Emancipation is not always fully understood. There is an idea that upon emancipation a minor becomes a major. This, however, is not the case. This article will try to explain the nature of emancipation.
Emancipation is not something that benefits a minor. A small example: M is being sued for breach of contract. His defence is that he is a minor and acted without parental permission. The opposition holds that he acted as an emancipated person and should be held bound to the contract in spite of acting without parental permission.
Emancipation is essentially a question of fact and the most important fact is whether the minor had parental permission to enter into the relevant contract. Parental permission could be either explicit or implied. Should the minor have had parental permission he is regarded as an emancipated minor for the purposes of that contract. The permission could be explicit or implied and should point out that the minor is participating in the commercial activity for his own account.
– Requirements for emancipation
In addition to parental permission, an own abode and a career used to be requirements under South African law, but earning a salary was later accepted as sufficient in spite of the minor’s not having a career. The requirement of an own abode was later also abandoned.
The position today is that emancipation is a question of fact that the court will answer after looking at the circumstances of each case. The following are some of the facts that the court will consider in answering this question of fact:
– whether the minor lives on his own
– the relationship with his or her parents
– the nature of the minor’s career and for how long he or she has been practising it
– the economic independence of the minor
Because the question whether a minor is emancipated is a question of fact, all relevant factors should be put before the court in order for it to get a complete picture.
Emancipation does not give a minor the status of a minor and it could even be withdrawn by the parent or guardian. Because parental permission could be withdrawn, it cannot be said that emancipation grants a minor locus standi in iudicio (competence to go to court), not even with contracts that fall within the scope of emancipation. Emancipation also does not make a minor competent to marry without parental permission or to alienate or burden fixed property.