MEMORANDUM ON THE OBJECTS OF THE CIVIL UNION BILL, 2006 (August 06)

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MEMORANDUM ON THE OBJECTS OF THE CIVIL UNION BILL, 2006


1. BACKGROUND
The Constitutional Court, in the matters of Minister of Home Affairs v Fourie (Doctors for Life International and Others, Amici Curiae); Lesbian and Gay Equality Project and Others v Minister of Home Affairs 2006(1) SA 524 (CC) (the Fourie-case), declared that the definition of marriage under the common law and the marriage formula as set out in section 30(1) of the Marriage Act, 1961 (Act No. 25 of 1961), were inconsistent with the Constitution and invalid to the extent that they failed to provide the means whereby same-sex couples could enjoy the status and the benefits coupled with the responsibilities that marriage accorded to heterosexual couples. The Court ordered Parliament to correct theses defects in the law by 1 December 2006, failing which section 30(1) of the Marriage Act, 1961 (Act No. 25 of 1961) will be read as including the words "or spouse" after the words "or husband". In arriving at its decision the Court considered the two options proposed by the South African Law Reform Commission and concluded that these were two firm proposals for legislative action, but it stated further that this does "not, however, necessarily exhaust the legislative paths which could be followed to correct the defect". The Bill was drafted in response to the Constitutional Court's judgment in the Fourie-case.


2. OBJECTS OF THE BILL
The object of the Civil Union Bill, 2006 is twofold, in that it provides for the conclusion of—
(a) a civil union or marriage between persons of the same sex solemnised before the State with all legal consequences of a marriage;
(b) a domestic partnership between partners in a permanent relationship, whether of a heterosexual or homosexual nature, who do not wish to marry or enter into a civil partnership or marriage, but with legal consequences provided for in the Bill.

3. DEPARTMENTS/BODIES CONSULTED
· Department of Justice and Constitutional Development; and
· The South African Law Reform Commission consulted extensively before completing their report.

4. FINANCIAL IMPLICATIONS
There will be financial implications with regard to the solemnisation (i.e. designation and training of registration (i.e. development of new registration systems and forms) of civil unions and domestic partnerships.

5. PARLIAMENTARY PROCEDURE
4.1 The State Law Advisers and the Department of Home Affairs are of the opinion that this Bill must be dealt with in accordance with the procedure established by section 75 of the Constitution since it contains no provision to which the procedure set out in section 74 or 76 of the Constitution applies.

5.2 The State Law Advisers are of the opinion that it is not necessary to refer this Bill to the National House of Traditional Leaders in terms of section 18(1)(a) of the Traditional Leadership and Governance Framework Act, 2003 (Act No. 41 of 2003), since it does not contain provisions pertaining to customary law or customs of traditional communities.