Civil Union Act, 2006
Encyclopedia
The Civil Union Act, 2006 (Act No. 17 of 2006) is a South Africa
n Act of Parliament which legalised same-sex marriage
. It was enacted as Parliament's
response to the judgment of the Constitutional Court
in the case of Minister of Home Affairs v Fourie, which ruled that it was unconstitutional for the state to provide the benefits of marriage to opposite-sex couples while denying them to same-sex couples.
On 24 August 2006, the Cabinet approved the Civil Union Bill for submission to Parliament. It was introduced in the National Assembly by the Minister of Home Affairs
on 12 September. The original bill only allowed for civil parnerships between same-sex partners, and also included provisions to recognise domestic partnerships between unmarried partners, both same-sex and opposite-sex. The bill was amended in committee to allow both marriages and civil partnerships, and to open them to opposite-sex as well as same-sex couples.
The final vote in the National Assembly was held on 14 November. The ruling African National Congress
called a three line whip, requiring its MPs to vote for the bill. Most opposition parties voted against it, while the Democratic Alliance allowed its MPs a conscience vote
. The bill passed by 230 votes to 41 with two abstentions. The National Council of Provinces
passed it on 28 November by 36 votes to 11 with one abstention. It was signed on 29 November by Deputy President Phumzile Mlambo-Ngcuka
(acting for President Thabo Mbeki
) and came into force the following day.
A person may not contract a marriage or civil partnership if he or she is already married (or civilly partnered) under the Civil Union Act, the Marriage Act, or the Recognition of Customary Marriages Act. Both partners must be 18 or older and mentally competent. The same prohibited degrees of consanguinuity and affinity
apply as would apply under the Marriage Act.
A marriage or civil partnership must be solemnized by a marriage officer in the presence of the partners and two witnesses. The solemnization may occur in a public office, a private house, or in premises used for the purpose by the marriage officer. The marriage officer asks each partner:
and when each partner has responded in the affirmative, he or she solemnizes the marriage by saying:
Secular marriage officers under the Marriage Actmagistrates and Home Affairs officialsare automatically marriage officers for the purposes of the Civil Union Act. They may apply to the Minister of Home Affairs to be exempted from performing same-sex marriages on the grounds of conscience, religion or belief. Marriage officers who are ministers of religion are not marriage officers for the purposes of the Civil Union Act unless both they and their denomination apply to be designated as such. Marriage officers have the same powers, responsibilities and duties under the Civil Union Act as they do under the Marriage Act.
South Africa
The Republic of South Africa is a country in southern Africa. Located at the southern tip of Africa, it is divided into nine provinces, with of coastline on the Atlantic and Indian oceans...
n Act of Parliament which legalised same-sex marriage
Same-sex marriage in South Africa
Same-sex marriage has been legal in South Africa since 30 November 2006, when the Civil Union Act, 2006 came into force, having been passed by Parliament earlier that month. A ruling by the Constitutional Court on 1 December 2005 had given Parliament one year to make same-sex marriage legal...
. It was enacted as Parliament's
Parliament of South Africa
The Parliament of South Africa is South Africa's legislature and under the country's current Constitution is composed of the National Assembly and the National Council of Provinces....
response to the judgment of the Constitutional Court
Constitutional Court of South Africa
The Constitutional Court of South Africa was established in 1994 by South Africa's first democratic constitution: the Interim Constitution of 1993. In terms of the 1996 Constitution the Constitutional Court established in 1994 continues to hold office. The court began its first sessions in February...
in the case of Minister of Home Affairs v Fourie, which ruled that it was unconstitutional for the state to provide the benefits of marriage to opposite-sex couples while denying them to same-sex couples.
