Same-sex marriage in South Africa
Encyclopedia
Same-sex marriage has been legal in South Africa since 30 November 2006, when the Civil Union Act, 2006
Civil Union Act, 2006
The Civil Union Act, 2006 is a South African 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...

 came into force, having been passed by Parliament
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....

 earlier that month. A ruling by 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...

 on 1 December 2005 had given Parliament one year to make same-sex marriage
Same-sex marriage
Same-sex marriage is marriage between two persons of the same biological sex or social gender. Supporters of legal recognition for same-sex marriage typically refer to such recognition as marriage equality....

 legal. South Africa is the fifth country, the first in Africa, and the second outside Europe to legalize same-sex marriage.

Background

Both the Interim Constitution, which came into force on 27 April 1994, and the final Constitution
Constitution of South Africa
The Constitution of South Africa is the supreme law of the country of South Africa. It provides the legal foundation for the existence of the republic, sets out the rights and duties of its citizens, and defines the structure of the government. The current constitution, the country's fifth, was...

, which replaced it on 4 February 1997, forbid discrimination on the basis of sex, gender or sexual orientation
Section Nine of the Constitution of South Africa
Section Nine of the Constitution of South Africa guarantees equality before the law and freedom from discrimination to the people of South Africa. This equality right is the first right listed in the Bill of Rights...

. These equality rights formed the basis for a series of court decisions granting specific rights to couples in long-term same-sex relationships:
  • Langemaat v Minister of Safety and Security (1998) recognised the reciprocal duty of support between same-sex partners, and extended medical insurance benefits.
  • National Coalition for Gay and Lesbian Equality v Minister of Home Affairs
    National Coalition for Gay and Lesbian Equality v Minister of Home Affairs
    National Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs and Others is a 1999 decision of the Constitutional Court of South Africa which extended immigration rights to the foreign partners of South African citizens in same-sex relationships.The Court ruled that section...

     (1999) extended immigration benefits to foreign partners of South African citizens.
  • Satchwell v President of the Republic of South Africa
    Satchwell v President of the Republic of South Africa
    Satchwell v President of the Republic of South Africa and Another is a 2002 decision of the Constitutional Court of South Africa which determined that the same-sex life partner of a judge was entitled to the same financial benefits available to the opposite-sex spouse of a judge...

     (2002) extended remuneration and pension benefits.
  • Du Toit v Minister of Welfare and Population Development
    Du Toit v Minister of Welfare and Population Development
    Du Toit and Another v Minister of Welfare and Population Development and Others is a decision of the Constitutional Court of South Africa which granted same-sex couples the ability to jointly adopt children...

     (2002) allowed same-sex couples to adopt children jointly.
  • J v Director-General of Home Affairs (2003) allowed both partners to be recorded as the parents of a child conceived through artificial insemination
    Artificial insemination
    Artificial insemination, or AI, is the process by which sperm is placed into the reproductive tract of a female for the purpose of impregnating the female by using means other than sexual intercourse or natural insemination...

    .
  • Du Plessis v Road Accident Fund (2003) recognised the claim for loss of support when a same-sex partner is negligently killed.
  • Gory v Kolver NO
    Gory v Kolver NO
    Gory v Kolver NO is a decision of the Constitutional Court of South Africa which ruled that a same-sex life partner was entitled to inherit the estate of the other partner who died intestate...

     (2006) allowed inheritance of the estate of a partner who died intestate.

The Fourie case

In 2002 a lesbian couple, Marié Fourie and Cecelia Bonthuys, with the support of the Lesbian and Gay Equality Project
Lesbian and Gay Equality Project
The Lesbian and Gay Equality Project , formerly known as the National Coalition for Gay and Lesbian Equality , is a non-profit, non-governmental organization in South Africa that focuses on the expansion of LGBT civil rights in South Africa and other countries in sub-Saharan Africa...

, launched an application in the Pretoria High Court
North Gauteng High Court
The North Gauteng High Court is a division of the High Court of South Africa...

 to have their union recognised and recorded by the Department of Home Affairs as a valid marriage. Judge Pierre Roux dismissed the application on 18 October 2002, on the technical basis that they had not properly attacked the constitutionality of the definition of marriage or the Marriage Act, 1961
Marriage Act, 1961 (South Africa)
The Marriage Act, 1961 is an act of the Parliament of South Africa governing the solemnisation and registration of marriages in South Africa...

.

Fourie and Bonthuys requested leave to appeal to 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...

