CIVIL UNION BILL

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CIVIL UNION BILL

• Presentation to Portfolio Committee
• 6 September 2006

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BACKGROUND

• The purpose of the Civil Union Bill, 2006 is
  twofold in that it provides for the conclusion
  of
• i. A civil partnership or marriage between
  persons of the same sex solemnized before the
  State with all legal consequences of a marriage
• ii. A domestic partnership between persons in a
  permanent relationship, whether of a heterosexual
  or homosexual nature, who do not wish to marry or
  enter into a civil partnership or marriage, but
  with legal consequences provided for in the Bill.
  

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Preamble

• The Preamble
• recites the provisions of the Constitution that
  provide for the right to equality before the law
  and equal protection and benefit of the law
  (section 9).
• recites section 10 of the Constitution that deals
  with human dignity.
• notes that the family law dispensation that
  existed after the commencement of the
  Constitution does not provide for same-sex
  couples to enjoy the status and benefits coupled
  with responsibilities that a marriage accords to
  opposite-sex couples.
• notes that same- and opposite-sex couples who
  wish to enter into permanent domestic
  partnerships are not legally recognised or
  protected.

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CHAPTER 1 Clause 1 Definitions

• Clause 1 defines the terms used in the Bill in
  order to clarify the meanings thereof.
• Amongst others, the terms civil partnership,
  civil union and domestic partnership are
  defined as follows
• civil partnership means the voluntary union of
  two adult persons of the same sex that is
  solemnised and registered in accordance with the
  procedures prescribed in this Act to the
  exclusion, while it lasts, of all others.

Thank You
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Clause 1 Definitions (Continued)
civil union means a civil partnership or a
domestic partnership domestic partnership
means a registered domestic partnership or
unregistered domestic partnership and includes a
former domestic partnership.
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CHAPTER 2Civil Partnerships

• Clause 2 Objectives of Chapter
• This clause provides for the objectives of
  Chapter 2, which are to regulate the
  solemnization and registration of civil
  partnerships and the legal consequences thereof.
• Clause 3 Relationships to which Chapter applies
• The clause provides that this Chapter applies to
  civil partners joined in a civil partnership.

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CHAPTER 2Civil Partnerships (Continued)

• Clause 4 Solemnization of a civil partnership
• This clause provides for the solemnization of a
  civil partnership by a marriage officer in
  accordance with the provisions with the Chapter.
• Furthermore, a marriage officer is empowered to
  exercise all powers conferred upon him or her by
  the Marriage Act, 1961 (Act No. 25 of 1961),
  hereinafter referred to as the Marriage Act, to
  solemnize a civil partnership in terms of this
  Chapter.

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CHAPTER 2Civil Partnerships (Continued)

• Newly inserted clause 5 Designation of
  ministers of religion and other persons attached
  to churches as marriage officers
• A new clause is inserted after clause 4 of the
  Bill to provide for the designation, upon
  application in writing to the Minster, of any
  religious denomination or organisation as a
  religious organisation that may solemnize civil
  partnerships.
• By allowing religious denominations or
  organisations at their own request to solemnize
  civil partnerships, the Bill would promote the
  right to equality and the right to freedom of
  religion as no religious organisation would be
  forced to solemnize civil partnerships, while
  those religious organisations or denominations
  that choose to do so are legally acknowledged.

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CHAPTER 2Civil Partnerships (Continued)

• Clause 5 Marriage officers may refuse to
  solemnize civil partnership
• This clause provides that no marriage officer is
  compelled to solemnize a civil partnership,
  provided that he or she has informed the Minister
  in writing of his or her objection on the grounds
  of conscience.

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CHAPTER 2Civil Partnerships (Continued)

• Clause 6 Prohibition of solemnization of civil
  partnership without production of identity
  document or prescribed declaration
• This clause prohibits the solemnization of a
  civil partnership, unless each of the parties to
  the partnership produces his or her identity
  document or prescribed affidavit to the marriage
  officer.

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CHAPTER 2Civil Partnerships (Continued)

• Clause 7 Requirements for solemnization and
  registration of civil partnership
• This clause provides that a person may only be a
  partner in one civil partnership at any given
  time and further that a person who is already
  married may not register a civil partnership.
• Furthermore, it requires a civil partner, who has
  previously been married or registered as a
  partner in a civil partnership, to present a
  certified copy of the divorce order or death
  certificate of the former spouse or partner to
  the marriage officer as proof that the previous
  civil partnership or marriage has been terminated.

