FML 121
SECTION A: GENERAL INTRODUCTION
CHAPTER 1: DEFINITION AND SCOPE OF FAMILY LAW
1.1 Family law and law in general:
Family law is a subdivision of private law as it regulates relationships
between legal subjects on a horizontal level.
Traditional family law definition:
o The part of private law which regulates the legal relationship
between husband and wife as well as the legal relationship
between parents/guardians and children.
Family law divided into matrimonial law and law of parent and child:
o Matrimonial law: concerned with couples who were formally
married. Legal relationship between unmarried persons was not
studied in family law because they were not defined/regulated
by it.
Family law has since expanded.
1.2 Impact of Constitution on family law:
Matrimonial law has transformed due to Constitution.
Right to dignity (s10) and right to equality (s9) have had the most
impact on family law:
o Right to equality includes right not be discriminated against on
grounds of marital status, gender, sexual orientation,
culture/religion. The entrenchment of these rights meant the
, state could no longer justify the matrimonial regime (Marriage
Act 25 of 1961) that only catered for monogamous heterosexual
relationships.
Polygamous marriages were first to be formally recognized
(Recognition of Customary Marriages Act 120 0f 1998).
Minister of Home Affairs and Another v Fourie and Another (Doctors
for Life International and Others, Amici Curiae); Lesbian and Gay
Equality Project and Others v Minister of Home Affairs and Others
(Fourie case):
o Concluded that law unfairly discriminated against same sex
couples on the ground of their sexual orientation by not allowing
them to get married in terms of the Marriage Act.
o Civil Union Act 17 of 2006 introduced to recognize same-sex
unions, allows heterosexual and homosexual couples to enter
into civil union.
SA recognizes monogamous and polygamous unions:
o Monogamy: one person can only be married to one other
person at the same time. Monogamous unions can conclude in
terms of Marriage Act or Civil Union Act (terms of marriage are
identical).
o Polygyny: form of polygamy which allows husband to be
married to more than one wife at a time.
RCMA:
Regulates traditional customary/lobolo marriages.
Customary marriages: marriage concluded in terms
of customary law.
, Customary law defined as customs and usages
traditionally observed among indigenous African
people and forms part of the culture of those people.
Official customary law: applied in courts and state
bodies.
Living customary law: represented by current
customary practices of people whose customary law
is in question.
Unions recognized in SA:
o Civil marriage (Marriage Act).
o Civil union (Civil Union Act).
o Customary Marriage (RCMA).
Traditional marriage: legally recognized voluntary union for life of one
man and one woman to the exclusion of all other while it lasts
(definition not wide enough in present day).
“Spouse”
o A person married in terms of Marriage Act/RCMA.
o S13 of Civil Union Act – any reference to marriage includes a
civil union and “husband”/”wife”/”spouse” includes a civil union
partner.
Constitution helped develop law to recognize persons who cohabit in
permanent life-partnership as “spouse” for certain purposes on an ad
hoc (necessary) basis.
Permanent life-partners:
o Persons who have concluded a religious marriage/domestic
partners who live together without formalizing their relationship.
Constitution had effect on law of parent and child:
, o United Nations Convention on Rights of Children recognized
rights of children as maturing individuals rather than extensions
of their parents.
o S28 of Constitution incorporated the above standard into law.
o Children’s Act 38 of 2005.
1.3 Expanding Scope of Family Law
Traditionally only concerned with legal relationship between married
persons and parents and children.
Nuclear family: married, heterosexual couple with one or more
children.
Family law principles expanded to include couples whose relationship
mimics those of married couples (religious marriages).
Courts have been willing to treat domestic partnerships as spouses
for certain purposes.
Parents no longer need to be in a formally recognized union to
acquire parental rights and responsibilities by operation of law.
If a relationship is governed by rules of family law, rights and duties of
parties in the relationship are defined in terms of family law.
1.4 Terminology
Domestic partnership = permanent life partnership/cohabitation
relationship/ permanent relationship/life partnership.
Union = all recognized unions (civil marriage/civil union/customary
marriage).
