If you marry your adopted daughter, it's incest
Law clearly answers question raised by the case of a Brakpan woman who killed her father/husband
Does South African law allow a man to marry his adopted daughter?
This is the question many have asked after Cathy van Oudtshoorn appeared in the Pretoria High Court this week, charged with murdering her adoptive father, whom she married when she was 21.
Van Oudtshoorn, 31, shot dead her father/husband, Chris van Oudtshoorn, a 58-year-old electrical engineer from Brakpan, in April 2016 while he was watching TV.
She told the court that she had pulled the trigger after experiencing two decades of sexual abuse. She claimed that she suffered non-pathological criminal incapacity when she shot him.Chris’s former wife, Jorina van Niekerk, who is also Van Oudtshoorn’s adoptive mother, has already been convicted of being an accessory to the murder after she helped her daughter make the murder look like a robbery. She is serving a five-year jail sentence.
Litha Stwayi from the Centre for Child Law said marrying someone who was also your adopted child was not legally permissible.
She referred to the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007, which states that people may not lawfully marry each other on account of consanguinity [blood relations], affinity or an adoptive relationship, or unlawfully and intentionally engage in an act of sexual penetration with each other. Those who did, even if it was consensual, would be guilty of incest.
And it’s not only parents and children who are affected. The law also states that a person cannot marry ascendants and descendants in their direct line; or if they share a common ancestor even if it’s through a different line.Stwayi said that when a person adopted a child, the parental responsibilities and rights of the biological parents were terminated and the adoptive parents had all the parental responsibilities and rights.
Social worker Ingrid Pollak said she had never come across a case similar to the Van Oudtshoorn one.
“As far as I know it’s not legally allowed to marry your children. Once you adopt a child they are legally your child. What I can say is that there are many factors that result in such arrangements.”She said the cultural and family background of the family played a role in the kind of relationships they engaged in.
“Some cultures find incest normal while others don’t. Some countries recognise such marriages while others don’t. Whatever the case, there are some implications that come with intermarriage. They may or may not come with mental retardation or other genetic diseases [in offspring]. Thus intermarriages are prohibited between people who share a common ancestor. There should be generations between them.”
Pollak said a person was not legally allowed to marry their immediate family members such as siblings or half-siblings.
Van Oudtshoorn was referred to the Weskoppies psychiatric hospital on Tuesday for evaluation. The case has been postponed to August 16.