Legislative history
The Constitutional Court's judgment set a deadline of 1 December 2006 for Parliament to rectify the situation, failing which words would be "read in" to the Marriage Act to allow same-sex marriages to take place.On 24 August 2006, the Cabinet approved the Civil Union Bill for submission to Parliament. It was introduced in the National Assembly by the Minister of Home Affairs
Minister of Home Affairs (South Africa)
The Minister of Home Affairs is the minister in the Cabinet of South Africa with responsibility for the Department of Home Affairs. The position includes responsibility for immigration, refugee and asylum policy, for the civil registry, and for the issuing of identity documents and passports.-List...
on 12 September. The original bill only allowed for civil parnerships between same-sex partners, and also included provisions to recognise domestic partnerships between unmarried partners, both same-sex and opposite-sex. The bill was amended in committee to allow both marriages and civil partnerships, and to open them to opposite-sex as well as same-sex couples.
The final vote in the National Assembly was held on 14 November. The ruling African National Congress
African National Congress
The African National Congress is South Africa's governing Africanist political party, supported by its tripartite alliance with the Congress of South African Trade Unions and the South African Communist Party , since the establishment of non-racial democracy in April 1994. It defines itself as a...
called a three line whip, requiring its MPs to vote for the bill. Most opposition parties voted against it, while the Democratic Alliance allowed its MPs a conscience vote
Conscience vote
A conscience vote or free vote is a type of vote in a legislative body where legislators are allowed to vote according to their own personal conscience rather than according to an official line set down by their political party....
. The bill passed by 230 votes to 41 with two abstentions. The National Council of Provinces
National Council of Provinces
The National Council of Provinces is the upper house of the Parliament of South Africa under the constitution which came into full effect in 1997...
passed it on 28 November by 36 votes to 11 with one abstention. It was signed on 29 November by Deputy President Phumzile Mlambo-Ngcuka
Phumzile Mlambo-Ngcuka
Phumzile Mlambo-Ngcuka is a South African politician who was Deputy President of South Africa from 2005 to 2008. She was the first woman to hold the position and was the highest ranking woman in the history of South Africa...
(acting for President Thabo Mbeki
Thabo Mbeki
Thabo Mvuyelwa Mbeki is a South African politician who served two terms as the second post-apartheid President of South Africa from 14 June 1999 to 24 September 2008. He is also the brother of Moeletsi Mbeki...
) and came into force the following day.
Provisions
A civil union may be contracted under the act by a same-sex or opposite-sex couple, and they may choose to form it either as a marriage or as a civil partnership. Whichever name is chosen, the legal consequences of a civil union are the same as those of a marriage under the Marriage Act. Any reference to marriage in any law is deemed to include a civil union, and any reference to a husband, wife or spouse is deemed to include a spouse or partner in a civil union.A person may not contract a marriage or civil partnership if he or she is already married (or civilly partnered) under the Civil Union Act, the Marriage Act, or the Recognition of Customary Marriages Act. Both partners must be 18 or older and mentally competent. The same prohibited degrees of consanguinuity and affinity
Affinity (law)
In law and in cultural anthropology, affinity, as distinguished from consanguinity, is kinship by marriage. It is the relation which each party to a marriage bears to the kindred of the other. In English, affinity is usually signified by adding "-in-law" to the degree of kinship...
apply as would apply under the Marriage Act.
A marriage or civil partnership must be solemnized by a marriage officer in the presence of the partners and two witnesses. The solemnization may occur in a public office, a private house, or in premises used for the purpose by the marriage officer. The marriage officer asks each partner:
and when each partner has responded in the affirmative, he or she solemnizes the marriage by saying:
Secular marriage officers under the Marriage Actmagistrates and Home Affairs officialsare automatically marriage officers for the purposes of the Civil Union Act. They may apply to the Minister of Home Affairs to be exempted from performing same-sex marriages on the grounds of conscience, religion or belief. Marriage officers who are ministers of religion are not marriage officers for the purposes of the Civil Union Act unless both they and their denomination apply to be designated as such. Marriage officers have the same powers, responsibilities and duties under the Civil Union Act as they do under the Marriage Act.