SECTION A: GENERAL INTRODUCTION
CHAPTER 1: DEFINITION AND SCOPE OF FAMILY LAW
1.1 Family law and law in general:
Family law is a subdivision of private law as it regulates relationships
between legal subjects on a horizontal level.
Traditional family law definition:
o The part of private law which regulates the legal relationship
between husband and wife as well as the legal relationship
between parents/guardians and children.
Family law divided into matrimonial law and law of parent and child:
o Matrimonial law: concerned with couples who were formally
married. Legal relationship between unmarried persons was not
studied in family law because they were not defined/regulated
by it.
Family law has since expanded.
1.2 Impact of Constitution on family law:
Matrimonial law has transformed due to Constitution.
Right to dignity (s10) and right to equality (s9) have had the most
impact on family law:
o Right to equality includes right not be discriminated against on
grounds of marital status, gender, sexual orientation,
culture/religion. The entrenchment of these rights meant the
, state could no longer justify the matrimonial regime (Marriage
Act 25 of 1961) that only catered for monogamous heterosexual
relationships.
Polygamous marriages were first to be formally recognized
(Recognition of Customary Marriages Act 120 0f 1998).
Minister of Home Affairs and Another v Fourie and Another (Doctors
for Life International and Others, Amici Curiae); Lesbian and Gay
Equality Project and Others v Minister of Home Affairs and Others
(Fourie case):
o Concluded that law unfairly discriminated against same sex
couples on the ground of their sexual orientation by not allowing
them to get married in terms of the Marriage Act.
o Civil Union Act 17 of 2006 introduced to recognize same-sex
unions, allows heterosexual and homosexual couples to enter
into civil union.
SA recognizes monogamous and polygamous unions:
o Monogamy: one person can only be married to one other
person at the same time. Monogamous unions can conclude in
terms of Marriage Act or Civil Union Act (terms of marriage are
identical).
o Polygyny: form of polygamy which allows husband to be
married to more than one wife at a time.
RCMA:
Regulates traditional customary/lobolo marriages.
Customary marriages: marriage concluded in terms
of customary law.
, Customary law defined as customs and usages
traditionally observed among indigenous African
people and forms part of the culture of those people.
Official customary law: applied in courts and state
bodies.
Living customary law: represented by current
customary practices of people whose customary law
is in question.
Unions recognized in SA:
o Civil marriage (Marriage Act).
o Civil union (Civil Union Act).
o Customary Marriage (RCMA).
Traditional marriage: legally recognized voluntary union for life of one
man and one woman to the exclusion of all other while it lasts
(definition not wide enough in present day).
“Spouse”
o A person married in terms of Marriage Act/RCMA.
o S13 of Civil Union Act – any reference to marriage includes a
civil union and “husband”/”wife”/”spouse” includes a civil union
partner.
Constitution helped develop law to recognize persons who cohabit in
permanent life-partnership as “spouse” for certain purposes on an ad
hoc (necessary) basis.
Permanent life-partners:
o Persons who have concluded a religious marriage/domestic
partners who live together without formalizing their relationship.
Constitution had effect on law of parent and child:
, o United Nations Convention on Rights of Children recognized
rights of children as maturing individuals rather than extensions
of their parents.
o S28 of Constitution incorporated the above standard into law.
o Children’s Act 38 of 2005.
1.3 Expanding Scope of Family Law
Traditionally only concerned with legal relationship between married
persons and parents and children.
Nuclear family: married, heterosexual couple with one or more
children.
Family law principles expanded to include couples whose relationship
mimics those of married couples (religious marriages).
Courts have been willing to treat domestic partnerships as spouses
for certain purposes.
Parents no longer need to be in a formally recognized union to
acquire parental rights and responsibilities by operation of law.
If a relationship is governed by rules of family law, rights and duties of
parties in the relationship are defined in terms of family law.
1.4 Terminology
Domestic partnership = permanent life partnership/cohabitation
relationship/ permanent relationship/life partnership.
Union = all recognized unions (civil marriage/civil union/customary
marriage).
