Contracts in South African Family Law

South African law increasingly relies on contracts to resolve disputes between family members and to address new practices like surrogacy and “open” adoptions within the family environment. Tacit contracts have also been employed by the courts to extend marriage like rights to families which are not yet fully recognized by statute, particularly unmarried intimate partnerships.
However, “family contracts” involve important concerns which don’t usually surface in commercial contracts, like the necessity of protecting the best interests of children and the institution of the family. Family contracts are also characterized by pervasive bargaining disparities which are often linked to gendered social and religious expectations and practices. These factors mean that the “usual” rules applying to commercial contracts must be re-evaluated in the family context.
This project undertakes a comprehensive theoretical investigation of contracts between family members (including unmarried partners) and contracts which family members conclude with third parties. It also explores the extent to which developments relating to family contracts can oIer directions for law reform of commercial contracts, which are also frequently aIected by extreme disparities in bargaining power.