, but this was denied and the High Court instead granted leave to appeal to the Supreme Court of Appeal
Supreme Court of Appeal of South Africa
The Supreme Court of Appeal is an appellate court in South Africa; it is the highest appeal court except in constitutional matters, which are ultimately decided by the Constitutional Court...

 (SCA). They applied to the Constitutional Court for direct access, but this was denied on 31 July 2003; the court stated that the case raised complex issues of common and statutory law on which the SCA's views should first be heard.

Fourie and Bonthuys therefore appealed the High Court judgment to the SCA, which handed down its decision on 30 November 2004. The five-judge court ruled unanimously that the common-law definition of marriage was invalid because it unconstitutionally discriminated on the basis of sexual orientation, and that it should be extended to read "Marriage is the union of two persons to the exclusion of all others for life." The court was, however, divided on the problem of the Marriage Act, which required a marriage officer to follow a formula which did not allow for same-sex marriage. The majority opinion, written by Judge Edwin Cameron
Edwin Cameron
Edwin Cameron is a South African Rhodes scholar and current Constitutional Court justice. Cameron served as a Supreme Court of Appeal judge from 2000 to 2008. He was the first senior South African official to state publicly that he was living with HIV/AIDS...

, ruled that because Fourie and Bonthuys had not challenged the Marriage Act, the court could not invalidate it, and therefore their marriage could not immediately be solemnized. In a dissenting opinion, Judge Ian Farlam stated that the marriage formula followed from the common-law definition and the court should update it; on the other hand, he was of the opinion that the order of invalidity should be suspended for two years to allow Parliament to adopt its own remedy for the situation.

The government appealed the SCA's ruling to the Constitutional Court, arguing that a major alteration to the institution of marriage was for Parliament and not the courts to decide, while Fourie and Bonthuys cross-appealed, arguing that the Marriage Act should be altered as Judge Farlam had suggested. In the meanwhile, the Lesbian and Gay Equality Project
Lesbian and Gay Equality Project
The Lesbian and Gay Equality Project , formerly known as the National Coalition for Gay and Lesbian Equality , is a non-profit, non-governmental organization in South Africa that focuses on the expansion of LGBT civil rights in South Africa and other countries in sub-Saharan Africa...

 had also launched a separate lawsuit directly attacking the constitutionality of the Marriage Act, which was originally to be heard in the Johannesburg High Court; the Constitutional Court granted the Project's request to have it heard and decided simultaneously with the Fourie case.

On 1 December 2005 the Constitutional Court handed down its decision: the nine justices agreed unanimously that the common-law definition of marriage and the marriage formula in the Marriage Act, to the extent that they excluded same-sex parners from marriage, were unfairly discriminatory, unjustifiable, and therefore unconstitutional and invalid. In a widely-quoted passage from the majority ruling, Justice Albie Sachs
Albie Sachs
Albie Sachs was a judge on the Constitutional Court of South Africa. He was appointed to the court by Nelson Mandela in 1994 and retired in October 2009...

 wrote:

There was some disagreement about the remedy: the majority (eight of the justices) ruled that the declaration of invalidity should be suspended for a year to allow Parliament to correct the situation, as there were different ways in which this could be done, and the Law Reform Commission had already investigated several proposals. If Parliament did not end the inequality by 1 December 2006, then words would automatically be "read in" to the Marriage Act to allow same-sex marriages. Justice Kate O'Regan
Kate O'Regan
Kate O'Regan was a judge in the Constitutional Court of South Africa. She was appointed to the bench in 1994 by Nelson Mandela. She hold a B.A. and LL.B. from the University of Cape Town, an LL.M. from the University of Sydney and a Ph.D. from the London School of Economics...

 dissented, arguing that these words should be read in immediately.

Passage of the Civil Union Act

On 24 August 2006, the Cabinet approved the Civil Union Bill for submission to Parliament. Originally, the bill also included provisions to recognise domestic partnerships between unmarried partners, both same-sex and opposite-sex. The state law advisers, who screen laws for constitutionality and form, declined to certify the bill, suggesting that it failed to follow the guidelines laid down by the Constitutional Court. The Joint Working Group, a network of LGBTI organisations, described the idea of a separate marriage law for same-sex couples as "an apartheid way of thinking".

