School of Law (Journal Articles)

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Browsing School of Law (Journal Articles) by Author "Bonthuys, Elsje"

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    Developing the common law of breach of promise and universal partnerships: rights to property sharing for all cohabitants
    (Juta Law, 2015) Bonthuys, Elsje
    The 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'
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    A 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, Elsje
    Part 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.
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    A 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, Elsje
    The 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.
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    The 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, Elsje
    Unlike 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.
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    The South African Bill of Rights and the Development of Family Law
    (Juta Law, 2002) Bonthuys, Elsje
    Family law is probably the area of South African private law which has expanded and changed most rapidly in the past nine years. Many of these changes have come about as a result of the enactment of a Bill of Rights in both the interim and the final Constitution. 1 On the one hand, this is not surprising, since family law contains many legal rules which are overtly discriminatory on the bases of sex, gender, culture, religion and sexual orientation. On the other hand, legal rules in this area represent a codification of moral and social norms in the quotidian and 'private' lives of many people, which are often resistant to scrutiny and change.
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    What’s the deal? women’s evidence and gendered negotiations
    (Springer, 2018-11) Bonthuys, Elsje
    South African law has traditionally denied property sharing rights to people in nonmarital intimate partnerships, but a series of new cases has created the possibility of enforcing universal partnership contracts to claim a share in partnership property.However, evidential biases within these progressive cases reflect a historical disdain for women’s contributions to relationships and a widespread reluctance to believe women’s testimony about the existence of agreements to share. These biases bear strong resemblances to the gender stereotypes which have been the subject of feminist critique in rape law. Central to both rape and universal partnerships is the issue of consent or agreement between men and women. This, in turn, depends on social beliefs about male and female entitlements in the realms of sex and intimate relationships. The paper highlights the commonalities and parallels between the legal treatment of women’s evidence about the existence of contracts on the one hand, and the prejudice faced by complainants in rape cases.