Family Law Dynamics in South Africa

1 January 2017

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Moreover there are significant consequences on families such as child-headed households and foster care. Additionally the constitutional era’s bringing of the Bill of Rights guaranteeing sex equality has additionally changed the dynamics of South African marriages. This paper will investigate and discuss the dynamics of families and family law in South Africa and determine the extent to which they have transformed over time due to socio-legal and socio-political influences.

Social, political and legal influences on South African family-law and their initial consequences From a socio-political point of view South Africa has transformed dramatically due to many influences but none more so than the Apartheid regime. The discriminatory nature of the Apartheid left many consequences on South African families. Firstly the original Black Administration Act did not hold customary marriages in the same esteem as civil marriages and heavily restricted the proprietary rights of women and children.

Paternal power was unfairly exercised as the father being the head of the household had total influence over household possessions. Furthermore law did not formally recognize customary marriages of polygamy. Possibly equaling the dramatic effect that the Apartheid has had on South Africa is the HIV/AIDS pandemic. It is estimated that South Africa has a higher number of AIDS orphans than any other country.

This has brought about many changes in the dynamics of South African families as a growing number of child-headed households are being formed as well as uncertainty created pertaining to care of the orphans. Due to factors such as an increasing crime rate and uneven education availability, in the case of divorce spouses have been forced to relocate from their original homes causing breakups in families and harsh custody battles.

Considering the harsh affects that custody change and HIV/AIDS has on children, the Child Care Act 74/1983 has come under scrutiny for the way in which it has handled the care of children under troubled conditions. The narrow nature of this act has a primary goal of removal of an affected child from its original home and placement into alternative care, however it does not provide for prevention, nor for early intervention services and programs in terms of targeting child-abuse and neglect, contributing to building unstable families and homes fostering domestic violence.

Finally before the new democratic era of South Africa, the women in families were extremely disadvantaged as in the past husbands enjoyed marital power under the two co-existing systems of the common-law community of profit and loss as well as the separation of goods established by antenuptial contract. This meant that as the head of the family, the husband had the final say in all matters concerning the common life of the spouses and he had power over the person of his wife and his wife’s property Another important example of previous discrimination is the past denial of homosexual unions.

Because these unions were not recognized, not only were gay couples restricted of equal property and companionship rights and pleasures that heterosexual couples enjoyed, but they were additionally denied the rights to adoption. The Child Care Act and the Guardianship Act respectively declared that unmarried couples cannot jointly adopt and mothers and fathers have equal rights of guardianship in respect of legitimate children, thus denying the rights to homosexual couples of adoption and hence building a family.

Consequential change on family dynamics from new legislation and social, political and legal influences In order to eradicate the discriminatory legal remnants of the Apartheid there were many legislative enactments that emanated to protect the rights of previously disadvantaged people in South Africa. One of the most significant of these enactments is the Recognition of Customary Marriages Act. This Act came into operation on the 15th of November 2000 and consequently brought an end to the doubtful nature of customary marriage, furthermore legally providing for monogamous and polygamous marriages.

This impacts massively on family dynamics as because polygamy allows a husband to have more than one wife, his family has massive potential for growth allowing economic stability and furthermore it enabled wives to share the burdens of household labor, child-bearing and child-rearing Further accommodating the rights of women and additionally children is the abolishment of Section 23 of the Black Administration Act which administered an intestate estate of the deceased through primogeniture, a system in which in the absence of a will only a male relative may inherit.

The case of Bhe & Others v Magistrate, Khayelitsha, & Others helped render this section unconstitutional, reflecting the democratic nature of the Recognition of Customary Marriages Act in that a wife in a customary marriage has full equality with her husband and is subject to the matrimonial property system pertaining to marriage, full status and capacity to litigate, enter into contracts and acquire and dispose of assets. This again drastically changes the dynamic of families buy way of allowing for a power balance in the household, and moreover restricting paternal dominance.

In order to contribute where the Child Care Act was lacking, the Children’s Act 38 of 2005 was enacted. Firstly according to section 9 of the Children’s Act, “in all matters concerning the care, protection and well being of a child, the standard of the child’s best interest is of paramount importance must be applied”. This can be applied where in savior of children orphaned at the hands of HIV/AIDS, the Children’s Act has formally recognized child-headed households.

This recognition provides specially tailored welfare services to the children and allows them to remain with pre-existing families instead of undergoing removals into expensive and frequently ineffective Western-style alternative care. Other than child headed households, the Children’s Act additionally strengthens family and in-community-care of children who may come from broken homes and be subject to domestic violence. The Act provides for ‘shared care’, ‘partial care order’ and cluster foster care schemes as well as family services orders such as anger management, rehabilitation and parenting skills courses.

Finally with regard to custody disputes, the law always accommodates the best interests of the child as in the case of HG v CG the court found that according to the Children’s Act not only do children have rights but they additionally have the opportunity to participate in any decision affecting him or her. The revolution of South African children laws have changed family dynamics by ways of liberating children to lead their households and make decisions independently, while being awarded extensive care ensuring positive and constructive futures for families.

Just as the Children’s Act helped uphold the rights of children, so too does the Matrimonial Property Act 88 of 1984 protect the rights of women in abolishing marital power. Women now have equal property rights especially enforced by the accrual system in which the net increases in the respective estates of the spouses during the subsistence of their marriage are equally divided upon its dissolution. In addition to this wives are now also allowed locus standi, meaning that they can, independently of their husbands, conduct civil legal proceedings.

The Matrimonial Property Act brings a clear shift towards equality in power balance in the household, contributing critically to the change in family dynamics. After wives had been allowed equal household power, dynamics of South African families were further transformed as the enactment of the Civil Unions Act 17 of 2006 gave recognition to homosexual unions, or ‘gay marriages’. Moreover one of the most significant cases in terms of these unions was Du Toit and Another v Minister of Welfare and Population Development and Others where same sex couples were officially granted the ability to adopt children.

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