CIVIL UNION BILL

1. CIVIL UNION BILL Presentation to Portfolio Committee 6 September 2006 1 Caring, compassionate and responsive

2. BACKGROUND The purpose of the Civil Union Bill, 2006 is twofold in that it provides for the conclusion of: i. A civil partnership or marriage between persons of the same sex solemnized before the State with all legal consequences of a marriage; ii. A domestic partnership between persons in a permanent relationship, whether of a heterosexual or homosexual nature, who do not wish to marry or enter into a civil partnership or marriage, but with legal consequences provided for in the Bill. Caring, compassionate and responsive 1 2

3. Preamble The Preamble: • recites the provisions of the Constitution that provide for the right to equality before the law and equal protection and benefit of the law (section 9). • recites section 10 of the Constitution that deals with human dignity. • notes that the family law dispensation that existed after the commencement of the Constitution does not provide for same-sex couples to enjoy the status and benefits coupled with responsibilities that a marriage accords to opposite-sex couples. • notes that same- and opposite-sex couples who wish to enter into permanent domestic partnerships are not legally recognised or protected. Caring, compassionate and responsive 1 3

4. CHAPTER 1 Clause 1 Definitions • Clause 1 defines the terms used in the Bill in order to clarify the meanings thereof. • Amongst others, the terms “civil partnership”, “civil union” and “domestic partnership” are defined as follows: • “civil partnership” means the voluntary union of two adult persons of the same sex that is solemnised and registered 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” means a civil partnership or a domestic partnership; “domestic partnership” means a registered domestic partnership or unregistered domestic partnership and includes a former domestic partnership. Caring, compassionate and responsive 1 5

6. CHAPTER 2Civil Partnerships • Clause 2 – Objectives of Chapter • This clause provides for the objectives of Chapter 2, which are to regulate the solemnization and registration of civil partnerships and the legal consequences thereof. • Clause 3 – Relationships to which Chapter applies • The clause provides that this Chapter applies to civil partners joined in a civil partnership. Caring, compassionate and responsive 1 6

7. CHAPTER 2Civil Partnerships (Continued) • Clause 4 – Solemnization of a civil partnership • This clause provides for the solemnization of a civil partnership by a marriage officer in accordance with the provisions with the Chapter. • Furthermore, a marriage officer is empowered to exercise all powers conferred upon him or her by the Marriage Act, 1961 (Act No. 25 of 1961), hereinafter referred to as “the Marriage Act”, to solemnize a civil partnership in terms of this Chapter. Caring, compassionate and responsive 1 7

8. CHAPTER 2Civil Partnerships (Continued) • Newly inserted clause 5 – Designation of ministers of religion and other persons attached to churches as marriage officers • A new clause is inserted after clause 4 of the Bill to provide for the designation, upon application in writing to the Minster, of any religious denomination or organisation as a religious organisation that may solemnize civil partnerships. • By allowing religious denominations or organisations at their own request to solemnize civil partnerships, the Bill would promote the right to equality and the right to freedom of religion as no religious organisation would be forced to solemnize civil partnerships, while those religious organisations or denominations that choose to do so are legally acknowledged. Caring, compassionate and responsive 1 8

9. CHAPTER 2Civil Partnerships (Continued) • Clause 5 – Marriage officers may refuse to solemnize civil partnership • This clause provides that no marriage officer is compelled to solemnize a civil partnership, provided that he or she has informed the Minister in writing of his or her objection on the grounds of conscience. Caring, compassionate and responsive 1 9

10. CHAPTER 2Civil Partnerships (Continued) • Clause 6 – Prohibition of solemnization of civil partnership without production of identity document or prescribed declaration • This clause prohibits the solemnization of a civil partnership, unless each of the parties to the partnership produces his or her identity document or prescribed affidavit to the marriage officer. Caring, compassionate and responsive 1 10

11. CHAPTER 2Civil Partnerships (Continued) • Clause 7 – Requirements for solemnization and registration of civil partnership • This clause provides that a person may only be a partner in one civil partnership at any given time and further that a person who is already married may not register a civil partnership. • Furthermore, it requires a civil partner, who has previously been married or registered as a partner in a civil partnership, to present a certified copy of the divorce order or death certificate of the former spouse or partner to the marriage officer as proof that the previous civil partnership or marriage has been terminated. Caring, compassionate and responsive 1 11

