By Kevin O’Reilly

The Law Society of South Africa’s (LSSA) Family Law Committee (the Committee) met on 25 August 2023 to discuss a number of issues related to its area of expertise. Some of the key issues considered were the following.

International Bar Association (IBA)

The IBA Family Law Committee (the IBA Committee) is interested in connecting with family lawyers globally and invites them to join the organisation. They are interested in receiving contributions from family law lawyer organisations, particularly in regard to comparative law family issues. The IBA Committee recently promoted a webinar on child abductions, the various organisations to be contacted in various countries regarding these abductions and the mechanisms that could be used for the return of these children including the Hague Convention provisions.

Surrogacy

The Committee noted that there are significant discrepancies among countries as to the permissibility of and the financial considerations around surrogacy. The Hague Conference is in the process of considering either a convention or a guide in regard to the practice of surrogacy globally. The Committee agreed it would be beneficial to provide input and participate in the questionnaires in this regard.

The Hague Convention on the Civil Aspects of International Child Abduction

The Committee noted that the LSSA had previously written to the Minister of Justice and Correctional Services, Ronald Lamola, in this regard on problems experienced in practice. Another attempt would need to be made to target specific persons within the Department in this regard.

There is a training session in Kenya in September/October 2023. The Committee’s chairperson will attend (but not in her capacity as representative of the LSSA) and will attempt to establish connections with other organisations and countries to exchange information and build relationships.

South African Law Reform Commission (SALRC) Project 142: Discussion Paper 150 – Investigation into Legal Fees

The Report by the SALRC was released in March 2022. Although the Report was not published for comment, the LSSA submitted comments on the Report to the Minister of Justice and Correctional Services. The LSSA has also requested a meeting with the Minister, which requires follow-up.

Children’s Amendment Bill, 2021

The Children’s Amendment Bill was an annexure to the SALRC Discussion Paper 155: Relocation of Families with Reference to Minor Children. The Committee expressed concerns with the Bill in its current form. The Committee resolved to conduct a webinar focusing on the Bill to debate the concerns.  An invitation would be extended to the SALRC to present and engage in a brief discussion on the proposed Bill including a question-and-answer session.

Divorce Amendment Bill B22 of 2023

The Committee agreed to submit comment on the Bill. The Committee regretted the lack of an omnibus approach to divorces, marriages, and the consequences of marriages and relationships. The Department of Home Affairs and the Department of Justice and Constitutional Development are submitting separate Bills. There should be comprehensive form, taking into account also the patrimonial consequences of marriages and relationships. Life relationships should also be considered as the majority of South Africans live in life relationships and not marriages.

Marriage Amendment Bill, 2023

The Committee notes that the purpose of the Bill is to align all marriages in South Africa (SA) with the Constitution. However, there are serious concerns with the Bill and also its consequences, particularly in view of the lack of the omnibus approach.

• The Bill does not refer to Hindu marriages.
• Although the Bill permits polygamous marriages, it does not include polyandry.
• Life relationships should be addressed.
• The patrimonial consequences of marriages and relationships should be addressed, and the lack of this simultaneous reform will only include litigation and prevent access to justice and to equitable outcomes. The lack of resources and access to facilities, education, information and the sophisticated registration of agreements, as well as drafting agreements may impede the delivery of justice and will cause the same imbalances and inequitable outcomes as has been addressed in the Greyling v Minister of Home Affairs and Others; Booysen v Richardson NO and Others (CC) (unreported case no CCT 158/22, 10-5-2023) case before the Constitutional Court (CC) may remain.
• The requirement for registration of the marriages as defined in the Bill is problematic. Court approval has to be obtained before a polygamous marriage is solemnised. The CC has already found this is not necessary.
• The schedules referred to in the Bill are not published, which makes the submission of the Bill problematic.
• The requirement of the registration of antenuptial contracts prior to marriage is not viable.
• There are differences in the various legislation regarding the age of marriage.
• Proof, such as birth certificates and identity documents, passports, required are not necessarily practically obtainable and problems are already experienced in practice, particularly in regard to refugees and migrants.
• The Bill should be gender and sex sensitive in regard to the identification of individuals who are gender diverse, non-binary, transgender and so on.
• The provision for applications to court in certain circumstances are onerous and against the constitutional case law.
• Marriages officers will have no choice but to conduct marriages.
• There appears to be provision for amendment of marriage regimes contrary to s 21 of the Matrimonial Property Act 88 of 1984. If the Bill requires customary marriages to be registered, again contrary to the current case law.
• The piecemeal approach can only lead to disputes and litigation, which most in SA can ill afford.

SALRC Project 100E: Discussion Paper 160 Review of Aspects of Matrimonial Property Law

The SALRC published a discussion paper for comment, highlighting the fact that the Matrimonial Property Act is nearly four decades old, and acknowledging the substantial societal transformations SA has experienced. In response, the discussion paper makes a variety of proposals.

The Committee resolved to arrange a workshop on this issue and to extend an invitation to all provincial family law sectors to participate.

The Committee noted a choice needed to be made between retaining the existing framework within the Matrimonial Property Act or adopting a broader approach and introducing an s 7(3) redistribution accompanied by a carefully considered opt out provision. The Committee chose to postpone further discussion on the matter to a later meeting, to allow time to prepare and engage in debate on the topic. The Committee also determined to extend an invitation to the SADC Lawyers Association to provide insights and feedback in future workshops, similar to their involvement in providing input for the gender-based violence legislation.

Family courts

The Committee acknowledge the need to take practical steps to address challenges in the family court. Smaller regions where specialisation is scarce, requires assistance. The Committee proposed assisting in providing basic family law training for attorneys and to reach out to the Family Advocate offices to explore ways in which they could offer support in regard to further education in family law and practical assistance.

Kevin O’Reilly MA (NMU) is a sub-editor at De Rebus.

This article was first published in De Rebus in 2023 (Oct) DR 6.