partnerships
9 October 2006
The South African Law Reform Commission hereby releases its report on
domestic partnerships. The term "domestic partnership" is used in the report to
describe all established permanent life partnerships, whether between people of
the same or the opposite sex which currently exist outside the ambit of the
institution of marriage.
The report deals with the lack of legal recognition and regulation of
permanent life partnerships against the background of section nine of the
Constitution which, amongst others things, prohibits discrimination on the
grounds of sexual orientation and marital status. It seeks to establish a new
family law framework that will provide for marriage (irrespective of the system
under which it is celebrated) as well as various other permanent life
partnerships.
In the recent past the courts have carried much of the responsibility for
drafting family law and policy with regard to permanent life partnerships by
creatively applying non-family laws including the law of unjust enrichment,
estoppels and contract. The Constitutional Court has on more than one occasion
upheld constitutional challenges under the equality clause on the ground of
sexual orientation. Furthermore, with the ad hoc extension of statutorily
defined benefits (sometimes including same-sex and opposite-sex partners into
the definition of "spouse" for various purposes) there has been an increasing
recognition of these relationships outside marriage. These developments have,
however, led to a patchwork of laws that do not express a coherent set of
family law rules.
In its comparative study the commission has researched various models for
recognition of permanent life partnerships in other jurisdictions. Owing to the
diverse nature and the wide variety of relationships under discussion, it has
not been possible to select a single model to regulate all partnerships. Also
none of the researched models emanated from a constitutional dispensation with
an equality clause exactly like section 9(3) of the Constitution. These facts
meant that a uniquely South African solution had to be found.
The aim was to combine different models in such a way as to afford the
desired protection to the parties in established permanent life partnerships as
well as third parties with an interest in the regulation of these
relationships, without imposing on individuals' autonomy or over-regulating the
position. The constitutionality of the recommended models was the determinative
factor.
Two judgments of the Constitutional Court, namely Volks v Robinson and
Minister of Home Affairs v Fourie and others, in particular served as a guide
to the commission in making its final recommendations. In both the Volks and
Fourie cases the majority judgments left it to the legislature to correct the
defects currently existing in the law.
In Minister of Home Affairs v Fourie and others the question of the
exclusion of same-sex couples from the institution of marriage was raised. In
their appeal to the Constitutional Court the State and amici acknowledged that
partners to same-sex relationships suffer discrimination and that this
violation of their rights had to be corrected. However, they objected to any
remedial measures being assimilated into the traditional institution of
marriage or permitting unions of same-sex couples to be referred to as
marriages. The answer, they said, was to provide appropriate alternative forms
of recognition to same-sex family relationships.
The Constitutional Court stated that the need to accord an appropriate
degree of respect to the traditional concept of marriage did not as a matter of
law constitute a bar to vindicating the constitutional rights of same-sex
couples to take part in the institution of marriage. The court, furthermore,
considered and rejected the possibility that there might be a justification in
terms of section 36 of the Constitution for the violation of the equality and
dignity of same-sex couples wanting to get married. It found that the failure
of the common law definition of marriage and section 30(1) of the Marriage Act
of 1961 (the marriage formula) to provide for same-sex couples to celebrate
their unions in the same way as for opposite-sex couples, is
discriminatory.
However, since this matter touches deep public and private sensibilities and
has great public significance the court thought it best to leave it to
parliament to correct the defect in the law. Parliament was provided with one
year to effect this change, failing which the marriage formula in the Marriage
Act of 1961 would forthwith be read to refer to "husband", "wife" and "spouse".
The effect of such an amendment would be to include same-sex couples in the
institution of marriage.
The court acknowledged that there are different ways in which the
legislature could correct the defects and pointed to certain principles of
special constitutional relevance to guide parliament. It stated clearly that
any option would have to be considered within the framework of the judgment.
