The ‘Constitutional Family’: Developments in South African Child and Family Law 2003–2013

This article reviews the principal developments which have shaped and continue to shape South African family law over the last decade. We propose that under the Constitution of the Republic of South Africa, a unique conception of 'family' has developed. The review includes an analysis of the law relating to same-sex unions, of heterosexual partnerships which have not been formalized via a civil marriage or a civil union, of customary marriages and the aftermath of these marriages (including issues relating to succession), of the partial recognition of religious marriages, of the increasing recognition of the role of members of the extended family (including grandparents, care-givers, stepparents, and foster parents), of legislative recognition of child-headed households, of surrogacy, and of emerging case law giving effect to social or functional family relationships (as opposed to biological ties). We conclude that despite the constitutional imperatives of equality and dignity, affording equal status to family-type relationships is in law and practice more difficult to achieve than may have been supposed. Dignity too has not come to the protection of all vulnerable parties in intimate relationships. We argue that the time has emerged for a secular form of marriage to be adopted to cut through at least some of the remaining vestiges of inequality and difference.