CIVIL UNION BILL

1. CIVIL UNION BILL Presented by Department of Home Affairs (Legal Services) to National Council of Provinces 21 November 2006 1 Caring, compassionate and responsive

2. BACKGROUND The purpose of the Civil Union Bill, 2006 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 2

3. 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 3

4. Clause 1 Definitions • Clause 1 defines the terms used in the Bill in order to clarify the meanings thereof. • Amongst others, the terms “civil union”, “civil union partner” and “marriage officer” are defined as follows: • “civil union” means the voluntary union of two persons who are both 18 years of age or older, which is solemnised and registered by way of either a marriage or a civil partnership, in accordance with the procedures prescribed in this Act, to the exclusion, while it lasts, of all others; Thank You Caring, compassionate and responsive 1 Caring, compassionate and responsive 4

5. Clause 1 Definitions (Continued) “civil union partner” means a spouse in a marriage or a partner in a civil partnership, as the case may be, concluded in terms of this Act; “marriage officer” means (a) a marriage officer ex officio or so designated by virtue of section 2 of the Marriage Act; or (b) any minister of religion, or any person holding a responsible position in any religious denomination or organisation, designated as marriage officers under section 5 of this Act; Caring, compassionate and responsive 1 5

6. Clause 2 Objectives of Act This clause 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. Caring, compassionate and responsive 1 6

7. Clause 3 Relationships to which Act applies The clause provides that this Act applies to civil union partners joined in a civil union. Caring, compassionate and responsive 1 7

8. Clause 4 Solemnisation of civil union • This clause provides for the solemnisation of a civil union by a marriage officer in accordance with the provisions with the Act. • Furthermore, a marriage officer 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 this Act. Caring, compassionate and responsive 1 8

9. Clause 5Designation of ministers of religion and other persons attached to religious denomination or organisation as marriage officers • This clause provides for the designation, upon application in writing to the Minster, of any religious denomination or organisation as a religious organisation that may solemnise marriages in terms of this Act. • By allowing religious denominations or organisations at their own request to solemnise marriages, the Bill 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 9

10. Clause 6 Marriage officer not compelled to solemnise civil union This clause 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 10

11. Clause 7 Prohibition of solemnisation of civil union without production of identity document or prescribed affidavit This clause 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 11

12. Clause 8Requirements for solemnisation and registration of civil union • This clause 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. • Furthermore, it requires a civil union partner, who has previously been married under the Marriage Act or Customary Marriages Act, or registered as a spouse in a marriage or a partner in a civil partnership, to present a certified copy of the divorce order or death certificate of the former spouse or partner, as the case may be, to the marriage officer as proof that the previous civil partnership or marriage has been terminated. • 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 12

13. Clause 9 Objections to civil union This clause requires any objections to any proposed civil union to be lodged in writing with the marriage officer who is to solemnise such civil union. • It further requires the marriage officer concerned to enquire into the grounds of the objection and if he or she is satisfied that there is no lawful impediment to the proposed civil union, to solemnise the civil union. • If the marriage officer is not satisfied that there is no lawful impediment, he or she must refuse to solemnise the civil union and record the reasons for such refusal in writing. Caring, compassionate and responsive 1 13

14. Clause 10 Time and place for and presence of parties and witnesses at solemnisation and registration of civil union • This clause 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. • It also provides for the solemnisation and registration of a civil union in a public office or private dwelling-house or on the premises used for such purposes by the marriage officer, with open doors and in the presence of the parties themselves and at least two competent witnesses. • This clause furthermore prohibits the entering into a civil union through proxy. Caring, compassionate and responsive 1 14

15. Clause 11 Formula for solemnisation of marriage or civil partnership • This clause 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 accordingly. • The clause furthermore prescribes the formula for solemnising a marriage or civil partnership. Caring, compassionate and responsive 1 15

16. Clause 12 Registration of civil union • This clause 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, depending on the choice of the parties in clause 11(1). • The clause 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 16

17. Clause 13 Legal consequences of civil union THANK YOU This clause 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 17

18. Clause 14 Offences and penalties • This clause 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 18

19. Clause 15 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. • The clause 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 clause 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 the this clause and provide that this subsection shall lapse after a period of one year from the date of commencement of this Act. Caring, compassionate and responsive 1 19

20. Clause 16 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. Caring, compassionate and responsive 1 20

21. THANK YOU Caring, compassionate and responsive 1 21