An embarrassment of riches or a profusion of confusion? An evaluation of the continued existence of the Civil Union Act 17 of 2006 in the light of prospective domestic partnerships legislation in South Africa
Abstract
As it stands, South African family law currently holds that the Marriage Act 25 of 1961
applies exclusively to the solemnisation of heterosexual civil marriages while samesex
couples have no choice but to formalise their relationships in terms of the Civil
Union Act 17 of 2006. In addition, the legal position is complicated by the fact that
the latter Act not only allows both heterosexual and homosexual couples to conclude
a civil union, but also provides that a civil union may take the form of either a
marriage or a civil partnership, both of which enjoy the same legal recognition as,
and give rise to the same legal consequences, as a civil marriage under the Marriage
Act.
In January 2008, a draft Domestic Partnerships Bill saw the light of day, the potential
enactment of which casts significant doubt as to whether the prevailing framework
should be retained. With this potential development in mind, this paper considers the
desirability of maintaining the "separate but equal" status quo by: (a) comparing the
South African Law Reform Commission's pre-Civil Union Act proposals with the
approach eventually adopted by the legislature; (b) comparing and contrasting the
post-Civil Union Act position in South Africa with that of an established and wellordered
jurisdiction such as the Netherlands and, in the light hereof, considering the
cases for and against repealing the Civil Union Act; and (c) by considering the
desirability and practicality of the civil partnership's potential co-existence with the
Domestic Partnerships Bill (as modified in accordance with a recent study). A
proposal is made that could provide a less complex and better streamlined family law
dispensation in South Africa.
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