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- ItemA Duty of Support for All South African Unmarried Intimate Partners Part 2: Developing Customary and Common Law and Circumventing the Volks Judgment(Potchefstroom Electronic Law Journal, 2018-10-19) Bonthuys, ElsjePart I of this two-part article argued that post-constitutional developments of the right to support have excluded the largest and most vulnerable sector of South African women – African women in invalid customary marriages and in intimate partnerships which do not resemble monogamous Western nuclear households. Part II explores the avenues to develop customary and common law to extend rights to support to these women. It argues that the current position discriminates against poor, rural African women on multiple intersecting grounds, which creates a duty for courts to develop the current legal rules. Customary law affords scope for development in relation to women in invalid customary marriages. Common law rights to support can be extended either ex contractu or ex lege. Because contractual support rights are of limited use to poor women, the legacy of the majority judgments in Volks v Robinson 2005 5 BCLR 446 (CC) (Volks) must be confronted to strengthen the legal basis for an automatic duty of support to all women in unmarried intimate relationships. The argument in Volks that, women choose to forego legal rights by not getting married is criticised. The minority judgment in Laubscher v Duplan 2017 2 SA 264 (CC) does, however, create potential for overturning this reasoning.
- ItemA Duty of Support for All South African Unmarried Intimate Partners Part I: The Limits of the Cohabitation and Marriage Based Models(North-West University, 2018-10-19) Bonthuys, ElsjeThe democratic Constitutional dispensation has led to the gradual extension of spousal duties of support to unmarried couples who hitherto could not legally claim support from their partners or from third parties who had unlawfully caused the death of their partners. The new recipients of rights to support can be divided into three groups: wives in Muslim religious marriages, partners in same-sex intimate relationships and unmarried opposite sex cohabitants whose relationships closely resemble civil marriage in both form and function. However, certain distinctive features of customary marriage, the continuing consequences of apartheid policies for African families and certain distinctive patrilineal features of traditional African families have largely excluded African women – who constitute the largest and most economically vulnerable group of women – from the benefits of these developments. Part one of this two-part article analyses the trajectory of the developing right to support intimate partnerships which appear to be based either on marriage (in the case of Muslim marriages) or relationships similar to marriage, including monogamy and permanent co-residence in the case of same-sex and opposite sex partners. This leaves no room to extend rights to unmarried intimate partners whose relationships do not fit the template of civil marriage and, in particular, excludes many disadvantaged African women from obtaining legal rights to support from their relationships.
- ItemDeveloping the Common Law of Breach of Promise and Universal Partnerships: Rights to Property Sharing for All Cohabitants(Juta Law, 2015) Bonthuys, ElsjeThe Constitutional Court's 2005 judgment in Volks NO v Robinson' has been widely regarded as a setback for the extension of legal rights to opposite-sex cohabitants. The majority of the court held that an unmarried opposite-sex cohabitant is not a spouse under the Maintenance of Surviving Spouses Act 27 of 1990.2 According to Smith, this judgment 'effectively put paid to the judicial extension of matrimonial law to unmarried opposite-sex cohabiting life partners'.
- ItemThe Rule That a Spouse Cannot Forfeit at Divorce What He Or She Has Contributed to the Marriage: An Argument for Chance(Juta Law, 2014) Bonthuys, ElsjeUnlike other systems of family law, South African law allows parties to choose their matrimonial property system by way of antenuptial contract. Although the financial consequences of the dissolution of marriage follow broadly from the chosen matrimonial property system, certain statutory and common-law mechanisms allow for a variation from the rigours of the applicable property regime. This article concerns one of these mechanisms, namely forfeiture of benefits in terms of s 9 of the Divorce Act 70 of 1979.
- ItemGuidelines for the Approval of Surrogate Motherhood Agreements:Ex Parte WH(Juta Law, 2013) Elsje, Bonthuys; Neil, BroedersIn 2011 the North and South Gauteng High Courts were approached to confirm surrogate motherhood agreements in accordance with the provisions of chapter 19 of the Children's Act 38 of 2005. The judgments were reported as In Re-Confirmation of Three Surrogate motherhood Agreements 2011 (6) SA22 (GSJ) and Ex parte 14FI2011 (6) SA514 (GNP). This note concerns the latter judgment.