Name: Mamokete Mofokeng

Student no: 20108337

Year: 1

Module: Law of Persons and the Family (LOPF5112)

Task: Take Home Test 1

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Index.

Cover page ……………………………………………………………………………. page 1

Index …………………………………………………………………………………… page 2

Question 1 ………………………………………………………………………….. page 3 - 4

Question 2 ……………………………………..………….………………………….. page 4

Question 3 …………………………………………………………………………….. page 5

Question 4 ……………………………………………….……………………………. page 5

Question 5 ………………………………………….………………………………. page 5 - 6

Reference List ………………………………….…………………………………….. page 7

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Question 1.

Q.1.1 Ulric Huber described a perfect family as one that has a mother, a father, a child
or children, and also servant. The servant is added as a fourth member to maintain the
idea of a perfect family.1 Extended families are families that involve an adult who isn’t
the biological parent taking the role of the primary caregiver. This can be done by the
grandmother, aunt or any other relative if the biological parent(s) die or cannot take
care of their children for certain reasons. It can also take place if one parent re-marries
and the new partner takes the role of the mother or father.

Q.1.2 Huber's theory of a perfect family represented the social construct values of the
time. In his terms, wives were legally inferior to their husbands, and they were also
under their command.2 This is unconstitutional as it is discriminatory against women and
it violates their dignity. Modern South African law recognizes the equality of sexes in a
marriage.3 Spouses now have equal duties and powers in the context of their property
as a married couple. These changes brought about a shift in the economy, specifically
the participation of middle-class women in the work environment. South African law
appreciates that men and women take on different roles in a family. The belief that
mothers must be primary care-givers is stereotypical and dangerous.

Women’s position in society is still not equal to that of men, thus the law is treats them
differently to achieve substantive equality. In common law, fathers were the sole
guardians of the children born inside of their marriage. In modern South Africa, parental
duties and responsibilities are shared amongst each parent. Section 18, sub-section 3
of the Children’s Act 38 of 20054 highlights the responsibilities of the parents. In the time
of Huber, children born outside of marriage were seen as unlawful and they
encountered legal drawbacks because of this. This is currently unconstitutional as an
individual cannot be discriminated against because of the circumstances surrounding
their birth. The new constitution states that everyone must be treated with equal respect
and it forbids any and all unfair discrimination.

1
Barratt, A et al. 2017. Law and Persons and the Family. 2nd edition.
2
Barrat, A et al. 2017.
3
McCloskey, A. and Riane E. 2008. Encyclopedia of violence, peace and conflict. 2nd edition.
4
Children’s Act 38 of 2005 18(3).

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Q.1.3 Family law contains numerous rights and duties unique to this area of law alone,
and generally misunderstood in all other areas of law. It plays a vital role in forming a
certain perspective of the family, as it defines which relationships qualify as family and
which do not. It is not easy to apply ordinary legal principles within the context of family. 5
Rules applied to family property are different from ordinary principles of property law.
Legal remedies between family members and the remedies at their disposal are not
contractual ones. In South African law, family law and welfare bureaucracy intersect. It
sets out that financial support of family members will be the duty of other family member
that family, as a family has been defined.

Q.1.4 Family law provides certainty for outsiders who deal with their family. For
example, a third party who wishes to contract family member, can assess whether a
married person has the capacity to contact them without spousal consent. Family law
allows parents to understand legal nature of their relationship with their children, and
their legal duties. 6Married couples can understand the economic consequences of their
matrimonial property system, and can therefore plan according. At the end of the
marriage, the provisions of the Divorce Act 70 of 19797 supply a degree of predictability
in regards to the distribution of marital property and possibly of ongoing maintenance.

Question 2.

Q.2.1 (5)

Q.2.2 (3)

Q.2.3 (1)

Q.2.4 (5)

Q.2.5 (3)

Question 3.

Q.3.1 False. They are governed by the common law.

5
Slicker, P. 2020. Social policy and interpersonal relations. Slicker UK
6
Peeler, T. 2019. What is Family Law. Legal Match.
7
Divorce Act 70 of 1979.

