SOUTH AFRICA FAMILY LAW
South Africa provides a good example of the evolution of Family Law. During Apartheid, like most countries, South Africa inherited a very colonial approach to Family Law, which was heavily influenced by a western understanding of marriage. Since the rise of democracy in South Africa in 1994, Family Law procedures and policies welcomed the acknowledgement of the vast religious and ethnic diversity of South Africa.
Family Law – a body of legal practices, which focal point revolves around family relationships, including marriage and divorce, the conduct towards children, financial related affairs, and wills.
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FAMILY LAW SOURCES
The sources of South African law are vast and provides the foundations to the content of law. These sources provide the laws relating to marriage, the dissolution of marriage and the welfare of children. The following are the different sources of law but not limited to:
The Constitution (primary reference/source of law)
The Constitution is the supreme source which law is derived from in South Africa. The Constitution outlines the rights of the citizens in South Africa and offers protection to the core components of establishment of a marriage and family life.
Common law is influence by English Law and is the basis the of South African law which provides the general legal principles and is predominately influenced by the vast number of cultures and traditions that make up South Africa.
Most of Common Law has been changed by legislation, however, Common Law practices still apply when Legislation does not.
This has been passed down through centuries and forms the customs of communities.
These become certain laws overtime, but only when the customs are reasonable without contradicting existing laws and have survived over a period of time. Examples: the paying of Lobolo.
Legislation is influenced and subject to The Constitution. These Laws are passed by the Government of South Africa and in order to be adhered to the President needs to sign it. Legislation often includes the word “Act” in its title.
Common statues relating to Family Law are:
Marriage Act 1961 (25 of 1961). (Formalities of a marriages)
Matrimonial Property Act 1984 (88 of 1984). (Matrimonial property systems e.g., Marriage in community of property)
Divorce Act 1979 (70 of 1979). (Determines the grounds for divorce)
Maintenance Act 1998 (99 of 1998). (Determination and enforcement of maintenance claims)
Recognition of Customary Marriages Act (120 of 1998). (Recognition and regulation of customary marriages in SA)
Domicile Act 1992 (3 of 1992).
Children’s Act 2005 (38 of 2005). (Law relating to children. Determines the responsibilities and rights of a parent).
Court systems in South Africa:
In South Africa – the High Court often has jurisdiction over civil and criminal matters, including divorce and family matters.
The lower courts in the system have:
These courts are designated to Family Law matters. These proceedings are often open to the public, unless specifically stated, often seen in children and maintenance court.
COMMON FAMILY LAW TOPICS
Religious marriages and divorce:
It is important to understand that religious marriages are not recognised as valid marriages in South Africa, unless they are performed by a marriage officer, with at least 2 witnesses present, in compliance with the Marriage Act 1961. A customary marriage is also required to have both parties consent to the marriage and be over the age of 18.
In South Africa, many individuals choose to hold a religious ceremony that is then preceded or succeeded by a civil marriage or union.
The customary marriage may not be recognised but the spouses within a marriage are protected by law in specific instances. For example, the rights to: Maintenance under the Maintenance of Surviving Spouses Act.
A parent of a minor child has locus standi (the right or capacity) to claim financial support on behalf of that child from any person who has a legal responsibility to the child. The parent of a minor child is responsible for the prosecution of financial claims on behalf of the child. The child’s parents have a responsibility to meet the reasonable financial needs of the child. If one parent does not pay their share of the maintenance of the child, the other parent has a right of recourse against that parent to recover the amount that would have been contributed.
The parents’ total financial means are taken into account to determine a reasonable financial amount for the needs of the children.
When a child reaches the age of 18 years but remains financially dependent on their guardian/parent, the child then must enforce their right to claim for financial support. by that parent, if that parent has failed to meet their proportionate share of the dependent child’s costs.
South Africa, maintenance concerns does not differ whether a child is born in wedlock or born out of wedlock.
COVID 19 impacts on society and the operations of court hearings
The Covid- 19 pandemic has created a huge impact on the South African people as well as the operations of the courts.
The stringent level 5 lockdown regulations in March/April 2020, enforced very limited to no movement of children between their parted parents. As breakthroughs of vaccines and curbing the spread of the virus emerged and lockdowns were eased, abundant urgent court applications poured in allowing for the movement of children between their separated parents’ homes, including between provinces. This movement was strictly controlled and subjected to judicial supervision by the lower courts.
However, the courts have been considerably affected, with the courts only allowing some family law matters to be heard, particularly those relating to children and the payment of maintenance. Due to these hurdles, the courts are significantly backlogged. Resulting in many hearings being postponed because of COVID-19 and access to the courts is very strictly controlled.
Due to the social distance and regulated court rooms, where possible, virtual hearings are accommodated and the judicial system online.
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Divorce often comes as a shock and can be a very stressful process. With many laws and regulations, its natural to feel over welcomed.
You may require the services of a family divorce lawyer to guide you through the divorce process and protect your best interests.
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Maintenance forms two main types: child maintenance and spousal maintenance. Maintenance is often referred to as duty to support as the legal duty of a party and is an obligation to provide another with essential needs, such as; housing, clothes, medical care etc.
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A will ensures your wishes are guaranteed in the event of your death.
Thinking of your loved ones and material belongings after you’re gone, can be a daunting task for anyone. Contact us for any help and advise regarding your Last Will & Testimony.
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USEFUL TERMS TO KNOW
Ante Nuptial Contract – A contract entered to regulate whether a marriage will be out of community of property with/without the accrual system
Care – The right of a parent to have his/her child reside primarily with him/her and the care of that child in his/her daily life.
Child – An individual under the age of 18 years.
Civil Matter – When a dispute arises between people
Couple – A man and a woman or same sex relationships.
Family Advocate – Assists with family matters, such as divorces, and provides recommendations in respect of children’s best interests.
Guardian – Both spouses are guardians of a child born within the marriage. Mother of a child born out of wedlock is the guardian, unless the father attains guardianship.
Maintenance Court – Dealing with matters relating to maintenance.
Marriage – A person in South Africa that married in terms of a civil marriage, customary marriage, religious marriage, or a civil union.
Spouses – Persons married in terms of a civil marriage, customary marriage, religious marriage, or civil union. Includes same-sex marriages.
Will – A document in which a person makes sure that his/her belongings are distributed in fulfilment with his/her wishes after his/her deat