CIVIL UNION ACT, 2006 (ACT NO. 17 OF 2006)

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CIVIL UNION ACT, 2006(ACT NO. 17 OF 2006)

• Presentation by Department of Home Affairs
• Joint Committee on Improvement of Quality of Life
  and Status of Women
• 22 June 2007

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BACKGROUND

• In December 2005 the Constitutional Court of the
  Republic of South Africa heard the matter of
  Minister of Home Affairs and Another v Fourie and
  Another, as well as the matter of Lesbian and Gay
  Equality Project and Eighteen Others v Minister
  of Home Affairs, jointly and declared that the
  definition of marriage under the common law and
  the marriage formula as set out in section 30(1)
  of the Marriage Act, 1961 (Act No.25 of 1961)
• were inconsistent with the Constitution and
• invalid to the extent that they failed to
  provide the means whereby same-sex couples could
  enjoy the status and the benefits coupled with
  the responsibilities that marriage accorded to
  heterosexual couples.
• The Court subsequently ordered Parliament to
  correct those defects in the law by 1 December
  2006, failing which section 30(1) of the Marriage
  Act, 1961 (Act No. 25 of 1961), would be read as
  including the words or spouse after the words
  or husband.

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BACKGROUND (continued)

• In arriving at its decision, the Court considered
  the two options proposed by the South African Law
  Reform Commission and concluded that these were
  two firm proposals for legislative action, but it
  stated further that this does not, however,
  necessarily exhaust the legislative paths which
  could be followed to correct the defect. The
  Civil Union Act, 2006 (the Act) was drafted in
  response to the Constitutional Courts judgment
  in the Fourie-case.
• The purpose of the Act is to provide for the
  solemnisation and registration of civil unions,
  by way of either a marriage or civil partnership
  and to provide for the legal consequences
  thereof.

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Preamble

• The Preamble
• recites the provisions of section 9(1) of the
  Constitution that provide for the right to
  equality before the law and equal protection and
  benefit of the law, as well as section 9(3) that
  provides that the state may not unfairly
  discriminate directly or indirectly against
  anyone on one or more of the listed grounds,
  which include sexual orientation.
• recites section 10 of the Constitution that deals
  with human dignity.
• recites section 15 of the Constitution which
  provides that everyone has the right to freedom
  of conscience, religion, thought, belief and
  opinion.
• stipulates that the Bill of Rights may be limited
  only in terms of law of general application to
  the extent that the limitation is reasonable and
  justifiable in an open and democratic society
  based on human dignity, equality and freedom.
• notes that the family law dispensation as it
  existed after the commencement of the
  Constitution did not provide for same-sex couples
  to enjoy the status and benefits coupled with
  responsibilities that a marriage accords to
  opposite-sex couples.

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Section 1 Definitions

• Section 1 defines the terms used in the Section
  in order to clarify the meanings thereof.
• Amongst others, the terms civil union, civil
  union partner and marriage officer are defined
  in this section.
• Section 2
• Objectives of Act
• This section provides for the objectives of the
  Act, which are to regulate the solemnisation and
  registration of civil unions, by way of either a
  marriage or civil partnership and to provide for
  the legal consequences thereof.

Thank You
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Section 3 Relationships to which Act applies
This section provides that the Act applies to
civil union partners joined in a civil
union. Section 4 Solemnisation of civil
union This section provides for the solemnisation
of a civil union by a marriage officer who is
empowered to exercise all powers,
responsibilities and duties conferred upon him or
her by the Marriage Act, 1961 (Act No. 25 of
1961), hereinafter referred to as the Marriage
Act, to solemnise a civil union in terms of the
Act.
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Section 5Designation of ministers of religion
and other persons attached to religious
denomination or organisation as marriage officers

• This section provides for the designation, upon
  application in writing to the Minister, of any
  religious denomination or organisation as a
  religious organisation that may solemnise
  marriages in terms of the Act.
• By allowing religious denominations or
  organisations at their own request to solemnise
  marriages, the Act would promote the right to
  equality and the right to freedom of religion as
  no religious organisation would be forced to
  solemnise marriages, while those religious
  organisations or denominations that choose to do
  so are legally acknowledged.

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Section 6 Marriage officer not compelled to
solemnise civil union
This section 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. Such
marriage officer shall not be compelled to
solemnise such a civil union.
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Section 7 Prohibition of solemnisation of civil
union without production of identity document or
prescribed affidavit
This section prohibits the solemnisation of a
civil union, unless each of the parties to the
civil union produces his or her identity document
or prescribed affidavit to the marriage officer.
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Section 8Requirements for solemnisation and
registration of civil union

• This section provides that a person may only be a
  spouse or partner in one marriage or civil
  partnership, as the case may be, at any given
  time and further that a person who is in a civil
  union, may not conclude a marriage under the
  Marriage Act or the Recognition of Customary
  Marriages Act, 1998 (Act No. 120 of 1998),
  hereinafter referred to as the Customary
  Marriages Act. It also provides that a person
  who is already married under the Marriage Act or
  the Customary Marriages Act may not register a
  civil union.
• The marriage officer has to be provided with
  proof that the prospective spouse or partner is
  no longer married under the Marriage Act or
  Customary Marriages Act (i.e. divorce order or
  death certificate).
• A civil union may only be registered by
  prospective civil union partners who would, apart
  from the fact that they are of the same sex, not
  be prohibited by law from concluding a marriage
  under the Marriage Act or Customary Marriages
  Act.