On 16 September, thousands of South Africans took to the streets in several cities to protest same-sex marriage. The minor opposition African Christian Democratic Party (ACDP) pushed for a constitutional amendment to define marriage as between a man and a woman; this was rejected by the National Assembly's portfolio committee on Home Affairs. Public hearings on the Civil Union Bill began on 20 September. On 7 October, the Marriage Alliance organised a march to the Union Buildings
Union Buildings
The Union Buildings form the official seat of the South African government and also house the offices of the President of South Africa. The imposing buildings are located in Pretoria, atop Meintjieskop at the Northern end of Arcadia, close to historic Church Square and the Voortrekker Monument...

 in Pretoria
Pretoria
Pretoria is a city located in the northern part of Gauteng Province, South Africa. It is one of the country's three capital cities, serving as the executive and de facto national capital; the others are Cape Town, the legislative capital, and Bloemfontein, the judicial capital.Pretoria is...

 to hand to government representatives a memorandum opposing same-sex marriage.

On 9 October, the governing 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...

 voted to support the Civil Union Bill. Although the party had been split on the issue, the vote meant that ANC MPs would be obliged to support the bill in Parliament. The full party support came after members of the national executive committee reminded party members that the ANC had fought for human rights, which included gay rights.

It was originally expected that the National Assembly
National Assembly of South Africa
The National Assembly is the lower house of the Parliament of South Africa, located in Cape Town, Western Cape Province. It consists of no fewer than 350 and no more than 400 members...

 would vote on the bill on 20 October in order to allow enough time for 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...

 to debate and vote on it ahead of the 1 December deadline. The vote was repeatedly delayed as the Portfolio Committee on Home Affairs was still involved in discussions.

The bill as originally introduced would not have legalized same-sex marriage, but would rather have provided for civil unions limited to same-sex partners only. Gay activists argued that this would be unconstitutional because it did not allow them the right to marry, as guaranteed by the Constitutional Court ruling which specifically warned against "separate but equal" approaches. Accordingly, the Portfolio Committee amended the bill to allow either marriages or civil partnerships, and to allow them to both same- and opposite-sex couples. The chapter dealing with the recognition of domestic partnerships was also removed.

The amended bill was passed by the National Assembly
National Assembly of South Africa
The National Assembly is the lower house of the Parliament of South Africa, located in Cape Town, Western Cape Province. It consists of no fewer than 350 and no more than 400 members...

 on 14 November by 230 votes to 41, and by 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...

 on 28 November by 36 votes to 11. Deputy President
Deputy President of South Africa
The Deputy President of South Africa is the acting President of South Africa when the President is outside the country's borders, unable to fulfill the duties of the office, or when the Presidency is vacant. The Deputy President is also a member of the National Assembly and the Cabinet...

 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
President of South Africa
The President of the Republic of South Africa is the head of state and head of government under South Africa's Constitution. From 1961 to 1994, the head of state was called the State 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...

, signed it into law on 29 November, and it became law the following day, one day before the Constitutional Court's order would otherwise have come into force. 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...

 Nosiviwe Mapisa-Nqakula
Nosiviwe Mapisa-Nqakula
Nosiviwe Mapisa-Nqakula is a South African politician, appointed minister of correctional services in 2009. She was the minister of home affairs from 2004.Mapisa-Nqakula obtained a teacher's diploma from the Bensonvale Teachers College....

 said the law was only a temporary measure, noting that a fuller marriage law would be formulated to harmonise the several pieces of marriage legislation now in force.

The bill was hailed by gay and liberal activists as another step forward out of the country's apartheid past, while at the same time some clergy and traditional leaders described it as "the saddest day in our 12 years of democracy." Islamic leader Sheikh Sharif Ahmed
Sharif Ahmed
Sharif Sheikh Ahmed is the current President of Somalia and former Commander in Chief of the Islamic Courts Union .-Biography:...

 called the bill a "foreign action imposed on Africa".

The first couple to wed, Vernon Gibbs and Tony Halls, did so in George
George, Western Cape
George is a city with 203,253 inhabitants in South Africa's Western Cape province. The city is a popular holiday and conference centre and the administrative and commercial hub of the Garden Route.- Location :...

, the following day, 1 December 2006. They encountered no problems, and a second couple married later that day in the same location.

Law

Three laws currently provide for the status of marriage in South Africa. These are the Marriage Act (Act 25 of 1961), the Customary Marriages Act (Act 120 of 1998), which provides for the civil registration of marriages solemnised according to the traditions of indigenous tribes, and the Civil Union Act (Act 17 of 2006). South Africans may choose in terms of which of these laws they wish to be married, but may be married in terms of only one at a given time.

Same-sex marriages are only allowed in terms of the Civil Union Act, which is also open to opposite-sex couples. Couples marrying in terms of the Civil Union Act may choose whether their union is called a marriage or a civil partnership. The legal consequences of a marriage or civil partnership under the Civil Union Act are identical to those of a marriage under the Marriage Act, except for such changes as are required by the context, and any reference to marriage in any law, including the common law, is deemed to include a marriage or civil partnership in terms of the Civil Union Act. Similarly, any reference to husband, wife or spouse in any law is deemed to include a reference to a spouse or civil partner in terms of the Civil Union Act.

