LAW OF LIFE Partnerships PDF

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LAW OF LIFE PARTNERSHIPSThe nature of “marriage”, the “right to marry” and marriage in the 21st century9 th period, Tuesday – Group tutorial.YOU WILL NEVER GET A CASE NOTE ON A BACKGROUND CASE.Admin issues  Lecturer: Helen Kruuse  Slides on RUConnected site: o 2017 Law of Life Partnerships o NO pa...

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LAW OF LIFE PARTNERSHIPS The nature of “marriage”, the “right to marry” and marriage in the 21st century

9th period, Tuesday – Group tutorial. YOU WILL NEVER GET A CASE NOTE ON A BACKGROUND CASE. Admin issues 

Lecturer: Helen Kruuse

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Slides on RUConnected site: o 2017 Law of Life Partnerships o NO password

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Course handout / reading list

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Pre-course letter (book prize)

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Textbooks (direct order from LexisNexis – 25% discount)

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Assignment and test dates:

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10 April (assignment – choice – referencing NB)

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22 May (test)

Tutorials: o This Tuesday (general discussion) o Every third week – discussion of problem scenarios, prescribed reading discussion, Q and A session. Starts 7 March [NB hand in of responses)

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Partnership in class

20 February 2017 Changes in law relating to life partnerships…. 

Ancient history o We are drawing from Roman law – engagement, toothless agreement, etc. o It was only two years ago that the CC stated that you could not sue for breach of promise of marriage (toothless agreement).

o Customary law o Germanic law o Canon law (divorce?). o Etc. 

Recent history o You could only sue if you could blame someone for the breakdown of the marriage. In SA we have do not have a fault-based marriage. o Sharing the pension interest o Same-sex marriage o No such thing as common law marriage in SA

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Not only changes to family law, also overlaps with many other branches of the law o Criminal law (spousal abuse) o Succession o Law of Persons o Law of Delict (sueing your spouse) o Contract o Etc.

If we want to categorise this course…. The dry description: 

It is a subdivision of family law, which o researches, o describes, and o regulates

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the origins, contents and dissolution of all legal relationships between: o Husband and wife o Parties to a civil union o [partners in domestic cohabitation?] e.g. boyfriends and girlfriends with shared property.

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We thus make a study of: o The (non?)-law of engagement o Matrimonial law (what are the requirements for marriage)

o Matrimonial property law (community of property vs accrual vs out of community of property). o Law of divorce o Law governing civil unions / other intimate relationships (Muslim marriages, Hindu marriages, etc.).

The juicy description (thanks to Judge Albie Sachs): 

‘As far as family law is concerned, we in South Africa have it all. We have every kind of family: extended families, nuclear families, one-parent families, same-sex families, and in relation to each one of these there are controversy, difficulties and cases coming before the courts or due to come before the courts. This is the result of ancient history and recent history. … Our families are suffused with history, as family law is suffused with history, culture, belief and personality. For researchers it’s a paradise, for judges a purgatory.’

Changing landscape of law regulating intimate relationships 

Definition of marriage o Many facets – philosophy, religion, social, legal o Marriage has always been seen as the ‘cornerstone of society’ 

Obligations enforced by law

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Non-cynical view: it creates a cohesive and flourishing society.

o Law – external conduct of people 

What then is marriage (for purposes of law)?: o ‘the legally recognised life-long voluntary union between one man and one woman to the exclusion of all other persons’

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Problems with definition? o Doesn’t allow for same sex marriages o Arranged marriages – are they voluntary? 

This is one of the main sticking points in the Muslim Marriages Bill – in SA law consent is required for a marriage.

o Excludes polygamous and polyandrous customary marriages. In SA we only practice polygamy. o “Life-long” – we allow divorce in SA.

‘Critical family law’? 

NB: In the next few weeks I want you to consider and challenge the predominant story about marriage and family values: o ‘Across the ages, a particular familial form has held – monogamous, heterosexual, permanent, and reproductive. This family is natural and has helped establish and maintain a kind of civilization, including our own.’

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Is this the case in South Africa? o Fourie – challenge to the “reproductive” aspect of this as the Roman Catholic bishop stated that same-sex couples could not have access to the institution of marriage as they could not reproduce.

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What types of life partnerships should government protect? o Canadian Law Commission – Why are we not giving the same benefits to sisters who live together but are not married?

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What effect does this decision have on people in relationships?

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What effect does this have on the decolonisation debate? o What is the reality of households in SA? There are many households headed by children, households with more than one mother, is our social grant system adequate to cater for these situations?

Questions for Friday… 1. What types of life partnerships (if any?) should government protect? 2. Do we want to encourage more people to ‘marry’ (in the ideal sense) by providing incentives (viz benefits available to married couple that are not available to unmarried couples)? OR

Do we want to provide a fair system to deal with making outcomes as fair as possible (viz provide recognition to other life partnerships such as domestic co-habitation etc)? 3. Do people have a right to marry and found a family?