12. CHAPTER 2Civil Partnerships (Continued) Clause 8 – Objections to civil partnership • This clause requires any objections to the civil partnership to be lodged in writing with the marriage officer who is to solemnize such civil partnership. • It further requires the marriage officer concerned to enquire into the grounds of the objections and if he or she is satisfied that there is no lawful impediment to the proposed civil partnership, to solemnize the civil partnership. • If the marriage officer is satisfied that there is lawful impediment, he or she must refuse to solemnize the civil partnership and record the reasons for such refusal in writing. Caring, compassionate and responsive 1 12

13. CHAPTER 2Civil Partnerships (Continued) • Clause 9 – Time and place for and presence of parties and witnesses at solemnization of civil partnership • This clause provides for the solemnization and registration of civil partnership at any time on any day of the week, but a marriage officer is not obliged to solemnize a civil partnership at any other time than between the hours of 8h00 and 16h00. • This clause prohibits the entering into a civil partnership through proxy. Caring, compassionate and responsive 1 13

14. CHAPTER 2Civil Partnerships (Continued) • Clause 10 – Civil partnership formula • This clause requires the marriage officer to inquire from both parties whether they prefer their partnership to be referred to as a civil partnership or a marriage during the solemnization ceremony and thereupon proceed to solemnize the partnership accordingly. • The clause furthermore prescribes the formula for solemnizing any civil partnership or marriage. • Clause 11 – Registration of civil partnership • This clause provides for the requirements for registration of civil partnerships and the issuance of a registration certificate Caring, compassionate and responsive 1 14

15. CHAPTER 2Civil Partnerships (Continued) THANK YOU • Clause 12 – Legal consequences of civil partnerships • This clause provides that a civil partnership will have the same legal consequences of a marriage in terms of the Marriage Act, with the necessary modifications, and that reference to husband, wife or spouse in any other law, including the common law, will include a civil partner as defined in this Act. Caring, compassionate and responsive 1 15

16. CHAPTER 3Domestic Partnerships • Clause 13 – Objectives of Chapter • This clause provides that the objectives of Chapter 3 are to ensure the rights of equality and dignity of partners in domestic partnerships and to reform family law to comply with the provisions of the Bill of Rights through: • the recognition of the legal status of domestic partners, regulation of the rights and obligations of domestic partners; • protection of interest of both domestic partners and interested parties on the termination of domestic partnerships; and • final determination of financial relationships between domestic partners and interested parties upon termination of domestic partnerships. Caring, compassionate and responsive 1 16

17. CHAPTER 3Domestic Partnerships (Continued) Clause 14 – Relationships to which Chapter applies • This clause provides that Chapter 3 applies to relationships between domestic partners and between either one or both of the domestic partners and another party or other parties. Chapter 3 is furthermore divided into six parts which will be discussed in the following slides. Caring, compassionate and responsive 1 17

18. CHAPTER 3Domestic Partnerships (Continued) • PART I – Registered domestic partnerships: Registrationprocedure • Clause 15 – Partners in registered domestic partnership • This clause provides that a person may only be a partner in one registered domestic partnership at any given time and further that a person who is already married, a partner in a civil partnership, or a partner in any other registered domestic partnership may not register a domestic partnership. • Furthermore, it provides that a registration officer may not proceed with the registration process of a prospective partner who has previously been married, or registered as a partner in a civil partnership or domestic partnership, unless he or she is presented with a certified copy of the divorce order, termination certificate or death certificate of the former spouse or registered partner as proof that the previous marriage, civil partnership or registered domestic partnership has been terminated. Caring, compassionate and responsive 1 18

19. CHAPTER 3Domestic Partnerships (Continued) Clause 16 – Registration officers • This clause empowers the Minister (or any officer authorised by him or her) to designate in writing any officer or employee in the public service or the diplomatic or consular service of the Republic to be a registration officer. Clause 17 – Registration of domestic partnerships • This clause prescribes the registration procedure to be followed by the registration officer when registering domestic partnership. • It further requires the registration officer to transmit a register of domestic partnerships to the officer in the public service with the delegated responsibility to include same in the population register. Caring, compassionate and responsive 1 19

