Authored By: Nonkululeko Mathe
University of South Africa (UNISA)
Introduction
South Africa, among other 4 countries in the world yet the only country in Africa to have officially legalise same-sex marriages to ensure equal rights,validation and recognition in accordance with the Civil Union Act (that is, Act 17 of 2006).
Same-sex marriages were formally recognised and constitutionally enforced in 2006. This legislation permits both opposite-sex and same-sex couples to legally conclude civil marriages, religious marriages as well as civil partnerships without any violation of their rights thereof.
This ensures the validity and compliance of certain sections of the South African Constitution as stipulated in Section9 and 10 as in recognition of the same-sex marriages. Therefore, same-sex marriages are in accordance with the South African law.
The legal aspects pertaining to same-sex marriages
The legalisation of same-sex marriages
Same-sex marriages are recognised and legally protected in South Africa. This was further stipulated in terms of the Marriage Act 25 of 1961 that all couples,regardless of their gender, are entitled to enjoy same rights benefits of marriage.
The Amendment of Union Act 17 of 2006
As amendments were made on or about 2020, it was declared that marriage officers as well as magistrates are no longer permitted to refuse to officiate same-sex marriages based on their own personal beliefs. This Act prohibits marriage officers from withholding their services in accordance with conscience, religion and faith. It was further stipulated that, if the marriage meets all the legal requirements, officers must solemnise the marriage. The same of this amendment was to eliminate discrimination and to ensure that these couples have access to the same rights as other ordinary couples.
The rules associated with solemnisation of same-sex marriages
According to the South African law, same-sex couples must ensure that their marriages are solemnised in the presence of authorised marriage officer.
The rules of adoption
Adoption in South Africa is regulated by the Children’s Act 38 of 2005. In terms of this Act, gay or lesbian couples are granted equal rights to adoption. These couples can adopt jointly, provided that they meet the adoption requirements. The rules of adoption were placed to ensure that same-sex couples are granted equal access to build families like ordinary couples.
Same-sex life partnerships
However, there is no current existence of legislation that governs same-sex relationships in South Africa but certain factors can be considered to determine if there is existence of same-sex life partnerships such as:
a) The stability of the relationship
b) Whether there is a close relationship between their families and friends.
c) Whether the couples have joint assets
d) Whether there are immovable properties that are registered under their both names
e) Whether the couples have expressed stated in an agreement that they intent to conclude a permanent life partnership.
The legal consequences of same-sex life partnerships
A legal agreement between the partners must exist and be concluded to legally determine that they have assumed a responsibility to maintain each other and that failure for both parties to perform their duties accordingly, the Court will determine the facts of the case and whether the responsibility has been assumed.
The assumed responsibility to maintain each other
Whether the partners have assumed responsibility to maintain each other or not, there are certain legal consequences attributed to the partnership such as:
a) Obtaining protection in line with the provisions stipulated in the Domestic Violence Act.
b) As amended in chapter 5 of the Criminal Law (Sexual Offences and Related Matters) Act 32 of 2007 which regards a life partner as having “material interests in the well being” of a victim of a sexual offence.
c) Between the partnership, a partner may adopt a child of the other partner or jointly adopt a child.
d) When the partnership irretrievably breakdown and one of the partners gave birth to a child, both parties will be held liable jointly and severally to be co-holders in the best interests of the child.
e) Upon death of a partner, the other partner is entitled to the pension fund benefits of the late partner.
f) A partner qualifies as a spouse in compliance with the Immigration Act 13 of 2002.
f) In terms of the Compensation for Occupational Injuries and Diseases Act 130 of 1993, a partner is eligible to be a dependent.
Additional legal consequences for partners who have assumed a responsibility to maintain each other
It is in line with the law and considered that additionally, a partner may be liable to be registered as a dependent on the other partner’s medical aid scheme. Another point of consideration is that a partner meets the requirements of qualifying to be a spouse in terms of the Intestate Succession Act 81 of 1987.
Rights and Responsibilities of same-sex married couples
The Constitutional validity and legality of same-sex marriage spouses enable the parties to endure equal rights, responsibilities and benefits the same way as opposite-sex marriage couples have.
The rights of the same-sex marriage couples that are protected include the following:
a) Property ownership as well as matrimonial property regimes.
b) Inheritance and estate claims.
c) Taxation and in addition, employment benefits.
d) Joint adoption and parental rights as well as responsibilities.
An example of a court case in respect of same-sex marriages in South Africa
a) The background of the case
As I have stated points in view of the constitutional legality and validity of same-sex marriages in South Africa, years ago, a matter arose in relation to the recognition of same-sex marriages. In the case of Minister of Home Affairs v Fourie 2006 (1) SA 524 (CC), the applicants were a lesbian couple who have been together for years and wanted to legally marry and register their union.
The legal barrier in this case was the fact that the South African common law defined marriage strictly as “a union of one man with one woman” and formulas such as “wife and husband” were required by the Marriage Act for validation.
However, it is this principle that the applicants argued and found that this exclusion violated their constitutional rights to equality, dignity and freedom from discrimination based on sexual orientation.
The case was brought before the Constitutional Court as the Supreme Court in the country for ruling.
b) The Court’s decision in the case
On 1 December 2005, the Constitutional Court declared that the common law definition of marriage as well as the Marriage Act were unconstitutional, as they discriminated against same-sex couples.
Therefore, the court suspended its order of invalidity for a period of 12 months in order to give the Parliament sufficient time or a period of 1 year to rectify the legal framework and permit same-sex marriages.
c) The violation of same-sex couple’s rights
i) Violation of the right to equality: Section 9 of the South African Constitution states that everyone is equal before the law and therefore prohibits unfair discrimination based on sexual orientation.
ii) Violation of the right to Human Dignity: Section 12 of the South African Constitution states that everyone has the right to human dignity. The Court viewed that excluding same-sex couples from getting married is unconstitutional and unlawful that revealed a message that preference is granted to ordinary (heterosexual) couples.
d) The outcome of the case
After the Constitutional court order, Parliament had responded by implementing the Civil Union Act of 2006, which enforced the legality of same-sex marriages in the Republic of South Africa before the court’s deadline period of 1 year expired.
d) Marriage officers and the Department of Home Affairs
The amendments as well as the constitutional court clarifications have removed exemptions that previously permitted state-employed marriage officers at the Department of Home Affairs to refuse to solemnise same-sex unions based on personal as well as religious grounds. State-employed officers are therefore legally obligated to facilitate same-sex marriages as an administrative public service.
Conclusion
The case of Minister of Home Affairs v Fourie is one of the other South African cases that were declared unconstitutional and invalid. This case is significant as it reminds every citizen that no one is above the law and that everyone deserves to be treated fairly and equally.
The emphasis on the case of Fourie and the article is that everyone must understand the importance of law and the rule it plays. The law is governed by rules and norms that must be obeyed by all citizens. The rules are a guideline of how every individual’s behaviour is governed. These are the standards that give us understanding of how people must treat and fairly treat one another. As the principle of Ubuntu implies “ A person is a person because of others”.
Reference(S):
Cases:
Minister of Home Affairs v Fourie 2006 (1) SA 524 (CC)
Legislations:
Civil Union Act 17 of 2006
Marriage Act 25 of 1961
The Amendment of Union Act 17 of 2006
Children’s Act 28 of 2005
Criminal Law (Sexual Offences and Related Matters) Act 32 of 2007
Immigration Act 13 of 2002
Compensation for Occupational Injuries and Diseases Act 130 of 1993
Secondary sources:
The Introduction to Law Study Guide: ILW1501
The South African Constitution
