Life Partnerships:
In determining whether parties entered into a life partnership the
courts considered inter alia
·
whether the life partner undertook
to maintain the partner;
·
in other instances the duty
to support was not considered;
·
whether the parties
intended to life in a permanent relationship; and
·
In other case courts
considered whether the partners had a consortium
omnis vitae.
South
African law prior to the current constitutional era only recognised and
protected relationships between a man and a woman who concluded a state-sanctioned
marriage in accordance with the requirements of the Marriage Act. Although some
Acts such as the Estate Duty Act 45 of 1955; Pension Fund
Act 24 of 1956; Income Tax Act 58 of 1962; Maintenance Act 99 of 1998; Domestic
Violence Act 116 of 1998; Medical Schemes Act 131 of 1998; Rental Housing Act
50 of 1999 recognised life partnerships.
With the
drafting of the final Constitution, it was proposed that sexual orientation
should be retained as forbidden ground for discrimination. Despite public
opposition and a lack of legal precedent, sexual orientation as a ground for
protection from discrimination was entrenched in section 9(3) of the
Constitution. South Africa thus became the first country in the world explicitly
to recognise in its Constitution, sexual orientation as a ground on which
discrimination would automatically be unfair until proven otherwise.[1]
These
constitutional provisions created an opportunity for various same-sex couples (who
had hitherto been prohibited from entering into legally recognised marriages)
and heterosexual couples (who chose not to get married) to approach the
Constitutional Court demanding that the invariable consequences of marriage be
extended to non-traditional families.
The
Constitutional Court therefore became the platform through which recognition
was sought for, and eventually given to, changing social norms and needs.
Several post-Constitution ad hoc
judicial pronouncements (court rulings) were handed down extending spousal benefits to same-sex life partnerships by inter
alia:-
·
including a same-sex life
partner as a “dependant” in terms of the Medical Schemes Act 131 of 1998,[2]
·
acknowledging that both
same-sex partners have parental rights in respect of a child born as a result
of artificial insemination,[6]
The basis on which the
Constitutional Court advanced limited rights to same-sex life partners was
founded on the fact that same-sex couples could not choose to get married, as
they were prohibited from entering into marriage and were therefore
unjustifiably excluded from spousal benefits. The
Constitutional Court therefore refused
to extend spousal benefits to heterosexual life partnerships.
Eg. In Volks v Robinson it was concluded that it is inappropriate for
the court to impose a duty to maintain on a deceased estate while the life
partner did not have an ex lege duty
to maintain during his lifetime.
Presently same-sex life
partnerships enjoy more legal protection (entitled to claim intestate
succession and maintenance in respect of the Maintenance of Surviving Spouses
Act) than heterosexual life partnerships which may be regarded as differential treatment.
It was however only in December 2005 that the exclusion of same-sex
couples from the Marriage Act came under constitutional scrutiny in the Fourie case.
In Minister of
Home Affairs v Fourie (Doctors for Life International and Others, Amici
Curiae); Lesbian and Gay Equality Project and Others v Minister of Home Affairs,[10] the Constitutional Court
declared the exclusion of same-sex couples from the common law definition of
marriage and the marriage formula provided for in section 30(1) of the Marriage
Act 25 of 1961 unconstitutional. The Constitutional Court held that the exclusion of same-sex couples from the right to marry unjustifiably
denied same-sex couples equality before the law and equal protection and
benefit of the law under section 9(1), subjected same-sex couples to unfair discrimination
by the state under section 9(3),[11]
and violated their right to dignity under section 10[12]
of the Constitution.[13]
The court consequently declared the common law definition of marriage
inconsistent with the Constitution and invalid to the extent that it does not
permit same-sex couples to achieve the dignity, status, benefits and
responsibilities available to heterosexual couples through marriage.[14]
In addition the court declared “the omission from section 30(1) of the Marriage
Act 25 of 1961 after the words ‘or husband’ of the words ‘or spouse’ ... to be
inconsistent with the Constitution, and the Marriage Act ... to be invalid to
the extent of this inconsistency”.[15]
Civil Union Act
In response to the Fourie
ruling, Parliament enacted the Civil Union Act 17 of 2006[16] thereby affording
same-sex couples the right to marry by means of a civil union regime.
A civil union is defined as “the voluntary union of two persons who are
both 18 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, whilst it lasts, of all others”.[17] The Civil Union Act is
applicable to monogamous relationships[18]
of either same-sex or heterosexual couples.
