Module 1 - Family Law in the 21st Century South Africa

Question 1

What are pre-constitutional South African family law that has been changed post-constitutional?

Answer 1

• Privileged Christian and Jewish religion over others
• Gave rights to customary families that were weaker then no customary families
• Gave no rights to unmarried families
• Criminalised same-sex families
• Man was guarded as head of the household (sexism, patriarchal) husbands had power over the wife’s
• Punished adultery
• Regarded children as property of parents

Question 2

Define Hubers perfect family

Answer 2

Families defined according to Huber is family with two heterosexual married parents with children and a servant

Question 3

When was Huber vision of a perfect family written?

Answer 3

Hubers vision of the perfect household and family reflected the social norms of the Roman-Dutch 1686

Question 4

Why is Huber’s perfect family unconstitutional?

Answer 4

It discriminates on the grounds of sex or gender and also violates the dignity rights of women. It also now unconstitutional to discriminate against anyone on the grounds of his or her circumstances of birth

Question 5

What are rights in the constitution that pertain to family life?

Answer 5

• Right to dignity
• Right to privacy
• Right to children (section 28 of the constitution)
• Prohibition of direct and indirect discrimination (section 9 of the constitution)

Question 6

Why does the state need to define family?

Answer 6

The definition of family determines the scope and ambit of the state’s interest in particular relationships.

Question 7

What are the seven types of family?

Answer 7

• Single mothers and single fathers
• Extended family
• Polygynous families
• Unmarried families
• Same-sex families
• Child headed households
• Diverse families

Question 8

Which legal acts give full recognition to polygynous marriages?

Answer 8

The recognition of the Customary Marriages Act and the Draft Muslim Marriage Bill gives full recognition to existing and future customary polygynous marriages

Question 9

According to the Children Act, when may child-headed households be recognized?

Answer 9

• If the adult of the household is terminally ill, has died or abandoned the children of the household
• No adult family member is available to care for the children
• A child over 16 years old has presumed the role of caregiver
• It’s in the best interest of the children
• The child may make day-to-day decisions relating to the household

Question 10

What are the rights and duties of the family?

Answer 10

the law recognises who the law recognize as families. The Rights and duties of the family:
- Support (maintenance) both children and parents
- Sharing of properties
- To provide care to one another
- To make decisions

Question 11

What is the most important constitutional protection for family life?

Answer 11

The most important constitutional protection for family life is the right to inherent human dignity in section 10 of the Bill of Rights. The law must acknowledge that all people can create lives of significance and must ensure legal recognition and protection of their rights to make choices

Question 12

How does section 9 of the constitution relate to families?

Answer 12

The equality clause in section 9 of the Constitution: the family law may not unfairly discriminate against people on any of the grounds. It requires family law to accommodate and protect diversity

Question 13

What is marriage centrism and how does it relate to the family?

Answer 13

Marriage centrism is where the most important aspect of a family is the relationship between husband and wife. The Constitutional Court has shown a clear preference for marriage over informal domestic partnerships. It has identified marriage as a relationship of defining significance for many, if not most people and describes it as the honorable and profound estate of social institution of vital importance.

Question 14

What are autonomistic marriages?

Answer 14

Autonomisitic marriages are marriages in which two people choose to get married without a governing law, this isn’t recognised by law as a marriage.

Question 15

What influences the legal recognition of families?

Answer 15

Decisions about legal recognition of families are influenced by beliefs in:
- Polygamy
- Sexual orientation
- Incest
- Appropriate gender roles
- Appropriate treatment of children

Question 16

What is the purpose of family law?

Answer 16

• Protection: the court is especially concerned with protecting the more economically vulnerable members of the family. It ensures that parents care for their children both financially and in other ways. It is also important to protect families from outside interference, including unjustified interference by the state
• Promote fairness within the family: tries to ensure equitable distribution of resources between family members
• Promote legal certainty and predictability: The provision of the Divorce Act provide some degree of predictability regarding distribution of martial property and of ongoing maintenance
• Value system for society: Family law is not value-neutral
• Its symbolism: When the law recognises and gives legal endorsement to family form, this sends a powerful message to the community that the family form is legitimate, valuable and worthy of the laws acknowledgment and protection.

Question 17

What are the sources of family law by importance?

Answer 17

1. Domestic law- south African law the statutes, common, customary law
2. Constitution - these are the rights of families and children all domestic laws are subject to it
3. International law- CRC, African charter on women and children

Question 18

What are the status of domestic law focused on in family law?

Answer 18

• Children’s Act
• Marriage Act
• Matrimony pactual act (MPA)
• Divorce Act

Question 19

How does the Law reform bureau get laws passed?

Answer 19

To get certain things into law, the constitution usually has to litigate and the parliament has to let it in

Question 20

What is the difference between legal arguments and non-legal argument’s?

Answer 20

Non-legal arguments are based on religion, cultural norms, opinions. These arguments can influence family law but indirectly. Legal arguments are based on legal rules

Question 21

How do you structure a legal argument?

Answer 21

We use IPAC to structure legal arguments
- I stands for the ISSUE which is what you need to answer in a question
- P is the PRINCIPLE which means what the court decided or how the court answered the issue
- A is APPLICATION. Here, you are to apply or link the principle to your case
- C is the CONCLUSION. You conclude your argument / briefly answer the question posed to you

Question 22

What are the aims of family lawyers?

Answer 22

• Protect vulnerable family members
• Ensuring fairness and equal treatment
• Legal certainty and clarity
• Prompts progressive social values