Sc grandfather clause law on property
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In a similar vein, English law also attaches much importance to the institution of marriage as the State has always endorsed the institution of marriage by encouraging parties to enter into marriage. 6 In the present-day constitutional era, South African family law thus embodies a far wider range of family form, and the definition of a family now includes single-parent, 7 extended, 8 polygynous, unmarried and same-sex families.
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5 As a result, the Constitution, and the Constitutional Court in particular, requires South African family law to accommodate and protect diversity the Constitution affirms the right to be different, and also celebrates the diversity of South African society. 4 After the enactment of the Constitution of the Republic of South Africa, 1996 (the Constitution), attempts were made to give legal support and protection to other forms of relationship that did not fall squarely into the common-law definition of marriage. Historically, the position in South Africa was that the traditional Roman-Dutch common-law marriage was regarded as being superior to other kinds of marriage existing in South Africa. 2 The institution of marriage is the only lawful Islamic means by which a family comes into existence and is, therefore, strongly encouraged. 1 Islam regards marriage not only as the lawful means for sexual enjoyment, but also as being essential for the establishment of the family, which is regarded as the first unit of society. In terms of the Islamic religion, the only intimate relationship allowed between a man and a woman is the marriage relationship. Islamic law, South African law and English law view the institution of marriage as a social institution of vital importance and one which is entitled to legal protection. To this end, a comparative analysis is undertaken of the law of marriage that entails a discussion, inter alia, of betrothal (engagement), the legal requirements for a marriage, as well as the personal and proprietary consequences of a marriage as applicable in Islamic law, South African law and English law. This begs the question whether Islamic law (Muslim personal law in general and family law in particular) can be recognised and accommodated and implemented in the South African and English legal systems (both constitutional democracies) without compromising the principles of Islamic law, while at the same time upholding the rights contained in the Bill of Rights. The comparative analysis demonstrates that although there are similarities in the three legal systems, the differences outweigh the similarities.
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The similarities and differences between these legal systems are highlighted. The primary concern of this article is a comparative analysis of marriage law in three legal systems - namely, Islamic law, South African law and English law.
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A comparative exposition of the law of husband and wife in terms of islamic law, south african law and the law of England and Wales - part oneīA LLB HDE LLM LLD Advocate of the High Court Lecturer in Private Law Nelson Mandela University