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FOREIGN (UK) SAME-SEX PARTNERSHIPS IN SOUTH AFRICA


What is the status in South Africa of a same-sex marriage/partnership concluded outside of the Republic?

In terms of our common law the validity of a foreign marriage is determined by application of the principle of ex loci celebrationis. Accordingly, if the marriage is duly concluded in accordance with the legal requirements for a valid marriage in that foreign country, it will be recognised by a local Court which will be entitled to exercise its powers under the Divorce Act (“the Act”) provided that the ordinary residential jurisdictional requirements under Section 2 of the Divorce Act have otherwise been met.

In the United Kingdom same-sex partnerships are regulated by the Civil Partnership Act 2004 ("the English Act"). The Act and the schedules thereto deal individually with civil partnerships concluded in England and Wales, Scotland, Northern Ireland and abroad.

At the outset it must be said that in certain respects the English Act has many points of coincidence with the Act, while in other respects it is far more extensive and detailed. The following aspects are relevant:

  • An English civil partnership is reserved exclusively for same-sex partners (Section 1(1)).

  • It terminates only on death, dissolution or annulment (Section 1(3)).

  • It is subject to official registration (Section 2) and the conclusion of a separate civil partnership document (Section 7).

  • The partners to such a partnership must be of the same sex, must be older than 16 years, may not already be civil partners or legally married, and must not be within prohibited degrees of relationship (Section 3).

  • The proposed civil partnership is publicly advertised and is subject to a 15 day waiting period (Sections 8, 10 and 11)).

  • “Civil marriage" is defined as a "marriage solemnised otherwise than according to the rites of the Church of England or any other religious usages." (Section 35(2)).

  • The High Court (or a County Court with appropriate family court jurisdiction) has the power to, inter alia -

  • grant a dissolution order in respect of a civil partnership on the grounds of irretrievable breakdown (Section 37(l)(a);

  • grant an order of nullity; (Section 37(l)(d)); or

  • make a separation order in respect of civil partners (Section 37(l)(d)).

  • Before a court may grant any order of dissolution, nullity or separation it must have regard to the interests of children in the family (Section 63).

A civil partnership concluded under the English Act has all the hallmarks of a marriage save that it may not be termed so under that Act. Of particular significance is the power of the Chancellor of the Exchequer to make the necessary amendments to the English Act so as to assimilate a civil partnership with a civil marriage.

The English Act also makes provision for the recognition of foreign same-sex civil partnerships which are lawfully concluded in that other country, subject to certain "general conditions" and public policy considerations (Sections 212-218), namely:

"214. The general conditions are that, under the relevant [foreign] law -

a) The relationships may not be entered into if either of the parties is already a party to a relationship of that kind or lawfully married,

b) The relationship is of indeterminate duration, and

c) The effect of entering into it is that the parties are -

(i) treated as a couple generally or for specified purposes, or

(ii) treated as married."

In terms of Chapter 3 of Part 5 of the English Act (Sections 219-224) the Family Courts in England and Wales have (or will assume) jurisdiction to grant orders of dissolution, separation or nullity in respect of recognised foreign same-sex partners and will also grant them ancillary relief.

In Minister of Home Affairs and Another v Fourie and Another 2006 (1) SA 523 (CC), the parties' civil partnership is legally recognised in England and while it may not be called one in that country, it has all the hallmarks of a marriage between persons of the opposite sex.

The Court found that the parties' English civil partnership, having been lawfully concluded in that country, should be accepted as a valid and binding civil partnership in the Republic in accordance with the lex loci celebrationis principle, provided only that it does not otherwise offend South African public policy.

Furthermore, in light of the constitutionality of permanent same-sex relationships in our law, there can be no suggestion of legal repugnancy of an English same-sex civil partnership, or that it is contra bonos mores.

The Divorce Act is the statute in terms of which South Africans who are spouses/partners to a marriage or civil union concluded in South Africa (regardless of whether their relationship is same-sex or heterosexual) must dissolve that relationship. The Act is also available to heterosexual couples who were lawfully married outside of the Republic of South Africa and who now wish to become divorced from each other while residing in this country.

To exclude from that category of prospective divorcees, partners who have concluded a lawful and enforceable same-sex civil union outside of South Africa, would only entrench and perpetuate the discrimination to which gay men and lesbians have been subjected in the past.

Were the Court not to apply a purposive interpretation of the Divorce Act (and in particular the word "marriage" therein) so as to accommodate duly concluded foreign same-sex unions, South African partners to a lawful English same-sex union would have to travel to the United Kingdom and file for dissolution in a Family Court there, provided of course that they are able to otherwise meet that Court's jurisdictional requirements in relation to residency. The perversity of this requirement is only exacerbated when one has two parties who are in agreement as to the terms and conditions of the dissolution of their relationship and where neither of them is evidently financially well-off and readily able to bear the costs of such an excursion. This would simply add insult to injury.

To restrictively interpret the word "marriage" so as to exclude legally recognized foreign same-sex relationships, while allowing it to apply to lawful foreign marriages and lawful South African same-sex marriages or civil partnerships, would offend against the fundamental rights referred to in the preamble to the Act, as also the provisions of Section 34 of the Constitution which guarantee access to our Courts.

Accordingly the Court found, if the word "marriage" in Section 3 of the Divorce Act is read so as to include a reference to a lawful, registered same-sex union which has all the hallmarks of a heterosexual marriage under the common law, save that it is not called a marriage, such a reading would protect and advance the relevant fundamental rights in the Constitution to which reference has been made above. Given that the purpose of the Divorce Act is to provide a statutory mechanism for the dissolution of marriages, and further given that locally concluded and registered same-sex unions are capable of dissolution thereunder, there does not appear to be any basis for distinguishing and excluding similar unions concluded outside of the Republic.

Therefore the word "marriage" in Section 3 of the Divorce Act must be read so as to include registered foreign same-sex marriages or civil unions/partnerships which are lawful in the country in which they are concluded.

Parties who concluded same-sex partnerships in the United Kingdom, are thus entitled to assert in a South African court that they are lawfully "married" for purposes of the application of the Divorce Act and to request our courts to dissolve their civil partnership in accordance with the provisions of Section 3 of the Divorce Act.

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