Reflections on groundbreaking Court Judgments in Family Law
As the year draws to a close, 2023 shall be considered a year which saw the winds of change blow strongly across the fields of Family Law.
The Constitutional Court, the highest Court of the Land, granted a number of ground-breaking judgments this year, having a significant impact on certain areas of law. In most instances, Parliament has been afforded a grace period to bring legislation in line with the findings of the Constitutional Court.
Here’s a summary of the Judgments which caught our attention in 2023 and have a
direct bearing on Family Law related matters:
EB (born S) v ER (born B) and Others; KG v Minister of Home Affairs and Others [2023]
The rights of parties married out of community of property excluding the accrual was fundamentally changed in the EB (born S) v ER (born B) and Others; KG v Minister of Home Affairs and Others [2023] case where the Constitutional Court ruled that Section 7(3) of the Divorce Act was unconstitutional and invalid.
Previously, only couples married before 1 November 1984 out of community of property excluding accrual could apply for a redistribution order (i.e. a division of assets). The Court found that there was indirect discrimination based on gender and that the discrimination was unfair and unconstitutional, emphasising the need to rectify gender-based disparities.
The Order means that a person married on or after 1 November 1984 out of community of property excluding the accrual can apply to Court for a redistribution Order. The declaration of invalidity was suspended for 2 years to afford Parliament the opportunity to remedy the Constitutional defects.
Centre for Child Law v T S and Others [2023]
In the case of Centre for Child Law v T S and Others [2023] Section 4 of the Mediation in Certain Divorce Matters Act 24 of 1987 was declared to be inconsistent with the Constitution and invalid to the extent that it precludes never-married parents and married parents who are not going through a divorce, and their children, from accessing the services of the Office of the Family Advocate in the same manner as married parents who are divorced or going through a divorce.
The declaration of invalidity is suspended for a period of 24 months to enable Parliament to cure the defect in the Mediation in Certain Divorce Matters Act giving rise to its invalidity. During the period of suspension, it was Ordered that the Mediation in Certain Divorce Matters Act shall be deemed to include additional provisions.
Rayment and Others v Minister of Home Affairs and Others; Anderson and Others v Minister of Home Affairs and Others [2023]
In Rayment and Others v Minister of Home Affairs and Others; Anderson and Others v Minister of Home Affairs and Others [2023] the Constitutional Court ruled that certain provisions of the Immigration Act infringed on a foreign national’s right to human dignity.
According to the Immigration Act, foreign parents or caregivers, who had been granted spousal visas had to stop working and leave the country (else face deportation) if their relationship with their spouse ended, resulting in them leaving their South African-born children.
The Constitutional Court made an order of constitutional invalidity that is to be suspended for two years to enable Parliament to “correct the defects” related to the Immigration Act. During the period of suspension, the spousal visa will be deemed valid, pending the outcome of an application by the foreigner for a new visa within three months at the end of the good-faith relationship or marriage.
Van Wyk v Minister of Employment and Labour and others (handed down on 25 October 2023)
Although the Constitutional Court is still to make a final ruling, there was a ground breaking judgment in Van Wyk v Minister of Employment and Labour and others (handed down on 25 October 2023), where the Gauteng High Court declared that all the current parental law provisions of the Basic Conditions of Employment Act no 75 of 1997 (BCEA), as well as the corresponding provisions of the Unemployment Insurance Fund Act of 2001 (UIF Act), to be invalid as it discriminated between mothers and fathers.
The Court saw no reason to allow the unfair discrimination to continue until Parliament eventually gets around amending the legislation. The Court made an interim order that it considered to be reasonable and fair, which interim order is that four consecutive months’ parental leave should be available to parents (mothers, fathers, adoptive parents, commissioning parents). The parents may decide between themselves how they would use the four-month period of leave available to them: One or other parent may take the whole of the period, or they may take turns at taking the leave.
For assistance with Family Law related matters contact our Family Law specialist, Ashley Curran, on (021) 671 9322 or ashley@curranattorneys.co.za.
Recent Comments