Civil Union Marriage / Same Sex Marriage

The Civil Union Act (Act No.17 of 2006) is an act of the Parliament of South Africa which allows same-sex couples to get married or form a civil partnership.

The legal aspects pertaining to civil partnerships

There is no law that regulates civil partnerships (which can also be referred to as a same-sex partnership), the same goes for other heterosexual relationships that are not recognised as a legal relationship in the eyes of the law in South Africa.

Legal consequences of civil partnerships only become applicable when:

• The parties in a same-sex relationship get married in terms of the provisions of the Civil Union Act.
• A same-sex relationship becomes more permanent and develops into a same-sex life partnership, not formalised through the Civil Union Act.
• The parties in a same-sex relationship formalise the relationship as one of a civil partnership in terms of the provisions of the Civil Union Act.

When same-sex couples get married in terms of the Civil Union Act, the same principles will apply to the dissolution of their marriage as if they were married under the Marriage Act, and divorced.

If a same-sex couple does not marry or register their union in terms of the Civil Union Act, the termination of their relationship will be the same as couples who are in cohabitation relationships.

Civil partnerships legislation

There is no legislation that requires partners to meet a specific criteria in order for their relationship to qualify as a same-sex life partnership.

However, there are factors to consider when assessing whether a same-sex relationship exists or not:

• The degree of permanence and stability of the relationship.
• Whether the relationship is acknowledged by the couple’s friends, family and/or acquaintances.
• The exclusive nature of the relationship.
• The period of cohabitation.
• The couple’s commitment to share a household, and each partner’s role in the maintenance and management of the shared household.
• The couple’s financial and emotional support towards each other, and whether the partners have assumed a duty to support each other.
• If the couple has jointly purchased immovable property, which is registered in both their names.
• Whether the couple has joint insurances.
• Whether the partners are reciprocal beneficiaries in each others’ wills.
• Any conduct or act that expresses and/or confirm the intention of the parties to be in a permanent life partnership.
• Any written agreement the couple has entered into expressing their intention to be in a permanent life partnership.

There is a clear distinction between a same-sex life partnership where partners have taken on the responsibility of maintaining each other reciprocally, and one where the partners have not assumed such responsibilities.

If the partners have no proof of an agreement that the partners have to maintain each other, a court will look at each case and decide whether responsibility had been assumed. 

Van Deventer and Van Deventer Incorporated

If you require legal assistance with regards to a civil partnership / civil union marriage, contact our attorneys at Van Deventer and Van Deventer Incorporated. We provide expert legal advice and can assist with all matter relating to marriage agreements and antenuptial contracts.

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