LAWCO WORKSHOP 3

SKELETON

Section A p4 10 mins

What is a family?

General issues, different kinds of family, conceptual exploration of topic.

Methodology: short plays and explanations.

Section B p 8 15 mins

Children’s rights and capacities

Methodology: explanation with slides. In small groups work through two examples.

Section C p 11 15 mins

Marriage

Methodology: slides, explanations, play.

Section D p 15 15 mins

Domestic violence

Methodology: work through situation in small groups.

Section E p 20 5 mins

Property consequences of marriage

Methodology: slide explanations

Section F p 24 5 mins

Dissolution of marriage

Methodoly: slide explanations and play

Section G p 27 35 mins

Consolidation of past four workshops

Methodology: gameshow competition with questions.

LAWCO CURRICULUM TEAM – Meghan Finn, Tim Hodgson and Aalia Manie with contributions from Metumo Shilongo.

SECTION A – WHAT IS A FAMILY?

We start off the workshop by exploring what a family means in different skits. We begin by asking the audience to throw out words relating to what a family is, or to turn to the person on their left and explain to them what a family is.

Mafia style (family as gang – relying on each other)

Luigi: Tony what happening maaan? Lets go grab a couple of hawt dawgs and some kawfee.

Tony: A how many times must I tell you, the baws said if we go anywhere we’re fired. You know what happens when he gets mad. Mama mia!

Luigi: What’s the use in being mobsters if we can’t even get anything to eat? Maybe we could justa geta some pasta? I don’t care about the diamonds any more!

Tony: No ways, the boss said stay so we’re staying. The Soprano’s are the only family we ever had. We live for each other, we steal for each other, we die for each other. Besides, where would we geta other jobs with bad accents like these?

Hip hop style (family including friends)

D-Dog: Snooptastic whatsup y’all? D-dog in the mother-trucking house!!!

Snoop: Forsheez my knees? (Motions to his knees and shrugs) . Snooptastic at your service my brother from another mother. What going on up in this bitch?

D-dog: Chillin’, killin’ the usual. Thinking about going down to the South side to drop some beats later. What you say, you on the vocals me on the beats? Just like Eminem and Dr Dre yo.

Snooptastic: Holla! You trippin fool? We’re better than those wannabe crackers yo.

D-dog: Hell yeah! The two musketerees. Beat busting brothers until the end, just like always yo.

The cheesy romance (family – blood)

Harry: Oh Betty, I love you more than words can say. He looks up while putting his arm around Betty. The moon is beautiful tonight – puts on a cheesy accent

– but not as beautiful as you. He winks at the crowd after saying this as if to say ‘oh yeah I’m the man’.

Betty: bats her eyes, giggles and playfully hits Harry Oh stop my handsome little hairball Harry. I love you.

Harry: There issomething I’ve been meaning to ask you…

Betty: OMG! What is it?

Harry: goes down on one knee dramatically Bethany Sarah Dickson, make me the happiest man in the world and marry me. Marry me Bethany, and let’s have 2 children and live in my little cottage by the sea.

Betty: Yes, Harry. YES! You had me at hello…

______________________________________________________________________________

The plays we just saw show a whole lot of different types of understandings of what ‘family’ can mean to people.

QUESTIONS: WHAT DOES FAMILY MEAN TO YOU? WHO IS YOUR FAMILY?

A group of people who live in the same place? What if I don’t like my flat mates, but really need a place to crash? What happens if I live in a residence at my university?

Blood relationships? Who do we include? Only parents, brothers and sisters? Or do cousins, grandparents an aunts count? What if you have an adopted brother or sister?

Financial obligation? Is a family those people that form part of a team who support each other financially (with money)? If I have a job and pay for my own stuff is my father no longer family? What if he can’t afford to pay for stuff because he doesn’t have a job?

Emotional connection? Is your family your family because you feel emotionally close to them – because you love them and they love you? Does your girlfriend/boyfriend form part of your family? What about your really close friends?

When children are asked what a family is, they normally identify love as key requirement, and very often include people in their family who are not close blood relations.