20. CHAPTER 3Domestic Partnerships (Continued) Clause 18 – Property regime • This clause provides that there is no general community of property between partners in a registered domestic partnership, except as provided for in this clause. • It furthermore provides that a dispute regarding the division of property should be dealt with in terms of section 33, which provides for property division. • It also provides for the conclusion of a registered domestic partnership agreement. Caring, compassionate and responsive 1 20

21. CHAPTER 3Domestic Partnerships (Continued) • Clause 19 – Registered domestic partnership agreement • This clause requires the registered domestic partnership agreement to have been noted on and attached to the registration certificate for the purpose of consideration by the court in matters pertaining to the division of property. • It further lays down the factors that the court might take into account in reaching its decision. Caring, compassionate and responsive 1 21

22. CHAPTER 3Domestic Partnerships (Continued) Clause 20 Amendment of section 21 • PART II – Legal consequences of registered domestic partnerships • Clause 20 – Duty of support • This clause provides that registered partners owe each other a duty of support. • Clause 21 – Limitation on disposal of joint property • This clause prohibits a registered partner to sell, donate, mortgage, lease or dispose of joint property without the consent of the other registered partner. • Clause 22 – Right of occupation of family home • This clause provides for the right by both registered partners to occupy the family home during the existence of a registered domestic partnership. • Clause 20 deletes section 21 of the Act which provides for appeal to the Supreme Court. • The Act already provides for an appeal procedure in instances where a complainant is not satisfied with a decision of the Board, to appeal to the Appeal (Review) Board. • The Promotion of Administrative Justice Act, 2000 (Act No. 3 of 2000) in itself provides for judicial review of administrative actions in a court of law when all internal remedies have been exhausted. It is therefore not necessary for the Act to contain a clause in this regard. Caring, compassionate and responsive 1 22

23. CHAPTER 3Domestic Partnerships (Continued) • PART III – Termination of registered domestic partnership • Clause 23 – Termination of registered domestic partnerships • This clause provides for the circumstances under which a registered domestic partnership terminates (i.e. death, agreement and court order) • Clause 24 – Termination agreement (Procedure for termination) • This clause provides for the procedure to be followed by the registration officer upon termination of the registered domestic partnership agreement between the registered partners. • Clause 25 – Termination agreement (Requirements for termination agreement) • This clause prescribes the requirements for the form of the termination agreement Caring, compassionate and responsive 1 23

24. CHAPTER 3Domestic Partnerships (Continued) • Clause 26 – Termination by court order • This clause requires registered partners with minor children from the registered domestic partnership, who intend to terminate their registered domestic partnership, to apply to the court, in terms of the Supreme Court Act, 1959 (Act No. 59 of 1959), for a termination order. • Clause 27 – Welfare of minor children • This clause provides that the court is empowered not to order termination of a registered domestic partnership, unless satisfied of the welfare of any minor children. • The clause also empowers the court to appoint a legal practitioner to represent a child in the proceedings at the cost of either or both the registered partners. Caring, compassionate and responsive 1 24

25. CHAPTER 3Domestic Partnerships (Continued) • Clause 28 – Children of registered partners of opposite sex • This clause deems the male partner in a registered partnership to be the biological father of a child born into a registered partnership between persons of opposite sex. • PART IV – Maintenance after termination of registered domestic partnership • Clause 29 – Maintenance after termination • This clause provides for the court to make an order regarding payment of maintenance by one registered party to the other in the absence of a termination agreement. • It furthermore provides for the factors that may be taken into consideration by the court when ordering the payment of maintenance. Caring, compassionate and responsive 1 25

26. CHAPTER 3Domestic Partnerships (Continued) Clause 30 – Maintenance after death • This clause provides that any reference to “spouse” in the Maintenance of Surviving Spouses Act must be construed to include a registered partner. Clause 31 – Intestate succession • This clause provides that any reference to “spouse” in the Intestate Succession Act must be construed to include a registered partner. Clause 32 – Delictual claims • This clause deems partners in a registered domestic partnership to be spouses in a legally valid marriage for the purposes of delictual claims, including claims for wrongful death of the other party or under the Compensation for Occupational Injuries and Diseases Act. Caring, compassionate and responsive 1 26

