The Legalities Of South African Family Law
Often the term family law gets thrown around, and those doing the throwing expect the rest of us to know all about it, but this might not be the case. It’s one thing to have a brief understanding of what family law entails, but it’s another to know what aspects of South African law fall under this umbrella term. So the question stands what does South African family law encompass?
Family Law in South Africa encompasses legal rules associated with familial relationships, including but not limited to civil unions, domestic relationships, marriages, domestic violence, annulment and divorce, child custody, the best interests of a child, paternity, and parental responsibilities.
Several pieces of legislation sit under the umbrella of family law in South Africa. If one wanted to understand what South African family law entailed, it would be a good idea to know which pieces of South African legislation are involved. Learning this information will allow you to see what kinds of matters family law encompasses and what types of circumstances might cause you to seek the assistance of attorneys specializing in family law.
Legislation Involved With South African Family Law
Several primary pieces of legislation are involved with family law and cases surrounding aspects of family law. These pieces of legislation concern themselves with situations that include getting married, putting together a prenuptial contract, issues relating to spousal or child maintenance, child custody, or the distribution of assets.
They also relate to the more unsavory side of family law, including domestic violence, divorce procedures, and paternity disputes. Let’s look at 13 of the most relevant pieces of legislation involved with family law.
- Civil Union Act 17 of 2006 – The Act intends to validate same-sex civil unions, by way of either marriage or civil partnership, the legal consequences of civil unions, and to provide for matters incidental to them.
- Children’s Act 38 of 2005 – The Act consolidates and reforms the law on child-related matters, including paternity, child support, parenting plans, guardianship, age of majority, custody, adoption, child protection, surrogacy, circumcision, foster care, daycare, group homes, trafficking of children, and child abduction.
- Divorce Act 70 of 1979 – The Act determines the grounds for divorce based on the irretrievable breakdown of a marital union and the determination of the proprietary and personal consequences of the divorce for the spouses.
- Domestic Partnership Bill – The Bill provides for the legal recognition of domestic partnerships and will offer some help to the parties involved when an unregistered domestic partnership ends as a result of separation or death.
- Domestic Violence Act 116 of 1998 – The Act provides for the issuing of protection orders concerning domestic violence and matters relating to domestic violence.
- Domicile Act 3 of 1992 – The Act amends the common law relating to domicile (the country that a person treats as their permanent home, lives in, or has a considerable connection with) and regulates the determination and acquisition of domicile.
- Intestate Succession Act 81 of 1987 – The Act intends to regulate the law relating to intestate succession, which is when a person dies without leaving a valid will. According to a set formula, it will help to divide the estate between the surviving relatives, namely the children, spouse, siblings, or parents.
- Maintenance Act 99 of 1998 – The Act regulates the determination and enforcement of maintenance claims.
- Marriages Act 25 of 1961 – The Act intends to consolidate and amend the laws relating to validating marriages and related matters.
- Matrimonial Property Act 88 of 1984 – The Act governs the consequences of marriage and the various distinct marital property systems that can apply to marriages.
- Prevention of Trafficking in Persons Act of 2013 – The Act deals comprehensively with human trafficking in its various forms and, in particular, provides for the protection of and assistance of victims of trafficking.
- Recognition of Customary Marriages Act of 120 of 1998 – The Act provides legal recognition in South Africa to marriages conducted according to African customary law, including polygynous unions.
- Wills Act 7 of 1953 – The Act intends to consolidate and amend the law relating to the execution of wills.
When Does A Court Have Jurisdiction In Family Law Cases?
When it comes to the South African court system and how it relates to matters involving family law, the first thing to look at is how the courts are divided. In South Africa, you can divide the court system into two groups:
- The Superior courts: the Constitutional Court, the High Courts, and the Supreme Court of Appeal.
- The inferior or lower courts: divisions of the Magistrates Courts.
The Superior Courts offer no designated specialist division for family law. Instead, the High Courts have general jurisdiction over criminal and civil matters, including family-related issues and divorce. The lowers courts, on the other hand, have designated courts for children, maintenance, and divorce.
Generally, the court proceedings will be open to the public unless explicitly determined otherwise.
In most instances, for a court to have jurisdiction in a case, either one or both parties involved must be:
- An ordinary resident in the court’s jurisdiction on the date of the proceedings’ institution and or has been an ordinary resident in South Africa for not less than one year immediately before that date.
- Domiciled in the area of jurisdiction of the court on the date on which the legal action is instituted.
There are so many intricacies to consider when dealing with family law, and as you can see from the above, numerous pieces of legislation also pertain to it. From happy unions to divorce, issues relating to maintenance, both spousal and child, and the nitty-gritty, including contested divorces, distribution of assets, and child custody disagreements.
If you have any questions or want further information on family law, please do not hesitate to contact us. Our Burnett Attorneys & Notaries team is well versed in most aspects of family law and would be happy to assist you in any way we can. In many instances, contacting an attorney who is well versed in family law can help ease your mind and help you understand the relevant issues. They can also help guide you along the path you are traveling in a way that is sensitive to your unique situation.