
- Is the core of a family a sexual relationship? What criteria is used to
define a group as a family? ‘Family’ is usually based on a sexual tie
of some kind. Therefore friends sharing a flat falls beyond its scope.
- Fineman considers the ‘Mother-Child relationship/Dyad’ to be the
central idea of family. This is a symbol of inevitable dependency,
which can be seen as the definition of a family.
- Other opinions mirror this, stating that the definition of family should
move beyond a spousal (sexual) relationship and focus on
emotional and economic dependency. However, this is
problematic as a group of friends living together can be defined as a
family.
- Other factors which could contribute to the definition are a shared
household, commitment and care.
- Family law focuses on maintenance and property distribution.
Single Parents
- 23% of South African children live with both biological parents.
- 41% live with their mothers and not with their fathers.
- 3% live with their fathers and not with their mothers.
It is common for children to be born to single mothers or for their
fathers to leave home after the child is born. Therefore, it is more likely
for children to live apart from their fathers than with them, either
because their fathers are living elsewhere or are deceased. Often, the
death of the mother forces single-father families to form. In many of
these cases the children are passed on to females in their extended
family to care for them, when their mother is no longer around (Eg
grandmother). Most children grow up in extended- family households.
, Extended Families
- It is common for children to live in a home with an adult who is not
their biological parent.
- Often, grandmothers and aunts (other female relatives) are involved
in raising children when their mother is no longer around or does
not reside with them.
- This is a result of labour migration (both parents) and AIDS.
- More than 20% of South African children are orphans.
Polygamous Families
- The Recognition of Customary Marriages Act recognises that a man
can have more than one wife, as does The Draft Muslim Marriages
Bill. Therefore South African Family law has moved away from the
idea that a marriage is only between two people.
- Many men have one legal/ official wife and in practice they have
more than one wife and family.
- For a long time, men leave their wife and family at home and
migrate to urban areas where they maintain relationships with other
women and start new families.
- The urban and rural women know of each other’s existence, but
don’t usually meet.
- The official wife doesn’t have the social or economic power to
prevent her husband from having another family.
Unmarried Families
- Many families form without the parents being married, but they still
live together in intimate life-partnerships with people to whom they
are not married.
Same-Sex Families
- The law refers to a marriage as being between members of the
opposite sex, however today same-sex couples are also able to
enter into civil unions which are equal to marriages.
Child-Headed Households
- In 2009 there were 60 000 child-headed households in South
Africa, housing 122 000 children.
- The Children’s Act allows for child-headed households in the
following cases:
1. Parent/guardian/care-giver is ill, dead or has abandoned the
children in the household.
