6 OCTOBER 2006

The Centre for Applied Legal Studies (CALS) based at the University of the Witwatersrand, is a human rights organization involved in research, advocacy, litigation and teaching. CALS wishes to make submissions in response to the Civil Unions Bill (‘the Bill’) as it believes the Bill concerns important issues regarding the legal recognition of new family forms in South Africa and has important human rights implications.

CALS has been involved in matters concerning the rights of domestic partners and same sex couples for many years. CALS produced a research report on domestic partnership in 2003 and the researcher responsible for this report, Beth Goldblatt, is a member of the South African Law Reform Commission’s Project Committee on Domestic Partnerships (and same sex marriage). She has also published articles on the subjects of domestic partnerships and same sex marriage. CALS acted as amicus curiae (friend of the court) in the leading case on domestic partnerships, Volks v Robinson.

The Civil Unions Bill is a response to the decisions of Volks v Robinson and Fourie v Minister of Home Affairs, both of which required the legislature to address the lack of legal recognition and protection of same sex couples and domestic partners. It draws (in some respects) from the work of the South African Law Commission’s project committee on domestic partnerships. The Bill attempts to address the exclusion of same sex couples from marriage in South Africa by creating a civil partnership for use by gays and lesbians that offers the full consequences of marriage but is not in itself a marriage. The Bill attempts to address the exclusion of domestic partners from South African family law by creating registered domestic partnerships and by recognizing unregistered domestic partnerships.

CALS wishes to make the following two main submissions in response to the Civil Unions Bill:

1. Civil Partnerships: These do not address the fundamental right of gays and lesbians to enter into marriages. The civil partnership is an inadequate response to the Fourie v Minister of Home Affairs judgment as it does not provide the full recognition and protection for same sex couples envisaged by the Constitutional Court. It is likely to be found to be unconstitutional by the courts as a violation of the equality and dignity rights of same sex couples. It is recommended that this section of the Bill be removed.
2. Registered and Unregistered Domestic Partnerships: The Bill, while not a perfect formulation of ideal new laws for such partners, is an important step in providing for the recognition and protection of this category of family. The provisions are welcomed as they go a long way towards improving the current position of vulnerable partners in these relationships, usually women. It is recommended that these sections of the Bill be accepted by Parliament. A few small changes are suggested to improve the proposed legislation.

The Bill creates a new institution called a civil partnership. This appears to be a marriage in all but name. The question then is, ‘Does the name matter?". CALS believes that there are important considerations of dignity involved in understanding why the name does matter. By telling couples of the same sex that they cannot use the same law and institution as heterosexual couples is saying to them that they are not equal, that their presence within marriage will somehow tarnish and infect the institution, and that they cannot describe their relationships in the same terms as others. All of these messages are insulting and hurtful. They are also unconstitutional.

Justice Sachs, in the Fourie v Minister of Home Affairs case has set out a range of factors that Parliament needs to take into account in developing new legislation. He said that any new legislation must ensure that same sex couples are ‘not subjected to marginalization or exclusion by the law, either directly or indirectly’ (para 147). The judgment sets out the principles that must be applied to ensure that any new law is constitutionally adequate (paras 148-153). These are:

• The objective of the new measure must be to promote dignity, equality and the advancement of human rights and freedoms;
• A new law must not create equal disadvantage for everyone ie: leveling down to get rid of civil marriage;
• Parliament must be sensitive to avoid a remedy that appears equal but actually creates a separation that further marginalizes same sex couples – segregation that reflects distaste for one group will cause insult to that group. The approach to impact and context taken in our equality jurisprudence would not allow this. Differential treatment may be possible if it enhances dignity and promotes equality;
• The measure chosen must be as ‘generous and accepting towards same sex couples as it is to heterosexual couples’ in terms of ‘tangibles and intangibles’.

The civil partnership created in the Civil Union Bill does not meet the Constitutional Court’s criteria in that it segregates same sex couples and fails to provide them with important ‘intangibles’, primary of which is the opportunity to describe their legal union as a marriage.

This will mean that the Constitutional Court’s judgment extending the Marriage Act to same sex couples will take effect on 1 December 2006. Should the legislature so wish, it could, in future, enact new legislation to the same effect ie: that also provides for the inclusion of same sex couples into all aspects of South African marriage law.

The 2001 Census shows that 2,389,705 people describe themselves as living in domestic partnerships. This is a very large and significant group that currently falls outside of the protections of family law. Our society is undergoing significant social change with a range of new forms of family operating alongside more traditional types. Our Constitution is clear about the need to accommodate a plurality of families whether religious, cultural, customary, same sex, single-parent etc. Domestic partnerships should not be left outside of the coverage of our law which is supposed to protect vulnerable family members in cases of dispute.

