Who's in and who's out? Inclusion and exclusion in the family law jurisprudence of the Constitutional Court of South Africa

Abstract

Traditionally, the law has tied the formal status of being married to an extensive range of rights, duties, benefits and burdens. Non-marital conjugal unions were largely 'invisible to law'. This approach has, however, come under increasing attack on the grounds that it rests on illegitimate, moralistic disapproval of non-marital relationships, involves unfair discrimination on the ground of marital status and is out of touch with contemporary social practices and the increasing variety of non-traditional family forms. The formal approach has as a result come to be eclipsed in the Western world by a functional approach to family law. The focus tends now to be on the substance of different relationships and the needs of the parties to them, rather than their form or official status.