Family Law Lecture 10: Civil Unions (University of Mpumalanga)

Family Law LECTURE: 10, Part Two: (Civil Unions) Chapter 16 : Civil Unions Introduction Before 27 April 1994 SA law only recognised civil marriages which were:  Monogamous between to persons of the opposite sex, and  Concluded ito the Marriage Act 25 of 1961. The Marriage Act never...

Family Law LECTURE: 10, Part Two: (Civil Unions) Chapter 16 : Civil Unions Introduction Before 27 April 1994 SA law only recognised civil marriages which were:  Monogamous between to persons of the opposite sex, and  Concluded ito the Marriage Act 25 of 1961. The Marriage Act never defined the concept of a marriage. The courts had to refer to common law to defi ne marriage in cases where it was not clear whether a union between two persons qualified as a valid civil marriage ito SA law. Ismail v Ismail – parties concluded a marriage in accordance with Islamic rites, but not the Marriage Act. The Appellate Division held that it was not a valid civil marriage. The Bill of Rights (BOR) Came into operation on 27 April 1994. Contained in Chapter 3 of the Interim Constitution. It provided for the right to equality. This meant that every person was equal before the law and had equal protection of the law. The BOR also prohibited unfair discrimination on grounds such as race, religion, gender, sex and sexual orientation. Various court decisions followed that extended the rights and privileges of spouses to same-sex partners. NB!! This is now Chapter 2 of the Constitution of the Republic of SA, 1996.  The developments regarding the issue of marriage were first seen in - Minister of Home Affairs v Fourie (Doctors for Life International, Amici Curiae); Lesbian and Gay Equality Project v Minister of Home Affairs, A lesbian couple approached the Pretoria High Court, for an order to compel the Minister of Home Affairs to register their marriage ito the Marriage Act. The HC dismissed the application, but the couple persisted with attempts to have their relationship legally recognised. On 1 December 2005, the Constitutional Court held that the common-law defi nition of marriage as a monogamous union limited to heterosexual persons is unconstitutional. This is because it did not allow same-sex couples to enjoy the status, benefi ts and responsibilities that marriage accorded heterosexual couples. The court also held that s30(1) of the Marriage Act was unconstitutional because it used words such as ‘husband’ and ‘wife’ as opposed to gender neutral terms such as ‘spouse’. It could therefore not provide for same-sex marriages. The court suspended the declaration of unconstitutionality until 1 December 2006 to enable Parliament to correct the defects. Civil union Act 17 of 2006 Came into effect on 30 November 2006. The Act regulates the solemnisation and registration of civil unions and to provide for their legal consequences. S1 of the Act defi nes a civil union – as the monogamous, voluntary union of two persons who are at least 18 years of age, which is solemnised and registered in accordance with the procedures prescribed by the Act. The term “civil union” includes:  A marriage and  A civil partnership - concluded in terms of the Act ( for persons who do not wish to marry each other but who still wish to have consequences of a civil marriage made applicable to their union). The parties are free to choose. However, in practice, a civil union is referred to as a ‘marriage’ and to the parties concerned as ‘spouses. The term civil partnership is used in practice if parties conclude a civil partnership ito the Act and we then refer to the parties as ‘partners. The requirements for and consequences of the civil union and civil partnership are exactly the same. The requirements for and consequences of a civil union are in most respects identical to those of civil marriages, The legal requirements for a civil union 1. Capacity to act Both parties must have capacity to act in order to be able to enter into a valid civil union (over the age of 18). In terms of the definition of a “civil union” in section 1 of the Civil Union Act - only persons who have already reached the age of 18 years may enter into a civil union. Thus, a minor cannot validly enter into a civil union even if he or she is assisted by his or her parent or legal guardian. Right to equality and human dignity of minors? 2. Agreement Both parties must have the intention to enter into a civil union with one another. During the ceremony itself, the marriage offi cer must expressly ask each party whether he or she accepts the other party as spouse/civil partner, and both parties must answer in the affi rmative. Problems in connection with agreement arise when it appears that E.g., the parties laboured under a material mistake or One of them gave their agreement because of misrepresentation, Duress or Undue infl uence. The same rules which apply to agreement in respect of a civil marriage apply to agreement in respect of a civil union. 3. Lawfulness A civil union is monogamous. Any person who is a party to an existing civil union, civil marriage or customary marriage may not enter into the civil union while that marriage exists. An adoptive parent may not enter into a civil union with his or her adopted child. Nor may persons who are within the prohibited degrees of relationship for purposes of a civil or customary marriage enter into a civil union with each other. Prescribed formalities a) Marriage offi cers The solemnisation and registration of a civil union take place in the same way as the solemnisation and registration of a civil marriage. A civil union may only be solemnised by a marriage offi cer. Anyone who purports to solemnise a civil union without having the necessary authority to do so or an authorised marriage offi cer who solemnises a prohibited civil union, is guilty of an offence. b) Before the civil union ceremony Any objection to the civil union must lodge a written objection with the marriage offi cer. The marriage offi cer must enquire into the grounds on which the objection is based and only solemnise the civil union if he or she is satisfied that there is no lawful impediment. The marriage offi cer may not solemnize a civil union unless each party produces an identity document or prescribed affi davit. Before solemnisation, the marriage offi cer must ask the parties if the want their union to be a marriage or a civil partnership. The parties must individually and in writing declare their willingness to enter into the civil union with one another and must sign the prescribed document signifying their willingness in the presence of two witnesses. The marriage offi cer must then solemnise the civil union using the term the parties chose, that is, “marriage” or “civil partnership. c) During the civil union ceremony A civil union must take place in the presence of the