CIVIL UNION BILL

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CIVIL UNION BILL

• Presented by Department of Home Affairs
• (Legal Services) to National Council of Provinces
• 21 November 2006

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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.

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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.

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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
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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
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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.
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Clause 3 Relationships to which Act applies
The clause provides that this Act applies to
civil union partners joined in a civil union.
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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.

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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.

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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.
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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.
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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.

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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.

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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.

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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.

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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.

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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.
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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).

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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.

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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.
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• THANK YOU

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