By Megan Goliath
Same-sex couples have had the right to formalise their relationships since 30 November 2006 when the Civil Union Act was enacted. This followed the ground-breaking 2005 Constitutional Court decision in Minister of Home Affairs v Fourie (Doctors for Life International). In this case the constitutionality of the previously known common-law definition of marriage and the marriage formula in terms of the Marriage Act 25 of 1961 was challenged in that it excluded same-sex couples from the status and responsibility accorded to heterosexual couples.
The Civil Union Act recognises a civil union as the union of two persons, same-sex or heterosexual, who are at least 18 years of age, which is solemnised and registered in accordance with the procedures prescribed by the Civil Union Act. Solemnisation refers to the actual act of getting married where vows are exchanged and a pledge is made, be it in a church or the Department of Home Affairs. Parties may not always choose to have a wedding. To enter into a valid civil union, there are certain requirements that are to be met: the capacity to act, agreement and lawfulness. These requirements apply to parties wanting to enter a civil union.
Capacity to act
A same sex couple must have the necessary capacity to act in terms of South African law. Parties who are under 18 cannot ever enter into a civil union in the same way heterosexual minors can in terms of the traditional Marriage Act, even if they obtain consent from their parents.
Agreement
Both parties must agree and must be of the same mind and intention to enter into a civil union with one another. During the service, or the solemnisation, the marriage officer will ask each party whether he or she accepts the other party as a spouse/civil union partner, in which both parties must answer in the affirmative. The union may not be formalised if one of the parties replies in the negative and says: “I don’t!” instead of “I do”.
Lawfulness
Like a civil marriage, but unlike a customary marriage, a civil union is monogamous, meaning that one person can marry only one other person. If you are already in a civil marriage, you cannot enter into another civil marriage, civil union or customary marriage.
If you are already married, a civil union may not be solemnised until the marriage officer has been provided with proof of divorce from the first spouse or a death certificate of the other spouse. A civil union may be entered into by same-sex couples, but not within the bounds of prohibited marriages, for instance, a nephew and uncle.
Like any agreement within South African law there are certain formal requirements that are to be met for the marriage to be lawful, namely the requirement of a marriage officer, formalities preceding the ceremony, formalities during the ceremony and registration.
Marriage officer
Civil unions can only be officiated by authorised marriage officers. Under the Civil Union Act marriage officers have the same powers and duties as those outlined in the Marriage Act. Anyone recognised as a marriage officer under the Marriage Act is also recognized under the Civil Union Act. Religious organizations that wish to conduct civil union ceremonies must apply to the Minister of Home Affairs for approval. Until the entire organisation receives authorisation only the head of the religious group may officiate such unions.
Formalities before the ceremony/solemnisation
The second formality relates to formalities preceding the ceremony. As in the instance of civil marriages, anyone wishing to object to the solemnisation of the marriage of the two parties is required to raise this objection with the marriage officer in writing. The marriage officer is required by law to inquire into the grounds on which the objection is based and will continue or perform the ceremony only if he/she is satisfied that there is no lawful obstruction to the union. Each party is obliged to furnish the marriage officer with his or her identification document or an affidavit, failing which the marriage office may refuse to solemnise the civil union.
Formalities during the ceremony/solemnisation
The third formality relates to formalities during the ceremony, or the act of getting married (where there is no ceremony). South African law requires that the ceremony takes place in the presence of the parties themselves and two competent witnesses. A party cannot enter a civil union by having a representative in their place (proxy). The civil union can be solemnised any time during the week, subject to the approval and availability of the marriage officer. The union must be solemnised and registered in a public office or private dwelling, with open doors, or on the premises of such an office or dwelling, except in instances where both parties cannot be present due to illness. The officer is then required to ask each party whether they know of any lawful impediment to their union, and whether they call on all who are present to witness them entering the marriage. Both parties are required to reply in the affirmative.
Registration
The last formality requires that the civil union be registered. The marriage officer is required to keep a record of all the civil unions he/she has solemnised. S/he must issue each couple with a registration certificate which stipulates that they have entered into a marriage under the Civil Union Act. A signed registration certificate will then be obtained, which is sufficient proof of the existence of the civil union.
- Megan Goliath is a candidate attorney at the Rhodes University Law Clinic