The legal meaning of family sometimes corresponds with and sometimes contradicts the popular and personal meaning of family. In South Africa, our law has tried to stay away from specifically defining what a family is, because we have so many different types of people in our country who have different ideas and understanding of what a family is. In many ‘African’ cultures family can include a whole village or town. It may even include all other people. This is a community based view of family which we can’t just ignore in favour of the idea of family we have grown up with.

‘UNCONVENTIONAL’ FAMILIES

Adoption

For a whole lot of different reasons people (couples, or single adults) may choose to adopt children. In South Africa, where we have so many kids without parents or homes this is a good idea. The law treats adopted kids as if they we born to their adoptive parents, and so should we. There is no reason why we shouldn’t.

Same-sex relationships

For many years a lot of people have thought it is wrong for a man and man or a woman and a woman to have relationships. Nowadays, society is becoming more accepting of these relationships, because we understand more and more that people all have different tastes and preferences. Think about your own situation, you can’t help liking whichever boy or girl you have a crush on anymore than you can stop enjoying the taste of chocolate or coke. South African law accepts that gay and lesbian couples have the right to adopt or raise children in the same way as anyone else.

Gender roles in family

In years gone by women and men were given very specific roles in families. Men were supposed to go to work and earn money, whilst women were to stay at home and cook, clean and raise children. Even if your family is still like this, nowadays women have a choice of what role they want to play in the family. As we know that women are equal to men, this makes sense. We are going to be seeing more and family situations in the future in which men play the traditionally female role and women play the rationally male role or some healthy combination in between. Even the idea that women and men have specific roles is a weird one which we have to question if we are going to stay true to the idea that all people are equal.

The importance of family

Family is important for many reasons. On a personal level you family is there to care for you and support you emotionally. They are there to encourage you, teach you and provide for you. In a legal sense, the law has to break down society in different groups in order for it to be manageable.

A family is the smallest group the law breaks people down into. What is important is to remember that although family is important, that you are still and individual within your family. You still get to be you and make your decisions about happens to you to a large extent. Although you are best advised to listen to the guidance of your parents in many situations, there are times when you may and should chose to express your individuality. This will become more important also when one person in your family is doing something wrong and you need to speak out against them, we will discuss this further when we get to domestic violence.

SECTION B – CHILDREN’S RIGHTS AND CAPACITIES

A child is any person under the age of 18. Any child has rights under the Constitution. All children have the right to a name and nationality, to family or parental care, to basic food, shelter and services. Any child also cannot be abused or maltreated, used for exploitative labour or be detained unless as a last measure.

The Constitution also sets out that the child’s best interests are of paramount importance. This means that what is best for the child is the most important thing for the court to take into account.

PARENTAL RIGHTS AND RESPONSIBILITIES

In 2005 a new law about children and children’s rights was written. Before this, most of the focus had been on what power parents had and what they could ask their children to do. This law changed that, and included a lot about the rights parents have – but also the responsibilities that parents owe to their children. This does not mean that children should not obey parents if the parents ask them to do something reasonable, and so children also have some responsibilities to their parents.

The responsibilities parents have include care, contact, guardianship and contribution to maintenance.

CARE

This means that parents have the responsibility to look after their children, which includes making sure they have a place to stay and are educated, and giving financial support. It also means parents are responsible to protect their children from danger, and to help guide their decisions.

CONTACT

Parents have a right to have contact with their children, and have the responsibility to make sure they’re in touch with their children.

ACT AS A GUARDIAN

Parents also have the responsibility to act as guardians to their children, which means helping them make good decisions, and acting on behalf of the child in any contracts or court cases.

CONTRIBUTION TO MAINTENANCE

Parents also have the responsibility to help support their children financially, and to make sure they have food, shelter, medical care, education and what is needed for the support of the children. This duty can continue even after the child has turned 18 (if, for example, the child is studying and needs financial support). The duty of support can also run both ways, and a child can be required to support parents/grandparents if it is needed and the child is able to.

Who has these rights and responsibilities?

In most cases, the biological mother has all of these rights and responsibilities, unless she is also a minor. The married father also has all of these rights and responsibilities. An unmarried father can have these too if he is living with the mother, has applied to have these rights and responsibilities or has helped in bringing up the child.