The court furthermore warned against a remedy (the so-called separate but equal
option) that would, on the face of it, provide equal protection but in effect
produce new forms of marginalisation. The court further said that the chosen
remedy had to be as generous and accepting towards same-sex couples as towards
opposite-sex couples.
From the comments received on the issue and discussion papers it was clear
that the challenge facing the commission would be to reconcile the
constitutional right to equality of same-sex couples and unmarried couples with
the religious and moral objections against the recognition of such
relationships. The commission considered it advisable not to disregard these
objections and through its recommendations strove to balance the right to
equality with the right to religious freedom.
The court's views set out above served to confirm the commission's decision
to abandon two of the options previously canvassed in the Discussion Paper as
possible solutions to the problem, namely that of civil unions and secondly,
the separation of the civil and religious aspects of marriage.
The commission supports the view of the Canadian government in this regard
where it stated that a government cannot pick and choose whose rights they want
to defend and whose rights they will ignore. If the fundamental rights of one
minority can be denied, so potentially can those of others.
Recommendations
The commission's final legislative recommendations for the recognition and
regulation of permanent same-sex life partnerships are therefore as
follows:
1. Amended Marriage Act
The commission recommends, as its first choice for legal reform, the
amendment of the Marriage Act of 1961. A definition of marriage should be
inserted in the Marriage Act of 1961 that makes the Act applicable to all
couples wanting to get married, irrespective of their religion, race, culture
or sexual orientation. The commission is of the opinion that this amendment
will give effect to the equality provision set out in section 9 of the
Constitution and will comply with the Constitutional Court's decision in
Minister of Home Affairs v Fourie and others.
2. Orthodox Marriage Act
However, from a policy point of view the commission considers it advisable
not to disregard the strong objections that were raised against the recognition
of same-sex marriages by many respondents to the commission's Discussion Paper.
Concern for these objections is an important consideration in the effort to
accommodate religious sentiments to the extent that it is constitutionally
possible.
As stated above it is not possible to attain this goal through a separate
institution such as a civil union as has been done in some countries. In terms
of the Constitution the State has to accord equal protection to all people.
However, the Constitution does allow for specific protection of religious
practices under section 15 (3).
The commission therefore recommends, as its second choice, the enactment of
an Orthodox Marriage Act in addition to the recommended amendment of the
Marriage Act of 1961. In this context "orthodox" refers to the "confirmation of
closely followed traditional beliefs and practices of a religion". This
Orthodox Marriage Act will be applicable to opposite-sex couples only. In terms
of this proposal the amended Marriage Act will be referred to as the Reformed
Marriage Act.
A separate Act, the Orthodox Marriage Act, will therefore provide State
sanction for the solemnisation of a marriage according to the specific dogma of
a religious group in its own sphere of operation. The commission does not
believe that such a sanction will impact on the dignity of same-sex couples who
do not subscribe to such a church's dogma.
If parliament accepts these recommendations, religious marriage officers
will have the choice to decide in terms of which Act they wish to be designated
as marriage officers. This will be a matter best left for individual faiths to
decide. The State will designate its civil marriage officers in terms of the
Reformed Marriage Act.
The Constitutional Court referred to this combination of the two pieces of
legislation as a firm proposal. It stated that one of the features of this
option would be to provide for equal status for all marriages, irrespective of
the system under which they are celebrated.
It is foreseen that the Orthodox Marriage Act will ultimately reside with
the Islamic Marriage Act, the Recognition of Customary Marriages Act and
perhaps a Hindu Marriage Act, in a religious or cultural marriages category of
legislation. The Reformed Marriage Act will be the generic Act which will be
open to everybody and any religions that choose not to make use of their own
specific Acts.
3. Domestic Partnerships Act
The commission also considered the lack of legal protection for same and
opposite-sex couples who do not wish to or are unable to get married. It was
noted that not every family today is founded on a marriage recognised as such
in law.
