, Family law study unit 1
Study Unit 1: An Introduction to Family Law
In this study unit students are introduced to Family Law as a field of study. The continuous
influence that the Constitution has on Family Law is discussed and illustrated with reference to
a few examples. A cursory glance of the history of Family Law is given.
After completion of this study unit, students should be able to:
- Set out key developments in the history of family law.
- explain, with reference to examples, what the (possible) influence of the Constitution on
Family Law entails.
- Explain what is meant by ‘horizontal’ application of the Constitution and why this is
important for Family Law; and
- Indicate how the scope of Family Law has expanded since the start of the constitutional
era.
OUTLINE
1. Brief history of family law
2. The influence of the Constitution on Family Law.
3. Horizontal application of the Constitution; and
4. Most important developments and expanding scope of Family Law.
STUDY MATERIAL
Van Heerden FLSA, Chapter 1 (pp 3 – 12); Chapter 11 (pp 193-197).
Chapter 12 (pp 208-209); Chapter 13 (pp 233-235; 245); Chapter 14 (pp 249-252)
Dawood v Minister of Home Affairs; Shalabi v Minister of Home Affairs; Thomas v Minister of
Home Affairs 2000 (3) SA 936 (CC)
, 1. Overview of family law in SA
Includes law of husband and wife – has evolved used to only include spouses in civil
marriage, now includes civil union partners (Civil union act) and customary spouses
(Recognition of customary marriages act)
SA family law regulates only three Law of husband and wife divide into
relationships. engagement, marriage and its
consequences and dissolution of
1. marriage act
marriage.
2. civil union act and
3. the recognition of customary Family law includes law of parent and
marriages act child – maintenance, guardianship, care,
and contact.
Religious marriages? – no law yet, not
regulated – people in religious marriages Bill of rights applies horizontally
have piecemeal recognition through between persons (between person and
previous cases and certain acts but there person)
is no specific legislation that governs it.
Why is family law important – we enter
- Piecemeal recognition granted to relationships and these relationships have
religions marriage and LP’s (life influence on us.
partnerships)
2. Development of the concept of family
- Family unit is the cornerstone of society, and it is traditionally based on marriages –
special protection on marriages.
In past regarded to consist only of nuclear family only mother and family and biological
children only
- Now a nuclear family still important and protected by law, but law considers other
family relationships also important and deserving of legal protection.
Dawood case – prescribed (family’s definition changed and, in the case, it is stated that
one family structure should not be placed above another)
, 3. Role of constitution of family law and expanding scope
- Constitution plays a vital tole recognising and respecting other family forms.
- Scope of marriage extended beyond monogamous civil marriage.
Five formations
a) Civil marriages b) Customary marriages
Before constitution only marriage Before constitution not regulated
recognised – common law definition of
RCMA – recognised if requirements met
marriage – excluded same sex couples
– polygynous; opposite sex couples only
and polygyny.
– same legal status as civil marriage.
- Problem with marriage definition
Recognises customary marriages before
excludes same sex couples as well as
the act was passed as well as after act
the problem that is says its for life,
was – customary marriages before
but as we are now many
constitution had to also conclude a civil
arrangements are not broken up only
marriage to get the same type of
by death but also divorce.
protection as a civil marriage – not open
to same sex couples
c) Civil union
Before constitution came into effect same sex couples could not marry.
- Constitutional impact – section 9 of the constitution on their rights – initially piecemeal
recognition then ministers of Home Affairs v Fourie 2006(CC) – can’t discriminate
against sexual orientation found it unconstitutional – remedy: option 1 – suspend the
declaration of invalidity(parliament can pass legislation that pass same sex marriages, if
they do not do something in a year then marriage act would be open to same sex
marriages
- Led to Civil Union Act of 2006 – civil union defined.
- Thew voluntary union of 2 persons who are both 18 years of age or older which is
solemnized and registered by way of either a marriage or civil partnership in accordance
with the procedures prescribed by this act to the inclusion with it lasts of all the others.