If a question about parental rights and responsibilities comes up before the courts, the best interest of the child is always the biggest consideration.

CAPACITY TO CONTRACT

A minor does not have full legal capacity yet. This means that a minor can do some things but not others. For example, for some contracts a minor needs a guardian or parent to sign to agree, but for other acts the minor can be independent.

Suzie is a twelve year old who loves her doll house very much. In her world, all people have full legal capacity, so even children can sign contracts. Her uncle, Captain Greedycakes, decides to convince Suzie to invest the money she inherited from her grandmother in developing new property on swamp ground, telling her it will be ‘just like her little doll house, only bigger’. Suzie signs the contract without reading the terms, and a few months later Captain Greedycakes who has interest in the property is raking in the profits. However, a couple of months down the line the property starts sinking because of the bad swamp ground, and Suzie becomes bankrupt!

Here we can see even though Suzie may have had the best intentions, she did not have the ability to make a good, informed decision, and so by signing the contract she was hugely disadvantaged. Because of this worry, in our world as a general rule, a minor is not able to be held to a contract without the help or consent of a guardian, but there are some exceptions.

Unassisted contract

A minor can be bound by a contract where he or she stands only to benefit. In this kind of contract the adult who has signed is forced to obey the contract, but the minor is not. This contract may be taken back by the minor’s guardian or when the minor turns 18.

Assisted contract

A minor can also be party to a contract with the consent of his or her guardian. But if this contract is unfair to the minor, the minor can claim for the contract to be cancelled and for the situation to go back to what it was before the contract was signed.

However, if the minor pretends to be an adult then the minor could be held to the contract.

In groups, ask the learners to decide what should happen in these two examples. Should the minor be held to the contract? Is the contract fair? What is a good way of resolving the issues?

TIPS FOR CONTRACTING?

SECTION C - MARRIAGE

Marriage is a contract, recognised by law, between two people to live together as spouses.

Spouse: Spouse is the word used to refer to either person who is married. If Jack and Jill are married, both Jack and Jill can be described as a spouse.

PEOPLE WHO ARE UNABLE TO GET MARRIED…

DUTY OF SUPPORT

REQUIREMENTS FOR A VALID CIVIL MARRIAGE

Play: The Bold and the Beautiful

* 3 gossiping girls at lunch time *

Mandy: Oh, Sizile did you watch Bold last night?? The DRAMA, the DRAMA.

Sizile: Yeah, what craziness!! Stephanie swooped in and saved Ridge from making the mistake of his life – he almost married Brooke. AGAIN!!! Can you believe it – wanting to marry his former step-mother / sister-in-law / aunt. Don’t these stupid Americans know that there are rules about these things???

Mandy: I swear that woman has put some kind of voodoo spell on all these men. She’s seriously not that hot. And she’s all wrinkly now. She must be like 80 years old by now.

Jane: ooooh no! I missed it! What happened? Tell me more...tell me more.

Mandy: Stephanie tried to stop the wedding!! You know how she hates Brooke. Now this Stephanie woman can be quite a genius. True, she’s also ugly, evil and bored with her life. But she’s still a genius....Anyway, she stole Brooke’s ID document. So when Brooke arrived at the ceremony without it... the priest refused to perform the ceremony!

Jane: You’re joking. Ai, that Brooke...trying to get married for the 65^th time. She probably has an entire room to store all her wedding dresses. You’d think she would know about such things!

Sizile: Oh. But WAIT. You left out a very important part....even after Brooke bribed the priest to accept her driver’s licence as a form of identification...they STILL couldn’t get married! It turns out that the priest was really Stefano Di Mera, from Days of our Lives, in disguise. It seems he’s bored of the Brady Bunch and wants to get in on the action elsewhere...

Jane: HAHA. Don’t lie.

Mandy: Yeah, and he isn’t allowed to perform marriage ceremonies. The law says that you need to have authority to marry people. Brooke’s daughter realised this in time and stopped the wedding. I think her daughter is actually secretly in love with Ridge (her former father).