In the Constitutional Court case of Volks v Robinson the court dealt with
the question of maintenance of a surviving opposite-sex partner after the death
of her life-partner. The court found that in the context of the provision for
maintenance of the survivor of a marriage by the estate of the deceased, it is
appropriate not to impose an obligation posthumously that did not exist before
death. Nevertheless, the court expressed concern for the plight of vulnerable
parties (mostly women and children) in cohabitation relationships where the
structural dependence of women in marriage results in real suffering and
misery. It stated that the plight of these women is the result of the absence
of any law that places rights and obligations on people who are partners within
relationships during their lifetimes. The court indicated that the answer lies
in the legal regulation of partnerships through legislation in order to ensure
that vulnerable partners in such relationships are not taken advantage of.
The commission therefore recommends the enactment of a Domestic Partnerships
Act to provide for the legal recognition and regulation of registered and
unregistered partnerships.
Registered partnerships
The commission recommends that partners who do not wish to get married but
nevertheless want to commit themselves formally to support and assist each
other, can do so by complying with a simple prescribed registration procedure
before a registration officer who will be a public servant appointed by the
Minister of Home Affairs for that purpose. A registered partnership is ended
when one or both partners die or can be terminated through a simple procedure
before a registration officer. However, in order to protect the interests of
children, registered partners who have minor children from the registered
partnership have to apply to the court for a termination order. The court will
then ensure that the best interests of the child are attended to.
The commission recommends that partners who want to register their
relationship comply with conditions that are comparable to that of marriage
such as affinity. The commission further recommends that there be no automatic
community of property between registered partners. It would however be open to
the parties who register their partnership to conclude a written agreement
which regulates the consequences of their relationship including the division
of property when the relationship ends. In the event of a dispute regarding the
division of property that both have contributed to, the court will have the
final say about a fair and equitable division.
A significant recommendation is that registered partners be obliged to
support each other. This obligation forms the legal basis for claims by
registered partners that are usually only available to married couples, such as
pension and medical aid fund benefits. Ad hoc legislative provision is
currently already made for some of these benefits.
As is the case between married partners where a child is born into a
registered partnership between persons of the opposite sex, the male partner in
the registered partnership is deemed to be the biological father of that child.
This presumption is rebuttable.
Unregistered partnerships
Finally, the commission considered the legal position of same and
opposite-sex couples who are not married and who have not registered their
relationship for whatever reason. Many women are economically dependent on men
and are left destitute and suffer hardship on the termination of the
relationship. In the case of the very poor and illiterate the effects of
vulnerability are more pronounced. It would be a fallacy to proclaim that these
women have a real choice as to whether they want to get married or have their
relationships registered or not.
The commission therefore recommends that the Domestic Partnerships Act
provides for the regulation of the consequences of terminated unregistered
partnerships.
Where partners have not registered their relationship, one or both partners
can approach a court for assistance after the relationship has been terminated
by separation of the partners or due to the death of one of the partners. This
would be the case where there is a dispute regarding the financial consequences
of the former relationship. In terms of this recommendation, the court then has
the discretion to make a maintenance order in favour of a former partner and an
intestate succession order where there is no valid will. The court may also
make an order for the division of property to which both partners have
contributed. No fixed definition is given for unregistered partnerships and a
court deciding such an application must have regard to all the circumstances of
the relationship with a view to reaching an equitable outcome. Contributions by
women to a joint household through labour and emotional support have to be
acknowledged.
The commission further recommends that some legal consequences of the
termination of certain multiple (polygamous) unregistered partnerships also be
regulated. These consequences are maintenance after separation, maintenance of
a surviving partner, intestate succession and property division. For these
purposes, a court has discretion to consider the circumstances of both
relationships to ensure an equitable outcome when making an order.
The report is published on the commission's website at http://www.doj.gov.salrc/index)
Enquiries:
Ananda Louw
Tel: (012) 392 9566
E-mail: analouw@justice.gov.za
Carien Pienaar
Tel: (012) 392 9561
E-mail: capienaar@justice.gov.za
Issued by: South African Law Reform Commission
9 October 2006
