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Study unit 1: Introduction to family law - Coggle Diagram
Study unit 1: Introduction to family law
Definition
Family law is part of the private law that regulates the legal relationship between spouses, parents, guardians and children; and people related through blood or affinity
Differences between marriage and cohabitation
Termination: for marriage a court order is necessary but for cohabitation you just need to leave
There are certain invariable consequences of marriage (not for cohabitation)
Marriage is monogamous
Who is a parent?
Definition in Children's Act 38 of 2005
Includes adoptive parents
Excludes biological fathers that have become a father by means of rape or incest
Excludes sperm donors
Marriages - sex changes
Court ruled that W could not marry
Alteration of Sex Description and Sex Status 2003 - changes birth certificate and thus new sex is reflected and can now get married
A person who underwent a sex change was not recognized as a woman (changed from man) and was therefore not able to get married to a man in terms of the Marriage Act because essentially they were the same sex
Role of the Civil Union Act changed the position
W v W 1976
Marriages in terms of tenets of religious faith
Bill of rights s 15 (3)
Everyone has the right to freedom of conscious, religion, thought....
Marriage in terms of Islam Law is void unless they follow Civil Union procedure as well
Case law:
=> Daniels v Campbell 2004
=> The court recognized woman as surviving spouse but were married in terms of Muslim Law
=> Hassam v Jacobs 2009
=> Woman was a surviving spouse in a polygamous marriage. Court interpreted in terms of Customary Marriages
Future?
=> Woman's legal Centre trust v President of the RSA 2009
a. Application to compel the president to promulgate and recognize religious Muslim marriages
b. Court said no, they had to approach it from a different angle
=> Recognition of 117 Imams as marriage officers now to conduct Civil Unions.
Same happened for Hindu Marriages
=> Singh v Ramparsad 2007
Sources of law
Subsections:
The matrimonial law (law of husband and wife)
The matrimonial property law
The parent-child relationship
The international law and family law:
The united nations universal declaration of human rights
Sec 12 - "no one shall be subjected to arbitrary interference with his privacy, family....."
Sec 16 (1) - "Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution
Sec 16 (2) - Marriage shall be entered into only with the free and full consent of intending spouses."
Sec 16 (3) - "The family is the natural and fundamental group unit of society and is entitled to protection by society and the state.
Legislation
=> Civil union act
=> Matrimonial property act
=> Divorce act
Case law
Common law
Bill of rights
International law
Indigenous law
Religious law
Legal consequences of private relationships
Marriages
Civil (what we will look at)
=> In terms of the Marriage Act 25 of 1961
=> In terms of the Civil Union Act 17 of 2006
a. S 13 of the Act: Legal consequences of "traditional marriage" in terms of Marriage Act also apply to civil unions
b. Background: Civil union act was the effect of court cases brought by homosexuals to get married
c. Civil partnership (same sex or different)
Customary
=> In terms of the Recognition of Customary Marriages Act 120 of 1998
=> As many wives as one wants, however, a woman may not have more than one husband
Cohabitation
No automatic legal consequence
=> Unless
a. Contract
b. Specific legislation
c. Case law