Despite the legal requirements for a civil union being nearly identical
to those of a civil marriage( in other words a person must have capacity to
act, consensus, act lawfully)[19] certain prescribed formalities
regulating the solemnisation and registration of a civil union differ from
those relating to a civil marriage. As in the case of the Marriage
Act, the Civil Union Act prescribes that a civil union may only be solemnised
by a marriage officer[20] and
that the solemnisation must occur in accordance with the provisions of the Act.[21] A marriage officer may either be a religious
marriage officer or an ex officio
marriage officer.[22] One of
the key differences is that the Civil Union Act requires a religious
denomination or organisation
to apply in writing to the Minister of Home Affairs[23]
to be designated for purposes of solemnising civil unions.[24]
In addition, only after the religious denomination or organisation has been
designated as a religious institution for purposes of
solemnising marriages in terms of the Civil Union Act,[25] may
a minister of religion or any person holding a responsible position, for
as long as he or she occupies such position in the religious denomination or
organisation,[26] apply
to be a designated marriage officer.[27] In terms of the Marriage Act, in contrast, a
single application is required.[28] An
application to a High Court is also possible where a parent, guardian or the
presiding officer has refused to consent to the marriage of a minor and where
such refusal is without adequate reason contrary to the interests of the minor.
Accordingly, the double application
process required in terms of the Civil Union Act makes it more cumbersome
for a religious marriage officer to conduct civil unions than civil marriages.
The Civil Union Act furthermore prescribes that an ex officio marriage officer so designated by virtue of section 2 of
the Marriage Act is a marriage officer in terms of the Civil Union Act.[29]
A civil
marriage and a civil union can only be solemnised by either a religious or an ex officio marriage officer. In terms of
section 31 of the Marriage Act, a religious marriage officer may refuse to
solemnise a civil marriage which does not conform to the rites, tenets, or
doctrines of his or her religious beliefs. This is in contrast with the
provisions of section 5 of the Civil Union Act which do not provide a religious
marriage officer with such a right.
In terms of the Marriage Act, ex
officio marriage officers are obliged to solemnise civil marriages.[30] In contrast, in terms of the Civil Union Act, ex officio marriage officers may
refuse to solemnise same-sex civil unions on the grounds of their conscience,
religion, and beliefs.[31] It
is noteworthy that this provision only applies to
same-sex couples. The different provisions applicable to ex officio marriage officers in terms of
the Marriage Act and in terms of the Civil Union Act, constitute an anomaly.
The legal consequences of a marriage
and civil union are identical therefore the invariable as well as the
proprietary consequences of a civil union is identical. A civil union can therefore also be dissolved
in terms of the Divorce Act.
It is
questionable whether the dual application of the Marriage Act and the Civil
Union Act is constitutional as heterosexual couples have the right to choose
between getting married ito the Marriage Act or the Civil Union Act whilst
same-sex couples can still only get married in terms of the latter Act.
[2] Langemaat
v Minister of Safety and Security 1998 (2) All SA 259 (T).
[3] National
Coalition for Gay and Lesbian Equality v Minister of Home Affairs 2000 (2) SA 1
(CC).
[7] Du Plessis v
Road Accident Fund
2004 (1) SA 359 (SCA).
[11] Section 9(3) of the Constitution
provides that “[t]he state may not unfairly discriminate directly or indirectly
against anyone on one or more grounds, including race, gender, sex, pregnancy,
marital status, ethic or social origin, colour, sexual orientation…”.
[12] Section 10 of the Constitution provides that “[e]veryone has
inherent dignity and the right to have their dignity respected and protected”.
[16] Civil Union Act 17 of 2006.
[17] Section 1 of the Civil Union Act.
[18] Section 8(1) and 8(2) of the Civil Union Act
provides that a party to a civil union “may not conclude a marriage under the
Marriage Act or the Recognition of Customary Marriages Act 120 of 1998”. In
addition section 8(3) of the Civil Union Act stipulates that “[a] person who is married under the
Marriage Act or the Customary Marriages Act may not register a civil union.” For a general discussion of
traditional values in terms of customary law being omitted from the Civil Union
Act.
[19] The parties to the civil union must have the necessary
capacity to act, have the intention to enter into a civil union with one
another and must, in terms of section 8(6) of the Civil Union Act, not be
prohibited by law from entering into a civil union.
[21] Section 4(2) of the Civil Union Act provides that “[s]ubject
to the provisions of the Act, the marriage officer has all the powers,
responsibilities and duties conferred upon him or her under the Marriage Act,
to solemnise a civil union”.
[22] Section 1 of the Civil Union Act defines a “marriage
officer” as a marriage officer ex officio
designated in terms of section 2 of Civil Union Act and a minister of religion
designated in terms of section 5 of the Civil Union Act; compare sections 2 and
3 of the Marriage Act.
[23] In terms of section 1 of the Civil Union Act, “Minister”
refers to “the Cabinet member responsible for the administration
of Home Affairs”.
[24] Section 5(2) of the Civil Union Act provides the Minister of
Home Affairs with the authority to designate a religious denomination
or organisation as a religious institution for purposes of solemnising a civil
union. For a
discussion of whether section 5(1), (2), (4) and (6) only provides for
marriages and not also for civil partnerships.
[31] Section 6 of the Civil Union Act provides that “[a]
marriage officer, other than a marriage officer referred to in section 5 may in writing inform the Minister
that he or she objects on the ground of
conscience, religion and belief to solemnising a civil union between persons of
the same sex, whereupon that marriage officer shall not be compelled to
solemnise such civil union”.
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