Readings for Friday: 

I Ellman ‘Marital roles and declining marriage rates’ (2007) 41 Family Law Quarterly 455 (RUConnected)

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H Kruuse ‘You reap what you sow: regulating marriages and intimate partnerships in a diverse, post-apartheid society’ in B Atkin (ed) The International Survey of Family Law: 2013 edition (2013) 343 (RUConnected)

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A Barratt (ed) Law of Persons and the Family (2012), Part 2, Chapter 1 (pgs 161-174) (Library)

Agenda – 24 February 2017 

Placing life partnerships in context (social, political, economic). o Ellman and Barratt (general) – fair system in regulation of all domestic relationships o Yarborough (South Africa) – siloed architecture

What types of partnerships should government protect? 

Barratt chapter (“Huber’s perfect household”) & Ellman article

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Modern SA family/marriage = differ from this so-called “ideal”

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In fact, both in the US and SA there are declining marriage rates

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WHY?

Ellman: 1. Women’s education and labour force participation BUT PRIMARILY combined with men’s increasing labour force problems. Women are focussing more on their careers. This is not necessarily the reason though. 2. It is not that women don’t want to marry, but rather that they want to marry a certain type of man (“the breadwinning man”). Thus, women are still within their gender role of wanting a breadwinning husband despite the fact that they themselves are upskilled and working women. Ellman thus states that men must also increase their labour participation as well as women. 3. Choices about marital roles (static?) 

True in South Africa? Most South Africans are living in rural areas, thus we are still under the influence of a labour-migrant system (the man is far away working while the women stays home and takes care of the household).

SEE RUConnected for a reading on the declining marriage rates in SA.

Objectives of marriage 

Ellman (at 485): marriage means that people are more likely to stay together, pool financial resources, feel a sense of responsibility to each other, and have confidence in the durability of the relationship, and there is even research to suggest that marriage leads to a more satisfying sex life.

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Replicated by Barratt (at 172): marriage (or family law) seeks to promote protection, legal certainty, value system, and symbolism.

SO: 

Do we want to encourage more people to ‘marry’ (in the ideal sense) by providing incentives (viz benefits available to married couples that are not available to unmarried couples?) OR

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Do we want to provide a fair system to deal with making outcomes as fair as possible (viz provide recognition to other life partnerships such as domestic co-habitation)?

“You reap what you sow” 

You get what you deserve as you created a system where you are trying to protect marriage and the “ideal marriage” but at the same time try to protect other marriage regimes.

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Marriage-centric approach with silos (think of a silo – they contain the same things e.g. wheat but are separated into different silos; the same is true for the different kinds of marriage).

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Focusses on form rather than function

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Reponses: o Best situation in the circumstances (political compromise) o Fits with a constitutional dispensation with a diverse society o Difference in consequences justified as fair discrimination 

E.g. Muslim Marriages Bill – allows for polygamy and customary marriages, imposes duties of support during Eid, etc.

HOWEVER, there is another way of looking at this o We can do better (e.g. transgender people can’t get married, same-sex couples can’t get married, if you are not in a customary community you cannot have a polygamous marriage, etc.) o We still don’t fully recognise some relationships (Muslim, Hindu, domestic partnerships). o Default statute for all relationships/de facto recognition

Agenda – 27 February 2017 1) Nature of marriage and a “right to marry” 2) Customary, Muslim, and Hindu marriages 3) Issues around o Definitions?

o Recognition through statute or common law? o Constitutional issues? Readings for next week: Paras 2(b)-(e): NB: “read with a purpose” Paras 80-85

Nature of marriage 

Ancient history

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Recent history

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Marriage in law o sui generis – unique (it is a special kind of contract). o Consortium omnis vitae – (partnership in all of life).

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Consortium omnis vitae – (partnership in all of life). o ‘an abstraction comprising the totality of a number of rights, duties and advantages accruing to spouses of a marriage

These embrace

intangibles, such as loyalty and sympathetic care and affection, concern … as well as the more material needs of life, such as physical care, financial support, the rendering of services in the running of the common household or in a support-generating business …’ 

Peter v Minister of Law and Order 1990 (4) SA 6 (E) at 9 G-H.

o ‘Companionship, love, affection, comfort, mutual services, sexual intercourse – all belong to the married state. Taken together, they make up the consortium.’  

Grobbelaar v Havenga 1964 (3) SA 522 (N):

‘In terms of common law, marriage creates a physical, moral and spiritual community of life. This community of life includes reciprocal obligations of cohabitation, fidelity and sexual intercourse …

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‘to establish and maintain an intimate relationship for the rest of their lives, which they acknowledge obliges them to support one another, to live together, and to be faithful to one another.’ o Dawood v Minister of Home Affairs

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Love, Comfort, Affection, Loyalty, Companionship, Cohabitation, Sex, Sexual fidelity, Financial support, Services, Matrimonial home

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‘treasured’ social institution o Marriage and the family are social institutions of vital importance. Dawood

Do people have a right to marry and found a family? 

International instruments recognise the right to marry and oblige states to respect and protect marriage and the family.