Jane: I.CAN.NOT.BELIEVE.IT

Sizile: The marriage register was burnt by Taylor in any case. So even if the marriage had gone through, they wouldn’t have been able to sign anything. Brooke and Ridge and the priest (aka Stefano) and two witnesses would have needed to sign the marriage register for them to be married. I guess Brooke and Ridge were really not meant to be together.

Jane: Taylor?? Where did she come from? I thought she was dead.

Mandy: No. You probably didn’t recognise her because she’s had so much plastic surgery. The things people do for beauty!

ANTENUPTIAL CONTRACT

This is a contract that the parties enter into before they get married. It is a legal document that must be drawn up by a specific kind of lawyer.

It sets out what will happen to everything both spouses own and all of their debts if the marriage ends (by death or divorce). Its purpose is to create certainty and to protect the parties to the marriage.

OTHER TYPES OF MARRIAGES

A customary marriage is concluded in terms of the customs and traditions observed among African population groups in South Africa.

Law was made in 2000 to recognise customary marriages in SA law.

Requirements for a valid customary marriage:

Discussion point: POLYGAMY IN MARRIAGE

(no slide for this)

In African customary law marriages and Islamic marriages, the males are able to have more than one wife. Customary law marriages are already recognised, and there is a move to recognise Islamic marriages.

Some of us may feel uncomfortable with the idea that the man can be married to more than person at the same time. This is especially because women can’t have more than one husband - and so this may be unfair based on gender. But we need to realise that in a diverse country like SA people have different cultures, beliefs and values, and the law needs to accommodating of this.

Law was passed in 2006 to allow people of the same-sex to marry under civil unions. This means that same-sex couples enjoy the same status and benefits and responsibilities attached to normal civil marriages. The same property-related consequences as with civil marriages also apply.

SECTION D - DOMESTIC VIOLENCE

[ GROUP WORK ]

Scenario:

Jack and Jill live together as boyfriend and girlfriend. They have been living together for the last year. Jill’s mother also lives with them.

In recent months, Jack has not been able to control his bad temper and has become physically and emotionally abusive towards Jill and her mother. They have both suffered from bad bruising and various other injuries. Jill was hospitalized for a set of broken ribs, while Jill’s mother had to be treated for a broken arm. Jack has also threatened them with a gun on many occasions.

Jill owns the house in which they live, which she inherited from her mother. Jack pays for everything else, including food, electricity and water. Jill is scared to leave him because she doesn’t know if she will be able to find a job, and she doesn’t know how she will be able to look after her mother on her own.

What can Jill do?

CARD 1 - Friend 1

I really don’t think that Jill should leave him. No relationship is perfect. And maybe Jack is having a hard time at work.

I don’t know how Jill will be able to survive from day to day without Jack. He pays for everything and Jill doesn’t have a job. And it will be really difficult for her to find a job…everyone is getting retrenched because the economy is so bad at the moment.

Jill should speak to him and try to work it out.

CARD 2 - Friend 2

I have a completely different opinion. Jill should realize that she doesn’t need to put up with this. She must find a way out. As women, we have certain rights. We should stand up to abuse. Jill owes it to herself and to her mother.

I’m concerned that Jill is willing to put up with all this physical abuse because she’s scared that she and her mother will starve!

Jill must really try to look for a job while Jack is away at work. Because if she finds one, at least she won’t need him to support her financially and it will be easier for her to leave him.

CARD 3 Social worker 1

Jill should contact her nearest advice office or non-profit organistaion that specialize in such matters. If they do not deal directly with domestic violence, they should be able to refer Jill to an organisation that does. Seeking advice in this way will help Jill to think about her situation in a calm way, taking into account all the other issues.

For example, she could go to one of the centres managed by the organisation ‘People Opposing Women’s Abuse’ (POWA). They have a helpline: 011 642 4345

She can also go to a NICRO Women’s Support Centre. NICRO is a national crime prevention organization working towards a safer South Africa.

Bellville - (021) 949 2110/1

Cape Town - (021) 422 1690

Khayelitsha - (021) 361 1393

Mitchell's Plain - (021) 397 6060/1/2

Social worker 2

The situation is very tricky.