parties themselves and at least two witnesses. A civil union may be solemnised at any time and on any day of the week, but a marriage offi cer is not obliged to solemnise a civil union before 8:00 or after 16:00. The civil union must be solemnised and registered in a public offi ce or private dwelling, with open doors etc. d) Registration of the civil union Both parties must individually and in writing declare their willingness to enter into a civil union, And in the presence of two witnesses sign the prescribed document. Marriage offi cer and two witnesses must also sign the prescribed document. Marriage offi cer must issue a registration certifi cate which refl ects their civil union and choice of marriage or civil partnership. A duly signed registration certificate is prima facie proof of the existence of the civil union. The marriage offi cer must send the civil union register to a regional or district representative of the Department of Home Affairs, who then enters the particulars of the civil union in the records kept in terms of the Identification Act 68 of 1997. Consequences of a civil union S13 of the Civil Union Act – the legal consequences of a civil marriage also apply to civil unions, with such changes as may be required by the context, the consequences of a civil union correspond to those of a civil marriage. Therefore, the invariable and variable consequences of a civil union correspond to those of a civil marriage. Civil union partners have the same options as regards the proprietary consequences of their union as spouses in a civil marriage have, and A civil union is dissolved in exactly the same way as a civil marriage. Invariable consequences Like a civil marriage is monogamous, so is a civil union.  Thus, neither partner may enter into another civil union or a civil or customary marriage during the subsistence of the civil union,  Otherwise, it will be void. The duty of support will also operate between spouses.  Once they have concluded their marriage, spouses are obliged to support each other.  The pater est quem nuptiae demonstrant presumption - (that is, the marriage indicates who the father is) operates in respect of any child the wife gives birth to.  In terms of this presumption, a child born to a married woman is presumed to have been fathered by her husband.  Application of the pater est quem nuptiae demonstrant presumption in a civil union between heterosexual persons is easy.  However, it is unclear how the presumption can be adapted to fit the circumstances of a same-sex civil union.  S26(1) of the Births and Deaths Registration Act 51 of 1992 - permits “a woman after her marriage” to assume the surname of “the man with whom she concluded such marriage or after having assumed his surname to resume a surname she bore at any prior time. It will also apply to both parties to a civil union. s13(2) of the Civil Union Act provides that any reference to “husband” or “wife” in any Act other than the Marriage Act or the Recognition of Customary Marriages Act includes “civil union partner”. In a civil marriage, in contrast, the dispensation regarding surname applies only to wives. It is submitted that this differentiation between the position of civil union partners and spouses in a civil marriage is unconstitutional as it constitutes unjustifi able inequality.  There is a rebuttable presumption in SA that all marriages are in community of property.  If the civil union partners do not enter into an antenuptial agreement, community of property operates in their civil union, and  they have equal powers of administration in respect of the joint estate. The lex domicilii of the husband at the time of a couple’s marriage dictates their matrimonial property system. s13 of the Civil Union Act - the rules regarding determination of a couple’s matrimonial property system also apply if the civil union partners are of the opposite sex and the male partner is domiciled in South Africa. It is not clear how this section will apply if the civil union partners are of the same sex and one or both of them are not domiciled in South Africa. This violates their right to equality on the ground of sexual orientation.  If the marriage is terminated by divorce, the Divorce Act will apply and will regulate the grounds of divorce and the patrimonial consequences. If terminated by death, the Maintenance of Surviving Spouses Act and Intestate Succesion Act will apply. Remember: a marriage creates consortium omnis vitae between spouses. The dissolution of a civil union Exactly the same rules which govern the dissolution of a civil marriage apply to the dissolution of a civil union. The constitutionality of the Civil Union Act The main issue is whether the Act achieved what the Constitutional Court in Minister of Home Affairs v Fourie (Doctors for Life International, Amici Curiae); Lesbian and Gay Equality Project v Minister of Home Affairs – required the legislator to do, namely afford same-sex couples the status, benefi ts and responsibilities accorded to opposite sex couples. Broadly speaking, the Act confers the same right on heterosexual and same-sex couples to enter into a fully recognised relationship which may be called a marriage or a civil partnership. In this sense, the Act therefore meets the requirement set out in Fourie. Most commentators therefore adopt the view that the Act is a constitutionally acceptable vehicle for conferring full legal recognition on same-sex relationships.  A complicating factor is that the Act is the only means available to same- sex couples who want to obtain full legal recognition for their relationship, while heterosexual couples can acquire such recognition by way of either a civil union or a civil marriage. Some authors are of the view that: This differentiation results in a separate but equal remedy in direct contravention of the warning in Fourie that the concept of “separate but equal”, which historically “served as a threadbare cloak for covering distaste for or repudiation by those in power of the group subjected to segregation”, would be unconstitutional and That the legislator must “be as generous and accepting towards same-sex couples as it is to heterosexual couples, both in terms of the intangibles as well as the tangibles involved”.  The authors suggest that this diffi culty can be overcome by repealing the Marriage Act. Another view is that instead of repealing it, the Marriage Act should be amended to apply to heterosexual and same-sex couples alike. In addition, the Civil Union Act should be repealed, because it unjustifi ably violates the right to equality because some of its provisions apply only to same- sex couples, confers a second-class marital status on same-sex couples, and produces new forms of oppression and repudiation. SELFSTUDY!! Chapter 12: The Patrimonial Consequences of Divorce. READ 12.1 - 12.2.