Lecture 1 Outcomes

Question 1

Indicate where Family Law fits into the law in general:

Answer 1

Family Law is a subdivision of Private Law that regulates the relationship between legal subjects on a horizontal level, with a focus on the family and the rights and duties of persons in familial relationships

Question 2

Describe the subdivisions of Family Law:

Answer 2

It was traditionally divided into two
components: Matrimonial Law and the Law of Parent and Child

Question 3

Discuss the impact of the Constitution on the scope of Family Law as far it pertains to the recognition of different life partnerships

Answer 3

1) The Constitution of the Republic of South Africa, 1996, has brought about
significant changes to Matrimonial Law.

2) The right to dignity (section 10) and the right to equality (section 9) have had a profound impact on Family Law, particularly in relation to life partnerships

3) The right to equality includes the right not to be discriminated against based
on marital status, gender, sex, sexual orientation, culture, and religion (section
9(3)).

4) In summary the Constitution has transformed Matrimonial Law by ensuring equal rights and protection for all types of marriages and life partnerships.

Question 4

Discuss, with reference to authority, which unions are currently formally recognized in South Africa

Answer 4

1) Customary marriages were given legal recognition equal to civil marriages
with the enactment of the Recognition of Customary Marriages Act 120 of
1998 (RCMA).

2) The RCMA gave formal recognition to the practice of polygyny, which allows a
husband to have more than one wife at the same time.

Question 5

Critically discuss, with reference to authority, which life partnerships are not currently formally recognized in South Africa

Answer 5

1) Despite the Constitutional Court recognizing parties to Muslim and Hindu
marriages as spouses, religious marriages are still not formally recognized in South Africa.

2) Heaton and Kruger argue that Muslim marriages cannot be recognized
because some features violate Muslim women’s rights to sex and gender
equality and dignity, such as the polygynous nature of Muslim marriages

3) the Constitutional Court confirmed the unconstitutionality of the
definition of marriage, the Marriage Act, and the Divorce Act to the extent that
they do not recognize marriages solemnized in accordance with Sharia law (Muslim marriages) as valid in South Africa

Question 6

Provide examples of the impact of the Constitution on the development of the Law of Parent and Child