But that are different forms of abuse. We should not only be worried that Jack beats Jill and her mother. Jill also needs to protect herself from emotional abuse. This can have a very bad impact on her health if it happens over many years.

I agree that Jill should find a way so that it’s easier for her to leave him. For example she should look for a job. Also, there are many social grants that may help her. Her mother is also entitled to an old age pension. She should try to find ways and means so that does not have to rely on Jack.

But if she can’t find a way out, it may be helpful for her to ask a social worker to speak to her boyfriend – if he’s willing that is. It would be good for him to go for anger management classes to control his temper.

I would really advise Jill to put her health and safety first – if she feels that her life is in danger, she must go speak to a lawyer, at the very least.

LAWYER: legal advice

The first thing Jill should realize is that domestic violence is recognised as a crime.

According to the Domestic Violence Act, domestic violence is not just a private matter. It is a serious crime against society.

The fact that she is not married to Jack does not impact on the legal remedies available to her. The Domestic Violence Act not only protects married women and children, but also unmarried women who are living with their partners and people who share the same living space. This means that her mother is also protected under the Domestic Violence Act.

The law does not provide all the answers. But since Jill and her mother’s injuries are serious, it’s clear that something needs to be done. And the law does provide some remedies that will protect her if she’s willing to use it…

LEGAL STEPS

Jill can also try to have Jack evicted from the home they share.

SECTION E PROPERTY CONSEQUENCES OF MARRIAGE

There are many consequences of marriage, and one of them is that each spouse will have his/her assets or property affected. If you are getting married, you have a choice about how you want this to happen, and how things should be divided if the marriage doesn’t work out. Under all of these systems, you are still married under the law.

Assets: An asset is really anything that is of value to you. Houses, cars, our bank account and of course your toaster.

Liabilities: Thought about simply, a liability is the opposite of an asset. It is when you owe someone something. If you take a loan from a bank, buy jeans from Edgars on credit, or ask your friend to spot you a ‘five bop’ then you owe Edgars, the bank or your friend. The amount that you owe them is a liability.

Estate: An estate is not a building. In law, it the collection of all of the things you own. This includes property, cars, money and stamps. You could see your estate as a combination of all of your assets added up minus all of your liabilities added up. A ‘joint estate’ is when two people who married choose to things that they own.

There are three main property systems of marriage in South Africa: marriage in community of property, marriage outside community of property with accrual and marriage outside community of property and without accrual.

The default or ordinary system is marriage in community of property.

Marriage in community of property

This system will apply, unless the spouses specifically stated that it shouldn’t in a contract before the marriage.

How this system works is that, once the marriage takes place, all of the property and things owned by each spouse is pooled. They both own this in equal shares which are not divided. All of their assets are pooled, but also any debts are also pooled. For some big purchases, signatures of both spouses will be needed.

There are some assets which are not pooled, including:

In Community of Property is good because

In Community of Property is not so fabulous because

Lawyers advise that it’s usually better to not get married under community of property, and the benefits of sharing the pool actually come into play in the next system:

Out of community of property with accrual

This system is default if the couple signs a contract before the marriage which says they don’t want community of property. The system says that spouses should share equally in what they earned by their joint efforts during the marriage.

Once the marriage ends, then the spouse whose estate shows no increase or a smaller increase than the other spouse can claim an amount equal to half of the difference between the increase.

How it works: [Slides with pictures explaining it well]

The accrual system is good because:

The accrual system is not good because

Marriage which excludes community of property and accrual

Under this system, the capacity of spouses remains largely unaffected by the marriage. The system is not ideal because the spouses do not share in any part of each other’s estate – so the spouse who has less money is disadvantaged.

