In strictly adhering to the concept of marriage inherited from the Western legal
tradition, pre-1994 South African family law paid scant regard to marriages other
than monogamous heterosexual civil marriages, while the common law provided no
express legal recognition for unmarried life or domestic partnerships. The advent of the
democratic constitutional era in 1994 however spawned a flurry of legal development
that broadened the notion of marriage by recognising customary marriages as well as
certain consequences of marriages concluded according to the tenets of a recognised
faith such as Islam. Commencing with the watershed National Coalition for Gay and
Lesbian Equality cases,1 the legal position in which same-sex life partners found
themselves was also dramatically improved by a number of ad hoc judicial
pronouncements which extended certain consequences of marriage to such partners on
the premise that they were at the time precluded from marrying one another. The
flipside of this premiseânamely that heterosexual life partners have always been
permitted to marry one another and thus cannot request an extension of matrimonial
(property) law where they have exercised a choice not to marry (the so-called âchoice
argumentâ)âwas, however, to constitute the major justification for the judiciaryâs refusal
to extend similar recognition to heterosexual life partners. The application of this line of
reasoning has implied that, within little more than a decade into the democratic
constitutional dispensation, same-sex life partners ostensibly enjoy better legal
protection and recognition of their relationships than their heterosexual counterparts.
This state of affairs implies that the current legal position regarding unmarried life
partners is inconsistent and fraught with anomalous legal consequences. Over and above the judicial developments, post-1994 legislation has also provided
increasing recognition for unmarried life partners. However, as was the case with the
judicial developments, the legislative developments were also merely piecemeal in
nature. The upshot of this state of affairs is that interpersonal relationships in South
Africa are governed by âa patchwork of laws that did not [and still do not] express a
coherent set of family law rules.â2
While the validation of same-sex marriages by way of the promulgation of the Civil
Union Act 17 of 2006 was a salutary development from a human rights perspective, this
development has created difficulties of its own. To begin with, the validation of samesex
marriage implies, strictu sensu, that the âchoice argumentâ applies equally to samesex
couples who elect not to marry one another. This entails that such couples could
potentially be deprived of the consortium omnis vitae that the Courts have in principle
found to exist between them and that they may no longer be able to rely on the
piecemeal judicial extensions granted by the Courts prior to 30 November 2006 (the day
on which same-sex marriage became permissible). The legal position in this regard
however remains unclear. In addition, the validation of same-sex marriage has been
accomplished by way of legislation that not only requires same-sex couples to marry
one another in terms of separate legislation but that also further overcomplicates the
legal landscape by providing for âcivil unionsâ that can take the form of either marriages
or civil partnerships. As such, no legislation has as yet been enacted that deals with the
position of life or domestic partners per se.
In January 2008 a draft Domestic Partnerships Bill, 2008 saw the light of day. Using
this Bill as a prototype, this study attemptsâby applying a domestic partnership rubric
that requires the modification of the Bill and its calibration with attendant legislationâto
iron out the inconsistencies and anomalies alluded to above by providing effective
domestic partnership legislation. In order to achieve this, an in-depth analysis of case
law, legislation and common law is conducted with a view to establishing certain fundamental principles that ought not only to feature in the domestic partnerships
legislation itself, but which are also required in order to facilitate the Billâs alignment with
applicable legislation. In the light of the modified Bill, the study concludes with an
evaluation of the case for retaining the Civil Union Act 17 of 2006. In the final analysis,
the conclusion is reached that the enactment of the Domestic Partnerships Bill as
developed in accordance with the rubric, coupled with the repeal of the Civil Union Act
17 of 2006, will provide a more consistent, coherent and less complex legal framework
within which interpersonal relationships in South Africa can be regulated.
| Identifer | oai:union.ndltd.org:netd.ac.za/oai:union.ndltd.org:ufs/oai:etd.uovs.ac.za:etd-08162010-110543 |
| Date | 16 August 2010 |
| Creators | Smith, Bradley Shaun |
| Contributors | Prof JA Robinson, Judge FDJ Brand |
| Publisher | University of the Free State |
| Source Sets | South African National ETD Portal |
| Language | en-uk |
| Detected Language | English |
| Type | text |
| Format | application/pdf |
| Source | http://etd.uovs.ac.za//theses/available/etd-08162010-110543/restricted/ |
| Rights | unrestricted, I hereby certify that, if appropriate, I have obtained and attached hereto a written permission statement from the owner(s) of each third party copyrighted matter to be included in my thesis, dissertation, or project report, allowing distribution as specified below. I certify that the version I submitted is the same as that approved by my advisory committee. I hereby grant to University Free State or its agents the non-exclusive license to archive and make accessible, under the conditions specified below, my thesis, dissertation, or project report in whole or in part in all forms of media, now or hereafter known. I retain all other ownership rights to the copyright of the thesis, dissertation or project report. I also retain the right to use in future works (such as articles or books) all or part of this thesis, dissertation, or project report. |
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