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CHAPTER 2Civil Partnerships (Continued)

• Clause 8 Objections to civil partnership
• This clause requires any objections to the civil
  partnership to be lodged in writing with the
  marriage officer who is to solemnize such civil
  partnership.
• It further requires the marriage officer
  concerned to enquire into the grounds of the
  objections and if he or she is satisfied that
  there is no lawful impediment to the proposed
  civil partnership, to solemnize the civil
  partnership.
• If the marriage officer is satisfied that there
  is lawful impediment, he or she must refuse to
  solemnize the civil partnership and record the
  reasons for such refusal in writing.

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CHAPTER 2Civil Partnerships (Continued)

• Clause 9 Time and place for and presence of
  parties and witnesses at solemnization of civil
  partnership
• This clause provides for the solemnization and
  registration of civil partnership at any time on
  any day of the week, but a marriage officer is
  not obliged to solemnize a civil partnership at
  any other time than between the hours of 8h00 and
  16h00.
• This clause prohibits the entering into a civil
  partnership through proxy.

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CHAPTER 2Civil Partnerships (Continued)

• Clause 10 Civil partnership formula
• This clause requires the marriage officer to
  inquire from both parties whether they prefer
  their partnership to be referred to as a civil
  partnership or a marriage during the
  solemnization ceremony and thereupon proceed to
  solemnize the partnership accordingly.
• The clause furthermore prescribes the formula for
  solemnizing any civil partnership or marriage.
• Clause 11 Registration of civil partnership
• This clause provides for the requirements for
  registration of civil partnerships and the
  issuance of a registration certificate

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CHAPTER 2Civil Partnerships (Continued)
THANK YOU

• Clause 12 Legal consequences of civil
  partnerships
• This clause provides that a civil partnership
  will have the same legal consequences of a
  marriage in terms of the Marriage Act, with the
  necessary modifications, and that reference to
  husband, wife or spouse in any other law,
  including the common law, will include a civil
  partner as defined in this Act.

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CHAPTER 3Domestic Partnerships

• Clause 13 Objectives of Chapter
• This clause provides that the objectives of
  Chapter 3 are to ensure the rights of equality
  and dignity of partners in domestic partnerships
  and to reform family law to comply with the
  provisions of the Bill of Rights through
• the recognition of the legal status of domestic
  partners, regulation of the rights and
  obligations of domestic partners
• protection of interest of both domestic partners
  and interested parties on the termination of
  domestic partnerships and
• final determination of financial relationships
  between domestic partners and interested parties
  upon termination of domestic partnerships.

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CHAPTER 3Domestic Partnerships (Continued)

• Clause 14 Relationships to which Chapter
  applies
• This clause provides that Chapter 3 applies to
  relationships between domestic partners and
  between either one or both of the domestic
  partners and another party or other parties.
• Chapter 3 is furthermore divided into six parts
  which will be discussed in the following slides.

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CHAPTER 3Domestic Partnerships (Continued)

• PART I Registered domestic partnerships
  Registration procedure
• Clause 15 Partners in registered domestic
  partnership
• This clause provides that a person may only be a
  partner in one registered domestic partnership at
  any given time and further that a person who is
  already married, a partner in a civil
  partnership, or a partner in any other
  registered domestic partnership may not register
  a domestic partnership.
• Furthermore, it provides that a registration
  officer may not proceed with the registration
  process of a prospective partner who has
  previously been married, or registered as a
  partner in a civil partnership or domestic
  partnership, unless he or she is presented with a
  certified copy of the divorce order, termination
  certificate or death certificate of the former
  spouse or registered partner as proof that the
  previous marriage, civil partnership or
  registered domestic partnership has been
  terminated.

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CHAPTER 3Domestic Partnerships (Continued)

• Clause 16 Registration officers
• This clause empowers the Minister (or any officer
  authorised by him or her) to designate in writing
  any officer or employee in the public service or
  the diplomatic or consular service of the
  Republic to be a registration officer.
• Clause 17 Registration of domestic
  partnerships
• This clause prescribes the registration procedure
  to be followed by the registration officer when
  registering domestic partnership.
• It further requires the registration officer to
  transmit a register of domestic partnerships to
  the officer in the public service with the
  delegated responsibility to include same in the
  population register.

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CHAPTER 3Domestic Partnerships (Continued)

• Clause 18 Property regime
• This clause provides that there is no general
  community of property between partners in a
  registered domestic partnership, except as
  provided for in this clause.
• It furthermore provides that a dispute regarding
  the division of property should be dealt with in
  terms of section 33, which provides for property
  division.
• It also provides for the conclusion of a
  registered domestic partnership agreement.