Summary of the different systems

SECTION F DISSOLUTION OF MARRIAGE

Sometimes in marriage, just as in life, things don’t turn out as planned. As we have seen our law takes the idea of marriage very seriously, and as you would expect it also takes the idea of ending a marriage seriously. There are two major ways that a marriage comes to an end. The first is if one of the people who are married (spouses) passes away. It is obvious that you can’t be married to someone who isn’t alive, although some different rules exist under Customary Law, but we won’t be dealing with that today. The second way a marriage can end is more problematic…

DIVORCE

Although it may seem that when couples get divorced that one person in ‘at fault’ or ‘wrong’, the law doesn’t consider divorce in these terms any more. This is because blaming one spouse for the breakdown of the marriage isn’t helpful. Divorce does not only affect the people who are getting divorced, it has an enormous impact on their children.

The law must aim to get through the divorce with as little disruption to the children and the entire family as possible. Remember, under the Constitution the best interests of the children are of paramount importance. Who is to blame is no longer the major priority, because this discussion is based on largely on opinion and is often messy.

N.B. The law can be said to have its focus on the failure of the marriage rather then fault.

To get divorced you have to make an application to a High Court or a Divorce Court.

The court will accept only 3 reasons for a divorce:

The 2nd and 3^rd reasons are understandable, but very rare. The 1^st reason is more common and more problematic.

What is an ‘irretrievable breakdown’ of a marriage?

The court has said that it will allow divorce for this reason if:

‘it is satisfied that the marriage relationship between the parties has reached such a stage of disintegration that there is no reasonable prospect of the restoration of a normal relationship’

This seems set a fairly high standard. The courts are saying that they will only allow a divorce if the marriage is in a very bad state and cannot be seem be patched up in any other way. Whether this will be the case will depend on every situations facts, but good reasons that have been accepted by the courts are:

The overall point is that people should not go into marriages lightly, because they are no small thing. Courts see it in this way as well.

Unfortunately many marriages nowadays end in divorce. It is important for parents to understand the impact that divorce can have on their children’s lives.

For any child going through divorce there are certain things that may help to know if your parents do get divorced:

DIVORCE PLAY:

Thabo: Boys, boys, boys lets have a big night tonight – a toast to being promoted!

Daniel, Tom & Sergio: Cheeeeers!!!

Daniel: I’m going to get absolutely plastered. I’m going to be so wrecked tonight that I’m not going to know my right from my left!

Tom: WOoooooooooooooohooo!

Thabo: Have you seen the way our waitress has been smiling at me ever since we came in. I think I’ve got a chance – she looks like Angelina Jolie. I think I’m going to ask her if she’d like to go for dessert if you know what I mean.

Tom & Daniel:erupt with laughter.

Tom: dessert… hahhahahahaha.

Sergio:feigns laughter … Um, you’re joking right. What about Juliet? You know, your wife?

Thabo: What about her, she’ll never have to know… We’re in Vegas - It’s a brilliant idea.

Sergio: You made vows that you’d be faithful and never lie to her, besides she can divorce you if she finds out – you know that?

Thabo: Aaaag so what? Maybe I should divorce her. All she does is complain that I work too much.

Sergio: That’s a terrible attitude to have man, a marriage is a serious thing. And remember you have kids. It’s going to have a huge effect on Susie and Jabu if you get divorced. Who will they live with? How often will you see them? They’ll be extremely hurt. Juliet is a great mother and wife, you should twice before you throw that away for some ‘dessert’.

Thabo: Uhh okay, you’re right. Well, tonight the bill’s on me. Scuse me boys, I’m just gonna go speak to the wife and kids.

SECTION G LAWCOLLIONAIRE

We end the workshop with a gameshow. The groups all compete against each other to get the most points. Points are gained by answering questions correctly. Points can also be lost for rowdiness. A board at the front has five categories – one for each of the workshops and a random section. Each of the categories has questions ranging in difficulty from 100 – 400 points. The teams each have a chance to choose a question. If they answer the question correctly, the get the points. If they answer incorrectly, they don’t and the question skips to the next group, until it is answered correctly. The team with the most points at the end wins.

QUESTIONS

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Workshop 4:

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Random:

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This work is licensed by Meghan Finn, Tim Hodgson, and Metumo Shilongo under a Creative Commons Attribution License (CC-BY 3.0), and is an Open Educational Resource.

Last edited by Tim Hodgson on Oct 3, 2009 5:46 am -0500.