The Constitutional Court in the case of Volks v Robinson recognized that women are a particularly vulnerable group within domestic partnerships. The court said that:

The court said that legislative intervention to assist these women, and in particular, the most vulnerable of these who are very poor and illiterate, was appropriate and necessary.

Research by CALS has also found this to be the case. Women are often unable to convince the man with whom they live to marry them. Yet these women operate in many ways as ‘wives’ – they cook and clean for their male partner and often bear and raise his children. They may also assist him in his business and contribute financially towards the household. This may continue for many years but if the relationship breaks down, it is usually the man who owns the house and most of the other property built up during the relationship. In terms of current common law, the women in these partnerships have little hope of sharing in any of this property and are generally left without a home, no financial support from the man, and responsibility for the children. Some of the men in these relationships also have a wife. This is partly a result of the history of Apartheid migrancy in our country where men were forced off the land and into work on the mines and in urban areas. Women were left to look after the rural homestead. Understandably, many men formed a second household and family in the urban area. In this case, both the rural wife and the urban domestic partner should be given some assistance by the law when the man dies or leaves them. This is not the only reason for the existence of domestic partnerships in our country. The summary of the findings of the CALS research showed the following reasons for cohabitation:

• People seek companionship, intimacy and wish to share their domestic lives with each other even where they do not wish to marry;
• Men cannot afford to pay lobola or use this as an excuse not to marry as they wish to remain free of legal constraint;
• Men often cohabit because they are already married but do not live with their wives;
• Women need men to support them and their children. Since men usually have better access to jobs, income and accommodation, women rely on them for their basic needs. Women accept the man’s refusal to marry them as well as economic and physical abuse because their material needs are so great. Women remain in these relationships despite the insecurity they feel;
• Men need domestic assistance and are prepared to support women who provide this for them;
• Some people do not see the need to formalise their relationships. In some communities, tradition and culture no longer require marriage as a precondition for cohabitation;
• Men benefit from the lack of legal protection of domestic partnerships as they are able to enter and leave relationships very freely and have no obligations to support women or share their property with them;
• Some cohabitants intend to marry at some point but have not ‘got round’ to doing so;
• Some cohabitants (incorrectly) believe the law protects them so do not see the need to marry.

For all of these reasons (and probably for others), domestic partnerships have burgeoned in our country. The law needs to be brought in line with reality.

The Bill is a genuine attempt to address this unequal and harmful gap in the law. It creates an institution called a ‘registered domestic partnership’ for those people who wish to have the certainty of registration by the state but who do not wish to marry. While this may assist some people, it seems likely that only a small number of people will make use of this institution. For those couples who cannot agree on marriage, there is also unlikely to be agreement on registering a domestic partnership. The majority of domestic partners are likely to fall within the protection of the second new institution created by the Bill, the unregistered domestic partnership. Here, no formal agreement or registration is required. If a court considers there to have been a domestic partnership, then a set of legal consequences will follow with regard to property division, inheritance and maintenance.

The unregistered domestic partnership provisions referred to in Part VI of the Bill are a major step forward in assisting the vulnerable parties discussed above.

The one major difficulty CALS has with the provisions is the lack of application of these to domestic partners where a civil marriage also exists (s 38(4)). It seems quite likely that there are a number of people who will be unfairly excluded from the coverage of this legislation if this sub-section remains in the Bill. As discussed above, there may be men who get married (in terms of civil law) and then become estranged from their wives and set up new households where they may have children and conduct long term, stable relationships with a domestic partner. On termination of the partnership, the vulnerable partner should be able to apply for some property, inheritance and maintenance. This can be done while taking into account to the need for fairness towards an existing spouse. Failure to allow this creates a situation of unfair discrimination between those married in terms of civil law and those married in terms of customary law (who would be covered by s 38).

The Civil Union Bill presents Parliament with an opportunity to reshape the contours of family law in South Africa by endorsing legislation that acknowledges the reality of the millions of South Africans who live in permanent, intimate life partnerships but who do not get married (for a range of reasons). The complicating issue in this Bill is the creation of a civil partnership for gay and lesbian couples that purports to satisfy their desire to marry. The civil partnership fails to accommodate same sex couples who wish to marry and is instead perceived as segregationist and insulting. CALS calls on Parliament to refuse to endorse the sections of the Bill dealing with civil partnerships. Instead, legislation should be enacted that opens the institution of marriage to all couples, including those of the same sex.

We are aware that the issue of same sex marriage is highly contentious and has generated a lot of negative response from members of the public, some churches and some traditional leaders. While the space to air such concerns must be made available in the interests of openness and democracy in South Africa, a clear message must go out that the Constitution requires that gay and lesbian couples be treated equally and with dignity. Providing such couples with access to the marriage laws of our country will not derogate in any way from the rights of all others, even those who are morally opposed to homosexuality. We urge Parliament to take a clear and principled stand on this issue in the interests of human rights and democracy.