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The Interim Constitution had principles that were used to finalise the Constitution – there was a right to marry not included in the Final Constitution.

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While in s 15 (3), you protect the right to family forms, there is no explicit right to marry.

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Certification judgment – there is no need to, it is implied through the rights of equality, dignity, etc. and there are international obligations.

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SA Constitution: o Dawood para 27 onwards. o Volks v Robinson paras 80 – 85.

Volks v Robinson paras 80-85

[80] The starting point in determining the fairness or otherwise of the discrimination involved in this case is the Constitution itself. Although our Constitution contains no express provision protecting the institution of marriage, it nevertheless recognises the right freely to marry and to raise a family. In Dawood and Another v Minister of Home Affairs and Others; Shalabi and Another v Minister of Home Affairs and Others; Thomas and Another v Minister of Home Affairs and Others, this Court commented as follows on the absence of an express provision protecting the right to family life or the right of spouses to cohabit:

“The omission of such a right from the Constitution was challenged during the first certification proceedings on the basis that such a right constituted a ‘universally accepted fundamental right’ which in terms of Constitutional Principle II had to be entrenched in the Constitution. The Court observed from its survey of international instruments that States are obliged in terms of international human rights law to protect the rights of persons freely to marry and raise a family. However, it also observed that these obligations are achieved in a great variety of ways in different human rights instruments. ... The Court therefore concluded that the new constitutional text, although it contained no express clause protecting the right to family life, nevertheless met the obligations imposed by international human rights law to protect the rights of persons freely to marry and to raise a family.”

[81] There can be no doubt that our Constitution recognises the institution of marriage. This much is apparent from section 15(3)(a)(i) of the Constitution which in substance makes provision for the recognition of “marriages concluded under any tradition, or a system of religious, personal or family law.” This Court too has recognised the importance of marriage as an institution. One need only refer to the Dawood case, where this Court said the following concerning the institution of marriage: “Marriage and the family are social institutions of vital importance. Entering into and sustaining a marriage is a matter of intense private significance to the parties to that marriage for they make a promise to one another to establish and maintain an intimate relationship for the rest of their lives which they acknowledge obliges them to support one another, to live together and to be faithful to one another. Such relationships are of profound significance to the individuals concerned. But such relationships have more than personal significance, at least in part because human beings are social beings whose humanity is expressed through their relationships with others. Entering into marriage therefore is to enter into a relationship that has public significance as well.

The institutions of marriage and the family are important social institutions that provide for the security, support and companionship of members of our society and bear an important role in the rearing of children. The celebration of a marriage gives rise to moral and legal obligations, particularly the reciprocal duty of support placed upon spouses and their joint responsibility for supporting and raising children born of the marriage. These legal obligations perform an important social function. This importance is symbolically acknowledged in part by the fact that marriage is celebrated generally in a public ceremony, often before family and close friends.”

[82] The constitutional recognition of the right freely to marry and the institution of marriage is consistent with the obligations imposed on our country by international and regional human rights instruments which impose obligations upon states to respect and protect marriage. The African [Banjul] Charter on Human and Peoples’ Rights, 1981 9 recognises the importance of marriage and the family. Article 18(1) provides that the “family shall be the natural unit and basis of society.” The relevant part of article 18 provides that: “1. 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 and moral health. 2. The State shall have the duty to assist the family which is the custodian of morals and traditional values recognized by the community.”10

[83] Under article 23(4) of the International Covenant on Civil and Political Rights, 1966 (ICCPR),11 States Parties are required to “take appropriate steps to ensure equality of rights and responsibilities of spouses as to marriage, during marriage and at its dissolution.” Article 23 of the ICCPR provides that: “1. The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.

2. The right of men and women of marriageable age to marry and to found a family shall be recognized. 3. No marriage shall be entered into without the free and full consent of the intending spouses. 4. States Parties to the present Covenant shall take appropriate steps to ensure equality of rights and responsibilities of spouses as to marriage, during marriage and at its dissolution. In the case of dissolution, provision shall be made for the necessary protection of any children.”

[84] So too does article 16 of the Universal Declaration of Human Rights, 194812 provide that: “(1) Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution. (2) Marriage shall be entered into only with the free and full consent of the intending spouses. (3) The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.”

[85] These regional and international instruments underscore the importance of marriage as an institution and the right freely to marry. They underscore the duty of states like ours, which are signatories to these instruments, to “take appropriate steps to ensure equality of rights and responsibilities of spouses as to marriage, during marriage and at its dissolution.”13 Therefore, both the Constitution and international instruments impose an obligation on our country to protect the institution of marriage.

Civil marriages 

Concluded in terms of the Marriage Act or the Civil Union Act

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Can also be concluded by a priest, rabbi, etc. in a religious institution.

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Law doesn’t identify civil marriages with any religion – there is no reference to any particular god.

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There is a section in the Civil Union Act that states that partners in a civil union may call their partnership a marriage in order to uphold the right to equality.

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Civil marriages MUST be monogamous i.e. you may not have a civil marriage and a customary marriage.

Customary marriages 

Se...