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CIVIL UNIONS, ENTERING INTO, COSEQUENCES AND DISSOLUTION


The present state of our law then is that a same-sex union concluded under the Civil Union Act No. 17 of 2006 ("the Act") is fully cognizable as a marriage, whether the partners thereto choose to call it a marriage or a civil partnership, and that such union is capable of dissolution under the Divorce Act.

The Act is a piece of legislation which follows upon the decision in Minister of Home Affairs and Another v Fourie and Another 2006 (1) SA 523 (CC) in which the Constitutional Court held that:

  • the common law definition of marriage was inconsistent with the Constitution in that it deprived same-sex couples of the status, benefits and responsibilities which the institution of marriage accorded to heterosexual couples;

  • the provisions of Section 30(1) of the Marriage Act, 25 of 1961 were pari passu inconsistent with the Constitution; and

  • Parliament was to address these defects within twelve months, failing which certain words were to be read into Section 30(1) of the Marriage Act.

The Legislature was required to respond to the Constitutional Court's directive by 1 December 2006. It left matters rather late and the first draft of the relevant Bill was only considered by Parliament in September 2006. Substantial changes were effected to the first draft and the second draft was ultimately adopted by Parliament in November 2006 before it came into operation on the 30th of that month.

Significantly, Parliament did not amend the Marriage Act but sought to comply with the Constitutional Court's directions in the Fourie case by passing a separate Act. The resultant legislation has not achieved universal acclaim in South Africa and, as will be seen hereunder, unfortunately has the watermark of rushed legislation.

The principle aim of the Act was to address same-sex relationships and to afford them the same status as heterosexual relationships. Yet, they argue that the Legislature failed to achieve this and has created confusion in its attempts to categorise long-term relationships entered into between same-sex adults on the basis of love and commitment, to the exclusion of all others, for so long as they last.

The preamble to the Act refers to Sections 9(l)(equality), 9(3) (unfair discrimination), 10(l)(dignity) and 15(l)(freedom of conscience, religion, thought, belief and opinion) of the Constitution and notes that:

"the family law dispensation as it existed after the commencement of the Constitution did not provide for same-sex couples to enjoy the status and the benefits coupled with the responsibilities that marriage accords to opposite-sex couples."

In Section 1 of the Act a "civil union" is defined as:

“..the voluntary union of two persons who are both eighteen years of age or older, which is solemnised and registered by way of either a marriage or a civil partnership, in accordance with the procedures prescribed in this Act, to the exclusion, while it lasts, of all others..."

Curiously the phrase "civil partnership" is not defined in the Act, but it will be noted that the definition of a civil union does not limit its ambit to same-sex couples.

The objectives of the Act are said, in Section 2 thereof, to address both the solemnisation and registration of civil unions and the legal consequences thereof.

Sections 4 to 12 of the Act then deal with a variety of procedural and related issues, including the solemnisation and registration of civil unions. Importantly, in terms of Section 8 of the Act a person may only be a spouse/partner in one civil union, and may not conclude either a marriage under the Marriage Act while being a partner in a civil union, or register a civil union while still being married under the Marriage Act.

If a person wishing to enter into a civil partnership under the Act was previously married under the Marriage Act s/he must produce proof of dissolution of that marriage either through a divorce order or a death certificate of the other spouse. (Section 8(4)).

Section 13 of the Act determines the legal consequences of a civil union as follows:

“13 Legal consequences of civil union:

1. The legal consequences of a marriage contemplated in the Marriage Act apply, with such changes as may be required by the context, to a civil union.

2. With the exception of the Marriage Act and the Customary Marriages Act, any reference to -

(a) marriage in any other law, including the common law, includes, with such changes as may be required by the context, a civil union; and

(b) husband, wife or spouse in any other law, including the common law, includes a civil union partner."

Consequently, a civil union concluded in accordance with the provisions of the Act is intended to have all the ordinary consequences of a marriage otherwise concluded under the Marriage Act or Customary Marriages Act, save that it is not to be regarded as, or termed, a marriage under either of those Acts. So, for example, the reciprocal duty of support which spouses owe each other at common law would apply equally to same-sex partners to a civil union.

