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An Embarrassment of Riches or a Profusion of Confusion? An Evaluation of the Continued Existence of the Civil Union Act 17 of 2006 in the Light of Prospective Domestic Partnerships Legislation in South Africa


Bradley S. Smith


University of the Free State

Robbie Robinson


North-West University

August 27, 2010

Potchefstroom Electronic Law Journal, Vol. 13, No. 2, 2010

Abstract:     
As it stands, South African family law currently holds that the Marriage Act 25 of 1961 applies exclusively to the solemnisation of heterosexual civil marriages while same-sex couples have no choice but to formalise their relationships in terms of the Civil Union Act 17 of 2006. In addition, the legal position is complicated by the fact that the latter Act not only allows both heterosexual and homosexual couples to conclude a civil union, but also provides that a civil union may take the form of either a marriage or a civil partnership, both of which enjoy the same legal recognition as, and give rise to the same legal consequences, as a civil marriage under the Marriage Act.

In January 2008, a draft Domestic Partnerships Bill saw the light of day, the potential enactment of which casts significant doubt as to whether the prevailing framework should be retained. With this potential development in mind, this paper considers the desirability of maintaining the separate but equal status quo by: (a) comparing the South African Law Reform Commission's pre-Civil Union Act proposals with the approach eventually adopted by the legislature; (b) comparing and contrasting the post-Civil Union Act position in South Africa with that of an established and well-ordered jurisdiction such as the Netherlands and, in the light hereof, considering the cases for and against repealing the Civil Union Act; and (c) by considering the desirability and practicality of the civil partnership's potential co-existence with the Domestic Partnerships Bill (as modified in accordance with a recent study). A proposal is made that could provide a less complex and better streamlined family law dispensation in South Africa.

Number of Pages in PDF File: 47

Keywords: Domestic partnership, Life partnership, Domestic Partnerships Bill, 2008, Civil Union Act 17 of 2006, Civil union, Civil partnership, Marriage Act 25 of 1961, Marriage, Civil marriage

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Date posted: September 23, 2010  

Suggested Citation

Smith, Bradley S. and Robinson, Robbie, An Embarrassment of Riches or a Profusion of Confusion? An Evaluation of the Continued Existence of the Civil Union Act 17 of 2006 in the Light of Prospective Domestic Partnerships Legislation in South Africa (August 27, 2010). Potchefstroom Electronic Law Journal, Vol. 13, No. 2, 2010. Available at SSRN: http://ssrn.com/abstract=1676762

Contact Information

Bradley S. Smith (Contact Author)
University of the Free State
205 Nelson Mandela Drive
Park West
Bloemfontein, Free State 9300
South Africa
Robbie Robinson
North-West University ( email )
Private Bag X6001
Potchefstroom, Northwest 2520
South Africa
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