Family Law Dynamics in South Africa

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The change in South African Family-Law dynamics
“The relationship between law and society that breathes life into it and into which it breathes life in a mutually sustaining and inextricable one”.

Ilan Brest - 475227, ilanbrest@hotmail.com
The change in South African Family-Law dynamics
“The relationship between law and society that breathes life into it and into which it breathes life in a mutually sustaining and inextricable one”.

Ilan Brest - 475227, ilanbrest@hotmail.com

Introduction
Family law concerns itself with relationships between private individuals such as husbands and wives and parents and children and the dynamics of a family in modern day South Africa extend well beyond the conventional nuclear family consisting of a father, a mother and their children sharing living quarters.

Social and political influences such as the Apartheid, poverty and HIV/AIDS have transformed South Africa resulting in major altercations of the law such as recognition of customary marriages and the rectification of discrimination and exploitation of women, homosexuals and children. 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...
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