A number of legal complications have arisen in applying the Civil Unions Act to existing legislation – such as the buying and selling of property – says a leading law firm.
As the Act, which legalises same-sex unions, is applied in matters such as adoption, insurance, immigration, estates and conveyancing, so discrepancies are arising, because existing legislation generally assumes that married couples are heterosexual and refers to the partners in a union as husband and wife.
The Act, which co-exists with the Marriage Act and allows same-sex couples to form a civil partnership or legally marry, is in line with the Constitutional Court ruling which gave Parliament until the first of December 2006 to bring the Marriage Act in line with the rights that South Africa’s constitution protects and preserves.
According to Marguerite van Niekerk, attorney, conveyancer and notary public at Herold Gie Attorneys, this is one of the most contested pieces of legislation ever to be passed in the country and is a first for the continent as well as rare in the world. (Other countries that have legalised same-sex marriages are the Netherlands, Belgium, Canada and Spain.)
“Only after months of debate, legal wrangling and emotional pleas, as well as thousands of petitions, hundreds of written submissions and countless public hearings in all the provinces, did the Act finally see the light,” says van Niekerk.
Van Niekerk, who is also a property law specialist, points out that the implementation of the Civil Unions Act is being felt in several areas of legal, commercial and business such as the of adoption of children, insurance and immigration. Within the property sector, and especially in the specialist area of conveyancing, the Civil Unions Act has already produced several discrepancies with regards to the process of property transfers.
“If a same-sex couple were to purchase or sell property together, a problem arises in so far as what the official matrimonial domicile would be. The general rule in South Africa, and an internationally recognised principle, is that the matrimonial domicile is determined by the husband’s domicile at the time of marriage. The problem with this, in a same-sex marriage, is who the ‘husband’ would be?”
“Additionally, problems arise with regards to surnames in the case of a civil union under the Act,” advises van Niekerk. “In a traditional marriage, the wife usually adopts the husbands surname or hyphenates it with her own. A husband cannot just take on his wife’s surname; an application has to be made to the director general of home affairs in order to do so. Again, who will be deemed to be the husband / wife in a same-sex civil union?”
“A further discrepancy with the Civil Unions Act is that any two people, 18 years or older, can enter into a civil union. According to the Marriage Act, you have to be 21 years or older in order to get married without parental consent. The reason behind this lower age can be found in the new Children’s Act 38 of 2005 – which will be signed into law in two to three month’s time. The Children’s Act will lower the age of majority from 21 to 18 and it is presumed that the Civil Union Act pre-empted this change in the interim,” she says.
Van Niekerk concludes that thoughts about marriage have changed dramatically over the centuries as peoples ideas about love, money, power and property ownership have developed. “The Civil Union Act has had a very controversial reception in South Africa but it is important that people recognise that the Act was passed in order to recognise gay people’s constitutional rights.”