25 years of constitutional family law: can pluralism be reconciled with constitutionalism?

In 2003, an article on the impact of the 1996 Constitution of South Africa on family law was published in the International Journal of Law, Policy and the Family. In particular, it reviewed the origins of the absence of a clause specifically dedicated to family rights in the constitutional drafting process, the definition of a family under the Domestic Violence Act, parental responsibilities and rights, the status of partners in same-sex unions, and Muslim and customary law marriages, and at various points, pending law reform was referred to. In one notable instance, this has come to fruition, namely in the adoption of the Children’s Act 38 of 2005 (in force since 1 April 2010).

The constitutional provisions that were largely implicated were (and are) the right to equality ; the right to dignity; the right to freedom of religion, belief and opinion; and children’s rights. This contribution updates that article some two decades later. While not purporting to be exhaustive of all of the family law-related constitutional avenues that have emerged in South Africa, it does cover some main themes, in particular the existing diversity of marriage forms and their constitutional compliance, the position of persons in non-formalised intimate partnerships, and some aspects of the proprietary consequences of relationship breakdown or dissolution. Constitutional developments in relation to parental responsibility and rights have, however, had to stand aside due to space constraints. At the outset, it is set against the background of a Discussion Paper 152 on a Single Marriage Statute that was issued by the South African Law Reform Commission (SALRC) in January 2021.

It appears that this investigation was triggered by an approach from the Ministry of Home Affairs, which is responsible for the births, marriage (civil and customary) and deaths registration. Their interest is less in the proprietary consequences of intimate relations, and more focused on maintaining an accurate population data roll, and the prevention of sham marriages. According to an explanatory memorandum provided to the SALRC, the State has a few vested interests, as it pertains to the institution of marriage in regard to its citizens primarily: some of these relate to the acquisition of citizenship, the establishment of consent and the marital age.