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CHAPTER 3Domestic Partnerships (Continued)

• Clause 19 Registered domestic partnership
  agreement
• This clause requires the registered domestic
  partnership agreement to have been noted on and
  attached to the registration certificate for the
  purpose of consideration by the court in matters
  pertaining to the division of property.
• It further lays down the factors that the court
  might take into account in reaching its decision.

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CHAPTER 3Domestic Partnerships (Continued)
Clause 20 Amendment of section 21

• PART II Legal consequences of registered
  domestic partnerships
• Clause 20 Duty of support
• This clause provides that registered partners owe
  each other a duty of support.
• Clause 21 Limitation on disposal of joint
  property
• This clause prohibits a registered partner to
  sell, donate, mortgage, lease or dispose of joint
  property without the consent of the other
  registered partner.
• Clause 22 Right of occupation of family home
• This clause provides for the right by both
  registered partners to occupy the family home
  during the existence of a registered domestic
  partnership.

• Clause 20 deletes section 21 of the Act which
  provides for appeal to the Supreme Court.
• The Act already provides for an appeal procedure
  in instances where a complainant is not satisfied
  with a decision of the Board, to appeal to the
  Appeal (Review) Board.
• The Promotion of Administrative Justice Act, 2000
  (Act No. 3 of 2000) in itself provides for
  judicial review of administrative actions in a
  court of law when all internal remedies have been
  exhausted. It is therefore not necessary for the
  Act to contain a clause in this regard.

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CHAPTER 3Domestic Partnerships (Continued)

• PART III Termination of registered domestic
  partnership
• Clause 23 Termination of registered domestic
  partnerships
• This clause provides for the circumstances under
  which a registered domestic partnership
  terminates (i.e. death, agreement and court
  order)
• Clause 24 Termination agreement (Procedure for
  termination)
• This clause provides for the procedure to be
  followed by the registration officer upon
  termination of the registered domestic
  partnership agreement between the registered
  partners.
• Clause 25 Termination agreement (Requirements
  for termination agreement)
• This clause prescribes the requirements for the
  form of the termination agreement

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CHAPTER 3Domestic Partnerships (Continued)

• Clause 26 Termination by court order
• This clause requires registered partners with
  minor children from the registered domestic
  partnership, who intend to terminate their
  registered domestic partnership, to apply to the
  court, in terms of the Supreme Court Act, 1959
  (Act No. 59 of 1959), for a termination order.
• Clause 27 Welfare of minor children
• This clause provides that the court is empowered
  not to order termination of a registered domestic
  partnership, unless satisfied of the welfare of
  any minor children.
• The clause also empowers the court to appoint a
  legal practitioner to represent a child in the
  proceedings at the cost of either or both the
  registered partners.

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CHAPTER 3Domestic Partnerships (Continued)

• Clause 28 Children of registered partners of
  opposite sex
• This clause deems the male partner in a
  registered partnership to be the biological
  father of a child born into a registered
  partnership between persons of opposite sex.
• PART IV Maintenance after termination of
  registered domestic partnership
• Clause 29 Maintenance after termination
• This clause provides for the court to make an
  order regarding payment of maintenance by one
  registered party to the other in the absence of a
  termination agreement.
• It furthermore provides for the factors that may
  be taken into consideration by the court when
  ordering the payment of maintenance.

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CHAPTER 3Domestic Partnerships (Continued)

• Clause 30 Maintenance after death
• This clause provides that any reference to
  spouse in the Maintenance of Surviving Spouses
  Act must be construed to include a registered
  partner.
• Clause 31 Intestate succession
• This clause provides that any reference to
  spouse in the Intestate Succession Act must be
  construed to include a registered partner.
• Clause 32 Delictual claims
• This clause deems partners in a registered
  domestic partnership to be spouses in a legally
  valid marriage for the purposes of delictual
  claims, including claims for wrongful death of
  the other party or under the Compensation for
  Occupational Injuries and Diseases Act.

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CHAPTER 3Domestic Partnerships (Continued)

• PART V Property division after termination of
  registered domestic partnership
• Clause 33 Property division
• This clause provides for the procedure for
  division of property after termination of a
  registered domestic partnership.
• It furthermore provides for the factors that may
  be taken into account by the court when
  considering an order for division of joint
  property.
• Clause 34 Application to be made within two
  years after end of registered domestic
  partnership
• This clause provides that an application for an
  order under section 33 must not be made later
  than two years after the registered domestic
  partnership was terminated.