27. CHAPTER 3Domestic Partnerships (Continued) PART V – Property division after termination of registered domestic partnership Clause 33 – Property division • This clause provides for the procedure for division of property after termination of a registered domestic partnership. • It furthermore provides for the factors that may be taken into account by the court when considering an order for division of joint property. Clause 34 – Application to be made within two years after end of registered domestic partnership • This clause provides that an application for an order under section 33 must not be made later than two years after the registered domestic partnership was terminated. Caring, compassionate and responsive 27 1

28. CHAPTER 3Domestic Partnerships (Continued) • Clause 35 – Notification of termination of registered domestic partnership • This clause requires both registered partners to give written notice of the termination of a registered domestic partnership to interested parties. • In the event of death, the surviving registered partner or the executor of the estate is required to give written notice of the termination to interested parties. • Clause 36 – Interest of other parties • This clause requires a court considering an application under this Act to have regard to the interest of a bona fide purchaser of, or other person with an interest or vested right in, the property of the registered partners. Caring, compassionate and responsive 1 28

29. CHAPTER 3Domestic Partnerships (Continued) • Clause 37 – Court application • This clause provides for an application to court for a maintenance order, an intestate succession order or a property division order in the event of termination of an unregistered domestic partnership through death or separation. • It furthermore lists the circumstances that must be considered by the court in deciding upon an application for an order under Chapter 3. • Clause 38 – Maintenance • This clause provides that unregistered partners are not liable to maintain one another, unless provided for in Chapter 3. Caring, compassionate and responsive 1 29

30. CHAPTER 3Domestic Partnerships (Continued) • Clause 39 – Application for maintenance order after separation • This clause provides that the court may upon application make an order for maintenance after separation of unregistered partners. • The clause furthermore lists the factors that the court must take into account when deciding to order the payment of maintenance. • Clause 40 – Application for maintenance order after death of unregistered partner • This clause allows the surviving unregistered partner to apply to court for an order for reasonable maintenance needs (until his or her death, remarriage or registration of another domestic partnership) from the estate of the deceased. • It furthermore provides that the provisions of the Administration of Estates Act apply with the necessary modifications to a claim for maintenance of the surviving unregistered partner, subject to the listed conditions. Caring, compassionate and responsive 1 30

31. CHAPTER 3Domestic Partnerships (Continued) • Clause 41 – Determination of reasonable maintenance needs of surviving unregistered partner • This clause lists the factors that need to be taken into account by the court when determining the reasonable maintenance needs of the surviving unregistered partner. • Clause 42 – Intestate succession • This clause provides that the surviving unregistered partner may apply to the court, subject to the listed conditions, for an order that he or she may inherit the intestate estate. Caring, compassionate and responsive 1 31

32. CHAPTER 3Domestic Partnerships (Continued) • Clause 43 – Property division • This clause provides for the application for an order for the division of property in the absence of a termination agreement. • It furthermore provides for the factors that may be taken into account by the court when considering an order for the division of property. • Clause 44 – Application to be made within two years after end of relationship • This clause provides that an application for an order under Chapter 3 must not be made later than two years after the unregistered domestic partnership was terminated through separation or death. Caring, compassionate and responsive 1 32

33. CHAPTER 4 Miscellaneous 33 • Clause 45 – Offences and Penalties • This clause creates offences and provides for penalties for: • any marriage officer who purports to solemnise a civil partnership 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 solemnizes a civil partnership or a registration officer who registers a domestic partnership in contravention of this Act (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 33

34. CHAPTER 4 Miscellaneous 34 • Clause 46 – 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. • Clause 47 – Amendment of Section 8 of Act 68 of 1997 • This clause amends section 8(e) of the Identification Act, 1997 by the substitution thereof to provide for the particulars of the marriage to be contained in the marriage register • Clause 48 – 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 34

35. THANK YOU Caring, compassionate and responsive 1 35