Study Unit 1: An Introduction to Family Law
In this study unit students are introduced to Family Law as a field of study. The continuous
influence that the Constitution has on Family Law is discussed and illustrated with reference to
a few examples. A cursory glance of the history of Family Law is given.
After completion of this study unit, students should be able to:
- Set out key developments in the history of family law.
- explain, with reference to examples, what the (possible) influence of the Constitution on
Family Law entails.
- Explain what is meant by ‘horizontal’ application of the Constitution and why this is
important for Family Law; and
- Indicate how the scope of Family Law has expanded since the start of the constitutional
era.
OUTLINE
1. Brief history of family law
2. The influence of the Constitution on Family Law.
3. Horizontal application of the Constitution; and
4. Most important developments and expanding scope of Family Law.
STUDY MATERIAL
Van Heerden FLSA, Chapter 1 (pp 3 – 12); Chapter 11 (pp 193-197).
Chapter 12 (pp 208-209); Chapter 13 (pp 233-235; 245); Chapter 14 (pp 249-252)
Dawood v Minister of Home Affairs; Shalabi v Minister of Home Affairs; Thomas v Minister of
Home Affairs 2000 (3) SA 936 (CC)
, 1. Overview of family law in SA
Includes law of husband and wife – has evolved used to only include spouses in civil
marriage, now includes civil union partners (Civil union act) and customary spouses
(Recognition of customary marriages act)
SA family law regulates only three Law of husband and wife divide into
relationships. engagement, marriage and its
consequences and dissolution of
1. marriage act
marriage.
2. civil union act and
3. the recognition of customary Family law includes law of parent and
marriages act child – maintenance, guardianship, care,
and contact.
Religious marriages? – no law yet, not
regulated – people in religious marriages Bill of rights applies horizontally
have piecemeal recognition through between persons (between person and
previous cases and certain acts but there person)
is no specific legislation that governs it.
Why is family law important – we enter
- Piecemeal recognition granted to relationships and these relationships have
religions marriage and LP’s (life influence on us.
partnerships)
2. Development of the concept of family
- Family unit is the cornerstone of society, and it is traditionally based on marriages –
special protection on marriages.
In past regarded to consist only of nuclear family only mother and family and biological
children only
- Now a nuclear family still important and protected by law, but law considers other
family relationships also important and deserving of legal protection.
Dawood case – prescribed (family’s definition changed and, in the case, it is stated that
one family structure should not be placed above another)
, 3. Role of constitution of family law and expanding scope
- Constitution plays a vital tole recognising and respecting other family forms.
- Scope of marriage extended beyond monogamous civil marriage.
Five formations
a) Civil marriages b) Customary marriages
Before constitution only marriage Before constitution not regulated
recognised – common law definition of
RCMA – recognised if requirements met
marriage – excluded same sex couples
– polygynous; opposite sex couples only
and polygyny.
– same legal status as civil marriage.
- Problem with marriage definition
Recognises customary marriages before
excludes same sex couples as well as
the act was passed as well as after act
the problem that is says its for life,
was – customary marriages before
but as we are now many
constitution had to also conclude a civil
arrangements are not broken up only
marriage to get the same type of
by death but also divorce.
protection as a civil marriage – not open
to same sex couples
c) Civil union
Before constitution came into effect same sex couples could not marry.
- Constitutional impact – section 9 of the constitution on their rights – initially piecemeal
recognition then ministers of Home Affairs v Fourie 2006(CC) – can’t discriminate
against sexual orientation found it unconstitutional – remedy: option 1 – suspend the
declaration of invalidity(parliament can pass legislation that pass same sex marriages, if
they do not do something in a year then marriage act would be open to same sex
marriages
- Led to Civil Union Act of 2006 – civil union defined.
- Thew voluntary union of 2 persons who are both 18 years of age or older which is
solemnized and registered by way of either a marriage or civil partnership in accordance
with the procedures prescribed by this act to the inclusion with it lasts of all the others.
