Consequent upon several judgments finding that the South African law fell foul of the South African Constitution in view of the fact that it recognised the institution of marriage only when concluded between one man and one woman,1 the South African Parliament enacted the Civil Union Act, act number 17 of 2006, the date of commencement being 30 November 2006. The act was the result of the Constitutional Court ordering government to enact legislation within a specified period of time to deal with the lacuna, and to ensure homosexuals the right to marry. For many of us, the simple solution was to just alter the common law definition of “marriage” to also apply to people of the same gender who wish to marry one another. Instead, the legislator opted for an act which creates a “civil union” in a sort of “separate but equal” dispensation.
Homosexuals may now marry one another but it is not called a marriage. Instead, what they have is a civil union (and judging by what comes out in the wash during divorces, no union is ever very civil). The objective of the act according to its preamble is “To provide for the solemnisation of civil unions, by way of either a marriage or civil partnership; the legal consequences of civil unions; and to provide for matters incidental thereto.” In other words, on the face of it, homosexual couples may opt to either marry one another, or to enter into a civil partnership.
Section 2 of the act, however, provides as follows:
The objectives of this Act are-
(a) to regulate the solemnisation and registration of civil unions, by way of either a marriage or a civil partnership; and
(b) to provide for the legal consequences of the solemnisation and registration of civil unions”
As will be noticed, mention is made here of solemnisation of a “marriage” between the people, but the wording persists with the notion of a “civil union”. However, be that as it may, the act further provides in section 13:
(1) The legal consequences of a marriage contemplated in the Marriage Act apply, with such changes as may be required by the context, to a civil union.
(2) With the exception of the Marriage Act and the Customary Marriages Act,2 any reference to-
(a) marriage in any other law, including the common law, includes, with such changes as may be required by the context, a civil union; and
(b) husband, wife or spouse in any other law, including the common law, includes a civil union partner.
Put differently, the consequences of a civil union once entered into, are intended to be exactly the same as that of marriage. Then why, one wonders, is an entirely new piece of legislation necessary. Simply enact a General Law Amendment Act which changes the common law definition of marriage to also include a marriage between persons of the same gender.
Furthermore, the act of marriage between people of the same sex creates other problems. What, for instance, happens when John and Peter marry each other in South Africa, and then go and live abroad in a country that does not recognise as valid their union? How do they succeed in obtaining a divorce? It must be remembered that various patrimonial consequences ensue upon marriage that are unalterable consequences of marriage, such as the duty to maintain the other spouse, which duty continues until a decree of divorce is obtained. John now leaves Peter. Can Peter sue him for maintenance in the country where they live, but where their union is not recognised?
What happens in cases where the union is one in community of property and both spouses are equal owners of an undivided half share of the joint estate? Unless a decree of divorce can be obtained, there can be no judicial and legal division of the estate.
Some would argue that John and Peter can simply return to South Africa and obtain a divorce. Not so, says South African law. A court has jurisdiction to adjudicate an action for divorce only where the plaintiff party is in fact domiciled in the jurisdiction of the particular court. Domicile can not be temporary in terms of the dictates of South African law. It is of necessity permanent and South African courts still require the plaintiff party to prove domicile in evidence before a decree of divorce is granted. The plaintiff must assert under oath that he or she lives within the area of jurisdiction of the court, and regards that as his or her permanent home.
Let us suppose John and Peter still live in a country where their union is not recognised by law, and John dies as a result of an accident on his way home from work one evening. In terms of South African law, the surviving spouse is entitled to maintenance from the deceased estate under certain circumstances. Where the union is not recognised by the laws of the country where the couple are domiciled, would such an entitlement be upheld? Or does Peter get left with nothing?
Rules of intestate succession may determine what portion of the deceased estate devolves upon the surviving spouse. Where the union is not recognised, what is the position? After all, one would imagine that people marry under the understanding that both are entitled to the patrimonial benefits of marriage, and that they may rely that the consequences they intended will ensue. In most jurisdictions, the default arrangement is that a marriage solemnised elsewhere will be recognised in so far as it does not offend against the mores, uses and laws of the other country. Where a country steadfastly refuses to recognise homosexual unions, such union offends against the mores, uses and laws of that country.
The answers to these questions are not simple, for the reason that whatever answer is proposed, it must be an answer that does not only address the specific situation that obtains between Peter and John, it must also be a solution which can be applied equally in any such case where people of the same sex are married. The foundations of our legal systems are not equipped to deal with this kind of problem. Roman law was rigid, and proposed solutions for relatively simple situations, where marriage was a simple arrangment between a man and a woman (and life generally was a simple arrangement between man and man), and virtually the entire world has over time accepted that. While homosexuality was not only known in Rome, it was as far as we can tell not uncommon, and may even at some times have been popular. But the Romans never considered the possibility that the law would recognise such unions, and then provide legal answers to the perplexing problems such unions raise as matters of law. When the foundations fail us, one can only wonder about the strength of the edifice.
1 Marriages concluded in terms of Muslim personal law are still not recognised in South Africa as they have the potential of being polygamous.
2 This act regulates marriage between people who live according to the precepts of the traditional indigenous peoples' customs, and allows for one man to marry more than one wife in terms of the indigenous law.