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CHAPTER 3Domestic Partnerships (Continued)

• Clause 35 Notification of termination of
  registered domestic partnership
• This clause requires both registered partners to
  give written notice of the termination of a
  registered domestic partnership to interested
  parties.
• In the event of death, the surviving registered
  partner or the executor of the estate is required
  to give written notice of the termination to
  interested parties.
• Clause 36 Interest of other parties
• This clause requires a court considering an
  application under this Act to have regard to the
  interest of a bona fide purchaser of, or other
  person with an interest or vested right in, the
  property of the registered partners.

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CHAPTER 3Domestic Partnerships (Continued)

• Clause 37 Court application
• This clause provides for an application to court
  for a maintenance order, an intestate succession
  order or a property division order in the event
  of termination of an unregistered domestic
  partnership through death or separation.
• It furthermore lists the circumstances that must
  be considered by the court in deciding upon an
  application for an order under Chapter 3.
• Clause 38 Maintenance
• This clause provides that unregistered partners
  are not liable to maintain one another, unless
  provided for in Chapter 3.

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CHAPTER 3Domestic Partnerships (Continued)

• Clause 39 Application for maintenance order
  after separation
• This clause provides that the court may upon
  application make an order for maintenance after
  separation of unregistered partners.
• The clause furthermore lists the factors that the
  court must take into account when deciding to
  order the payment of maintenance.
• Clause 40 Application for maintenance order
  after death of unregistered partner
• This clause allows the surviving unregistered
  partner to apply to court for an order for
  reasonable maintenance needs (until his or her
  death, remarriage or registration of another
  domestic partnership) from the estate of the
  deceased.
• It furthermore provides that the provisions of
  the Administration of Estates Act apply with the
  necessary modifications to a claim for
  maintenance of the surviving unregistered
  partner, subject to the listed conditions.

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CHAPTER 3Domestic Partnerships (Continued)

• Clause 41 Determination of reasonable
  maintenance needs of surviving unregistered
  partner
• This clause lists the factors that need to be
  taken into account by the court when determining
  the reasonable maintenance needs of the surviving
  unregistered partner.
• Clause 42 Intestate succession
• This clause provides that the surviving
  unregistered partner may apply to the court,
  subject to the listed conditions, for an order
  that he or she may inherit the intestate estate.

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CHAPTER 3Domestic Partnerships (Continued)

• Clause 43 Property division
• This clause provides for the application for an
  order for the division of property in the absence
  of a termination agreement.
• It furthermore provides for the factors that may
  be taken into account by the court when
  considering an order for the division of
  property.
• Clause 44 Application to be made within two
  years after end of relationship
• This clause provides that an application for an
  order under Chapter 3 must not be made later than
  two years after the unregistered domestic
  partnership was terminated through separation or
  death.

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CHAPTER 4 Miscellaneous

• Clause 45 Offences and Penalties
• This clause creates offences and provides for
  penalties for
• any marriage officer who purports to solemnise a
  civil partnership without authorisation under
  this Act or which to his or her knowledge is
  legally prohibited (penalty upon conviction a
  fine or imprisonment not exceeding 12 months)
• any marriage officer who demands or receives any
  fee, gift or reward for or by reason of anything
  done by him or her as marriage officer in terms
  of this Act (penalty upon conviction fine or
  imprisonment not exceeding 6 months)
• any marriage officer who knowingly solemnizes a
  civil partnership or a registration officer who
  registers a domestic partnership in contravention
  of this Act (penalty upon conviction fine or
  imprisonment not exceeding 6 months)
• Any person who makes any false representation or
  statement knowing it to be false (penalty upon
  conviction penalties prescribed by law for
  perjury).

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CHAPTER 4 Miscellaneous

• Clause 46 Regulations
• This clause empowers the Minister to make
  regulations regarding the listed matters, inter
  alia, form and content of certificates, notices,
  affidavits and declarations, fees payable for any
  certificates issued, or other acts performed in
  terms of this Act.
• Clause 47 Amendment of Section 8 of Act 68 of
  1997
• This clause amends section 8(e) of the
  Identification Act, 1997 by the substitution
  thereof to provide for the particulars of the
  marriage to be contained in the marriage register
• Clause 48 Short title and commencement
• This clause identifies the title by which the
  proposed Bill shall be called and furthermore
  provides for the date on which the proposed Bill
  will come into operation.

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THANK YOU
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