Within South Africa, it is disproportionately women and children who bear the socioeconomic
burdens of divorce and family dissolution. While all family relationships need
to be effectively regulated so as to protect the socio-economic needs of its members,
women who are cohabiting remain particularly vulnerable. This is due to the fact that
their status is governed by a patchwork of laws that do not express a coherent set of
family law rules. Upon the termination of these relationships, whether initiated by one
of the partners or upon a partner’s death, these women tend to fall between the cracks
of the legal system. As a result of this, they often face eviction and destitution. This
stands in sharp contrast to South Africa’s progressive constitutional framework which
appears highly conducive to combating gender inequality and poverty. For example,
the Constitution protects the right to equality (section 9), human dignity (section 10),
the right to have access to adequate housing (section 26) and the right to have access
to health care services, food, water and social security (section 27). The Constitution
also provides for the horizontal application of the Bill of Rights through sections 8 and
39 of the Constitution. The Constitution’s commitment to founding a society based on
human dignity, equality and human rights and freedoms, therefore extends to private
relations. In spite of these provisions, the family law regime is primarily perceived
through a private law lens informed by liberal conceptions of choice, contractual
autonomy and marriage fundamentalism. This dissertation examines the potential of
a relational feminist framework to guide the horizontal application of socio-economic
rights between cohabitants so as to guide both common law and legislative reform in
this area. This horizontal application is primarily through the vehicles of sections 8 and
39 of the Constitution. Progressive foreign law developments pertaining to the
protection of unmarried cohabitants are then analysed to determine whether they can
inform the development of the South African family law regime. This dissertation thus
analyses how existing family law rules and doctrines can be transformed so as to be
more responsive to the lived realities and needs of female cohabitants.