Department of Public Law

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Browsing Department of Public Law by browse.metadata.advisor "Human, Sonia"

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    The implications of a relational feminist interpretation of socio-economic rights for cohabiting partners
    (Stellenbosch : Stellenbosch University, 2016-12) Bannister, Tarryn; Liebenberg, Sandra; Human, Sonia; Stellenbosch University. Faculty of Law. Dept. of Public Law
    ENGLISH ABSTRACT : Within South Africa, it is disproportionately women and children who bear the socio-economic burdens of divorce and family dissolution. While all family relationships need to be effectively regulated so as to protect the socio-economic needs of its members, women who are cohabiting remain particularly vulnerable. This is due to the fact that their status is governed by a patchwork of laws that do not express a coherent set of family law rules. Upon the termination of these relationships, whether initiated by one of the partners or upon a partner’s death, these women tend to fall between the cracks of the legal system. As a result of this, they often face eviction and destitution. This stands in sharp contrast to South Africa’s progressive constitutional framework which appears highly conducive to combating gender inequality and poverty. For example, the Constitution protects the right to equality (section 9), human dignity (section 10), the right to have access to adequate housing (section 26) and the right to have access to health care services, food, water and social security (section 27). The Constitution also provides for the horizontal application of the Bill of Rights through sections 8 and 39 of the Constitution. The Constitution’s commitment to founding a society based on human dignity, equality and human rights and freedoms, therefore extends to private relations. In spite of these provisions, the family law regime is primarily perceived through a private law lens informed by liberal conceptions of choice, contractual autonomy and marriage fundamentalism. This dissertation examines the potential of a relational feminist framework to guide the horizontal application of socio-economic rights between cohabitants so as to guide both common law and legislative reform in this area. This horizontal application is primarily through the vehicles of sections 8 and 39 of the Constitution. Progressive foreign law developments pertaining to the protection of unmarried cohabitants are then analysed to determine whether they can inform the development of the South African family law regime. This dissertation thus analyses how existing family law rules and doctrines can be transformed so as to be more responsive to the lived realities and needs of female cohabitants.