Introduction
Family law is one of the most misunderstood areas of legal practice. Public perception is often shaped by anecdote, popular media, and outdated assumptions rather than by legislation, constitutional principles, and judicial precedent. These misconceptions frequently lead to poor decision-making, unnecessary conflict, and unrealistic expectations—particularly during emotionally charged events such as divorce, custody disputes, and maintenance proceedings.
This article addresses and dispels some of the most common myths about family law, clarifying the legal realities through a principled and jurisprudential lens, with reference to South African family law.
Myth 1: Mothers Automatically Get Custody of Children
The Legal Reality
South African law does not favour mothers over fathers. The governing principle is unequivocal:
The best interests of the child are paramount (Section 28 of the Constitution).
Courts assess multiple factors, including
- The child’s emotional, psychological, and physical needs
- Each parent’s ability to meet those needs
- The quality of existing parent-child relationships
- Stability, continuity, and care arrangements
Parental responsibilities and rights are determined by function and capacity, not gender. Fathers who are actively involved and capable regularly obtain primary residence or shared care arrangements.
Myth 2: Being Unmarried Means You Have No Rights
The Legal Reality
While marriage creates automatic legal consequences, unmarried partners are not without protection. South African courts increasingly recognise:
- Contractual claims between life partners
- Maintenance claims in appropriate circumstances
- Parental rights for unmarried fathers who meet statutory criteria
Family law has evolved to prioritise substantive fairness over formal status, particularly where dependency, shared households, or children are involved.
Myth 3: Divorce Means an Automatic 50/50 Split of Assets
The Legal Reality
Asset division depends entirely on the marital regime:
- In community of property
- Out of community of property with accrual
- Out of community of property without accrual
Even where equal division is the starting point, courts may intervene to prevent substantial injustice, particularly where one party has been economically disadvantaged.
There is no universal formula—each matter turns on its legal framework and factual matrix.
Myth 4: Children Can Choose Which Parent They Want to Live With
The Legal Reality
Children do not have an unfettered right to choose their primary residence. While their views may be considered—especially if they are older and mature—the final decision rests with the court.
The child’s expressed preference is only one factor among many and must be weighed against:
- Emotional influence or manipulation
- Long-term welfare
- Stability and care arrangements
Courts are cautious to ensure that children are not burdened with adult decisions.
Myth 5: Maintenance Is Optional or Negotiable at Will
The Legal Reality
Maintenance is a legal obligation, not a discretionary contribution. It is governed by the Maintenance Act and enforced through criminal and civil mechanisms.
Key principles include:
- Both parents have a duty to support their children
- Maintenance is based on means and needs
- Non-payment may result in criminal prosecution
Maintenance obligations cannot be avoided by agreement if such agreement prejudices a child.
Myth 6: Courts Always Prefer Shared or Equal Parenting Time
The Legal Reality
While shared parenting may be appropriate in some cases, it is not presumed. Courts prioritise:
- Stability
- Practical feasibility
- The child’s developmental needs
Equal time-sharing is not suitable where:
- Parents are in high conflict
- One parent has limited availability
- The arrangement undermines the child’s routine or wellbeing
Quality of parenting outweighs mathematical equality.
Myth 7: Domestic Violence Only Refers to Physical Abuse
The Legal Reality
Domestic violence under South African law is broadly defined and includes:
- Emotional and psychological abuse
- Economic abuse
- Harassment and intimidation
- Coercive control
Victims have the right to immediate legal protection, even in the absence of physical harm. Courts increasingly recognise the profound impact of non-physical abuse on family dynamics.
Myth 8: Courts Punish Parents for Past Marital Misconduct
The Legal Reality
Family law is not punitive. Courts do not allocate parental rights or financial relief as punishment for infidelity or moral failings.
Instead, courts focus on:
- Present capacity
- Future parenting ability
- Children’s welfare
- Financial fairness
Only conduct that directly affects a child’s wellbeing or financial equity is legally relevant.
Myth 9: Grandparents Have No Legal Standing
The Legal Reality
Grandparents and extended family members may apply for:
- Contact with minor children
- Care or guardianship in appropriate circumstances
Courts recognise the importance of extended family relationships, particularly where they contribute to stability, cultural continuity, or emotional support.
Myth 10: Family Law Is Informal and Less Serious Than Other Legal Fields
The Legal Reality
Family law is highly specialised, procedurally complex, and constitutionally significant. It engages:
- Fundamental rights
- Vulnerable parties
- Long-term consequences for children and families
Judicial scrutiny in family matters is often more exacting than in commercial disputes due to the irreversible human impact involved.
Conclusion
Myths surrounding family law persist because the law operates at the intersection of emotion, morality, and legal principle. However, South African family law is neither arbitrary nor sentimental—it is structured, rights-based, and firmly grounded in constitutional values.
Dispelling these misconceptions is essential to ensuring informed decision-making, reducing conflict, and achieving outcomes that genuinely serve the best interests of all involved, particularly children.
Sound legal advice remains indispensable, as family law rights and obligations are invariably nuanced and fact-specific.