DOMESTIC PARTNERSHIPS

By Johan Gresse, Councillor, LAW SOCIETY OF NORTHERN PROVINCES

Synopsis: legislative changes are being discussed to correct the perceived imbalances which currently exist between recognising marriage as the only legally intimate partnership and domestic partnerships between people of the same or opposite sex.

A seminar arranged by the South African Law Reform Commission was recently held in Pretoria and members of the Law Society of the Northern Provinces were requested to participate in the discussions.

The legislative proposals discussed at the seminar are aimed at correcting the perceived imbalances, which currently exist between marriage as the only legally recognised intimate partnership, and domestic partnerships between people of the same or opposite sex.

Partners in domestic partnerships, other than marriage, are normally excluded in the rights and obligations, which attach automatically to marriage despite the fact that they often function in a manner similar to traditional married families and they have to make use of the ordinary rules and remedies of the law, such as those relating to property, contract, unjustified enrichment and estoppel to enforce their rights.

As the number of people in South Africa and elsewhere living in such domestic partnership relationships has increased, the purpose of the proposed legislation is to address their needs for better legal protection, especially as far as Human Rights are concerned, as provided for in Section 9 of the Constitution of the Republic of South Africa.

The S.A. Law Reform Commission is of the opinion that it is unconstitutional that there is currently no legal recognition of same sex relationships and it has, therefore, proposed that same sex relationships should be acknowledged by law and the following alternatives were considered at the seminar:

A. SAME SEX MARRIAGE

The option entails the opening up of the Common Law definition of marriage to same sex couples by inserting a definition to that effect in the Marriage Act of 1961.

The option entails the separation of the civil and religious elements of marriage.

The Marriage Act of 1961 will be amended to the extent that it will only regulate the civil aspect of marriage and it will also make provision for the civil marriage of both the same and opposite sex couples.

According to this option, couples are accorded a legal status parallel to that of marriage under a separate institution called a Civil Union.

B. CIVIL UNIONS

(With same sex couples only)

Since it is a model that runs parallel to marriage, the legal consequences following the conclusion of a civil union will be the same as that of marriage, but in view of the fact that the union is not a marriage, a civil union will be regulated in terms of the proposed Registered Partnerships legislation and it will be established by a civil registration procedure and terminated by agreement or by a court procedure.

Civil Unions for same and opposite sex couples

This option will be available to opposite sex couples who object to the moral and religious connotations attached to traditional marriage, but who do want the legal consequences of marriage and this may result in civil unions being made available to both the same and opposite sex couples.

C. REGISTERED PARTNERSHIPS

(Same sex plus opposite sex relationships)

A Registered Partnerships Act is proposed for partners of the same or opposite sex who do not wish to get married or to obtain all the legal consequences of marriage, but still desire some protection.

The registration of a partnership will afford parties some of the basic rights associated with civil marriage.

The proposed legislation prescribes a formal registration procedure with termination taking place by agreement or court procedure.

In addition to what has been stated above, a default property regime that differs from that of marriage is also prescribed in terms of the proposed legislation which, in addition to the property dispensation, will take care of such obligations as the duty to support each other, the right to intestate succession and delictual claims.

Where a child is born into a registered partnership between persons of the opposite sex, the male partner is deemed to be the biological father of that child.

There is only a limited right to maintenance between former registered partners after termination of the registered partnership.

D. Other relationships were also considered, namely:

(Same sex plus opposite sex relationships) which include:

• aa. De facto unregistered partnerships;
• bb. Ex-post facto unregistered partnerships.

The S.A. Law Reform Commission will consider the submissions made by the representatives of the various interested groups with a view to proposing legislation in the near future.