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Section 9 Objections to civil union

• This section requires any objections to any
  proposed civil union to be lodged in writing with
  the marriage officer who is to solemnise such
  civil union.
• If there is any lawful impediment to the proposed
  civil union, the marriage officer should not
  proceed with the solemnisation and should record
  the reasons for his refusal to proceed.
• Section 10
• Time and place for and presence of parties and
  witnesses at solemnisation and registration of
  civil union
• This section provides for the solemnisation
  and registration of civil union at any time on
  any day of the week, but a marriage officer is
  not obliged to solemnise a civil partnership at
  any other time than between the hours of 8h00 and
  16h00.

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Section 11 Formula for solemnisation of marriage
or civil partnership
This section requires the marriage officer to
inquire from both parties whether they prefer
their civil union to be known as a marriage or a
civil partnership and to thereupon proceed to
solemnise the civil union according to the
prescribed formula. Section 12 Registration of
civil union This section provides for the
requirements for registration of a civil union
and the issuance of a registration certificate,
stating that the civil union partners have
entered into either a marriage or a civil
partnership. The section furthermore requires
the marriage officer to keep record of all civil
unions conducted by him or her and to forward the
civil union register to the responsible official
in the public service for registration thereof in
the population register.
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Section 13 Legal consequences of civil union
THANK YOU
This section provides that a civil union will
have the same legal consequences of a marriage in
terms of the Marriage Act, with such changes as
may be required by the context, and that any
reference to marriage (with such changes as may
be required by context), husband, wife or spouse
in any other law, including the common law, will
include a civil union partner as defined in this
Act.
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Section 14 Offences and penalties

• This section creates offences and provides for
  penalties for
• any marriage officer who purports to solemnise a
  civil union 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 solemnises a
  civil union (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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Section 15 Regulations

• This section 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 the Act.
• The section also provides that the regulations
  made by the Minister may prescribe penalties in
  contravention thereof of a fine not exceeding the
  amount that may be imposed as an alternative to
  imprisonment for a period of six months or, in
  lieu of payment of a fine, imprisonment for a
  period not exceeding six months.
• The section furthermore provides that any
  regulation made under the Marriage Act shall
  apply to the extent that it is practicable and
  necessary in the absence of a regulation made
  under subsection (1) of this section and provide
  that this subsection shall lapse after a period
  of one year from the date of commencement of the
  Act.

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Section 16 Short title and commencement
This section identifies the title by which the
proposed Act shall be called and furthermore
provides for the date on which the proposed Act
will come into operation. The Civil Union Act,
2006 came into operation on 30 November 2006.
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Implementation of the Act by the Department of
Home Affairs
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Implementation (Training of marriage officers)

• A communication was sent to all offices of Home
  Affairs including foreign offices with regard to
  the implementation of the Act.
• A full training session on the Civil Union Bill
  and draft Regulations was conducted on the 24 of
  November 2006.
• The training session included representatives
  from all nine provinces with the purpose of
  sensitizing marriage officers to the contents of
  the Bill and the Regulations.
• The new changes on the National Population
  Register were highlighted and demonstrated during
  the session.
• Follow-up sessions were conducted as from January
  2007 until May 2007 on the same subject.

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Implementation (IT Systems and Logistics e.g.
forms printing etc)

• The National Population Register is the main
  system used to capture Civil Unions.
• The system was modified by IT experts to
  accommodate such civil unions (i.e. marriages or
  civil partnerships).
• It was piloted several times in one of the
  Regions in Gauteng Province.
• The system was rolled out on 30 of November 2006
  to all Provinces.
• All forms in the Regulations of the Civil Union
  Act were designed, proof read and printed with
  the assistance of Government Printing Works (GPW)
  
• Forms were distributed to provinces as part of
  readiness on the same day

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Implementation (Registration of marriages
officers)

• The Act makes provision for the designation of
  marriage officers who are willing to solemnise
  civil unions.
• Departmental Marriage officers appointed under
  section 2 of the Marriage Act, including
  ex-officio marriage officers (e.g. magistrates),
  are obliged to conduct civil unions, unless they
  have informed the Minister in writing of their
  objection.
• Ministers of religion and other persons attached
  to churches as marriage officers, who have not
  yet been designated in terms of the Act, are
  encouraged to apply at any office of Home Affairs
  and arrange for examination prior to designation.

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Implementation (list of marriage officers per
province as at March 2007)
Provinces Number of Section 2 Marriage Officers
1. Western Cape 22
2. Eastern Cape 33
3. KwaZulu-Natal 24
4. Mpumalanga 71
5. Limpopo 10
6. North-West 2
7. Gauteng 11
8. Northern Cape 11
9. Free State 3
Total 187
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Implementation (list of marriage officers per
foreign office as at March 2007)
Offices Abroad Number of Section 2 Marriage Officers
1. South African Embassy- Burundi 1
2. Consulate of South Africa- Sao Paulo 1
3. South African Embassy- Tripoli 1
4. South African High Commission- Canbera 2
5. South African High Commission- Colombo 1
6. South African High Commission- Malawi 1
7. South African High Commission- Buenos Aires 1
Total 8
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Progress (Appointments of marriage officers as at
May 2007)

• Thus far, 25 applications were received for
  appointment as marriage officers
• 6 marriage officers were appointed during the
  reporting period.
• 19 are currently in the process of writing exams.
• 17 applications were received from denominations
  to be recognised as organisations that can
  solemnise civil unions and were all approved.

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Progress (Statistics per province as at May 2007)
NUMBER OF MARRIAGES SOLEMNISED PER PROVINCE
Province Total Number of Marriages Solemnised
1. Western Cape 142
2. Northern Cape 41
3. Limpopo 5
4. North-West 4
5. Kwazulu-Natal 86
6. Free State 21
7. Mpumalanga 13
8. Gauteng 300
9. Eastern Cape 40
10. Captured at Head Office 19
Total 671
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THANK YOURI A LIVHUWA
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