Somewhat paradoxically, the parties are given the choice under Sections 11(1) and (2) of the Act to choose whether to call their relationship a marriage or a civil partnership:

“11. Formula for solemnisation of marriage or civil partnership

1. A marriage officer must enquire from the parties appearing before him or her whether their civil union should be known as a marriage or a civil partnership and must thereupon proceed by solemnising the civil union in accordance with the provisions of this section.

2. In solemnising any civil union, the marriage officer must put the following questions to each of the parties separately, and each of the parties must reply thereto in the affirmative:

"Do you, A.B., declare that as far as you know there is no lawful impediment to your proposed marriage/civil partnership with CD. here present, and that you call all here present to witness that you take CD. as your lawful spouse/civil partner?", and thereupon the parties must give each other the right hand and the marriage officer concerned must declare the marriage or civil partnership, as the case may be, solemnised in the following words:

'7 declare that A.B. and CD. here present have been lawfully joined in a marriage/civil partnership. "

The paradox is that, firstly, the phrase "civil partnership" is not defined in an act which deals with civil unions, and, further, the word "marriage" is intended to refer to a state of matrimony which may not constitute a marriage under the Marriage Act notwithstanding the fact that the civil union is concluded before a marriage officer appointed under that Act. Nevertheless, the Legislature has determined that a civil union may be called either a civil partnership or a marriage: it is left up to the parties to decide on the preferred nomenclature.

Despite the preamble, in which the Legislature commits itself to addressing the plight of same-sex couples, it appears that the Act contemplates the recognition of the following long term domestic cohabitation arrangements in South Africa:

(i) A marriage under the Marriage Act. This must per force be a heterosexual relationship.

(ii) A marriage under the Customary Marriages Act which

would usually also involve heterosexual persons;

(iii) A marriage under the Act which can be between persons of

either the same or opposite sexes; and

(iv) A civil partnership under the Act which can similarly be

between persons of either the same or opposite sexes.

Marriages under the Marriage Act are dissolved either by the death of one of the spouses or by a divorce action initiated under the Divorce Act, 1979. But what of a marriage or civil partnership concluded under the Act? In light of the provisions of Section 8 to which I have referred above, it is imperative that a civil union be capable of lawful termination other than through the death of one of the partners in circumstances where it has broken down irretrievably.

The Act itself contains no provisions which govern the dissolution of a civil union. The rationale behind this obvious omission is that the Legislature intended that the provisions of Section 13(2)(a) of the Act should incorporate the relevant provisions of the Divorce Act as the applicable statute for dissolving such partnerships. In this regard it will be noted that Section 13(2)(a) of the Act specifically incorporates a reference to the word marriage in "any other law" as being a reference, also, to a civil union.

Because the Divorce Act is regarded as "other law" for purposes of the application of Section 13(2)(a) of the Act, any reference in the Divorce Act to "marriage" will apply pari passu to both a marriage and a civil union concluded under the Act. The Divorce Act is then the appropriate procedural mechanism for the dissolution of either a marriage under the Marriage Act, a marriage under the Act or a civil partnership under the Act.

That procedure is prescribed in the Divorce Act in the following circumstances:

“3. Dissolution of marriage and grounds of divorce:

A marriage may be dissolved by a court by a decree of divorce and the only grounds on which a decree may be granted are -

(a) The irretrievable break-down of the marriage as contemplated in Section 4;

(b) The mental illness or the continuous unconsciousness, as contemplated in Section 5, of a party to the marriage."

Therefore that a same-sex marriage or same-sex civil partnership concluded under the Act is capable of dissolution under Section 3 of the Divorce Act. Similarly, given the extension of the meaning of "husband, wife or spouse" in Section 13(2)(b) of the Act to civil union partners, any ancillary or pendente lite relief contemplated under the Divorce Act must be available to the same-sex partners to either such a marriage or civil partnership. This would include orders for maintenance under Section 7(2) of the Divorce Act and relief under Rule 43 of the Uniform Rules.

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