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Q.3.2 False. It is a bilateral agreement.

Q.3.3 False. The contract of engagement is regarded as a contract sui generis, in other
words of it’s own kind, therefore it has unique punishments set out for damages of
breach of a contract.

Q.3.4 True. The Applicant brought an application ex Parte for the retire of some
movable items such as the furniture the engagement ring, which were in the possession
of the respondent.

Q.3.5 True. Engagement has no legal significance, meaning one can get engaged
however they would have to get married after the divorce has been finalized.

Question 4.

Q.4.1 This is incorrect. Modern adoption has incorporated a term called open adoption,
where adopted children are allowed to communicate with their biological parent(s). this
is said to create a peaceful post-adoption period, and it also promotes a healthy
relationship between all the parties involved in the adoption process.

Q.4.2 This is incorrect. A parent can withdraw their consent within 60 days of having
signed the consent.

Q.4.3 This is incorrect. Widows, widowers and unmarried people can adopt.

Q.4.4 This is correct. The Children’s Act allows consent of a parent to be dispensed if
the child is abandoned, the parents cannot be found, or no parent or guardian of the
child can be identified.

Question 5.

The Children’s Act defines artificial fertilization as the process of combining a male and
female gamete outside of human body and the insertion of the union in the female
womb. This cannot take place if a surrogacy motherhood agreement has not been
signed by both the commissioning parents and the surrogate mother. A surrogacy
motherhood agreement is a contract between a surrogate mother and the
commissioning parents, where the surrogate mother agrees to be artificially fertilized for

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the purpose of beating a child for the commission parents , and she agrees to hand over
the child after he/she has been born.

The agreement must be in writing and it must be confirmed by the High Court in the
area of jurisdiction domicile to the commissioning parents, or where they reside
habitually. If there is no surrogacy motherhood agreement in place, the surrogate
mother will be considered the legal mother of the child, and will have full custody of the
child. If the commissioning parents are married or are in a permanent relationship,
written consent of the spouse is required, and they must become a party to the
agreement. This is the case for the surrogate mother as well, if they are married.

Section 295 of the Children’s Act provides that the court can only confirm the agreement
if the commissioning parents cannot conceive and this is irreversible, the parents are
competent to be parents in terms of the Act to enter into the agreement and they
understand the legal nature and consequences of the agreement they are making. The
surrogate is required to be competent to enter into such an agreement as well. They
must be suitable, and not use this as a source of income. The surrogate mother must
have altruistic reasons for getting into this agreement, and they must have had a
recorded pregnancy with a viable delivery; with a living child or children of their own.

The agreement includes adequate provisions for the care and upbringing of the child,
and their general welfare. It sets out that they are to be born in a stable home
environment, and the child’s position should the commissioning parents pass away or
divorce. Artificial fertilization is not allowed unless the surrogacy motherhood agreement
has been confi5by the court, and this must take place within 18 months of the
confirmation date, otherwise the co tract is no longer valid. 8

Online websites:

McCloskey,L.A and Riane, E. 2008. Encyclopaedia of violence, peace and conflict. 2 nd

edition [online]. Available at
8
Barrat, A et al. 2017.

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https://www.sciencedirect.com/topics/social-sciences/extended-family. [Accessed on 16
September 2020].

Peeler, T. 2019. What is Family Law. Legal Match [online]. Available at

https://www.legalmatch.com/law-library/article/family.html. [Accessed on 16 September
2020].

Slicker, P. 2020. Social policy and interpersonal relations. Slicker UK [online]. Available
at http://www.spicker.uk/social-policy/interpersonal.htm. [Accessed on 16 September
2020].

Textbooks:

Barratt, A., Domingo, W., Amien, W., Denson, R., Mahler-Coetzee, JD., Olivier, M.,
Osman, F., Schoeman, H., Singh, PP. 2019. Law of Persons and the Family.2nd edition.
Pearson: South Africa.

Legislation:

Children’s Act 38 of 2005

Divorce Act 70 of 1979