Sexual Family & Single Parents

The "Sexual Family" or Families based on "Shared Commitment"

• The "Sexual Family" concept is centered around husbands, wives, and the children they have.
• It considers if a family is necessarily a sexual or conjugal relationship.
• Groups such as student households might not be regarded as family as per the definition.
• Many scholars, including Freeman, have questioned if "family" should be based on sexual ties.
• One concern raised is questioning why the sexual tie is foundational to the concept of family.
• The family relationship does not always revolve around a "sexual or spousal relationship” (Fineman).
• Family may involve a parent-child relationship.

Single Mothers and Single Fathers

• 23% of South African children live in households with both parents, according to SA stats.
• 41% of children live with just their mothers.
• Only 3% of children live with just their fathers.
• Many children are born to unmarried mothers and do not live with their biological fathers.
• Contemporary patterns of marriage, divorce, and remarriage create father-child or mother-child units, and remarriage families with stepparents.

Extended Families

• Some children do not reside with either their mother or father.
• Grandmothers and other female relatives often act as caregivers to grandchildren.
• Children may grow up in extended families due to labor migration or the death of parents, such as from the AIDS pandemic.

Polygynous Families

• South African family law allows for polygyny, where a man can legally have multiple wives in some circumstances.
• The Recognition of Customary Marriages Act provides full legal recognition to existing and future customary polygynous marriages.
• The Act allows men to have multiple wives, creating polygynous households.
• The Draft Muslim Marriages Bill also enables the recognition of Polygynous marriages.

Unmarried Families

• Many couples do not marry.
• Barlow and James noted that an increasing number of couples with children function as families outside of formal marriage.

Same-sex Families

• Marriage was only possible between a man and woman.
• Same-sex couples can now enter into marriages.
• The Civil Union Act 17 of 2006 makes provision for such marriages.

Child-headed Households

• The Children's Act defines when a household is considered child-headed.
• The household must operate under adult supervision designated by the court.
• The day-to-day decisions for the household and children can be made by the child head.
• A significant factor in child-headed households is parents' need to migrate for work.

Diverse Families

• Judge O'Regan observes that “families come in many shapes and sizes”.
• The social and traditional perspectives define family.

Families and the Constitution

• The Constitution does not explicitly protect marriage or family
• Inherent human dignity, is deemed the most important constitutional protection for family life.
• Recognizing and protecting everyone's equal worth and dignity is achieved through section 9 of the Constitution, which contains the equality clause.

Objectives of Family Law

• The state must regulate and enforce support duties among family members, ensuring fair property distribution.
• Family law aims to ensure parents care for their children financially, protect family members from abuse and acknowledge individual autonomy.
• The law aims to ensure fair distribution of resources among family members.
• By ensuring parents support their children , married couples should financially support each other during marriage and equitably distribute marital assets if the marriage ends.

Objectives Continued...

• Rules for family relationships promote legal certainty and predictability.
• Married couples can understand the economics of their system and plan accordingly.
• Divorce Act provisions offer predictability in distributing marital property and potential maintenance.
• Family law allows parents to know legal aspects of their child relationships and responsibilities.
• Family law need to impart value, like constitutional values: dignity, equality, fairness, and respect for diversity.
• Legal endorsement of a family form sends a powerful message that it is legitimate and worthy of protection.

Defining Family Law

• What a family is makes it difficult to define family law.
• Legal relationships among family members and remedies are not considered contractual matters
• Family law operates differently.
• There is an intersection between family law and other law branches.
• Family law is defined by describing legal issues within its scope.
• Family law regulates relationships between children and their parents, marriages, and other intimate relationships.