South African family law is concerned with those legal rules in South Africa which pertain to familial relationships.Robinson et al 7. It may be defined as "that subdivision of material private law which researches, describes and regulates the origin, contents and dissolution of all legal relationships between: (i) husband and wife (including the parties to a civil union); (ii) parents, guardians (and other holders of parental rights and responsibilities) and children; and (iii) relatives related through blood and affinity."Robinson et al 8.
Subdivisions There are various branches of family law, among them
the law of engagement; matrimonial law and the law of civil unions; matrimonial property law; the law of divorce; and the law of parenting.
Marriage Marriage is the act by which a marriage relationship is formed, and which defines the relationship created by that act. The act and the relationship are interrelated: The former requires an intention to create the latter, and the consequences of the latter flow from the nature of the former.Clark A2.
Development Ancient Rome distinguished between two forms of marriage: the matrimonium non-iustum and the iustae nuptiae (or iustum matrimonium). The former concerned a relationship between one man and one woman who intended to marry but could not do so in terms of Roman law; the latter dealt with formally recognised marriages.
Marriage between the Continental peoples under early Germanic law bore a close resemblance to that of the lobolo marriage in terms of the customary law of South African indigenous peoples.
In the late Middle Ages, marriage fell under the jurisdiction of the Roman Catholic Church. This still has some practical consequences in modern South African law.Robinson et al 23. In terms of canon law, marriage was a sacrament and a grace of God to the spouses, and could not be dissolved by any human agency. Divorce, in other words, was almost entirely unlawful.
After the Reformation, the rigidities of Catholic marriage began to fall away, and the institution became more secularised, as other systems of marriage were introduced. The province of Holland seems to have been the first European jurisdiction to permit civil marriages. This impact of this on South African law may be gauged from the fact that the country's common law is based primarily on Roman-Dutch law. The basic premises of the Political Ordinance of 1580 still form the basis for the contemporary South African law of marriage,Robinson et al 26. which, while generally located in the private sphere, often crosses over into other areas for the law: for example, the criminal and the constitutional.
Definition The traditional definition of marriage is a "legally recognised life-long voluntary union between one man and one woman to the exclusion of all other persons,"Cronje et al 149.A number of the common-law definitions of marriage are cited by Van Zyl J in Ex parte Inkley and Inkley 1995 3 SA 528 (C) 535–536. or "a union of one man and one woman who mutually agree to live together as spouses until the marriage is dissolved by the death of one of them or as otherwise provided by law."Clark A3. In light of recent constitutional developments in South Africa, this definition has been found to be inadequate, particularly as regards its assumptions against polygamy"The Roman law marriage was notoriously monogamous" (Clark A3). and same-sex life partnerships: In Minister of Home Affairs v Fourie,2006 (1) 524 (CC). it was declared unconstitutional.Para 72.
"One man and one woman" The Supreme Court of Appeal, in Fourie v Minister of Home Affairs,2005 3 SA 429 (SCA). held that the common-law definition of marriage deprived committed same-sex couples of the option of marriage and thus denied them its many rights and protections.440G–441C. This discrimination, on grounds of gender and religion and sexual orientation, was found to be unfair,441D. in that it violated the constitutional right to equalitys 9. and other guarantees in the Bill of Rights. The court held further that the Marriage ActAct 25 of 1961. had been passed on the assumption that the common-law definition applied only to opposite-sex marriage.Paras 26, 27. The common law had to be developed to embrace same-sex partners by redefining marriage as the "union of two persons to the exclusion of all others for life." This type of marriage is now capable of full recognition as a legally valid marriage, provided that the formalities in the Marriage Act are complied with.Para 49.
In Lesbian and Gay Equality Project v Minister of Home Affairs,2006 3 BCLR 355 (CC). the Marriage Act as well as the common-law definition were challenged. The Constitutional Court held that it was clearly in the interests of justice that it be heard together with the Fourie case.Minister of Home Affairs v Fourie 2006 (1) 524 (CC), para 72. Setting aside the order of the SCA in Fourie'''s case, the court declared that the common-law definition of marriage was unconstitutional and invalid to the extent that it does not permit same-sex couples to enjoy the same status, benefits and responsibilities as those accorded to heterosexual couples.Para 139.
The court was unanimous on the point that the omission from the Marriage Act, after the words "or husband,"s 30(1). of the words "or spouse" was inconsistent with the Constitution; section 30(1) of the Marriage Act was therefore invalidated to the extent of the inconsistency. This declaration was suspended for twelve months from the date of the judgment, until 1 December 2006, to allow Parliament to enact remedial legislation. If Parliament failed to do so, section 30(1) would automatically be read thenceforth as including the words "or spouse" after the words "or husband."O'Regan, while agreeing with the findings of the main judgment, dissented as to the remedy, favouring development by the court of the common-law rule, which would allow same-sex couples to be married with immediate effect, by civil-marriage officers and such religious-marriage officers who consider that these marriages fall within the tenets of their religion.
