Parenthood and a Child’s Right to Succession and Inheritance

Introduction: The Premise of a Care-Based Relationship

The traditional understanding of a family is centred around a sexual union between two heterosexual individuals, with all other ‘familial’ relationships defined in terms thereof: a father and mother united in holy matrimony with children born of their sexual union.[1] This conception of ‘marriage’ is so deeply rooted in our collective cultural psyche that even contemporary queer relationships and other non-marital civil unions are pigeonholed into a sexual, heteronormative fold for legitimacy.[2] Naturally, parental relationships are also conventionally understood with regard to consanguinity and heredity – which stem from a sexual union between two adults, traditionally legitimised by the institution of ‘marriage’.[3] However, such a reductive definition of familial relationships as mere derivatives of a sexual union does not begin to cover the unique matrix of mutually owed social responsibilities and legal duties of ‘care’ that subsist therein: this is most evident in how the State ascertains familial relationships and corresponding responsibilities.

Purposively, when the State is notified of a subversion of a duty of familial care in a relationship viz. physical, emotional, or economic violence and abuse, a preliminary level of inquiry is conducted to ascertain a central sexual relationship between individuals: where the individuals are related by ‘marriage’, or ‘consanguinity’, the State provides a specialised remedy befitting the nature of the relationship shared between the individuals. Consequently, the State’s response to abuse differs depending on the nature of the relationship. By way of illustration, a man’s use of physical violence against a woman may warrant the State’s criminal sanction;[4] except, if the woman is the man’s wife, in which case specialised laws addressing domestic violence also become applicable.[5] Curiously, however, the State also extends the protection of such family-specific laws to non-consanguineous relationships (the fiction of adoptive parentage),[6] and even to non-marital (non-legitimised, sexual) relationships (‘relationships in the nature of marriage’).[7] This is testament to the State’s real interest in sustaining the provision and receipt of requisite care in a relationship within a family unit: in case a family unit fails to provide such care, such a responsibility would fall upon the State.