Discrimination on the basis of sexual orientation against same-sex couples is prohibited by section 9 of the Constitution
Section Nine of the Constitution of South Africa
Section Nine of the Constitution of South Africa guarantees equality before the law and freedom from discrimination to the people of South Africa. This equality right is the first right listed in the Bill of Rights...

 and by the Promotion of Equality and Prevention of Unfair Discrimination Act.

Conscientious objection by marriage officers

A person who is a marriage officer in terms of the Marriage Act, and who has an objection of conscience, religion or belief to marrying same-sex couples, may object to the government in writing, after which he or she will be granted exemption from having to perform such marriages. A person who is a marriage officer in terms of the Civil Union Act will not be exempted from performing same-sex marriages. Such an objector may, however, give up their office as marriage officer altogether by resigning from whichever organisation they belong to by virtue of which they are a marriage officer, or if said organisation as a whole requests from the government that their members no longer be recognised as marriage officers by virtue of their membership to that organisation.

Statistics

According to Statistics South Africa
Statistics South Africa
Statistics South Africa is the national statistical service of South Africa, with the goal of producing timely, accurate, and official statistics in order to advance economic growth, development, and democracy. To this end, Statistics South Africa produces official demographic, economic, and...

, from 2007 to 2009 a total of 1,572 marriages and civil partnerships were registered under the Civil Union Act. A majority of these were registered in Gauteng
Gauteng
Gauteng is one of the nine provinces of South Africa. It was formed from part of the old Transvaal Province after South Africa's first all-race elections on 27 April 1994...

 or the Western Cape
Western Cape
The Western Cape is a province in the south west of South Africa. The capital is Cape Town. Prior to 1994, the region that now forms the Western Cape was part of the much larger Cape Province...

.
Province 2007 2008 2009 Total
Eastern Cape
Eastern Cape
The Eastern Cape is a province of South Africa. Its capital is Bhisho, but its two largest cities are Port Elizabeth and East London. It was formed in 1994 out of the "independent" Xhosa homelands of Transkei and Ciskei, together with the eastern portion of the Cape Province...

 
0 41 30 71
Free State  1 23 20 44
Gauteng
Gauteng
Gauteng is one of the nine provinces of South Africa. It was formed from part of the old Transvaal Province after South Africa's first all-race elections on 27 April 1994...

 
49 362 324 735
KwaZulu-Natal
KwaZulu-Natal
KwaZulu-Natal is a province of South Africa. Prior to 1994, the territory now known as KwaZulu-Natal was made up of the province of Natal and the homeland of KwaZulu....

 
8 74 87 169
Limpopo  0 15 10 25
Mpumalanga
Mpumalanga
Mpumalanga , is a province of South Africa. The name means east or literally "the place where the sun rises" in Swazi, Xhosa, Ndebele and Zulu. Mpumalanga lies in eastern South Africa, north of KwaZulu-Natal and bordering Swaziland and Mozambique. It constitutes 6.5% of South Africa's land area...

 
3 7 11 21
North West
North West (South African province)
North West is a province of South Africa. Its capital is Mafikeng. The province is located to the west of the major population centre of Gauteng.-History:...

 
2 6 5 13
Northern Cape
Northern Cape
The Northern Cape is the largest and most sparsely populated province of South Africa. It was created in 1994 when the Cape Province was split up. Its capital is Kimberley. It includes the Kalahari Gemsbok National Park, part of an international park shared with Botswana...

 
1 11 43 55
Western Cape
Western Cape
The Western Cape is a province in the south west of South Africa. The capital is Cape Town. Prior to 1994, the region that now forms the Western Cape was part of the much larger Cape Province...

 
16 191 227 434
Outside South Africa 0 2 3 5
Total 80 732 760 1,572

See also

  • Same-sex marriage
    Same-sex marriage
    Same-sex marriage is marriage between two persons of the same biological sex or social gender. Supporters of legal recognition for same-sex marriage typically refer to such recognition as marriage equality....

  • LGBT rights in South Africa
  • Marriage in South Africa
    Marriage in South Africa
    Marriage in South Africa exists in a number of different forms, as a result of the diversity of religions and cultures in the country. Historically the legal definition of marriage, derived from the Roman-Dutch law, was limited to monogamous marriages between opposite-sex couples...

The source of this article is wikipedia, the free encyclopedia.  The text of this article is licensed under the GFDL.
 
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