"To the exclusion of all other persons" Exclusivity is not a universal characteristic of marriage; it is a special characteristic of Western civil law and the Anglo-American common law marriage.
"To live together as spouses" This part of the definition concerns "the very heart of the matter," which is to say the object or purpose of marriage. In Christianity, it is intended for the glory of God and other religions, for the avoidance of fornication, for procreation,Genesis 2:18.Mark 10:8.Matthew 19:5. and to provide for the other partner by help and assistance. These aims are also reflected in Roman-Dutch law. The consortium omnis vitae refers to all the duties which fall under the relationship of married spouses.
Dissolution as provided by law Death dissolves a marriage, but the law provides also for dissolution by the high court on some ground which renders the marriage voidable, or following upon an order presuming the death of the one spouse,Clark A50–A52. or on some ground arising after marriage which is recognised as a ground for divorce.
Nature Marriage has its foundations in a variety of bailiwicks beyond the legal realm, including philosophy, religion, culture and social practice. In Rattigan v Chief Immigration Officer, Zimbabwe,1995 (2) SA 182 (ZS). Gubbay CJ described marriage as
a juristic act sui generis. It gives rise to a physical, moral and spiritual community of life - a consortium omnis vitae. It obliges the husband and wife to live together for life (more realistically, for as long as the marriage endures) and to confer sexual privileges exclusively upon each other [...]. The duties of cohabitation, loyalty, fidelity and mutual assistance and support flow from the marital relationship. To live together as spouses in community of life, to afford each other marital privileges and to be ever faithful, are the inherent commands which lie at the very heart of marriage.188B-C.
Although a Zimbabwean case, Rattigan is widely cited in South African jurisprudence; it continues:
Marriages are almost invariably entered into by parties who have deep affection for one another and who intend to devote the remainder of their lives together. Although the condition of matrimony does not, as a concept of law, make the spouses one flesh—una caro—it nonetheless embodies the obligations to found a home, to cohabit, to have children and to live together as a family unit. It is the most fundamental institution known to mankind—"the first step from barbarism" and "the true basis of human progress".189E-F.
Gubbay also cited in Rattigan the words of Justice Field in Maynard v Hill,1887 (125) US 190. which characterised marriage as
an institution, in the maintenance of which in its purity the public is deeply interested, for it is the foundation of the family and of society, without which there would be neither civilisation nor progress [...]. It is [...] a social relation, like that of parent and child, the obligations of which arise not from the consent of concurring minds, but are the creation of the law itself, a relation the most important, as affecting the happiness of individuals, the first step from barbarism to incipient civilisation, the purest tie of social life, and the true basis of human progress.211–212.
That marriage is still held in high regard by modern society is reflected in such cases as Kuhn v Karp,1948 (4) SA 825 (T).840–841 Ex parte Inkley and Inkley535–536. and Van der Westhuizen v Van der Westhuizen1996 2 SA 850 (C).852I. In Ryland v Edros,1997 (2) SA 690 (C). Farlam J indicated the need for South African family law to recognise diversity in marriage forms and the possibility of a pluralistic recognition of different forms of marriage, including the potentially polygamous Muslim marriage.
The centrality of marriage to many lives, and the centrality to marriage of cohabitation, was further emphasised in the Constitutional Court by O'Regan J in Dawood, Shalabi and Thomas v Minister of Home Affairs.2000 (3) SA 936 (CC). Although the Constitution itself does not expressly protect the right to family life or the right of spouses to cohabit,Para 28.Volks v Robinson2005 (5) BCLR 446 (CC), para 80. the constitutional right to human dignitys 10. has been found to encompass and protect the right of individuals to enter into permanent relationships, including the right to marry.Ex Parte Chairperson of the Constitutional Assembly 1996 (4) SA 744 (CC), para 100. To prohibit such a relationship, and thus to impair the spouses in their duty of cohabitation, would be to frustrate them in their personal fulfilment, and hence would amount to a limitation on the right to dignity.Dawood, para 37. Whether or not such a limitation is constitutional will depend, in terms of the Constitution,s 36(1). on whether or not it is reasonable and justifiable in an open and democratic society.963D.
Although the Constitution gives no explicit recognition to the right to marry, South Africa is a signatory to various international instruments which do. In terms of the International Covenant on Civil and Political Rights,
The family is the natural and fundamental group unit of society and is entitled to protection by society and the State. The right of men and women of marriageable age to marry and to found a family shall be recognized. No marriage shall be entered into without the free and full consent of the intending spouses.Article 23.
Similarly, the African Commission on Human and Peoples' Rights provides that
The family shall be the natural unit and basis of society. It shall be protected by the State which shall take care of its physical health and moral. The State shall have the duty to assist the family which is the custodian of morals and traditional values recognized by the community.Article 18(1).