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

1. 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 1 Caring, compassionate and responsive

2. 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”. Caring, compassionate and responsive 1 2

3. 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 Court’s 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. Caring, compassionate and responsive 1 3

4. 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. Caring, compassionate and responsive 1 4

5. 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 Caring, compassionate and responsive 1 Caring, compassionate and responsive 5

6. 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. Caring, compassionate and responsive 1 6

7. 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. Caring, compassionate and responsive 1 7

8. 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. Caring, compassionate and responsive 1 8

9. 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. Caring, compassionate and responsive 1 9

10. 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. Caring, compassionate and responsive 1 10

11. 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. Caring, compassionate and responsive 1 11

12. 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. Caring, compassionate and responsive 1 12

13. 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. Caring, compassionate and responsive 1 13

14. 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). Caring, compassionate and responsive 1 14

15. 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. Caring, compassionate and responsive 1 15

16. 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. Caring, compassionate and responsive 1 16

17. Implementation of the Act by the Department of Home Affairs Caring, compassionate and responsive 1 17

18. 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. Caring, compassionate and responsive 1 18

19. 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 Caring, compassionate and responsive 1 19

20. 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. Caring, compassionate and responsive 1 20

21. Implementation (list of marriage officers per province as at March 2007) Caring, compassionate and responsive 1 21

22. Implementation (list of marriage officers per foreign office as at March 2007) Caring, compassionate and responsive 1 22

23. 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. Caring, compassionate and responsive 1 23

24. Progress (Statistics per province as at May 2007) NUMBER OF MARRIAGES SOLEMNISED PER PROVINCE Caring, compassionate and responsive 1 24

25. THANK YOURI A LIVHUWA Caring, compassionate and responsive 1 25